IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 Crl.Rev.Pet.No. 719 of 2008() ----------------------------- CRA.48/2002 of ADDL. SESSIONS COURT (ADHOC), THALASSERY CC.195/1998 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER: REVISION PETITIONER/APPELLANTS/ACCUSED: --------------------------------------------------------- KURUKKANATAVIDE RASHEED @ ABDUL RASHEED, S/O. HAMZA, VALAPATTANAM AMSOM, DESOM, KANNUR. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENTS: RESPONDENT/COMPLAINANT: ------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl. R.P. No. 719 OF 2008 * * * * * * * * * * * * * * * * * * Dated: 12-03-2008 ORDER Petitioner who was the accused in C.C. 195 of 1998 on the file of the J.F.C.M. II, Kannur for offences punishable under Sections 457, 380 and 461 I.P.C. challenges the conviction entered and the sentence passed against him concurrently by the courts below. 2. The case of the prosecution can be summarised as follows: On 19-12-1997 at about 2.00 a.m. the accused gained entry into the house of P.W.1 bearing door No, V.P. IV/4 situated at Kadavu road in Valapattanam after removing the tiles of the roof of the said house and committed theft of a gold necklace weighing 14.180 gms., a N weighing 4.200 gms, 6 gold coins weighing 4 gms. and brassiers which were kept in a steel almirah and also committed theft of a Sanyo Torch , a Casio Watch which were kept inside the room altogether worth Rs. 27,000/- the accused has thus committed the offences as above. 2. On the side of the prosecution 7 witnesses were examined as P.Ws 1 to 7 and five documents were marked as Exts. P1 to P5 and nine material objects as MOs 1 to 9. The accused denied the Crl. R.P. No. 719 OF 2008 -:2:- incriminating circumstances in the prosecution evidence when put to him under Sec. 313 (1)(b) and he maintained his innocence. He did not adduce any defence evidence. 3. After trial, as per judgment dated 4-12-2001, the learned Magistrate found the revision petitioner guilty of the offences and sentenced him to undergo simple imprisonment for one year under Sec. 457 I.P.C., rigorous imprisonment for one year and six months respectively under Sections 380 and 461 I.P.C. with a further direction that the sentences shall run consecutively. Eventhough the revision petitioner preferred an appeal as Crl. Appeal 48 of 2002 before the Sessions Court, Thalassery, the said Appeal was dismissed as per judgment dated 3-10-2007 confirming the conviction entered and the sentence passed against the accused. Hence, this Revision. 4. The learned counsel appearing for the revision petitioner made the following submissions in support of his attack:- Eventhough P.W.1 , the de facto complainant admits that he came to know of the occurrence on 20-12-1997 and the first information statement was recorded only on 23-12-1997. The said delay of three days is fatal to the prosecution. The recovery of the material objects as per Ext.P3 seizure mahazar is stated to be on the strength of Ext.P3 (a) confession claimed to be falling under Section Crl. R.P. No. 719 OF 2008 -:3:- 27 of the Evidence Act. The said confession statement does not contain authorship of concealment and therefore it could not even be treated as recovery under Sec. 27 of the Evidence Act. 5. I am afraid that I cannot agree with the above submissions. It has now been settled that even failure to lodge a complaint in theft cases is not fatal to the prosecution. See State of Kerala v. Mohanan - 1987 (2) KLT 64. Hence I do not find any merit in the contention that the delay of three days in lodging the complaint is fatal to the prosecution. No doubt, Ext.P3 (a) confession statement does not contain authorship of concealment. But within the conduct of the accused pointing out the police to his bedroom and handing over the material objects to the police officer definitely falls under Sec. 8 of the Evidence Act. This coupled with the identification of the material objects by P.Ws 1 and 2 is sufficient to confirm the conviction. The trial court who had the unique advantage of seeing the witnesses and assessing their credibility has no reason to disbelieve the prosecution witnesses. The lower appellate court has also confirmed the conviction and I do not find any error in the conviction recorded by the learned Judge. Accordingly, the conviction is confirmed. The sentence imposed on the revision petitioner also cannot be said to be excessive or disproportionately harsh. However, Crl. R.P. No. 719 OF 2008 -:4:- the direction that the sentences shall run consecutively was uncalled for in the absence of any evidence indicating that the petitioner was a habitual offender. Accordingly, it is clarified that the substantive sentence of imprisonment shall be suffered by the petitioner concurrently. Crl.R.P. is disposed of as above. V. RAMKUMAR, (JUDGE) ani.