IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 Crl.Rev.Pet.No. 549 of 2002() ----------------------------- (AGAINST THE ORDER IN CRL. APPEAL NO.224/1999 OF III ADDITIONAL SESSIONS JUDGE IN CC.942/1997 OF JFCM-I, MUVATTUPUZHA) REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BIJU S/O.VARGHESE,MANKUZHY KUNNEL VEEDU, NELLIMATTOM KARA, KOTHAMANGALAM. BY ADV. SRI.T.RAJESH RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ``````````````````````````````````````````````````````` Crl.R.P. No. 549 of 2002 A ``````````````````````````````````````````````````````` Dated this the 4th day of August, 2010 O R D E R Petitioner, the first accused in C.C.No.942/1997 on the file of Judicial First Class Magistrate-I, Muvattupuzha, filed this revision challenging his conviction and sentence for the offences under Sections 457 and 380 of Indian Penal Code. 2. Prosecution case is that on the night of 23-05-1997, at about 3 A.M., the four accused, in furtherance of their common intention, committed house breaking and entered house No.III/375 of Kottappady Panchayat, where PWs 1 to 3 were residing, after removing the tiles of the roof and committed theft of MOs 1 to 3 gold ring, gold chain and watch and other gold ornaments together worth Rs.47,000/- and thereby committed offences under Sections 457, 380 and 461 read with Section 34 of Indian Penal Code. All the accused pleaded not guilty. Prosecution examined 12 witnesses, marked Exts.P1 to P9 and identified MOs 1 to 6. Petitioner did not adduce any evidence. The learned Magistrate, on appreciation of evidence, found petitioner guilty. He was convicted and sentenced to rigorous imprisonment for three years Crl.R.P.549/2002 : 2 : each for the offences under Sections 457 and 380 and rigorous imprisonment for six months for the offence under Section 461 of Indian Penal Code. Accused 2 to 4 were found not guilty and they were acquitted. Though petitioner challenged the conviction and sentence before Sessions Court, Ernakulam in Crl.Appeal No.224/1999, learned Additional Sessions Judge, on re- appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision. 3. The fact that theft was committed in the house of PWs 1 to 3 on the night of 23-05-1997 and gold ornaments and watch were stolen, as proved by the evidence of PWs 1 to 3, is not disputed. On recording Ext.P1 F.I. Statement, crime No.25/1997 of Kottappady Police Station was registered. While the case was being investigated by PW4, the Circle Inspector, getting information that petitioner and the other accused were in judicial custody in Crime No.233/1997 of Kothamangalam Police Station, PW12 got custody of the accused and questioned them. It is the prosecution case that based on the confession statement made by the petitioner, MO1 gold ring was recovered under Ext.P2 recovery Crl.R.P.549/2002 : 3 : mahazar from the shop of PW10 in the presence of PW4 and on the information furnished by the petitioner, MO2 gold chain was recovered under Ext.P3 recovery mahazar from PW5, the jeweller, in the presence of PW6, the attesting witness. The prosecution would also allege that MOs 4 to 6, the gold ingots, were also seized under Exts.P7, P8 and P9 mahazars based on the information furnished by accused 2 to 4. The learned Magistrate did not accept the recovery of MOs 4 to 6 under Exts.P7, P8 and P9 and acquitted accused 2 to 4. But, accepting the evidence of PW12 corroborated by the evidence of PWs 4 and 10 and PW6 and Ext.P3 mahazar, petitioner was convicted. The revision is filed challenging the concurrent conviction. 4. The contention of petitioner is that when recoveries under Exts.P7, P8 and P9 were disbelieved by the learned Magistrate, courts below should not have accepted the recovery of MOs 1 and 2 under Exts.P2 and P3 and, therefore, the conviction is bad. 5. MOs 1 and 2 were identified by PW2 as the gold ring and the gold chain which were stolen on the night of 23-05-1997 Crl.R.P.549/2002 : 4 : after breaking open the house by entering through the roof after removing the tiles. The evidence of PW2 establishes that MOs 1 and 2 belonged her and they were stolen on the night of 23-05- 1997. I find no reason to interfere with that findings. 6. Though it is contended that recovery under Exts.P2 and P3 should not have been relied on by the courts below, the evidence of PW12, Circle Inspector, establishes that he obtained custody of the petitioner, while he was in judicial custody in Crime No.233/1997 of Kothamangalam Police Station. Evidence of PW12 establishes that petitioner disclosed to PW12 that he had sold the gold ring in the shop of M/s.K.P.Varkey and Sons at Kothamangalam and if he is taken there, he will show the shop owner as well as the shop. Ext.P2 recovery mahazar corroborates the evidence of PW12 that as led by the petitioner, PW12 reached the shop of PW10 and PW10 disclosed that MO1was sold to him by the petitioner and produced MO1 under Ext.P2 mahazar, on 24-06-1997 at 2.30 P.M. PW4, the attesting witness, corroborates the evidence of PW12 that it was recovered under Ext.P2 recovery mahazar in his presence. Though PW10 partly Crl.R.P.549/2002 : 5 : turned hostile by not identifying MO1 ring, he deposed that he had produced a ring before the police who recovered it under Ext.P2 and that ring was sold to him by the petitioner, though he is not in a position to identify the ring. The evidence of PW10 establishes that he has purchased only one ring from the petitioner and that ring was produced before PW12 and it was seized under Ext.P2 mahazar. The evidence of PW12 with regard to the recovery is fully corroborated the evidence of PW4 as well as Ext.P2 recovery mahazar. Even the evidence of PW1 corroborates the evidence of PW12 that MO1 was produced before him by PW10 and PW12 reached there along with the petitioner and Ext.P2 recovery mahazar was prepared at that time. The evidence establishes that MO1 ring was recovered under Ext.P2 solely based on the confession statement of the petitioner. 7. Evidence of PW12 also establishes that on the same day at 3 P.M. as led by petitioner, on his disclosure that he had sold the chain in Ratna Jewellery, Kothamangalam and if he is taken there, he will show the shop and the shop owner, PW12 reached the shop of PW5 and, under Ext.P3, MO2 was recovered. Crl.R.P.549/2002 : 6 : Though PW3 turned hostile to the prosecution, PW6, the attesting witness to Ext.P3 mahazar, fully corroborated the evidence of PW12. On going through the evidence of PW12, PW5 and PW6, I find no reason to interfere with the factual findings of the courts below that MO2 gold chain was recovered on the information furnished by the petitioner. 8. The evidence establishes that MOs 1 and 2, recovered under Exts.P2 and P3 recovery mahazar, are the stolen articles. It was the petitioner who could lead the police to effect the recovery, as he had sold them respectively to PW10 and PW5. It is, therefore, clear that soon after the theft, the gold ornaments were in the possession of petitioner and he sold them to PW10 and PW5. Therefore, courts below were fully justified in finding that it was the petitioner who committed theft of MOs 1 and 2 by committing house trespass on that night of 23-05-1997. In such circumstances, conviction of the petitioner for the offences under Sections 457, 380 and 461 of Indian Penal Code is perfectly legal. 9. Then, the only question is regarding the sentence. Though learned Magistrate awarded rigorous imprisonment for Crl.R.P.549/2002 : 7 : offences under Sections 457 and 380 for a period of three years, the sentences were directed to run concurrently. Sentence awarded for the offence under Section 461 is only rigorous imprisonment for six months. Considering the entire facts of the case, I find no reason to interfere with the sentence also. Revision fails and it is dismissed. Judicial First Class Magistrate-I, Muvattupuzha is directed to execute the sentence. (M.SASIDHARAN NAMBIAR, JUDGE) aks Crl.R.P.549/2002 : 8 : M.SASIDHARAN NAMBIAR, J. ``````````````````````````````````````````````` Crl.R.P. No. 549 of 2002 A ``````````````````````````````````````````````` O R D E R 4th day of August, 2010