IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 Crl.Rev.Pet.No. 620 of 2000() ----------------------------- CRA.323/1998 of SESSIONS COURT, THRISSUR .................... REVN. PETITIONER: ---------------------------------- KUNJUMON, S/O.CHATHU, AGED 40 MOOLEPATTU PARAMBIL HOUSE, MANGAD VILLAGE, KUNNAMANGALAM THRISSUR. BY ADV. SRI.K.S.MADHUSOODANAN SRI.C.P.PEETHAMBARAN SRI.C.P.REJI SRI.T.N.SURESH SRI.T.K.ANIRUDHAN SRIB.RVIJAYAMOHAN RESPONDENTS: ------------------------- STATE OF KERALA, REP. BY S.I. OF POLICE, KUNNAMANGALAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.620 of 2000 =================== Dated: 09.06.2008 O R D E R The petitioner who is the 1st accused in C.C.784/1995 on the file of the J.F.C.M, Kunnamkulam for offences punishable under Sections 457,380,461 read with 34 IPC challenges the conviction entered and the sentence passed against him for offences punishable under Sections 457 and 380 I.PC. The conviction recorded and sentence passed against him under Section 461 IPC by the trial court were reversed in appeal and the conviction and sentence have been restricted only to offences punishable under Sections 457 and 380 IPC. 2. The case of the prosecution can be summarised as follows: Between 2 a.m and 9 a.m on 28.09.94, the 4 accused persons in furtherance of their common intention to commit theft, broke open into the building of PW1 situated at Pazhanji and committed theft of a tape recorder, service torch, binocular, its cover, umbrella, pant pieces, blouse pieces, shirt pieces, spray Crl.R.P.No.620 of 2000 -:2:- bottle series etc. The accused have thereby committed offences punishable under Sections 457, 380 and 461 read with 34 IPC. 3. Out of the 4 accused persons, accused Nos.1 and 3 alone faced trial. On their pleading not guilty to the charge framed against them by the learned Magistrate for the aforementioned offences, the prosecution was permitted to adduce evidence in support of the case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 6 documents as Exts. P1 to P6 and 9 material objects as Mos. 1 to 9. 4. After the close of the prosecution evidence, the accused 1 and 3 were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. they denied those circumstances and maintained their innocence. 5. The learned Magistrate, after trial, as per judgment dated 3.11.98 acquitted the 3rd accused of all the offences but convicted the revision petitioner/1st accused of the offences punishable under Sections 457, 380 and 461 I.P.C. For the Crl.R.P.No.620 of 2000 -:3:- conviction under Sections 457 and 380 IPC he was sentenced to undergo simple imprisonment for one year each and for the offence under Section 461 IPC he was sentenced to undergo simple imprisonment for six months. It was further directed that the sentences shall run concurrently. 6. On appeal preferred by the revision petitioner before the Sessions Court, Thrissur as Crl.Appeal No.323 of 1998, the lower appellate court as per judgment dated 12.6.2000, acquitted the revision petitioner of the offences punishable under Section 461 IPC but confirmed the conviction entered and the sentence passed against the revision petitioner with regard to the offences punishable under Sections 457 and 380 IPC. Hence, this Revision. 7. I heard Advocate Sri.K.S.Madhusoodhanan, the learned counsel appearing for the revision petitioner and the learned public prosecutor. 8. Assailing the conviction recorded against the revision petitioner, the learned counsel for the petitioner made the following submissions before me:- Crl.R.P.No.620 of 2000 -:4:- According to the prosecution the theft was committed during the early hours of 28.9.94. The place of theft is a shop room belonging to PW1. The revision petitioner/ 1st accused was arrested on 15.9.95 by PW6 in connection with another crime. On that day on the strength of a confession statement made by him, Mos. 1 to 4 are alleged to have been recovered by PW6 as per Ext.P3 Mahazar to which PW4 is a witness. The further case of the prosecution is that MOs. 1 to 4 were sold by the revision petitioner/ 1st accused to PW2 and based on the confession given by the revision petitioner they were recovered from PW2 as per Ext.P3 recovery mahazar. PW2 who is a habitual purchaser of such stolen properties was obliging the Police by admitting that MOs 1 to 4 were sold by the revision petitioner to him and they were recovered from him by the Police as per Ext.P3. PW4, the independent witness to Ext.P3 Mahazar has stated that MOs 1 to 4 were recovered from the wife's house of the revision petitioner. No doubt, this statement was given by PW4 during his cross- examination by the defence. But no attempt was made by the prosecutor either to clarify the position in re-examination or to Crl.R.P.No.620 of 2000 -:5:- declare him hostile. Thus, there is two sets of evidence. One indicating that Mos.1 to 4 were recovered from PW2 and other indicating that Mos. 1 to 4 were recovered from the wife's house of the petitioner. This is a circumstance which is definitely in favour of the accused who is entitled to the benefit of such contradictory evidence. 9. I am afraid that I cannot agree with the above submissions. It is true that PW4 during his cross examination by the defence has stated that the MOs were recovered from the wife's house of the 1st accused. But he was cited by the prosecution only to prove Ext.P3 Mahazar and in his chief examination he has clearly admitted his signature on Ext.P3 Mahazar where it is recorded that Mos.1 to 4 were being seized from the custody of PW2 to whom the revision petitioner had sold the material objects. The evidence of PW2 is also to the above effect and he has denied the suggestion that he is in the habit of buying stolen goods. Of course, PW4 could have been examined further by way of re-examination to clarify the wrong statement given by him during the cross-examination by the defence and if Crl.R.P.No.620 of 2000 -:6:- necessary he could have been declared hostile also to the prosecution. But merely because PW4 gave evidence to the above fact, it does not have the effect of wiping off the offence of PW2 and the Investigating Officer. The learned Magistrate who had the unique advantage of seeing the witnesses and assessing their credibility had no difficulty to accept the testimony of PW6, the Investigating Officer, particularly when the recovery is evidenced by a contemporaneous mahazar, namely Ext.P3. The person from whom MOs.1 to 4 were recovered has also supported the prosecution. There may be contradictions, omissions and exaggerations in the testimony of witnesse. But as long as they do not affect the core of the evidence, they are bound to be discarded as inconsequential. The conviction has been recorded by the courts below concurrently after a careful evaluation of the oral and documentary evidence in the case. This Court sitting in revision will be loathe to interfere with the said conviction which is accordingly confirmed. 7. What now survives for consideration is the question regarding the adequacy or otherwise of the sentence imposed on Crl.R.P.No.620 of 2000 -:7:- the revision petitioner. Offences of this nature committed under the cover of darkness in a daring manner cannot be considered as minor offences requiring a flee bite sentence. Penal servitude by way of incarceration alone can act as an effective dis incentive to such a daring offence. I therefore do not interfere with the sentence passed. Accordingly, this Crl.R.P. is dismissed. V.Ramkumar, Judge. sj