IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 Crl.Rev.Pet.No. 44 of 2002 ------------------------------------------ CC.41/1998 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA CRA.136/2000 of ADDL. SESSIONS COURT, ALAPPUZHA .................... REVN. PETITIONER/APPELLANT/SECOND ACCUSED: GOPI, S/O. NARAYANA PANICKER, MAROTTIPARAMBU, AVALOOKUNNU, ALAPPUZHA. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE C.I. OF POLICE, ALAPPUZHA NORTH. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P. 263/2002 IN CRRP 44/2002 DISMISSED 16.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.44 of 2002 -------------------------- ORDER Petitioner, the second accused in C.C.No. 41/1998 on the file of Chief Judicial Magistrate's Court, Alappuzha, was convicted and sentenced, along with the first accused, for the offences under Sections 457, 461 and 380 read with Section 34 of Indian Penal Code. Though cognizance was taken for the offences against the third accused also, he was later discharged. Second accused alone challenged the conviction and sentence before Sessions Court, Alappuzha in Crl.A.No.136/2000. Learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRRP 44/02 2 3. Argument of the learned counsel is that though learned Magistrate relied on Exhibits P5 and P7 recovery mahazars of MO1(b) and MO1(c) watches, learned Additional Sessions Judge, on the evidence, found that the said recoveries were not proved to be on the information furnished by the petitioner. Learned Sessions Judge solely relied on the recovery of MO3 VCR, under Exhibit P4 recovery mahazar, based on the information furnished by the petitioner. It is contended that relevant portion of Exhibit P4(a) is not with regard to the information which led to the recovery of MO3 VCR and hence, courts below were not justified in convicting the petitioner. It is also contended that in any case, as the recovery was after two months of the theft, presumption available under Section 114 of Indian Evidence Act should not have been drawn and on the evidence, it should have been found that there is no evidence to prove that petitioner committed any of the offences. Learned CRRP 44/02 3 counsel finally argued that in any case, the sentence awarded is excessive. 4. Learned Public prosecutor pointed out that though Exhibits P5 and P7 recovery mahazars were not relied upon by the learned Additional Sessions Judge in appeal, recovery of MO3 under Exhibit P4 recovery mahazar was accepted and evidence of PW6 establishes that he got MO3 VCR from the petitioner and recovery of MO3, effected by PW8, was only on the information furnished by the petitioner, as it is within his exclusive knowledge, courts below were justified in convicting the petitioner for the offences. 5. Prosecution case is that PW1 had locked his house and left for Delhi on 2.9.1996 and returned back only on 9.9.1996. On returning, PW1 found that the house was broke opened and several valuable things were stolen, including MO3 VCR and MO1 series of watches and MO2 Iron Box. Based on Exhibit P1 F.I. Statement furnished by PW1, Crime CRRP 44/02 4 No.352/1996 was registered for the offences under Sections 457, 461 and 380 of Indian Penal Code under Exhibit P1(a) FIR. PW8, the Investigating Officer, arrested the first accused on 28.11.1996 and on the information furnished, recovered MO1(a) watch. On further questioning the first accused, PW8 got information that petitioner and third accused are also involved in the case. On 29.11.1996 at 4 a.m. petitioner was arrested and PW8 questioned him. On the information furnished by the petitioner, MO1(b) and MO1(c) watches were recovered under Exhibits P5 and P7 mahazars. On the information furnished by the petitioner that VCR was sold in Beema Sounds, PW8, along with the petitioner, as led by the petitioner, reached the shop of PW6. PW6 produced MO3 VCR, which was recovered under Exhibit P4 mahazar. Exhibit P4(a) is the relevant portion of the confession statement, which was extracted in Exhibit P4 recovery mahazar itself. Though learned Magistrate CRRP 44/02 5 relied on Exhibits P5 and P7 recovery mahazars of MO1(b) and MO1(c) watches, learned Additional Sessions Judge found that said recovery cannot be relied on and recovery of MO3 VCR from the shop of PW6, on the information furnished by the petitioner under Exhibit P4 recovery mahazar, establishes the complicity of the petitioner. 6. Argument of the learned counsel is that relevant portion of the alleged confession does not establish the claim raised by PW8 and therefore, the said recovery should not have been used against the petitioner. Exhibit P4 mahazar shows that the information, which enabled PW8 to effect recovery of MO3, is specifically shown in the mahazar. That portion is marked as Exhibit P4(a). Exhibit P4(a) is the statement of the petitioner that he sold the VCR in Beema Sounds, which is situated to the east of Kidangamparambu Temple and if he is taken there, he will show the shop and the person who purchased it. CRRP 44/02 6 7. Evidence of PW8 shows that, it was as led by the petitioner, he, along with the petitioner, reached the shop of PW6. Evidence of PW6, corroborated by the evidence of PW4, the attesting witness to the mahazar, establish that PW8, along with the petitioner, reached his shop and PW6 produced MO3 VCR, which was purchased by him earlier from the petitioner. Though learned counsel appearing for the petitioner argued that evidence of PW6 cannot be believed, no reason was even suggested why PW6 would falsely allege that MO3 was purchased by him from the petitioner. The evidence of PW6 is trustworthy and reliable, as, by the evidence, PW6 would be losing the VCR. It cannot be believed that PW6 would depose against the petitioner especially when there is no reason for PW6 to falsely depose against the petitioner. Added to this, evidence of PW4, corroborated by the evidence of PW8, establishes that MO3 was recovered under Exhibit P4 mahazar. CRRP 44/02 7 8. Though learned counsel argued that description of MO3 in Exhibit P4 mahazar does not tally with the description given by PW1 in Exhibit P1 F.I. Statement, from the witness box, PW1 identified MO3 as his VCR, which was stolen from his house. PW1 was not cross-examined with regard to the ownership or possession of MO3 or the identity of MO3. He was also not asked about the discrepancy of description now canvassed by the learned counsel. When the evidence of PW1 establishes that MO3 belongs to him and it was the stolen VCR were not challenged in cross- examination, it can only be found that MO3 is the stolen article belonging to PW1. 9. As rightly found by the learned Additional Sessions Judge, evidence establish that MO3, which was the stolen article, was recovered under Exhibit P4 mahazar from PW6 on the information furnished by the petitioner. As the factum of sale of MO3 to PW6 was within the exclusive knowledge of the CRRP 44/02 8 petitioner, it is absolutely clear that recovery was made only on the information furnished by the petitioner. 10. Then the question is what is the offence proved against the petitioner. Learned counsel argued that as the theft was between 2.9.1996 and 8.9.1996 and recovery of MO3 was only on 29.11.1996, recovery was not soon after the theft and therefore, learned Additional Sessions Judge was not justified in drawing a presumption that petitioner committed the theft. Though MO3 VCR was recovered under Exhibit P4 only on 29.11.1996, it was recovered from PW6 and possession of the petitioner proved was not that of 29.11.1996, but on the date when petitioner sold MO3 to PW6. Though PW6 deposed that petitioner sold MO3 four or five months prior to the recovery, as it was stolen only in September 1996, it could have been sold only in September. It is, therefore, clear that MO3 was in the possession of the petitioner soon after the CRRP 44/02 9 theft. Hence, the presumption provided under Section 114 of Indian Evidence Act that petitioner committed the theft could definitely be drawn. Learned counsel then argued that evidence of PW8 shows that the confession statement of the first accused was that he entrusted the VCR to the petitioner for sale. First of all, the confession statement of a co-accused cannot be used against the petitioner. Moreover, even if that statement is used, it does not disclose whether theft was committed by the first accused alone or that second accused did not participate in the theft. In such circumstances, based on that portion of the statement of the Investigating Officer, it cannot be found that petitioner did not commit theft. I find no reason to interfere with the findings of the learned Additional Sessions Judge. In such circumstances, conviction of the petitioner for the offences under Sections 457, 461 and 380 of Indian Penal Code is perfectly legal. CRRP 44/02 10 11. Then the only question is regarding the sentence. Learned counsel submitted that petitioner was not involved in any other case earlier and considering the fact that the incident was in 1996, in the interest of justice, the sentence may be reduced. Learned Magistrate sentenced petitioner to rigorous imprisonment for three years and a fine of Rs.3,000/- for the offence under Section 380 of Indian Penal Code, rigorous imprisonment for two years for the offence under Section 457 of Indian Penal Code and rigorous imprisonment for one year for the offence under Section 461 of Indian Penal Code. The substantive sentences were directed to run concurrently. Considering the entire facts and circumstances of the case, interest of justice will be met, if the substantive sentence for the offence under Section 380 of Indian Penal Code is reduced to two years from three years, maintaining the other sentences. CRRP 44/02 11 Revision is allowed in part. Conviction of the petitioner for the offences under Sections 457, 461 and 380 of Indian Penal Code is confirmed. The sentence for the offences under Sections 457 and 461 of Indian Penal Code is also confirmed. The substantive sentence for the offence under Section 380 of Indian Penal Code is modified to rigorous for a period of two years, in addition to the fine of Rs.3,000/- with the default sentence as provided by the Magistrate. The substantive sentences shall run concurrently. Petitioner is also entitled to get set off as provided under Section 428 of Code of Criminal Procedure. Petitioner is directed to appear before Chief Judicial Magistrate, Alappuzha on 31.08.2010. Chief Judicial Magistrate is directed to execute the sentence. 16th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 44/02 12 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.44 of 2002 -------------------------- ORDER 16th July, 2010