IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 Crl.Rev.Pet.No. 700 of 2001() ----------------------------- CRA.294/1996 of ADDL.SESSIONS COURT, THALASSERY CC.1002/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, KANNUR .................... REVN. PETITIONER(S)/APPELLANT/1ST ACCUSED: --------------------- C.P.RAJAN, S/O.GEORGE, AGED 35 YEARS, PALLIKUNNU HOUSE, PUTHUPADI AMSOM, DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.P.K.RAVISANKAR RESPONDENT(S)/RESPONDENT/RESPONDENT: --------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P .NO. 3344/01 IN CRRP 700/01 DISMISSED 14.6.10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.700 OF 2001 --------------------------------------------- Dated 14th June, 2010 O R D E R Petitioner, the first accused in C.C.1002/1993 was convicted and sentenced for the offence under Section 381 read with Section 34 of Indian Penal Code by Judicial First Class Magistrate-II, Kannur-II. Though petitioner challenged the conviction and sentence before the Sessions court, Thalassery in Crl.A.294/1996, learned Additional Sessions Judge on re- appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Prosecution case is that petitioner and second accused are employees of Plastic Resins and Chemicals being run CRRP 700/01 2 under the managership of PW1. On 16/8/1991 when PW1 took the stock, it was found that there was shortage of 44 bags of Urea. Previous stock taking was on 18/5/1991. Finding the urea missing and suspecting that theft was committed by the employees including the petitioner , complaint was filed before the Sub Inspector of Police, Kannur based on which Ext.P8 FIR was registered. On investigation petitioner and two accused were arrested. On the information furnished by the petitioner five bags of Urea were recovered under Ext.P7 recovery mahazar on 16/10/1991, from the shop of PW4. After completing the investigation by PW7, PW6 Sub Inspector lodged final report which was taken cognizance by the learned Magistrate for the offence under Section 381 read with Section 34 of Indian Penal Code against both accused. As second accused was CRRP 700/01 3 absconding, case as against him was split up. Petitioner pleaded not guilty. Prosecution examined all the witnesses and marked 11 exhibits. Petitioner did not adduce any evidence. Learned Magistrate on the evidence found that evidence of PW1 establishes that theft of 44 bags occurred between 18-5-1991 and 16-8-1991. Based on the evidence of PW4 shop owner and PW2 mahazar witness and Ext.P7 recovery mahazar and evidence of PW7 the investigating officer, learned Magistrate found that five bags of urea recovered under Ext.P7 from the shop of PW4 on the information furnished by the petitioner establishes that he committed the theft and sold it to PW4 which could be recovered only on the information by the petitioner to PW7. Petitioner was therefore, convicted and sentenced to rigorous imprisonment for two years. Conviction and CRRP 700/01 4 sentence as confirmed by the learned Sessions Judge is challenged in the revision. 3. Learned counsel appearing for the revision petitioner argued that though as per charge sheet, theft was on 25-5-1991, 9-6-1991 and 8-7-1991, no evidence was adduced to prove when exactly theft was committed and only evidence is that of PW1 to the effect that previous stock taking was on 18-5-1991 and when on 16-8-1991 stock was taken, 44 bags of Urea was found missing and under Ext.P7 recovery of five bags of urea was only on 16-10-1991 and when recovery was not immediately after the theft, no presumption could be taken that petitioner committed the theft and if at all only the presumption that petitioner was in possession of stolen goods could be taken and therefore, the conviction for the offence under Section 381 is not sustainable, on the facts of CRRP 700/01 5 the case. Learned counsel also argued that PW4 shop owner though deposed that Rajan had sold urea purchased by him, did not personally identify petitioner as that Rajan and therefore, evidence of PW4 is insufficient to connect the petitioner with the offence. Therefore, based on the evidence of PW4 courts below should not have convicted the petitioner. Learned counsel finally argued that sentence awarded is harsh and considering the time lag and fact that petitioner is only a helper of that shop, leniency may be shown. 4. Ext.P1 complaint was filed, for Plastic Resins and Chemicals, Thottada, by its Manager, Raveendran on 19-8-1991 two days after taking of stock on 16-8-1991 as he noticed that 44 bags of Urea were missing from the go down. He had immediately informed the matter to the Managing Partner. On thinking that theft CRRP 700/01 6 was committed by the workers of the factory namely, petitioner and two others and the stolen Urea was transported in jeep KLM-8030. Evidence of PW1 establishes that when stock was taken on 16-8-1991, 44 bags of Urea were found missing. There is no reason to disbelieve that version. In fact, there was no serious challenge on this aspect. 5. Out of the missing Urea, five bags of Urea were recovered by PW7 under Ext.P7 recovery mahazar from the shop of PW4. Ext.P7 the contemporaneous record prepared by PW7 at the time of recovery corroborates the evidence of PW7 that recovery was made based on the information furnished by the petitioner. Evidence of PW7 that said recovery was made on the information furnished by the petitioner was not even challenged in cross examination. PW4 deposed that along with the petitioner, police CRRP 700/01 7 came to his shop and he produced the five bags of Urea, which were recovered under Ext.P7. PW4 further deposed that those five bags were sold by the petitioner earlier and purchased by him. Though PW4 was cross examined, his evidence was not shaken. The evidence of PW4 establishes that petitioner came to the shop of PW4 and intimated that he has 44 bags of Urea to be sold and petitioner first sold ten sacks and thereafter 12 sacks and he paid a total of Rs.3,740/- at the rate of Rs.85/- per sack. The five bags of Urea recovered under Ext.P7 were part of Urea sold by the petitioner and purchased by PW4. Though PW2 did not identify his signature in Ext.P7, as it was not shown to PW2 at the time of his examination, PW2 deposed that he was present when the police along with the petitioner came to the shop of PW4 on 16-10-1991 and it was in his presence police CRRP 700/01 8 seized bags of Urea and that Urea was shown to the police by the accused and he had signed in the mahazar prepared at that time. Though learned counsel argued that PW4 did not identify Rajan who sold the Urea as the petitioner, evidence of PW4 shows that he deposed that he knows the accused Rajan and petitioner came to the shop along with Karim and informed that his brother a manure shop and he has Urea available for sale. At that time only the petitioner was facing trial PW4 referred the accused by person, evidently, after identifying him as the said Rajan. Therefore, I find no reason to agree with the argument that PW4 has not identified the petitioner as the person who sold Urea to him. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective and found that Urea was recovered CRRP 700/01 9 only on the information furnished by the petitioner. 6. Then the argument of the learned counsel is that as theft was not immediately prior to the recovery, presumption cannot be drawn that petitioner committed the theft. Though ordinarily, such inference cannot be drawn, on the facts and circumstances of the case, I find that presumption could definitely be drawn. Petitioner is one of the employee of the shop. Evidence of PW4 shows that petitioner approached PW4 intimating that he had with him Urea to be sold and it was that Urea which was subsequently recovered under Ext.P4 as the stolen article. In the nature of the case the only presumption that could be drawn is that theft was committed by the petitioner along with the other employee, even if it was not solely by the petitioner. In such CRRP 700/01 10 circumstances, conviction of the petitioner for the offence under Section 381 read with Section 34 of Indian Penal Code is perfectly legal. 7. Then the question is regarding the sentence. Section 381 of Indian Penal Code provides for a sentence which may extend to seven years, in addition to fine. Learned Magistrate imposed only a sentence of rigorous imprisonment for two years. I find no reason to interfere with the sentence also, considering the fact that learned Magistrate has awarded only a lesser sentence. Revision fails and is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.