IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 7TH NOVEMBER 2008 / 16TH KARTHIKA 1930 Crl.Rev.Pet.No. 3626 OF 2007() ------------------------------ CRA.623/2006 of SESSIONS COURT, THRISSUR CC.194/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- SURESH, C.NO.5235 CENTRAL PRISON, VIYYOOR, THRISSUR BY ADV. R.V.SUJIT KUMAR(STATE BRIEF) RESPONDENT(S)/COMPLAINANT: --------------- STATE, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE IRINJALAKUDA PUBLIC PROSECUTOR SRI. C.M. NAZER THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 3626 OF 2007 ------------------------------------------ Dated this the 7th day of November, 2008 O R D E R Revision petitioner is the first accused, who was convicted and sentenced for the offences under section 454, 380 and 461 of Indian Penal Code. Petitioner along with second accused were charge sheeted by Circle Inspector of Police, Irinjalakkuda in crime 187 of 2001 for the offences under sections 454, 380 and 461 of IPC. Accused pleaded not guilty. Prosecution examined 8 witnesses, marked 7 exhibits and identified MO1. Accused did not adduce any evidence. Learned Magistrate on the evidence found the petitioner guilty and convicted and sentenced him to rigorous imprisonment for a period of two years each for the offences under section 454 and 380 and rigorous imprisonment for one year for the offence under section 461of IPC. All the sentences were directed to be run consecutively. Second accused was acquitted for want of evidence to connect him with the offence. Petitioner challenged the conviction before Sessions Court, Thrissur in Crl. Appeal 623 of 2006. Learned Sessions Judge on reappreciation of evidence CRRP3626/07 2 confirmed the conviction and sentence and dismissed the appeal. Revision is filed challenging the conviction, from jail. 2. A counsel was appointed as State Brief to argue the revision. The learned counsel and the learned Public Prosecutor were heard. 3. The argument of the learned counsel is that there is no evidence to prove that petitioner committed the offence. It was argued that theft was committed between 11 a.m. and 7.45 p.m. on 5.3.2001 and though evidence of PW1 corroborated by Ext.P1 F.I. Statement and evidence of PW8 establish the theft, there is no evidence to prove that petitioner committed either the theft or lurking house trespass. It was argued that even if the theft was during day time, there was no eyewitness and Courts below should not have relied on the evidence of PW3, who claims that chance fingerprint was collected from the scene of occurrence and based on Ext.P2 report of PW2 and that too based on Exts.P3 and P4 photographs of the chance fingerprints evidence of PW3 should not have been relied upon by the Courts below. It was argued that evidence was manipulated by the prosecution after petitioner was arrested in another case under section 41 of Code of Criminal Procedure and in such circumstances based on a chance fingerprint petitioner cannot CRRP3626/07 3 be convicted. Learned counsel also argued that though MO1 was recovered under Ext.P5 seizure mahazar and based on Ext.P1 information furnished by petitioner, there is no evidence to prove that MO1 is the gold ingot made of the stolen articles and therefore even if the evidence of PW1, 5 and 8 is believed they are insufficient to convict the petitioner. Learned counsel submitted that learned Magistrate directed petitioner to undergo substantive sentence consecutively and learned Sessions Judge did not consider this aspect and in the interest of justice, sentence is to be modified as concurrent sentence. 4. Learned Magistrate and learned Sessions Judge appreciated the evidence in the proper perspective. Evidence of PW1 establish that she had gone along with her daughter to the hospital at about 11 a.m. on 5.3.2001 and returned back only by 7.45 on the night and then it was found that her bedroom was opened and the almirah was broke opened and her gold ornaments were stolen along with cash. Evidence of PW1 also establish that the offender had entered the house by damaging the door on the terrace of the building. There is absolutely no reason to disbelieve the evidence of PW1 on this aspect. 5. Evidence of PW4, the jewellery owner, establish that he had purchased gold ornaments from PW5 the goldsmith and CRRP3626/07 4 MO1 is the gold ingot prepared by him after melting the ornaments purchased from PW5. Evidence of PW5 establish that gold ornaments sold to PW4 were the gold ornaments purchased by him from the revision petitioner. Therefore evidence of PWs 4 and 5 establish that MO1 is the gold ingot made of the gold ornaments purchased by PW5 from the revision petitioner and sold to PW4 by PW5. Though learned counsel argued that evidence of PWs 4 and 5 cannot be believed, on going through their evidence I do not find any reason to differ with the view taken by the Courts below. But the question is whether the fact that MO1 gold ingot was prepared from the gold ornaments sold by the petitioner to PW4, it can be found that they are the stolen articles in this case. It was argued that there is no evidence to prove the identity of the stolen articles which were purchased by PW5 from the revision petitioner. Therefore based on MO1 recovery, it is not possible to hold that petitioner committed the theft after committing lurking house trespass in the house of PW1. 6. But the evidence of PWs 2 and 3 connects petitioner with the offence. Though learned counsel argued that evidence of PWs 2 and 3 the police officers should not have been believed and the evidence on recovery was subsequently manipulated CRRP3626/07 5 after the arrest of revision petitioner in 2004, on going through their evidence I cannot accept the submission. Though the scene mahazar does not disclose that chance fingerprint was found in the final report filed by the Circle Inspector of Police before the learned Magistrate on 26.6.2002, it is stated that the culprit could not be detected and therefore the case is to be closed. The said report submitted in 2002 establishes that after the registration of the crime, fingerprint expert was called for and the chance fingerprint was collected. Therefore the said report, submitted by Circle Inspector before the Court in 2002 itself, corroborates the evidence of PWs 2 and 3 that PWs 2 and 3 had inspected the house of PW1 on 6.3.2001 as claimed by them and chance fingerprint was collected which was photographed by PW3. Ext.P2 report with the evidence of PW2 establish that chance fingerprint collected from the scene tallies with the fingerprint of revision petitioner which was made available to PW2 subsequent to his arrest in another case. There cannot be similar or identical fingerprints for two persons. The presence of fingerprint in the house of PW1, immediately after theft, establishes that petitioner is involved in that offence. If that be so, even if the identity of gold ornaments sold by petitioner to PW5 and the one sold by PW5 to PW4 are not CRRP3626/07 6 established, it is clear that the gold ornaments sold by PW4 to PW5 and to PW5 by the petitioner are the stolen articles in this case. Hence I find no reason to interfere with the conviction of the petitioner for the offences under sections 454, 380 and 461of IPC. 7. Then the only question is with regard to the sentence. Though learned counsel appearing for petitioner submitted that leniency is to be shown, report from the Central Prison shows that apart from this case, petitioner is involved in five other similar cases and was convicted in all those cases. In such circumstances no leniency in the sentence is also warranted. Learned counsel finally submitted that there is no reason for a direction to undergo consecutive sentence. Considering the fact that revision petitioner is involved in more than five cases of this nature, I do not find it in the interest of justice to interfere with the direction to undergo consecutive sentence. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-