IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 Crl.Rev.Pet.No. 183 of 2001 ------------------------------------------ CC.1171/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD CRA.396/2000 of ADDL. SESSIONS COURT, THRISSUR .................... PETITIONER: ------------------- RAJU S/O KOCHUMON MEPPARAMBIL VEEDU VADANAPPILLY VILLAGE THRISSUR DISTRICT BY ADV. SRI.K.V.RAMABHADRAN SMT.SANGEETHA LAKSHMANA RESPONDENT: ---------------------- STATE - REP. BY THE SUB INSPECTOR OF POLICE VADANAPPILLY (CRIME NO.165/98) PUBLIC PROSECUTOR SRI.RAVINDRA BABU.P THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/08/2009, THE COURT ON 12/08/2009 PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.183 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12th day of August 2009 ORDER Petitioner was tried along with another for the offences punishable under Sections 457 and 380 read with Section 34 of the Indian Penal Code. The trial court found both the accused guilty of the charge levelled against them and convicted and sentenced them to undergo rigorous imprisonment for 1½ years each, on the two counts. 2. The Sessions Court, in appeal, altered the conviction and found the two accused guilty only under Section 411 IPC, and both of them were convicted and sentenced to undergo Rigorous Imprisonment for one year each for the said offence. Revision petitioner who was arraigned as accused No.2 has preferred this revision petition challenging the order of conviction and sentence passed against him for the offence under Section 411 IPC. 3. The gravamen of the charge against the two accused was that they had committed theft of M.O.1 and M.O.2 gold chain and gold necklace respectively belonging to PWs 1 and 2 sometime during the night of January 11/12, 1998 by committing lurking house trespass into the residence of those two witnesses. Crl.R.P.No.183 OF 2001 :: 2 :: 4. M.O.1 and M.O.2 were seized in the course of the investigation, respectively from the jewellery shop and financial institution being run by PW5 and PW9. 5. Prosecution examined PWs 1 to 11 and marked Exts.P1 to P10 and M.O.1 and M.O.2. There was no oral or documentary evidence on the side of the defence. The trial court, after evaluating the oral and documentary evidence on record, found the two accused guilty of the charge levelled against them, as mentioned earlier. However, in appeal the conviction was altered to one under Section 411 IPC. 6. The appellate court, while re-evaluating the evidence adduced by the prosecution, noticed that the evidence of PW1 and 2 was totally credit worthy and acceptable to establish the charge of house trespass and theft. However, it was noticed by the learned Judge that no complaint was lodged either by PW1 or PW2 immediately after the theft. Admittedly, the crime was registered by the police only after the arrest of the two accused on June 13, 1998. Recovery was effected allegedly on the basis of the confession statement made by the two accused. The court below accepted the explanation offered by PW1 and PW2 as regards their failure/omission to lodge a complaint before the police. Keeping in view the above facts and circumstances, the appellate court held that there was no satisfactory evidence to show as to when the theft took place. It Crl.R.P.No.183 OF 2001 :: 3 :: was therefore that the learned Sessions Judge had altered the charge of 457 and 380 to one under Section 411 IPC. 7. Having carefully perused the materials available on record and also the order passed by the two courts below, I am satisfied that the view taken by the learned Judge cannot be assailed. As regards M.O.1 gold necklace weighing about 4½ sovereigns, the prosecution had examined PW9, the owner of M/S Jose Financiers, Thrissur. He deposed before the court that petitioner/accused No.2 had pledged M.O.2 gold necklace in his institution for Rs.7,250/-. He also admitted that M.O.2 necklace was seized by the police in the presence of the petitioner who came to his institution on the basis of Ext.P6 (relevant portion of the disclosure statement of the petitioner). PW9 had produced the counterfoil of the receipt evidencing the pledging of the above ornament at the time of the investigation before PW10. The two courts have concurrently found that the evidence of PW9 and the recovery/seizure of M.O.2 were satisfactorily established by the prosecution. I have carefully perused the deposition of PW9 and Ext.P2 recovery mahazar to which PW8 was an attester. This witness stated that he was present along with PW9 at the time of recovery of M.O.2. 8. Having regard to the totality of the facts and circumstances and also the evidence of these witnesses, I do not find any reason to interfere Crl.R.P.No.183 OF 2001 :: 4 :: with the concurrent finding entered by the courts below as regards recovery of M.O.2 on the basis of the disclosure statement made by the petitioner before the investigating officer. It was also noticed by the courts below that M.O.2 belonged to PW2 as identified by her. The contention raised by the petitioner that identification was not reliable or acceptable was repelled by the courts below. I do not find any reason to interfere with that finding either. In any view of the matter, the finding entered by the appellate court that the petitioner can be found guilty of the offence under Section 411 IPC is eminently justified. 9. Thus having regard to the entire facts and circumstances of the case and the evidence of PWs 1 and 2 as well as that of PW 8, 9 and 10, I am satisfied that the finding entered by the lower appellate court that the petitioner is liable to be found guilty under Section 411 IPC cannot be assailed at all. Therefore, the order of conviction and sentence passed against the petitioner by the lower appellate court for the offence punishable under Section 411 IPC is confirmed. Revision petition fails and it is accordingly dismissed. (A.K.BASHEER, JUDGE) jes Crl.R.P.No.183 OF 2001 :: 5 :: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.183 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER Dated 12th August 2009