IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 3RD JUNE 2009 / 13TH JYAISHTA 1931 Crl.Rev.Pet.No. 152 of 2001() ----------------------------- CRA.4/1998 of II ADDL.SESSIONS COURT, KOLLAM CC.303/1991 of JUDL.MAGISTRATE OF FIRST CLASS-I, KARUNAGAPPALLY .................... REVN. PETITIONER(S): ------------------------------------- FAZALUDEEN, S/O. IBRAHIMKUTTY, PERATTUKIZHAKKATHIL, NADUVILAKKARA MURI, THEVALAKKARA VILLAGE, KOLLAM DISTRICT. BY ADV. SRI.T.M.ABDUL LATHEEF RESPONDENT(S): --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI031. BY P.P. SRI. C.M. KAMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.646 OF 2001 IN CRL.R.P.NO.152 OF 2001: CLOSED 3/6/2009 SD/- R. BASANT, JUDGE. //true copy// R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 152 of 2001 ------------------------------------------------- Dated this the 3rd day of June, 2009 ORDER The revision petitioner in this petition assails the concurrent verdict of guilty, conviction and sentence imposed on him in a prosecution under Sec.379 IPC. 2. The crux of the allegation against the petitioner is that on 18/11/90 at about 6.45 p.m. on the public road he snatched away a gold chain worn by P.W.1 weighing 1 ½ sovereigns – a necklace of `Thara' fashion. When she was walking by the side of the road, the accused allegedly came on a bicycle committed the offence of snatching and sped away. P.W.2 - husband of P.W.1, had not witnessed the incident. He had gone to a neighbouring shop to make some purchase when the alleged incident happened on the road. P.W.2 lodged Ext.P1 First Information Statement before the police. P.W.4 recorded the complaint and registered Ext.P1(a) FIR on the basis of Crl.R.P. No. 152 of 2001 -: 2 :- Ext.P1 First Information Statement. Investigation was initially conducted by P.W.5 who prepared Ext.P2 scene mahazar. P.W.3 is the attestor to Ext.P2 scene mahazar. 3. On 27/1/91 P.W.6 – the Circle Inspector of Police, arrested the accused in connection with some other crime. He was interrogated. In the course of interrogation, the accused allegedly made a confession statement about his involvement in the present crime. In such statement, he revealed to the police that the stolen gold chain had been sold by him to P.W.7. The confession statement was recorded and P.W.6 proceeded to effect the recovery from P.W.7. The gold chain as such could not be recovered. It had already been melted by P.W.7 and only a gold ingot weighing 1 ½ sovereigns was available with P.W.7. P.W.6 seized the same under Ext.P3 seizure mahazar and Ext.P3 (a) is the relevant portion of the confession statement. P.W.8 is the Sub Inspector of Police who completed the investigation and filed the charge sheet. 4. In the course of trial, the accused took up a defence of total denial. He disputed the identification by P.W.1 as also the theory that he had handed over the gold ornament of P.W.1 to P.W.7. He did not adduce any defence evidence. 5. The courts below concurrently came to the conclusion Crl.R.P. No. 152 of 2001 -: 3 :- that the prosecution has succeeded in proving all the ingredients of the offence punishable under Sec.379 IPC. Primarily, the courts below relied on the oral evidence of P.W.1. It appears that both the courts attempted to draw inspiration for the evidence of P.W.1 from the recovery of the costly gold article (M.O.1 ingot) from P.W.7 under Ext.P3 seizure mahazar. Accordingly, they proceeded to pass the impugned concurrent judgments. 6. Before me, the learned counsel for the petitioner/ accused and the learned Public Prosecutor have advanced their arguments. The learned counsel for the petitioner assails the impugned judgments on the following grounds: (i) The courts below erred grossly in placing reliance on the oral evidence of P.W.1. (ii) The courts below ought to have held that even if the entire evidence of confession and recovery were accepted in toto, the alleged recovery of M.O.1 from P.W.7 cannot help the court to draw any inspiration for the oral evidence of P.W.1. (iii) The sentence imposed is excessive. 7. P.W.1 is the victim. She was walking along the road. Her husband P.W.2 had gone to the neighbouring shop with instructions to P.W.1 to proceed. P.W.2 heard the cries of P.W.1 Crl.R.P. No. 152 of 2001 -: 4 :- and immediately P.W.1 narrated the story to him. 8. There can virtually be no dispute or doubt on the question that P.W.1’s gold chain had been snatched away by some miscreant. That gold chain was weighing 1 ½ sovereigns. P.W.1, in court, for the first time, identified the revision petitioner. She stated that after the police arrested the accused, he was shown to her and she was able to identify him. Except the oral evidence of P.W.1, no other ocular corroboration is available for the involvement of the petitioner in the crime. The crucial question is whether P.W.1 can be believed. 9. It is contended that the recovery of M.O.1 cannot at all afford any corroboration for the oral evidence of P.W.1. The stolen gold chain has not been recovered. The theory of alleged recent possession of the stolen article by the petitioner cannot, in these circumstances, be pressed into service. P.W.1 had stated that the ornament worn by her was weighing 1 ½ sovereigns and was of `Thara’ fashion. It is that chain which was allegedly sold by the accused to P.W.7. P.W.7 did not support the version of the prosecution on this aspect. He turned completely hostile to the prosecution. According to him, he had handed over the gold ingot as insisted by the police; but the accused had not handed over any article to him. Crl.R.P. No. 152 of 2001 -: 5 :- 10. Going by the evidence of P.W.6 about the alleged confession or the contents of the seizure mahazar marked as Ext.P3(a) which incorporates the relevant version, there is nothing to confirm that the gold chain allegedly sold by the accused to P.W.7 was a `Thara’ gold chain weighting 1 ½ sovereigns. Specific identification of the stolen property is hence not there at all. In the absence of crucial evidence even coming forth even from Ext.P3 seizure mahazar as to what was the nature of the chain given by the accused to P.W.7 and melted by him to get M.O.1 ingot, I agree with the learned counsel for the petitioner that inspiration cannot be drawn from the alleged recovery for the oral evidence of P.W.1. The courts below appear to have relied on that circumstance; but that circumstance, according to me, cannot offer inspiration for the evidence of P.W.1. 11. The evidence of P.W.6 is, of course, there and that suggests that the petitioner/accused was arrested in some other case. The accused was interrogated and from such interrogation he realised the involvement of the petitioner in the present case. He hence traced his way back and reached the instant crime. According to him, the accused had identified P.W.7, who, in turn, had produced M.O.1 claiming that to be the Crl.R.P. No. 152 of 2001 -: 6 :- ingot obtained by melting the gold chain handed over by the accused. No specific motive is alleged against P.W.6 and, in the circumstances of the case, the fact that P.W.6, after questioning the petitioner after his arrest, traced P.W.1 and M.O.1 is of course a circumstance broadly relevant while considering the materials in this case. 12. In addition to that support on broad probabilities, there is nothing to draw inspiration for the oral evidence of P.W.1. But I note that P.W.1 appears to be a respectable woman respectably employed. As already noted her version about the theft of her gold chain is completely acceptable. She has identified the petitioner in court. It is, of coruse, true that such identification by her is not corroborated by any identification earlier in a test identification parade. But that circumstance notwithstanding P.W.1’s evidence of identifying the petitioner as an accused in the witness box is there. There is also a circumstance that she claims that after the arrest of the accused (on 27/1/91) the accused was brought to the local Police Station and she was able to identify him. It is not as though P.W.1 would not have seen the miscreant. At about 6.45 p.m. the alleged incident occurred and it is idle to assume that in an open public road when such incident takes place P.W.1 would not have Crl.R.P. No. 152 of 2001 -: 7 :- been able to identify the miscreant/offender. In these circumstances, notwithstanding the fact that no other witness has given ocular corroboration for the oral evidence of P.W.1 and that the recovered object M.O.1 has not been proved to have come specifically from the stolen gold chain, all that remains to be considered is whether the oral evidence of P.W.1 can be accepted. 13. The courts below have accepted her evidence. On broad probabilities and in the light of the cross-examination, I find no reason to suspect the evidence of P.W.1. Sitting at this third tier of litigation I am persuaded to agree with the concurrent conclusion of the courts below that the oral evidence of P.W.1 about the identify of the miscreant need not be discarded or rejected. On the evidence of P.W.1 which does appear to me to be inspiring evidence and in the light of the broad circumstance that after questioning the accused, P.W.6, who had no information about this crime – as can be seen from Ext.P4, had chosen to work his way back to P.W.1 and recovered M.O.2 which also weighs 12 grams (corresponding to 1 ½ sovereigns lost by P.W.1), I am satisfied that the evidence of P.W.1 does not warrant revisional interference. 14. The learned counsel for the petitioner prays that Crl.R.P. No. 152 of 2001 -: 8 :- leniency may be shown on the question of sentence. The allegations are serious. I note that a period of about two decades has elapsed from the date of commission of the crime. Considering the totality of circumstances, I am satisfied that the sentence imposed can be modified and reduced. 15. In the result: (a) This revision petition is allowed in part. (b) The impugned verdict of guilty and conviction under Sec.379 IPC are upheld. (c) But the sentence imposed is modified and reduced. In supersession of the sentence imposed on the petitioner/accused by the courts below, he is sentenced to undergo rigorous imprisonment for a period of 6 months. He is further directed to pay a fine of Rs.5,000/- and in default, to undergo simple imprisonment for a period of one month. Needless to say, eligible set off shall be granted under Sec.428 of the Cr.P.C. The learned Magistrate shall take necessary steps to issue revised warrant specifying the period of set off. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.R.P. No. 152 of 2001 -: 9 :- R. BASANT, J. ------------------------------------------------- Crl.R.P. No. 152 of 2001 ------------------------------------------------- Dated this the 3rd day of June, 2009 ORDER