IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 Crl.Rev.Pet.No. 3393 of 2008(D) ------------------------------ CRA.623/2008 of SESSIONS COURT, KOZHIKOE CC.239/2007 of CHIEF JUDICIAL MAGISTRATE COURT, KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/1ST ACCUSED: ------------------------------------------- C.V.SALEEM @ VEMBALI SALEEM, AGED 27 YEARS, S/O.ASSANKOYA, CHENNALASSERY PARAMBU, CHAKKUMKADAVE, PANNIYANKARA AMSOM, KOZHIKODE DISTRICT. BY ADV. SRI.P.R.SREEJITH RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.NO. 3393 OF 2008 -------------------------------------------------- Dated this the 12th day of January, 2009 O R D E R Revision petitioner is the first accused in C.C.239 of 2007 on the file of Chief Judicial Magistrate, Kozhikode. He along with second accused was charged for the offence under section 392 read with section 34 of Indian Penal Code. Prosecution case was that on 5.7.2007 at about 7.45 p.m. PW2, Jyothi, daughter of PW1 was returning back to her house after getting down from the bus at Kannanchery bus stop and was proceeding towards her house. PW1, the father, was proceeding towards Kannanchery bus stop along the same road. First accused was the pillion rider of a motorcycle with second accused as rider which came close to PW2 and revision petitioner snatched MO1 gold chain from the neck of PW2 exerting force and escaped from the scene with MO1. Both the accused pleaded not guilty. Prosecution examined 9 witnesses and marked 8 exhibits and identified MO1. The accused did not adduce any evidence. Learned Magistrate on the evidence found that MO1 is the gold chain which was snatched from the neck of PW2 on that fateful evening. Accepting the evidence of Pws 1 and 2 with regard to the CRRP 3393/2008 2 identity and accepting the evidence of PW4, the Head Constable and PW3, the Sub Inspector, it was found that MO1 chain was recovered from the pocket of the revision petitioner under ext.P3 seizure mahazar and the recovery was effected on the basis of the information received by PW3 that a person is attempting to dispose of a chain in a shop at Pavangad junction. Both the accused were convicted and sentenced to rigorous imprisonment for 2½ years for the offence under section 392 read with section 34 of Indian Penal Code. Revision petitioner challenged his conviction before Sessions Court, Kozhikode in Crl. Appeal 623 of 2008. Second accused challenged the conviction before the same Court in Crl. Appeal 624 of 2008. Both the appeals were heard together. Learned Sessions judge, on reappreciation of evidence, confirmed the conviction and sentence as against the revision petitioner but set aside the conviction as against the second accused holding that there is no evidence to connect second accused with the offence. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 3. Learned counsel argued that even though the offence was allegedly committed on 5.7.2007, Ext.P1 F.I. Statement was lodged only on 17.7.2007 and the evidence of PWs 1 and 2 with regard to the CRRP 3393/2008 3 identity of the revision petitioner should not have been accepted by the Courts below. It was argued that even if the chain of PW2 was snatched away by the pillion rider of the motorcycle, as deposed by PWs 1 and 2, there is no evidence to connect revision petitioner with the offence, as the identity of the revision petitioner as the pillion rider was not established as PWs 1 and 2 could not have identified the pillion rider at that time. Learned counsel also argued that though recovery of MO1 under Ext.P3 seizure mahazar by PW3, S.I. of police, was relied on, the Courts below should not have believed the recovery. It was also argued that when Ext.P3 seizure mahazar and MO1 establish that no locket is found in MO1 the version of PW2 in Ext.P1 was that the chain, which was snatched, is inclusive of the locket, but at the time of evidence PW2 contradicted the case deposing that there was no locket and in the nature of the evidence the version should not have been believed. 4. Learned Public Prosecutor on instructions submitted that revision petitioner is involved in two other similar cases and revision petitioner is facing trial in C.C.75 of 2006 and in C.C.11 of 2008 registered for similar offence by Panniyankara police and learned Magistrate and the learned Sessions Judge properly appreciated the evidence and there is no reason to interfere with the conviction or the sentence. CRRP 3393/2008 4 5. Even though there was delay in furnishing Ext.P1 F.I. Statement, Ext.P1 F.I. Statement was furnished and Ext.P1(a) F.I.R was prepared and Crime 104 of 2007 was registered on 17.7.2007, much before the arrest and recovery of MO1 under Ext.P3 seizure mahazar. Therefore it cannot be said that Ext.P1 F.I. Statement was created subsequent to the arrest and recovery of MO1 from the revision petitioner. Though there was some delay in lodging the first information, PWs 1 and 2 had given sufficient explanation for the delay and in any case the delay is not fatal. 6. The learned Magistrate and the learned Sessions Judge appreciated the evidence of PWs 1 and 2 in the proper perspective and found that on 5.7.2007 at about 7 p.m. PW2 was returning to her house after alighting the bus, while PW1 was proceeding towards the bus stop to receive PW2. Evidence of PW1 with regard to the incident is fully corroborated by the evidence of PW2. Their evidence, which was further corroborated by the version in Ext.P1 F.I. Statement, show that while PW1 was walking towards PW2 and he was proceeding facing PW2, a motorbike came and the pillion rider of the motorcycle snatched the chain from the neck of PW2 and the culprits escaped from the scene. There is absolutely no reason to disbelieve the evidence of PWs 1 and 2 with regard to the snatching of the gold chain by force from her neck by the pillion rider of the motorcycle. CRRP 3393/2008 5 Evidence of PWs 1 and 2 which were believed by the Magistrate and the Sessions Judge establish that MO1 is that snatched gold chain worn by PW1 on 5.7.2007. Though learned counsel appearing for the revision petitioner, for the absence of a locket in MO1 and the specific case in Ext.P1 that the gold chain snatched was inclusive of the locket, which was subsequently changed by PW2 from the box, argued that MO1 is not the gold chain snatched from the neck of PW2, on going through the evidence I find no reason to interfere with the identity of MO1 as the gold chain worn by PW1 on 5.7.2007. Being a lady, who was wearing MO1, she has all the reason to identify it. As rightly found by the Courts below, the nature of the chain establish exercise of force for snatching the chain and it further corroborates the evidence of PW2 that MO1 was the gold chain snatched from her neck. 6. The question then is whether the recovery of MO1 from revision petitioner as proved by the evidence of PW3 corroborated by PW4 and Ext.P3 recovery mahazar is reliable. Learned Magistrate and learned Sessions Judge accepted the evidence of PWs 3 and 4 which was corroborated by Ext.P3, the recovery mahazar prepared at the time of recovery. Evidence of PW3 establish that on 22.7.2007 PW3 got information that a person is attempting to sell a gold chain at Pavangad junction and getting suspicious PW3 proceeded to the spot CRRP 3393/2008 6 and found revision petitioner and from the pocket of the revision petitioner recovered MO1 under Ext.P3 recovery mahazar. Though at that time PW3 was not aware of the registration of a case by Pavangad police station under Ext.P1(a) FIR and based on the recovery of MO1, PW3 registered Ext.P2 FIR and crime 148 of 2007 of Elathur police station under section 41(a)(d) and section 102 of Code of Criminal Procedure, it is based on the information subsequently gathered from the revision petitioner that he is involved in an offence committed within the jurisdiction of Panniyankara Police Station as it was snatched from a place at Kannanchery. Ext.P2 FIR was transferred to Panniyankara Police Station. The Courts below properly appreciated the evidence based on the recovery of MO1 from the revision petitioner and found that it was the revision petitioner, who snatched the chain from the neck of the revision petitioner. Added to this, Pws 1 and 2 identified the revision petitioner as the pillion rider, who snatched the chain from the neck of PW2. Though the identification made by Pws 1 and 2 was vehemently challenged by the learned counsel, on the evidence and the concurrent findings of the Courts below, I find no reason to interfere with that findings also. In such circumstances, conviction of revision petitioner for the offence under section 392 read with section 34 of Indian Penal Code is perfectly legal and warrants no interference. CRRP 3393/2008 7 7. Then the question is regarding the sentence. Learned counsel submitted that the sentence is excessive. Learned counsel also submitted that revision petitioner got married only six months earlier and if revision petitioner is to go to prison, the chance to reform the revision petitioner will be lost and in such circumstances leniency may be shown. The sentence provided for the offence under section 392 of Indian Penal Code is imprisonment, which could be extended for ten years. Learned Magistrate awarded rigorous imprisonment of only 2½ years. As pointed out by the learned Public Prosecutor, revision petitioner is involved in offences of similar nature. In such circumstances interest of justice does not warrant interference in the sentence also. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE okb