IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 Crl.Rev.Pet.No. 1787 of 2009() ------------------------------ CRA.215/2005 of ADDL.SESSIONS COURT (ADHOC)-IV, TRIVANDRUM CC.771/2001 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, NEYYATTINKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ SUNIL KUMAR, S/O.SREEDHARAN NAIR PANAYARAKKAL NEDIYAMOODE DESOM, PARASUVAKKAL VILLAGE. BY ADV. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.SHAJIN S.HAMEED RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE NEYYATTINKARA POLICE STATION. THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1787 of 2009 -------------------------------------- Dated this the 15th day of July, 2009. ORDER This revision is in challenge of judgment of learned Additional Sessions Judge (Fast Track-IV), Thiruvananthapuram in Crl.Appeal No.215 of 2005 confirming conviction and sentence imposed on petitioner for offence punishable under Section 392 of the Indian Penal Code (for short, “the Code”). Case is that on 12.12.2000 at about 9.15 a.m. while PW1, Headmistress of a local U.P.School was going to that school along the road, petitioner came riding a motor cycle, stopped it near her and under threat of death snatched the gold chain (MO1) she was wearing and sped away on the motor cycle. PW1 gave information at the nearby house wherefrom information was given to the nearby places over telephone. After sometime petitioner was allegedly detained by local people at the junction about which information was given to PW1 as well. She went to that place and identified petitioner as the culprit. PW1, along with some of the local people took petitioner to the police station where she gave first information regarding the incident. Police seized MO1, gold chain from the possession of petitioner. Later the motor cycle which petitioner was allegedly using was also seized by the police. Prosecution examined PWs 1 to 7 and marked Exts.P1 to P8 and MO1. PW1 narrated the incident but failed or refused to identify petitioner as the culprit. She identified MO1 as the gold chain which she was wearing and which was snatched away. PWs 2 to 4, along Crl.R.P.No.1787/2009 2 with PW1 are said to have brought petitioner to the police station. PWs 2 to 4 did not support the prosecution. PWs 6 and 7 are attestors in the mahazar for seizure of MO1 and the motor cycle. They also did not support the prosecution. They denied signing the respective mahazars. What remained is the evidence of PW5, Sub Inspector. He stated that petitioner was brought to the police station by PWs 1, 3, 4 and CW5 and others and PW1 reported the incident. He recorded the statement of PW1 and registered case. MO1, gold chain was seized from the pocket of petitioner as per Ext.P3, mahazar. PW5 seized the motor cycle though after sometime on the same day as per Ext.P4. 2. It is contended by learned counsel that none of prosecution witnesses except PW5 has identified petitioner. There is no evience to show that petitioner snatched the gold chain of PW1. The motor cycle was seized only by the evening of the day of occurrence(as per Ext.P4). It is also argued that though MO1 is said to have been seized on 12.12.2000 it was produced in court only as per Ext.P7, property list on 21.12.2000. 3. It is true that MO1, gold chain was produced in the court only 21.12.2000 and there was no proper explanation for the delay given by the prosecution. But it is seen that Exts.P1 and P3, first information statement given by PW1 along with FIR and the mahazar for seizure of MO1 were produced before the learned magistrate on 13.12.2000 at 11 a.m. The possibility of MO1 being retained by the Investigating Officer for the purpose of identification of the same by the witness to the incident cannot be ruled out. At Crl.R.P.No.1787/2009 3 any rate in the light of identification of MO1 made by PW1 which is not under serious challenge and which I find no reason to disbelieve as well and since Exts.P1 and P2 reached the learned magistrate next day itself, the delay in production of MO1 in court is not fatal. 4. So far as identification of the offender is concerned, it is true that PWs 1 to 4 refused to support the prosecution. PW1 claimed that information regarding the registration number of motor cycle she had given in Ext.P1 was acquired by her from those who had detained the offender at the junction. Assuming that identification of registration number of the motor cycle is therefore not acceptable, there is evidence of PW5 that petitioner was brought to the police station by PW1 and others and that from him, PW5 had seized MO1 on the same day of the incident. PW1 has deposed about the entire incident except identifying the petitioner. According to the petitioner, he has been working as driver of an owner's car and has been falsely implicated by PW5 at the instance of the taxi drivers. There is no reason or circumstance to think so. Thus it is proved by the prosecution that petitioner was found in recent possession of the stolen article (MO1) for which he was not able to give any explanation, not to say about any satisfactory explanation. Therefore it was open to the court to presume that petitioner is either the thief or receiver of the stolen article. Considering the fact that the incident occurred at 9.15 a.m. and MO1 was seized from the possession of the petitioner at noon on the same day and also considering the relevant facts which I have stated, inference that could be drawn is that the petitioner snatched the gold chain. I find no reason to Crl.R.P.No.1787/2009 4 interfere with that finding entered by the courts below in that respect. 5. Then the question arises whether offence punishable under Section 392 of the Code is made out. To make a theft, robbery there must be evidence to show that for that for the purpose of commission of theft, the offender voluntarily caused or attempted to cause death or hurt or wrongful restraint, or fear of instant hurt or death or wrongful restraint to the person concerned. In this case, evidence of PW1 is that the offender had threatened to kill her when MO1 was snatched away. Mere use of threatening words is not sufficient. Question is whether from the attending circumstances, PW1 could have had the apprehension that unless she complied with the demand, she will be subjected to hurt/death/wrongful restraint. There is no case that petitioner was armed. No overt act on the part of petitioner suggesting attempt to cause hurt/death/wrongful restraint is proved. The incident occurred on the public road at about 9.15 a.m. There are houses nearby. These circumstances indicated that there was no such possibility of PW1 having any genuine apprehension. I am not satisfied that offence punishable under Section 392 of the Code is made out. Instead, the act of petitioner dishonestly taking away the gold chain (MO1) from the possession of petitioner amounted to theft punishable under Section 379 of the Code. Conviction is altered to one under Section 379 of the Code. Crl.R.P.No.1787/2009 5 6. As regards the sentence to be awarded to the petitioner is concerned, it is true that he is not shown to be involved in any other case. At the same time the nature of offence he has committed is also looked into. Having regard to the relevant circumstances I am satisfied that simple imprisonment for six months is sufficient in the ends of justice. Sentence is modified accordingly. Resultantly, this revision is allowed in part to the following extent: i. Conviction of petitioner is altered from Section 392 to Section 379 of the Code. ii. Sentence awarded to the petitioner is modified as simple imprisonment for six months. iii. Petitioner is allowed to set off the detention/imprisonment if any undergone by him in connection with this case. Crl.M.A.No.5453 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks