IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930 Crl.Rev.Pet.No. 2057 of 2008() ------------------------------ CRA.32/2004 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.669/1998 of JUDL. MAGISTRATE OF FIRST CLASS COURT, CHAVAKKAD .................... REVN. PETITIONER/ APPELLANT/ACCUSED: -------------------------------------- VARGHESE ALIAS KILLAN VARGHESE, ALIAS ASOKAN, S/O.KANJIRAMAPARAMBIL ANTHONY, KUTTUMUCK DESOM, VILVATTOM VILLAGE, THRISSUR DISTRICT. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/RESPONDENT/COMPLAINANT: ------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE C.I. OF POLICE, GURUVAYOOR POLICE STATION. PUBLIC PROSECUTOR SRI.P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 2057 OF 2008 ------------------------------------------ Dated this the 29th day of September, 2008 O R D E R Petitioner was concurrently convicted and sentenced for the offence under sections 457, 380 and 461 of Indian Penal Code. Prosecution case is that on 7.11.1994 PWs 1 to 3 had taken rooms in Thulaseedalam lodge, Guruvayoor for attending a marriage and while they were sleeping, petitioner committed theft of the gold ornaments and cash of Rs.38,000/- from the room by committing lurking house trespass by night and thereby committed offences under sections 457, 380 and 461 of Indian Penal Code. Theft was found out on the morning. PW1 lodged Ext.P1 F.I. Statement immediately. On 8.11.1994 some of the stolen gold ornaments were found in a packet beneath the seat in a bus in Kunnamkulam with an anonymous letter addressed to the Sub Inspector of Police, Guruvayoor acknowledging that the amounts were taken and the gold ornaments are left in the bus owned by PW4 and PW3 being the Conductor. Police though investigated the case not solve the case. Subsequently on CRRP2057/08 2 27.6.1997 petitioner was arrested by Circle Inspector of Police, Chelakkara at Killimangalam. On questioning with the confession made by the petitioner that he committed theft of gold ornaments from Thulaseedalam lodge in 1994 and sold them to the jewellers PW17 as led by petitioner reached the jewellery shop of PW8 and under Ext.P9 recovery mahazar in the presence of PW15 the attesting witness to the recovery mahazar, recovered MO6 gold bangles weighing 19½ sovereigns. So also, on reaching the jewellery shop of PW9, MO11 gold chain, MO13 gold bangles and MO15 necklace were recovered under Ext.P10 mahazar, in the presence of PW15. PW17, on reaching the shop of PW11, recovered MO14 and MO16 bangles under Ext.P11 recovery mahazar in the presence of PW16. After reaching the shop, PW12, as led by petitioner, PW17recovered MO17 bangles under Ext.P12 mahazar in the presence of PW16. 2. PWs 1 and 2 identified MO3 to 6 and 8, which were recovered from the bus under Ext.P4 mahazar. PWs 1 and 2 identified MOs 1 to 17 as the stolen ornaments. 3. Prosecution examined 19 witnesses and marked 17 exhibits and identified 17 material objects. The defence was one of total denial. Learned Magistrate on the evidence found the CRRP2057/08 3 petitioner guilty. He was convicted and sentenced to rigorous imprisonment for two years and a fine of Rs.5,000/- and in default simple imprisonment for six months for the offence under section 457 IPC. Though he was convicted for the offence under sections 380 and 461 of IPC also, no separate sentence was awarded. Set off was also allowed. Petitioner challenged the conviction and sentence before Sessions Court, Thrissur in Criminal Appeal 32 of 2004. Learned Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision petition. 4. Learned counsel appearing for petitioner and learned public prosecutor were heard. The records of the Courts below were also perused. 5. The argument of the learned counsel appearing for petitioner is that the theft was on the night of 7.11.1994 and the material objects, allegedly based on the confession statement of the petitioner, were recovered from the shops of PWs 8, 9, 11 and 12 only on 26.6.1997 and when the gold ornaments were recovered and produced before the Court, they were all new gold ornaments and therefore learned Magistrate and the CRRP2057/08 4 learned Sessions Judge should not have believed the recovery. It was argued that PWs 15 and 16, the attesting witnesses to the recovery of Exts.P9 to P12 recovery mahazars, are not natives of Thrissur, but are residing more than 30 Kms away from Thrissur and therefore their presence at Thrissur at the time of recovery could not have been believed and their evidence which bristles with the artificiality should not have been swallowed by the Courts below and therefore the recovery evidenced by Exts.P9 to P12 Mahazars should not have been accepted as made on the information furnished by petitioner and therefore on that recovery alone petitioner should not have been convicted. It was argued that but for the recovery under Ext.P9 to P12 there is no evidence to connect petitioner with the theft and when the recovery is found to be unreliable, the Courts below should have acquitted the petitioner. It was further argued that in any case petitioner is entitled to get the benefit of doubt and in any case the sentence is excessive and is to be modified. 6. Learned public prosecutor submitted that fact that material objects which were recovered under Exts.P9, P10, P11 and P12 mahazars by PW17 were proved to be the stolen ornaments by the evidence of PWs 1 and 2 and there is no CRRP2057/08 5 reason to disbelieve the identity of the stolen articles. It was also argued that the recovery evidenced by Exts.P9, P10, P11 and P12 are proved by the evidence of PWs 15, 16 the attesting witnesses to the recovery and PW17, the Circle Inspector who effected the recovery and the recovery could not have been effected but for the information furnished by the petitioner and it directly connects petitioner with the offences and therefore the conviction is perfectly correct. Learned public prosecutor also submitted that in view of the nature of the offence, sentence awarded is reasonable. 7. The evidence of PWs 1 and 2 establish that to attend a marriage they had gone to Guruvayoor on 7.11.1994 and they had taken three rooms in Thulaseedalam Lodge, Guruvayoor. Evidence of PW3, the Manager of the lodge furhter fortifies the evidence. The Courts below believed the evidence and found that they had taken the rooms and on the night gold ornaments and cash were stolen from the rooms. On the very next day morning PW1 furnished Ext.P1 F.I. Statement and based on Ext.P1, Ext.P17 F.I.R. was prepared. Ext.P2 scene mahazar also corroborates the case. Evidence establish the theft of gold ornaments and cash on the night of 7.11.1994. MOs 3 to 6 and CRRP2057/08 6 8, some of the gold ornaments, which were stolen were found in a bus on the next morning along with an anonymous letter, which were recovered under Ext.P4. Evidence of PW5 owner and PW4 Conductor of the bus establish this fact. In fact recovery under Ext.P4 was not disputed. True. The said recovery does not connect petitioner with the offences. 8. Though the police investigated the case, nothing could be traced out. Later PW17 found the petitioner on 27.6.1997 at about 1.30 p.m. in Killimangalam and petitioner was arrested. On questioning petitioner, he disclosed about the theft committed in Guruvayoor. PW17 on the information furnished by petitioner and as led by him reached the shop of PW8 jewellery owner and recovered MO6 bangles after preparing Ext.P9 recovery mahazar in the presence of PW15. PW8 deposed that MO6 was sold to him by the petitioner and he had polished the same and had given it to his wife. PW17 reached the shop and recovered MO6 gold ornaments under Ext.P9. Though PW15 is not a resident of Thrissur, he had accounted for his presence. When PW8 the jewellery owner fully supports the version of PW17regarding the recovery, I do not find any reason to disbelieve the recovery which was CRRP2057/08 7 accepted by the learned Magistrate and Sessions Judge. It cannot be believed that PW8, the jewellery owner, would part with 19½ sovereigns of gold in order to help PW17 to foist a case against the petitioner. If the intention of the Circle Inspector was only to foist against the petitioner, therewas no necessity for recovery of 19½ sovereigns of gold from PW8 or recovery of other gold ornaments from PWs 9 to 12 evidenced by Ext.P9 to 12. Like PW8, PWs 9, 11 and 12 fully supported the prosecution and deposed that PW9 produced MOs 11 and 13, 14 and 15 ornaments and PW11, MO14 and 16 ornaments and PW12, MO17 ornaments, respectively recovered under Ext.P10, P11 and P12 recovery mahazar supported by evidence of PW15 and 16. Learned Magistrate and learned Sessions Judge relied on the said recovery. I find no reason to differ with that findings. PWs 1 and 2 had identified the material objects as the stolen articles. I find no reason to differ with that finding. As rightly found by Courts below recovery of MO6, MO11, 13 to 17 on the basis of the information furnished by petitioner conclusively establish that it was petitioner who committed the theft after committing lurking house trespass at night. The conviction of petitioner for the offence under section 457, 461 CRRP2057/08 8 and 380 of IPC is perfectly legal, regular and proper. 9. Then the remaining question is on the sentence. The argument of the learned counsel for the petitioner is that sentence of rigorous imprisonment for two years is excessive and learned Sessions Judge did not interfere with the sentence and it is to be reduced. Considering the nature of the offence as well as the petitioner, I do not find it to just and proper to interfere with the sentence . The sentence awarded is just and reasonable. Criminal revision petition is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-