IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 Crl.Rev.Pet.No. 1317 of 2003 ---------------------------------------------- CRA.295/1999 of ADDL.SESSIONS COURT, KOTTAYAM CC.162/1997 of JUDL.MAGISTRATE OF FIRST CLASS, ETTUMANUR .................... REVN. PETITIONER/APPELLANT/ACCUSED: SELVARAJ S/O. SUBRAMANIAN, THRUKKAYIL HOUSE, LEKSHAM VEEDU COLONY, PARAKKADAVU BHAGOM, KOLANIKARA, THODUPUZHA BY ADV. SRI.M.R.JAYAPRASAD RESPONDENT/RESPONDENT/COMPLAINANT: 1. STATE OF KERALA REP. BY DIRECTOR OF PROSECUTIONS, HIGH OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, GANDHI NAGAR POLICE STATION, KOTTAYAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.5558/2003 IN CRRP 1317/2003 DISMISSED 28.5.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1317 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced to rigorous imprisonment for three years for the offence under Section 457 of Indian Penal Code, rigorous imprisonment for two years for the offence under Section 380 of Indian Penal Code and rigorous imprisonment for one year for the offence under Section 461 of Indian Penal Code by Judicial First Class Magistrate, Ettumanoor in C.C.No.162/1997 with a direction that the sentences shall run consecutively. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A.No.295/1999. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence for the offences under Sections 380 and 461 of Indian Penal Code. But, the sentence for the offence under Section 457 of Indian Penal Code was set aside finding that there CRRP 1317/03 2 is no evidence to prove that theft was committed during night and instead, convicted the petitioner for the offence under Section 454 of Indian Penal Code and sentenced to rigorous imprisonment for three years. This revision is filed challenging the conviction and sentence. 2. Petitioner would contend that courts below did not properly appreciate the evidence and having found that there is no evidence to convict the petitioner for the offence under Section 457 of Indian Penal Code, he should not have been convicted for the offences under Section 454, 461 and 380 of Indian Penal Code. 3. Prosecution case is that between 8 a.m. on 8.2.1997 and before 8 a.m. on 10.2.1997, petitioner committed house trespass and broke opened the back door of the house and committed theft of MO1 gold bangle, MO2 gold ring and MO3 series of ear rings, a walkman and two five hundred notes. PW1 had gone to Ernakulam after closing his house at Gandhi Nagar Housing Colony, Mudiyoorkara and returned CRRP 1317/03 3 only on the morning of 10.2.1997 and found that the house was broke opened and theft was committed. PW1 furnished Exhibit P1 F.I. Statement, based on which, under Exhibit P8, crime was registered. PW12, the Sub Inspector of Police, Gandhi Nagar, conducted the investigation. PW11, the Sub Inspector of Police, Thodupuzha, arrested the petitioner on 22.4.1997 under suspicious circumstances and when questioned, getting information that he committed the offence, he was produced before Judicial First Class Magistrate's Court, Thodupuzha and intimated Gandhi Nagar Police. PW11 prepared Exhibit P4 scene mahazar in the presence of PW1 and getting information of arrest of the petitioner, obtained custody from the learned Magistrate on 2.5.1997. Based on the information furnished by the petitioner at the time of questioning and as shown by the petitioner, he was taken to PW4, a friend of the petitioner, who was earlier requested by the petitioner to pledge the gold ornaments and along with PW4, petitioner CRRP 1317/03 4 was taken to PW5 and thereafter to PW6, as through the mother of PW5, the gold ornaments were pledged and MOs 1, 2 and 3 were recovered. Exhibit P2, pawn ticket, by which the gold ornaments were pledged, was seized by PW12 under Exhibit P5 mahazar in the presence of PW8 and under Exhibit P6, seized Exhibit P3 bank receipt in the presence of PW9. MOs 1 to 3 were seized under Exhibit P7 mahazar in the presence of PW10. After completing the investigation, charge was laid. Petitioner pleaded not guilty. 4. Prosecution examined twelve witnesses and marked Exhibits P1 to P9 and identified MOs 1 to 3. 5. Learned Magistrate, on the evidence, found the petitioner guilty and convicted him for the offences under Sections 457, 380 and 461 of Indian Penal Code. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction, except for the offence under Section 457 of Indian Penal Code and finding that there is no eye witness to show when exactly the theft was CRRP 1317/03 5 committed, modified the sentence to an offence under Section 454 of Indian Penal Code. 6. The question is whether there is conclusive evidence to prove the offences found against the petitioner. 7. Evidence of PW1, corroborated by Exhibit P1 F.I. Statement, establishes that PW1 had gone to Ernakulam after closing his house on the morning of 8.2.1997 and when returned back on 10.2.1997, found that a burglar had entered the house and committed theft of gold ornaments. MOs 1 to 3 were identified by PWs 1 and 2 as the stolen articles. Learned Magistrate and learned Additional Sessions Judge found that though PWs 1 and 2 were cross-examined at length, nothing was brought out to disbelieve the evidence regarding theft or the identity of MOs 1 to 3. Therefore, prosecution has successfully established that theft was committed in the house of PW1 between 8.2.1997 and 10.2.1997 and theft was committed by breaking open the house. CRRP 1317/03 6 8. Then the question is whether there is evidence to connect the petitioner with the offences. Though there is no eye witness and there is no evidence to prove at what time of the day or night the theft was committed, MOs 1 to 3, which are proved to be the stolen articles, were proved to be recovered based on the information furnished by the petitioner. PW4 was pointed out by the petitioner to PW12, the Investigating Officer. Evidence of PW4 establishes that petitioner had sought his help to pledge the gold ornaments and PW4 had, in turn, sought the assistance of PW5 and with the help of the mother of PW5, he pledged the gold ornaments with Palakkuzha Service Co-operative Bank. Evidence of PW6 establishes that the articles were pledged in the bank. The evidence of PW12 establishes that Exhibit P2, the pawn ticket seized under Exhibit P5, by which the gold ornaments were pledged with the assistance of PW5, were recovered under Exhibit P5 mahazar and the evidence of PW8 and Exhibit P3 bank receipt, establish seizure of CRRP 1317/03 7 Exhibit P6, in the presence of PW9. It is established that gold ornaments could be seized only on the information furnished by the petitioner. In the nature of the evidence, learned Magistrate and learned Additional Sessions Judge were justified in finding that petitioner committed theft after committing house trespass, though there is no evidence to prove the exact time or whether it was during day or night. There is no explanation for the petitioner as to how he happened to be in possession of MOs 1 to 3, which, with the assistance of PW6, were pledged. In such circumstances, conviction of the petitioner for the offences under Sections 380, 457 and 461 of Indian Penal Code is perfectly legal and correct and warrants no interference. 9. Then the only question is regarding the sentence. Learned Magistrate sentenced the petitioner to rigorous imprisonment for two years for the offence under Section 380 of Indian Penal Code and rigorous imprisonment for one year for the CRRP 1317/03 8 offence under Section 461 of Indian Penal Code, which were confirmed by the learned Additional Sessions Judge. I find no reason to interfere with the sentence. Though an offence under Section 457 of Indian Penal Code was modified to an offence under Section 454 of Indian Penal Code, maintaining the sentence of imprisonment for three years, I find no reason to interfere with that sentence also, as considering the entire facts and circumstances of the case, learned Additional Sessions Judge modified the direction to run the sentence consecutively to concurrently. In such circumstances, I find no reason to interfere with the sentence. Revision is dismissed. Judicial First Class Magistrate, Ettumanoor is directed to execute the sentence. 28th May, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1317/03 9 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1317 of 2003 -------------------------- ORDER 28th May, 2010