IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 29TH OCTOBER 2010 / 7TH KARTHIKA 1932 Crl.Rev.Pet.No. 106 of 2010() ---------------------------------------- CRA.505/2008 of II ADDL. SESSIONS COURT, PALAKKAD C.C. NO.299/2005 OF JUDICIAL FIRST CLASS MAGISTRATE- I, PALAKKAD .................... REVN. PETITIONER(S): APPELLANT. ----------------------------------------------------- MURALI, S/O.LATE NAGAN,AGED 43 YEARS, CONVICT NO.3754, CENTRAL PRISON, VIYYUR-10. BY SRI.BIMAL.K.NATH(STATE BRIEF) RESPONDENT(S): ------------------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM. BY PUBLIC PROSECUTOR SMT.P.N.SUMANGALA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.106 of 2010 ------------------------------- Dated this the 29th day of October, 2010. O R D E R The accused in C.C.No.299/05 of the Court of Judicial First Class Magistrate-I, Palakkad and the appellant in Crl.A.No.505/08 of the Court of Sessions-Palakkad, is the revision petitioner as he is aggrieved by the order of conviction and sentence imposed against the him u/s.457, 380, 461 of IPC. 2. Crime No.155/02 of Coyalmannam Police Station was registered for the offence punishable u/s.457, 380, 461, 411 r/w 34 of IPC against three accused including the revision petitioner. 3. The case of the prosecution is that on 17.7.2002 at about 1.30 p.m. the accused criminally trespassed into the residential house of PW1 and thereafter broken the almirah, which kept in the house and then took away the gold ornaments weighing 19 sovereigns, camera, mobile phone, iron box and currencies worth Rs.8,000/-, which altogether valuing Rs.1,12,000/-. After investigation in the above crime, the police 2 Crl. R.P.No.106 of 2010 filed a report based upon which cognizance was taken and instituted C.C.No.299/05. On the appearance of the accused, a formal charge was framed u/s.457, 380 and 461 r/w 34 of IPC and the accused pleaded not guilty. From the order of the learned Magistrate it appears that though the revision petitioner was offered the service of a lawyer, he refused to accept the service of such lawyer and expressed his willingness to conduct the case by himself. Thereafter, the prosecution adduced evidence consists of Pws.1 to 8 and Exts.P1 to P8 and M.O.1 to 5 series were also marked. The accused was questioned u/s.313 of Cr.P.C. and finally the trial court found that the accused is guilty of the above offences and accordingly he is sentenced to undergo simple imprisonment for a period of 3 years and to pay fine of Rs.5,000/- and in default he is directed to undergo simple imprisonment for 6 months for the offences u/s.457 of IPC. Under section 461 of IPC, he is sentenced to undergo simple imprisonment for 2 years and to pay a fine of Rs.1,000/- and in default to undergo simple imprisonment for 1 3 Crl. R.P.No.106 of 2010 month. Under section 380 of IPC he is sentenced to undergo simple imprisonment for 3 years and he is also sentenced to pay fine of Rs.5,000/- and the default sentence is fixed as 6 months simple imprisonment. Set off was allowed. It is also ordered that the substantive sentence shall run concurrently. 4. Challenging the above conviction and sentence, the revision petitioner had preferred an appeal but by judgment dated 28.2.2009 in Crl.A.No.505/08 the Court of Sessions- Palakkad, dismissed the appeal confirming the conviction and sentence. 5. Thus while undergoing imprisonment in pursuance to the above conviction and sentence, challenging the judgments of the court below, the revision petitioner preferred this revision petition from jail and this court by an order dated 6.1.2010 appointed Sri.Bimal K.Nath as State Brief to prosecute the revision petition for and on behalf of the revision petitioner and thus I have heard Sri.Bimal K.Nath and the learned Public Prosecutor. 4 Crl. R.P.No.106 of 2010 6. The case of the prosecution is that, the revision petitioner and the other accused trespassed into the house of PW1 during the night of 17.7.2002 at about 1.30 p.m. and commit theft of 19 sovereigns of gold ornaments, camera, mobile phone, iron box and currencies of Rs.8,000/- and thus the total value of the property stolen will come out to Rs.1,12,000/-. According to the prosecution, PW1 who is the owner of the house, was employed at Chennai and the factum of theft was informed to him by PW2, the neighbour and pursuant to that information, PW1 came to the place of occurrence and thereafter lodged Ext.P1 FI Statement based upon which Ext.P1 (a) FIR of Crime No.155/02 was registered in the Pudunagaram police station for the above offences. When PW1 was examined, he had deposed regarding the theft committed in his house and the loss of articles. Ext.P1 FI Statement is proved through PW1. PW2 is the neighbour who informed PW1 regarding the theft. In pursuance to the registration of Ext.P1(a) FIR, PW8 who is the Circle Inspector of police, Alathur police 5 Crl. R.P.No.106 of 2010 station, took up the investigation and he went to the place of occurrence and prepared Ext.P2 scene mahazar to which PW2 is one of the attestors. The evidence of PW8 further shows that, the finger print experts were came to the place of occurrence and they took chance prints from the place of occurrence and he had also deposed that chance prints taken by the experts from the place of occurrence is similar to the finger prints of the 1st accused. He had also deposed that the metal rod of the door, broken hook of the doors and broken lock were being taken from the place of occurrence as per the scene mahazar. The revision petitioner was arrested by PW5, connected with Crime No.138/02 of Kozhinjampara police station and on his arrest, the accused has confessed the commission of the offence in this case and according to PW5 he had sent the confession statement of the accused to the Puthunagara police station where the place of occurrence is situating. PW6 is the Circle Inspector of police, Chittur police station, he arrested the accused and record his confession statement and the same was 6 Crl. R.P.No.106 of 2010 forwarded to the Circle Inspector of police, Coyalmannam police station. The further case of the prosecution is that the confession of the 3rd accused recorded by PW6, has disclosed that the revision petitioner had given the 3rd accused the gold ornaments and sold to a jeweller at Coimbattoor. To connect the accused with the commission of the offence, the prosecution very much relied upon the evidence of PW4, the finger print expert and also Ext.P4 report filed by him. PW4 had deposed that, he had gone to the place of occurrence and took chance print on 19.7.2004 which is marked as Ext.P2 and the same was compared with the records of the bureau and found tallying with the finger print of the revision petitioner and he had preferred Ext.P4 report. The only question put to PW4 is that, whether he had preferred the report only to help the police. PW7 deposed before the court that on the basis of a confession statement of the revision petitioner and the other accused and as lead by them, he went to Muthukara Kovaiputhur pirivu of Tamil Nadu and had also seized mobile phones marked as M.O.3 as per 7 Crl. R.P.No.106 of 2010 Ext.P6, from the person to whom they sold it. Ext.P6(a) is the portion of the confession statement. Thus M.O.3 the mobile phone was identified by PW7 as well as by PW1. The materials seized as per Ext.P3 seizure mahazar and Ext.P3(a) were identified by PW7. PW5 is the officer who recorded the confession statement of the accused after his arrest and on the basis of the confession statement, PW5 was lead by the revision petitioner to the place were he had sold the gold ornaments. PW8 is the C.I. of police who completed the investigation and he had also prepared Ext.P2 scene mahazar. It is PW8 who preferred reports to include the name in the array of accused. It is on the basis of the above evidence and materials both the courts have categorically and concurrently found that the accused is guilty of the offence charged against him. 7. The learned counsel for the revision petitioner submitted that the prosecution has miserably failed to establish the case against the accused, as the prosecution could not trace out the gold ornaments allegedly theft by the accused and there is no 8 Crl. R.P.No.106 of 2010 direct evidence to connect the accused with the alleged offence. It is also the submission of the learned counsel that in the chance print produced, there is no details as to how and when the same was prepared and also the chance print is not bearing the date. It is also the submission of the learned counsel that, no witness is examined to substantiate the claim of the prosecution that M.O.3 mobile phone was seized from the possession of the accused. 8. On the other hand, the learned Public Prosecutor submitted that the evidence on record would clearly indicate and connect the accused with the alleged offence and all the witnesses have deposed in favour of the prosecution and nothing brought on record to disbelieve the version of the witnesses. It is also the submission of the learned Public Prosecutor that the revision petitioner has miserably failed to make out a case to interfere with the concurrent findings of the trial court as well as the appellate court and thus the learned Public Prosecutor submitted that there is no scope for any 9 Crl. R.P.No.106 of 2010 interference with the order of conviction. 9. I have carefully considered the contentions advanced by the counsel for the revision petitioner as well as the learned Public Prosecutor and I have also perused the evidence and materials on record. 10. Admittedly, the alleged offence was taken place at about 1.30 p.m. on 17.7.2002. In the house of PW1, there were no inmates and PW1, was working at Chennai, as on the date of the alleged incident. It is also came out in evidence that, even the alleged incident was informed to PW1 by PW2 who is a neighbour. In the light of Ext.P2 scene mahazar and in view of the deposition of Pws.1 and 2 it can be seen that there is no possibility for any direct evidence regarding the theft committed by the accused but it is to be noted that immediately after the incident, the matter was reported to the police and the police came to the scene of occurrence and drawn Ext.P2 scene mahazar. It is also relevant to note that PW7 obtained the service of PW4, the finger print expert and took Ext.P2 chance 10 Crl. R.P.No.106 of 2010 print and after verification of the same with the bureau records PW4 has reported that he had produced the photograph of chance print and specimen of the left middle finger of the accused, the revision petitioner herein. Hence the deposition of PW4 and Ext.P4 report are material evidence to connect the accused with the offence. Beside the above expert evidence, on the basis of the confession statement made by the revision petitioner, M.O.1 camera and M.O.2 iron box were seized as per Ext.P3 seizure mahazar. It is also relevant to note that on the basis of Ext.P6(a) confession statement of revision petitioner, M.O.3 mobile was also recovered. It is true that no witness is examined in support of the prosecution case regarding the seizure of M.O.3 mobile phone. But Ext.P6(a) confession statement and the evidence of PWs.7 and 8 and the factum of seizure M.O.3 mobile, which are sufficient to hold the guilt of the accused and the non-examination of any witnesses connected with the seizure of M.O.3 mobile is not fatal to the prosecution. It is also relevant to note that M.Os.1, 2 and 3 materials were 11 Crl. R.P.No.106 of 2010 seized based upon the confession statement given by the accused and the whole recovery was effected in pursuance to the arrest of the accused effected by PW5, connected with Crime No.130/02 of the Kozhinjampara police station. So the prosecution had succeeded in establishing the role of the accused in the commission of the offences of theft by producing cogent and satisfactory link evidence, including the evidence of PW4, the finger print expert and Ext.P4 report and the confession statement of the revision petitioner and the consequent recovery of the stolen articles. Therefore, the courts below is perfectly correct and legal in convicting the revision petitioner and imposing the sentence. 11. The learned counsel for the revision petitioner submitted that a lenient view may be taken in the mater of sentence and it is also the submission of the learned counsel that the revision petitioner was arrested on 3.2.2004 and thereafter 6 years are over. But it is beyond dispute that the revision petitioner is involved in several cases and the modus 12 Crl. R.P.No.106 of 2010 operandi adopted by him for the commission of the offence and as his conduct shows that he deserves no leniency. So no interference is warranted with respect to the sentence also. In the result, there is no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, Judge. ami/