IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 Crl.Rev.Pet.No. 4412 of 2006(B) --------------------------------------- CRA.188/2000 of ADDL.SESSIONS COURT (ADHOC) I, KASARAGOD CC.139/2000 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER/APPELLANT/ACCUSED : ----------------------------------------------------- RABDEEN @ SALIM, S/O.NAHUR PICHE, ARUNACHALAM COLONY, KARAMBAKAM, CHENNAI NOW RESIDING AT CHERIYA ALAMBADY, MUTTATHODY VILLAGE, P.O.ALAMBADY, KASARAGODE. BY ADV. SMT.MARY BEENA JOSEPH RESPONDENT/RESPONDENT/COMPLAINANT : ------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 4412 OF 2006 ............................................ DATED THIS THE 19th DAY OF SEPTEMBER, 2008 ORDER Petitioner was concurrently convicted and sentenced for the offences under Section 457, 461 and 380 of IPC. This petition is filed under Section 397 and 401 of Code of Criminal Procedure challenging the conviction and sentence. Prosecution case is that on the night of 25.1.2000, in the early morning, when PW1 and PW2, his daughter in law were in their house KMC XXI/194 of Kasargod Municipality at Thalangara , Musthaffa, son of PW1 and PW2 his wife came downstairs calling and in a frightened voice disclosed that the house has been ransacked PW1 went downstairs and found that the bed room in the ground floor occupied by the wife of PW1 was ransacked and gold ornaments worth 60 sovereigns kept in the locker were missing and the burglar had entered the house after removing one of the iron bars of the window of the central hall. After recording Ext.P1 F.I.Statement of PW1, PW11 Sub Inspector registered the crime under Ext.P6 F.I.R. At about 10 am in the morning, the Sub Inspector reached the house and prepared Ext.P2 scene mahazar. PW11, at about 3 pm on CRRP 4412/2006 2 2.2.2000, found petitioner at Kasargod Bus stand and arrested him. Petitioner was holding a plastic bag containing Mos 1,2,4, 5 and 8 to 12 ornaments. PW11 reached there on getting information that petitioner is attempting to sell gold ornaments. PW11, recovered Mos 1, 2, 4, 5, 8, 9, 10,11 and 12 from the plastic bag under Ext.P3 recovery mahazar. On questioning petitioner on the basis of Ext.P8(a) confession and as led by petitioner, PW11 reached the jewellery shop at Mangalore and recovered MO6 under Ext.P4 mahazar. Similarly on the basis of his Ext.P8(a) confession statement, PW11 recovered MO 3 and 7 under Ext.P5 recovery mahazar. After completing the investigation, charge was laid. Petitioner pleaded not guilty. 2. Learned Magistrate, on the evidence of Pws 1 to 11 and P1 to P8 and Mos 1 to 12, found that petitioner committed the offences under Section 457, 461 and 380 IPC and sentenced him to rigorous imprisonment for four years and a fine of Rs.1000/- for the offence under Section 457, a fine of Rs.1000/- and in default, simple imprisonment for one month of the offence under Section 380 IPC and rigorous imprisonment for four years for the offence under Section 461 IPC. All the sentences were directed to run concurrently. 3. Petitioner challenged the conviction and sentence before CRRP 4412/2006 3 Sessions Judge, Kasargod in Crl.A.188 of 2000. Learned Sessions Judge elaborately considered the evidence and confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition filed under Section 397 and 401 of Code of Criminal Procedure. 4. Learned counsel appearing for petitioner was heard. The argument of the learned counsel is that there is no evidence to connect petitioner with the offences and the only connecting link is the recovery of material objects, which should not have been relied on by the courts below. It was argued that PW4 is a neighbour of PW1 and his evidence should not have been relied at all, especially when there is contradiction in his evidence. The argument is that as per his statement recorded under Section 161 of Code of Criminal Procedure, he was waiting for the bus to go to Cherkala and at the time of evidence, his case was that he was going to Edneer and therefore the evidence of PW4 should not have been believed by the courts below and as there is no evidence to prove conclusively the guilt of the petitioner, he should not have been acquitted. 5. Learned Public Prosecutor submitted that both trial court and appellate court appreciated the evidence in the proper perspective and evidence of Pws 1 and 2 establish the offences CRRP 4412/2006 4 and they identified the material objects recovered either from the petitioner or on the information furnished by him as the stolen articles and it was not challenged and there is no reason to disbelieve the evidence of the recovery made by PW11, corroborated by evidence of PW4 and therefore conviction and sentence is perfectly legal and proper. 6. The evidence of PW1 and his daughter in law PW2 and neighbour PW3 establish that on the night of 25.1.2000, while Pws 1 and 2 were in the house, a burglary was committed and the culprit had entered the house after removing the iron bars of the window of the central hall of the ground floor and the articles were ransacked and the safe was broke opened and gold ornaments were stolen. The evidence of PW9, the Sub Inspector who recorded Ext.P1 F.I Statement and registered Ext.P6 F.I.R establish that the factum of burglary was informed to the police immediately. Pws 1 and 2 identified Mos 1 to 12 as the stolen articles. Even though Pws 1 and 2 were cross-examined, courts below found that their evidence with regard to the identity of Mos 1 to 8 and 11, which belonged to PW2 and MO9 and 12, which belonged to wife of PW1 and MO10, which belonged to the sister in law of PW2 were not challenged. As rightly pointed out by learned Sessions Judge, not only that identity of Mos 1 to 12 CRRP 4412/2006 5 as the stolen articles were not disputed, it was suggested to the witnesses at the time of evidence was that the material objects belonged to Pws 1 and 2 and they were handed over to the police by them. Therefore evidence establish that Mos 1 to 12 were the stolen articles and they were stolen from the house of Pws 1 and 2 on the night of 25.1.2000 after committing house breaking during the night. There is no reason to interfere with that finding of the court below. 7. Then the question is whether there is evidence to prove that petitioner committed the offences. Though learned counsel vehemently argued that recovery made by PW11 from the petitioner evidenced by Ext.P3 mahazar and corroborated by the evidence of PW4 should not have been believed, learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. The fact that PW4 is residing near to the house of PW1 is not a ground to disbelieve his evidence. The fact that in his statement to the police under Section 161 of the Code, PW4 deposed that he was waiting for the bus to go to Cherkala and at the time of evidence, he deposed that he was waiting for the bus to go to Edneer, is not a material contradiction to reject the evidence of PW4 as canvassed by the learned counsel. Courts below appreciated the evidence in the CRRP 4412/2006 6 proper perspective and relied on the evidence of PW11 corroborated by PW4 and Ext.P3 recovery mahazar and held that petitioner was found at the bus stand at Kasargod on 2.2.2000 at about 3.20 pm and the ornaments recovered from petitioner were the stolen articles. Evidence of PW11 also establish that it was on the information furnished by petitioner the other stolen articles were recovered by PW11. In such circumstances, conviction of petitioner for the offence under Section 457, 380 and 461 IPC is perfectly legal and is in order. 8. Then the only question is whether sentence warrants modification. Learned Magistrate and learned Sessions Judge found that petitioner is a professional burglar and he does not deserve any leniency. In such circumstances, I do not find any reason to interfere with the sentence also. Revision Petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk/-