IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 Crl.Rev.Pet.No. 1626 of 2008() ------------------------------ C.C.NO.495 OF 2005 OF THE J.F.C.M, VADAKARA CRA NO.1040 OF 2007 OF SESSIONS COURT, KOZHIKODE REVN. PETITIONER: APPELLANT --------------------------- T.P.KOYAMON, C.NO.5963, CENTRAL PRISON, VIYYOOR. BY ADV. SRI.LIJU.M.P. (STATE BRIEF) RESPONDENTS: ----------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No. 1626 of 2008 =================== Dated: 17.07.2008 O R D E R In this revision filed from the Central Prison, Viyyur, the petitioner who is the accused in C.C. No. 495 of 2005 on the file of the J.F.C.M, Vadakara for offences punishable under Sections 457,380 and 461 IPC challenges the conviction entered and the sentence passed against him for the aforesaid offences. 2. The case of the prosecution can be summarised as follows: In between the mid night of 7.5.05 and 9 am of 9.5.05 the accused committed lurking house trespass into the shop room bearing building No.21/312 of Vadakkara Municipality situated in the first floor of the Seashell Tower at Vatakara amsom near the National Highway bye-pass road in the possession of PW1 and committed theft of re-charge coupons worth Rs.51,935/- and mobile phones worth Rs.21,500/-after breaking open the door of the room and unlocking the almirah kept inside the room. 3. On the accused pleading not guilty to the charge Crl.R.P.No.1626/2008 :2:- framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 12 witnesses as P.Ws 1 to 12 and got marked 8 documents as Exts. P1 to P8 and 5 material objects as Mos.1 to 5. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 8.3.07 found the revision petitioner guilty of the offences charged against him and sentenced him to rigorous imprisonment for 1 ½ years for the offence punishable under Section 457 IPC, rigorous imprisonment for 2 years for the offence punishable under Section 380 IPC and rigorous imprisonment for 1 ½ years for the offence punishable under Section 461 IPC. There was no direction as to whether the sentences were to run concurrently or consecutively. On appeal preferred by the revision petitioner Crl.R.P.No.1626/2008 :3:- before the Sessions Court, Kozhikode as Crl.Appeal No.1040 of 2007, the lower appellate court as per judgment dated 29.1.07 dismissed the appeal confirming the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. I heard Adv.Sri.Liju M.P., the learned counsel for the petitioner on State Brief and the learned Public Prosecutor Sri.P.Ravindrababu who defended the State. 7. All that the prosecution has proved is that a theft of mobile phones and recharge coupons was committed in the shop room of PW1 situated within the limits of Vadakara Police Station some time in the night of 9.5.05 and the accused was arrested on 12.5.05 by PW3, Circle Inspector of Police, Balussery from Balussery at a time when he was busy selling mobile phones at a cheap rate. No doubt, PW1 identified those sets of mobile phones contained in cardboard boxes produced as Mos 1, 2 and 4 series and also an ash coloured mobile phone produced as MO3 as the properties stolen from his shop. But from that alone it cannot be concluded that it was the revision petitioner who committed theft of the mobile phones from the shop room of Crl.R.P.No.1626/2008 :4:- PW1. Even assuming that the presumption under Section 114 of the Evidence Act could be pressed into service by the prosecution as contended by the learned Public Prosecutor, the maximum that could be presumed is that the accused either committed the theft or received the stolen property. Admittedly there is no recovery of stolen properties at the instance of the accused on the strength of any confession made by the accused falling under Section 27 of the Evidence Act. Moreover, the chance fingerprints obtained by the Investigating Officer from the scene of occurrence were not got compared with the specimen fingerprints of the revision petitioner to confirm that he had a role to play in the theft or house trespass by night. Hence there was no material before court for recording a conviction under Sections 380 or 461 or 457 IPC. But from the inability on the part of the accused to account for the possession of Mos.1 to 4 , it could be presumed that he was a receiver of stolen property for which he could safely be convicted under Section 411 IPC even without a charge in that behalf. The conviction recorded by the court below is accordingly dislodged Crl.R.P.No.1626/2008 :5:- and the revision petitioner is convicted of the offence punishable under Section 411 IPC. In as much as no previous conviction has been proved against the revision petitioner, he cannot be said to a habitual offender deserving a harsh sentence. Accordingly, for the conviction under Section 411 IPC, the revision petitioner is sentenced to rigorous imprisonment for two years. It goes without saying that the revision petitioner will be entitled to set off under Section 428 Cr.P.C. This Revision Petition is disposed of as above. Dated this the 17 th day of July, 2008. V.Ramkumar, Judge. sj