IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 Crl.Rev.Pet.No. 530 of 2008() ----------------------------- CRA.375/1999 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM CC.223/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- MADHU, S/O.APPU, VARIKKAPALAVUVILA, VADACODE, VADACODE DESOM, PERUMPAZHUTHOOR VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT: --------------- THE STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. G.P. SMT. REKHA C NAIR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/03/2010, THE COURT ON 31/03/2010 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 530 of 2008 - - - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of March, 2010 O R D E R This Revision Petition is filed by the second accused in C.C.No. 223 of 1999 on the file of the Judicial First Class Magistrate -II, Trivandrum. 2. The prosecution case is briefly as follows. On 26.8.1994 at about 2 o'clock in the night, accused 1 and 2 with the intention to commit theft took away car stereo and music horn fitted in car bearing No.KL 01/B 6757 belonging to PW2 and also took away speaker fitted in car bearing No. KCT 5533 belonging to PW3 while those cars were parked in front of the house bearing No. T.C.3/904 in Vanchiyoor Village. 3. In the Magistrate Court, the case against the first accused was separately tried as C.C. 138 of 1996 and he was Crl.R.P.No. 530 of 2008 2 convicted and sentenced to undergo rigorous imprisonment for three years under Section 379 r/w. 34 I.P.C. The case against the second accused was re-filed as C.C. No. 223 of 1999 as he was absconding for some time. 4. In the Magistrate Court, on the prosecution side, Pws. 1 to 6 were examined and Exts.P1 to P4 were marked. Mos. 1 to 3 were identified. The learned Magistrate, on considering the evidence, found that the second accused has not committed any offence under Section 461 I.P.C., but the second accused was found guilty under Section 379 r/w. 34 I.P.C. and he was convicted and sentenced to undergo rigorous imprisonment for three years. Against that conviction and sentence the second accused filed Crl.A.No.375 of 1999 before the Additional Sessions Court, Trivandrum, which was allowed in part and the conviction is confirmed, but the sentence was modified and the second accused was sentenced to undergo simple imprisonment for six months Crl.R.P.No. 530 of 2008 3 under Section 379 r/w. 34 I.P.C. Against that judgment the second accused filed this Crl. R.P. 5. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. 6. The learned counsel for the revision petitioner submitted that recovery of MO1 is not admissible in evidence as PW6, the attesting witness to the recovery mahazar, turned hostile. That argument cannot be accepted in view of the fact that even if the independent witness to seizure mahazar resiled from his former version, it would not mean that the prosecution case regarding the occurrence is not correct. The evidence of official witnesses can be relied on in such cases if it inspires confidence of the court. The learned counsel for the revision petitioner submitted that the second accused is falsely implicated in the case and that he was only the driver of the autorikshaw in which the first accused was travelling with the stolen articles. Crl.R.P.No. 530 of 2008 4 7. PW2, the owner of car bearing Reg.No. KL 01-B 6757 has deposed that the car stereo and music horn fitted in the car were found stolen. According to her, she came to know about it from PW1, the driver of the car who had parked the car in the shed in front of her house. PW1 has deposed that on finding that the car stereo fitted in the car was stolen away, he gave Ext.P1 F.I. statement to the police and later he came to know that the stereo music horn and speaker were recovered by the police. PW1 identified MO1 stereo when examined before court. PW2 also identified MO1 car stereo when examined before court. 8. PW3 has deposed that she is the owner of car bearing Reg.No. KCT 5533 and stereo and the speaker of the car were stolen. PW4 is an attester to the scene mahazar. PW6 is the attester to Ext. P3. Recovery Mahazar prepared by PW5 for the seizure of MO1. The Sub Inspector of Police, Malayankeezh police station has deposed that while he was conducting patrol duty along with police party on Crl.R.P.No. 530 of 2008 5 15.2.1995 at about 1.30 p.m., the accused persons were found in the autorikshaw bearing Reg.No. KEV 8236 at Pavancode. They questioned the accused persons. They were arrested and produced before the J.F.C.M. Court, Kattakkada. Thereafter they were given to the police custody from 25.2.1995 to 28.2.95. 9. Based on the confession statement given by the second accused, MO1 stereo was recovered under Ext.P3 recovery mahazar. He has further stated that MO2 and MO3 car stereo and speakers were recovered in pursuance of the confession statement given by the first accused under Ext.P4 recovery mahazar. MO1 was recovered in pursuance of the disclosure statement given by the second accused in police custody. The recovery of MO1 based on the information given by the accused can be used as a corroborative piece of evidence. So the recovery of MO1 coupled with its identification by Pws. 1 and 2 and the oral testimony of PW3 would prove that MO1 car stereo fitted in the car bearing Reg.No.KL01-B 6757 was stolen away by the Crl.R.P.No. 530 of 2008 6 second accused. Eventhough PW3 did not identify Mos. 2 and 3, on evaluating the totality of the evidence adduced by the prosecution witnesses, it can be safely concluded that the second accused, along with the other accused, committed theft of MO1. 10. Both the courts on evaluating the prosecution evidence found that the second accused has committed an offence punishable under Section 379 r/w. 34 I.P.C. and he was convicted. Since the above conviction was recorded after a careful evaluation of the oral and documentary evidence, I do not find any error, illegality or impropriety in the conviction so recorded concurrently by the courts below and the same is hereby confirmed. 11. The learned counsel for the revision petitioner submitted that the revision petitioner is an autorikshaw driver and he is leading a peaceful life along with his wife and children and there is no other earning member in his family. Having regard to the facts and circumstances of the case, I think that it would be just ad proper if the Crl.R.P.No. 530 of 2008 7 accused is directed to pay a fine of Rs.3,000/- in default to undergo simple imprisonment for three months. 12. Accordingly this Crl.R.P. is allowed in part. The conviction of the revision petitioner/accused in C.C.No. 223 of 1999 on the file of the J.F.C.M.-II, Trivandrum under Section 379 r/w. 34 I.P.C. is confirmed. The sentence to undergo S.I. for six months is modified and the accused is sentenced to pay a fine of Rs.3,000/- in default to undergo S.I. for a period of three months. The J.F.C.M.-II, Trivandrum is directed to execute the modified sentence. (M.L. JOSEPH FRANCIS) Judge tm