IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 Crl.Rev.Pet.No. 2262 of 2011(C) ----------------------------------------- CRIMINAL APPEAL NOS. 772/2009 & 831/2009 OF SESSIONS COURT, THRISSUR. C.C. NO. 84/2009 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, WADAKKANCHERY ..................................................................................................................................................................... REVISION PETITIONER/APPELLANT/ACCUSED NO. 2 : ------------------------------------------------------------------------------ SATHYAN, S/O.NARAYANAN, THAVALATHIL HOUSE, PULAKKODE VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT/RESPONDENT/STATE --------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHELAKKARA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. R1 BY PUBLIC PROSECUTOR SMT. SEENA.R. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: dlk S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2262 OF 2011 ----------------------------------------- Dated this the 10th day of November 2011 ORDER Revision is by the second accused, A2, in C.C No.84/2009 on the file of the Judicial Magistrate of the First Class, Wadakkanchery. He was prosecuted with another (A1) for the offences punishable under Sections 457, 380 and 461 r/w 34 Indian Penal Code on a report filed by the Circle Inspector of Police, Chelakkara. The trial magistrate, after joint trial of both the accused, negativing his plea of not guilty, found both of them guilty and convicted them of the offences. The accused were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of `.5,000/- each with default term of rigorous imprisonment for one month for the offence under Section 457 of the Indian Penal Code and rigorous imprisonment for six months each under Section 461 of the Indian Penal Code and two years each and also fine of `.5,000/- each with default term of rigorous imprisonment for one month more for the offence under Section 380 of the Indian Penal Code with direction to undergo the substantive terms of imprisonment imposed Crl. R.P No.2262 OF 2011 2 concurrently. The appeal preferred by the petitioner (A2) was turned down by the learned Sessions Judge, Thrissur, who affirmed the conviction and sentence without any modification. Feeling aggrieved, the accused has preferred this revision. 2. Prosecution case is that while conducting night patrol duty, PW4, the Sub Inspector of police, with a police party, reached beside Chavakkad temple and they found the accused under suspicious circumstances. They were questioned and thereupon it was found that they had committed theft over the temple after house breaking, removing the tiles of the roof of the sreekovil. Priest of the temple was summoned to the place. A gold chain stolen from the temple was seized from the possession of the petitioner (A2), and some other gold ornaments from the possession of the other accused (A1). Such gold ornaments were seized preparing Ext.P1 mahazar. Crime was registered over the aforesaid incident, which after investigation lead to the indictment of the petitioner with the coaccused for the offence stated supra. 3. On the materials placed by the prosecution, which consisted of the evidence of PW1 to PW4, Exts.P1 to P3(a) and MO1 to MO11, the trial magistrate found that the offences imputed against the Crl. R.P No.2262 OF 2011 3 accused have been brought home to found a conviction against them. The learned sessions judge, after reappraisal of the evidence, affirmed the conviction passed by the trial magistrate. The learned counsel for the petitioner assailed the conviction concurrently entered against the petitioner/accused contending that the only independent witness examined in the case is PW3, the priest. The independent witnesses examined to prove the theft are PW2 and PW3, the former, attester to Ext.P4 mahazar over the seizure of the material objects and the latter, the priest of the temple. In evidence, PW2, the attester to Ext.P4 mahazar, stated that he saw A1 in the police jeep but not of the presence of the petitioner (A2), who, according to the prosecution, was apprehended with the other accused. Goldsmith who was brought to the spot to weigh the material objects, was not examined in the case is pointed out by the counsel as a serious lacuna in giving credence to the prosecution case. In fact, there was no evidence to show that MO1 to MO11 produced, gold ornaments, bindies etc. were made of gold, is the further submission of the counsel to hold that the nonexamination of the gold smith was fatal to the prosecution case. Reliance placed on the police officials by the courts below to found a conviction of the Crl. R.P No.2262 OF 2011 4 accused is also taken serious exception by the counsel contending that there was absence of legal evidence to sustain the charges indicted against them. Conviction of the accused in the aforesaid circumstance is liable to be interfered with , is the submission of the counsel. 4. Going through the judgments rendered by the courts below, I find no force in the challenges raised by the counsel to assail the conviction concurrently founded against the petitioner (A2). The evidence let in by the prosecution clearly establish that immediately after the theft and close to the scene of crime the petitioner and the coaccused were apprehended by a police party headed by PW4. The attester to the mahazar prepared over the stolen goods has stated of the presence of only one of the accused in the jeep at the most is only a innocuous circumstance when there was no reason even to cause any doubt over the assertion of the other witnesses examined in the case as regards the apprehension and presence of petitioner (A2) at the spot as imputed by the prosecution. The nonexamination of the goldsmith who was brought to the spot to weigh the stolen articles, which had been pilfered from the temple after removing the tiles of the Sreekovil, in no way affect the Crl. R.P No.2262 OF 2011 5 substratum or core of the prosecution case. MO1 to MO11 are made of gold and further they belong to the temple, in the proved facts of the case, cannot be doubted for a moment especially in the light of the evidence given by PW3, priest of the temple. So much so, examination of the goldsmith as regards the weight of that ornaments or bindies, in fact, would add only to the quantity of the evidence and no way affect the quality of the prosecution case. Culpability of the petitioner (A2), who was apprehended at the scene after the theft with the stolen articles, has been established by the unimpeachable legal evidence tendered in the case. When that be so, the conviction of the petitioner, as affirmed by the learned Sessions Judge, is not liable to be interfered with. Having regard to the gravity of the offences proved against him, and taking note that the theft was committed over a temple, I find, no interference with the sentence awarded, which appears to be just and reasonable, is called for. Revision is dismissed. Sd/- vdv S.S.SATHEESACHANDRAN, JUDGE //True Copy// P.A to Judge