IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 Crl.Rev.Pet.No. 1369 of 2008() ------------------------------ CRA.395/2006 of ADDL.SESSIONS COURT (ADHOC-II),MANJERI CC.242/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NILAMBUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- PALIYAKKARA REJI, S/O. THANKACHAN, AGED 37 YEARS, CHETTIYIL, KARULAI, NILAMBUR. BY ADV. SMT.K.V.RASHMI RESPONDENTS/ STATE & RESPONDENT: --------------- 1. S.I.OF POLICE, NILAMBUR POLICE STATION. (CR.NO.100/93.) 2. THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 1369 OF 2008 ------------------------------------------ Dated this the 25th day of September, 2008 O R D E R Petitioner was concurrently convicted and sentenced for the offence under sections 380, 457 and 461 of Indian Penal Code by Judicial First Class Magistrate, Nilambur. Prosecution case is that PW1, Sainudheen and PW2, Shakeela, his wife had gone to the house of PW2 on 6.4.1993 and when they returned back to the house at about 7 a.m. on 7.4.1993, the lock of the front door of the house was found broken and on entering the house it was found that a gold ring weighing about 4 grams, MO1 torch and cash of Rs.400/- were stolen from the almirah of the bedroom as well as MO3 series of 28 rubber sheets. PW1 furnished Ext.P1 F.I.Statement before PW10 Sub Inspector, who prepared Ext.P1(a) F.I.R. and registered Crime 100 of 1993 at 9 a.m. PW10 proceeded to the house of PW1 and prepared Ext.P2 scene mahazar. Suspecting that petitioner committed the theft, PW10 arrested him on 10.4.1993 from Chettiyangadi and seized MO4 cash of Rs.245/- found with him. On questioning the CRRP1369/08 2 petitioner and on the information furnished by him, MO1 torch was recovered from his house under Ext.P4 mahazar. On the information furnished and as led by petitioner, PW10 reached the shop “Swaraj Rubbers”, where PW3 is employed and in the presence of PW4 seized MO3 series of rubber sheets under Ext.P2 recovery mahazar. On the information furnished by petitioner and as led by him, PW10 recovered MO5 gold ingot from a jewellery shop at Ooty, under Ext.P6 mahazar. After completing the investigation, PW10 laid the charge, which was taken cognizance by learned Magistrate. Petitioner pleaded not guilty. Prosecution examined ten witnesses and marked seven exhibits and identified five material objects. Petitioner when questioned under section 313 of Cr.P.C., denied the evidence as against him. Learned Magistrate on the evidence found petitioner guilty. He was convicted and sentenced to rigorous imprisonment for two years for the offence under section 457 IPC, rigorous imprisonment for one year under section 380 IPC and rigorous imprisonment for six months under section 461 IPC. All the sentences were directed to be run concurrently and was granted set off for the period from 11.4.1993 to 3.2.1994 and from 4.7.2005 to 4.10.2005, the period he was in custody. CRRP1369/08 3 Petitioner challenged the conviction and sentence before Sessions Court, Manjeri in Criminal Appeal 395 of 2006. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 2. Learned counsel appearing for petitioner and the learned public prosecutor were heard. 3. Learned counsel vehemently argued that there is no conclusive evidence to prove the guilt of the petitioner and therefore conviction and sentence are not sustainable. It was argued that though MO1 was identified as a stolen torch by PW1, PW10 did not give any evidence with regard to its recovery and PW6 and 8, the witnesses to Ext.P4 recovery mahazar, turned hostile and therefore there is no evidence to connect MO1 with the petitioner and therefore based on the recovery petitioner cannot be convicted. It was argued that though MO3 rubber sheets were recovered under Ext.P2 recovery mahazar, evidence of PW3 shows that when rubber sheets are purchased, a bill is to be prepared showing the details and there is no case that any such bill was prepared when MO3 rubber sheets were purchased, and Courts below should not have relied on the CRRP1369/08 4 evidence of PW3 to convict petitioner especially when PW4 the witness to recovery mahazar did not support prosecution case. Learned counsel also argued that Ext.P1 F.I. Statement and the F.I.R. reached the Court only on 11.4.1993 and therefore no reliance should have been placed on the evidence and conviction is not sustainable. Learned counsel also argued that in any case the sentence awarded is excessive. 4. Learned public prosecutor submitted that learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction and sentence. 5. The evidence of PWs 1 and 2, relied on by the Courts below, establish that on 6.4.1993 they had gone to the house of PW2 and returned back only on the morning of 7.4.1993 and they found the MO2, the front lock of the house was broken and theft of gold ring, rubber sheets, cash and torch were committed. PWs 1 and 2 identified MO1 and MO3 as the stolen articles. There is no reason to disbelieve the evidence of PWs 1 and 2 on those facts. Evidence of PWs 1 and 2 establish that theft was committed by breaking open the house of PWs 1 and 2 on the night of 6.4.1993 and MO1 and 3 are the stolen articles. CRRP1369/08 5 6. Though learned counsel vehemently argued that as the F.I.R. reached the Court belatedly, it should not have been relied on, I find no reason to doubt the theft proved by the evidence of PWs 1 and 2. Evidences establish that within two hours of reaching their house, PW1 had gone to the police station and PW10 prepared Ext.P1 F.I. Statement and within two hours, PW10 reached the house of PWs 1 and 2 and prepared scene mahazar and seized MO2 the lock, which was found broken. The evidence of PW10 corroborated by the evidence of PW3 establishes that MO3 rubber sheets were recovered from the shop of PW3 and MO3 series are the stolen rubber sheets identified by PWs 1 and 2. The evidence of PW10 establish that recovery of MO3 could be made only on the information furnished by the petitioner, which if believable, connects petitioner with the offence. Though learned counsel argued that in the absence of any bill, which should have been prepared by PW3, recovery of MO3 is to be disbelieved, I do not find any reason to interfere with the findings of Courts below that evidence of PW10 establishes the recovery. Similarly though MO5 gold ingot could not have been identified by PWs 1 and 2, as it is only a gold ingot, evidence of PW10 establishes that it CRRP1369/08 6 was recovered only on the information furnished by petitioner from a jewellery shop at Ooty. In such circumstances there is no reason to interfere with the conviction of petitioner for the offence under section 457, 461 and 380 of Indian Penal Code, which is perfectly legal and correct. 7. Then the question is with regard to the sentence. Though learned counsel vehemently argued that leniency is to be shown and petitioner had undergone detention for more than one year and one month, and the period is to be treated as sufficient sentence, in the nature of the offence of the petitioner and the circumstances of the case I do not find any reason to interfere with the sentence. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-