IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Crl.Rev.Pet.No. 1805 of 2008() ------------------------------ CRA.60/2001 of II ADDL.SESSIONS COURT, KOLLAM CC.104/1996 of JUDL.MAGISTRATE OF FIRST CLASS-II, KOTTARAKKARA .................... REVN. PETITIONER/ APPELLANT/ACCUSED -------------------------------------------------------------- KUNJAPPY, S/O.THOMAS, KONATTU PARAMKUNNANVILA VEEDU, POOYAPPALLY MURI, POOYAPPALLY VILLAGE. BY ADV. SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON RESPONDENT/RESPONDENT/COMPLAINANT/STATE --------------------------------------------------------------------------- STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.P.RAVINDRAN BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.RAMKUMAR, J. ====================================== CRL.R.P. NO. 1805 OF 2008 ====================================== Dated this the Ist day of July 2008 ORDER The accused in C.C.104/1996 on the file of the JFCM II, Kottarakkara is the revision petitioner. 2. The case of the prosecution can be summarised as follows: On 3.10.1995 at about 10.30 p.m. the accused with the intention of committing theft of valuables from the house of PW1 bearing building No.IV/483 in Pooyappally village criminally trespassed into the residential house of PW1 after breaking open the door and committed theft of a gold ring weighing 800 mgs. kept in a ladies bag, a cuticura powder tin, two sarees and an Ajanta wall clock. 3. On the accused pleading not guilty to the charge 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 10 witnesses as PWs. 1 to 10 and got marked 3 documents as Exts. P1 to P3 CRRP 1805/2008 2 and 4 material objects as MOs.1 to 4. 4. After the close of the prosecution evidence, the accused was questioned under Section 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. 5. The learned Magistrate, after trial, as per judgment dated 9/3/2001 found the revision petitioner guilty of the offences and sentenced him to rigorous imprisonment for three years under section 457 IPC and rigorous imprisonment for one year under Section 461 IPC and rigorous imprisonment for three years and to pay a fine of Rs.5,000/- and on default, to suffer simple imprisonment for six months under Section 380 IPC. On appeal preferred by the revision petitioner as Crl.Appeal No.60/2001 before the Sessions Court, Kollam, the second additional sessions judge, Kollam, as per judgment dated 18/1/2008, dismissed the appeal confirming the conviction entered and the sentence passed. Hence, this Revision. 6. Learned counsel appearing for the revision petitioner CRRP 1805/2008 3 made the following submissions before me in support of the revision:- Even though the occurrence took place on 3.10.1995, recovery was affected only on 16.10.1995 after a lapse of nearly 13 days. PW1 who claimed to have lost the material objects in question would state that she had lodged a complaint before the police on the very next day. But no such complaint is forthcoming. The FIR was registered only after the arrest of the accused and recovery of the properties. The gold ring which was seized from the revision petitioner at the time of his arrest is not MO1 gold ring but another ring and the weight of the two rings did not tally. These circumstances have been overlooked by the courts below while recording the conviction against the revision petitioner. 7. I am afraid that I cannot agree with the above submissions. PWs.1 and 2 are a mother and a daughter who are the inmates of the house in question where the theft took palce. Since PW2, the daughter was taken to the hospital by her mother PW1, on 3.10.1995, they returned from the hospital only on the CRRP 1805/2008 4 next day morning i.e. 4.10.1994. When they reached their house, they found the door broke open and the wall clock, a tin of Cuticura powder, 8 sarees and a gold ring weighing 800 mg. belonging to the child of PW2 kept in a ladies bag in the almirah on the western room of the house were missing. Since PW1 entertained a suspicion that it was the revision petitioner who is a neighboring resident who must have committed the theft, she informed the police. Even though the complaint lodged by PW1 before the Pooyappally Police Station was not summoned or marked, the fact remains that the police came to the spot and prepared Ext.P1 scene mahazar. During the course of investigation, the revision petitioner was arrested on 16.10.1995 by PW10, the Circle Inspector of Police, Perinthalmanna under suspicious circumstances. The accused was at that time attempting to sell MO2 Ajanta clock and was also having a gold ring in his possession and he was not able to satisfactorily account for his possession of the same. PW1, therefore registered a case against him under Section 41(1)(d) Cr.P.C. Based on Ext.P3(a) confession made by the revision petitioner, the CRRP 1805/2008 5 investigating officer recovered MO1 a gold ring from PW4, the jeweller who also supported the case of the prosecution when examined before the trial court. PW10 registered a case against him under Section 41(1)(d) Cr.P.C. MO3 Cuticura powder tin and MO4 series consisting of two series were also seized at the instance of the revision petitioner. Both PWs.1 and 2 have identified MOs.1 to 4 as the properties which were stolen from their house. The uncanny knack of women to identify their personal belongings is an attribute which has been taken note of by the apex court. Both the courts below had no doubt in appreciating the evidence of the prosecution witnesses, particularly PWs. 1 and 2. With regard to the difference in the weight of MO1 gold ring and gold ring which was seized at the time of his arrest, the courts below have taken note of the evidence to hold that MO1 was not the gold ring which was actually found at the time of the arrest of the accused and therefore both those rings cannot have the same identity. MO1 gold ring was actually seized on the strength of the confession made by the accused as per Ext.P3(a). The conviction recorded CRRP 1805/2008 6 by the courts below after a careful evaluation of the oral and documentary evidence in the case does not call for any interference by this court and is accordingly confirmed. 9. With regard to the sentence imposed on the revision petitioner also, it cannot be said that the same is disproportionately harsh or excessive. 10. The learned PP, on instructions, submitted that the petitioner was involved in three other crimes of which he has been convicted in one case and acquitted in two cases. Such being the antecedents of the petitioner, penal servitude by way of incarceration alone can serve as sufficient deterrence to such daring offenders. I do not find any good ground to interfere with the conviction entered and the sentence passed against the revision petitioner. This revision is accordingly dismissed. Dated this the Ist day of July, 2008 V.RAMKUMAR, JUDGE CRRP 1805/2008 7 css/