IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 Crl.Rev.Pet.No. 358 of 2009() ----------------------------- CRA.196/2007 of ADDL. SESSIONS COURT, VADAKARA CC.422/2006 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER: ---------------------------- ASHKAR, S/O. MOIDEEN, AGED 24 YEARS, VANARATH THOUSE, PONMERI AMSOM, KALLERI. BY ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL RESPONDENT(S): ------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J ============ Crl. R.P.No.358 of 2009 ================== Dated 12th day of February, 2009 ORDER Petitioner who is the accused in C.C.No.422 of 2006 on the file of the Judicial First Class Magistrate Court, Vadakara challenges the conviction entered and sentence passed against him concurrently by the courts below for the offence punishable under Section 379 IPC. 2. The case of the prosecution can be summarised as follows:- On 3-4-2006, at about 3 a.m., the accused committed the theft of Hero Honda Splender motor bike bearing registration No.KL.-11-L-5845 belonging to the brother of PW1 valued at Rs.23,000/- from the car porch of house No.E.P.VII/170, where it was parked. 3. On the petitioner/accused pleading not guilty to the charges framed against him by the trial court for the Crl.R.P.No.358 of 2009 - 2 - offence punishable under Section 379 IPC, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined four witnesses as PW1 to PW4 and got marked nine documents as Exhibits P1 to P9. After the close of the prosecution evidence, accused was questioned under Section 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence adduced by the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence. 4. The learned Magistrate after trial as per judgment dated 22-2-2007 found the revision petitioner guilty and sentenced him to undergo rigorous imprisonment for 1½ years for the offence punishable under Section 379 IPC. 5. On appeal preferred by the revision petitioner as Criminal Appeal No.196 of 2007, the learned Additional District & Sessions Judge, Vadakara as per judgment dated Crl.R.P.No.358 of 2009 - 3 - 26-3-2007 dismissed the appeal and confirmed the conviction entered and sentence passed against the revision petitioner. Hence this revision. 6. The learned counsel appearing for the revision petitioner made following submissions before me in support to the revision:- The marking and relying upon the entire confession statement before the trial court have vitiated the trial in the light of the decision in SIDDIQUE v. STATE OF KERALA [2006(1) KLD (Cri) 330]. The courts below have overlooked the fact that it was a case based on circumstantial evidence and the classic requirements of a case founded on circumstantial evidence have not been borne in mind by the courts below. The ownership of the motor cycle has not been satisfactorily proved by PW1. He did not produce any documents in support of his claim of ownership. Crl.R.P.No.358 of 2009 - 4 - 7. I am afraid that I cannot agree with the above submissions. Exhibit P5(a) is the relevant portion of the confession statement of the accused extracted from Exhibit P5 Recovery Mahazar pertaining to the recovery of the motor cycle in question. It is not whole statement of the accused recorded under Section 161 Cr.P.C. What was deprecated in SIDDIQUE v. STATE OF KERALA [2006(1) KLD (Cri) 330] was the production of the entire statement of the accused instead of the relevant portion admissible under Section 27 of the Evidence Act. A reading of the judgment of the courts below will show that what was highlighted before the courts below was that the extracted portion of the confession statement was lacking in the authorship of concealment without which the statement would not fall under Section 27 of the Evidence Act. Even if Exhibit P5(a) marked portion of the confession statement lacks authorship of concealment, the evidence on record Crl.R.P.No.358 of 2009 - 5 - will show that as and when the accused was arrested in another crime he made the relevant confession leading to the recovery of the motor cycle. If or, even if, Exhibit P5(a) does not contain authorship of concealment, the conduct of the accused leading the police to the bike, which was concealed, which fall under Section 8 of the Evidence Act and is admissible. 8. Equally, misconceived is the contention based on the inadequacy of the link of circumstantial evidence. Apart from the fact that the vehicle was seized at the instance of the revision petitioner there is the credible testimony of PW1, the owner of the motor cycle identifying the same as his two wheeler. No doubt, there was no documentary evidence to prove the ownership of motor cycle. But both the courts have believed the case of PW1 that he was the owner of the motor cycle. In the absence of any rival claim by anybody else including the accused over the motor cycle Crl.R.P.No.358 of 2009 - 6 - in question, the testimony of PW1 was rightly believed by the courts below. 9. Having regard to the facts and circumstances of the case, I feel that there is no ground to interfere with the conviction entered and sentence passed by the courts below. Apart from the case on hand he was admittedly arrested in connection with another crime of similar nature. Penal servitude by way of Rigorous incarceration alone can serve as an effective disincentive to such daring offenders. Hence, I feel that there is no ground to interfere with the sentence as well. In the result, Crl.R.P. is dismissed confirming the conviction entered and sentence imposed by the courts below on the revision petitioner. Sd/- V. RAMKUMAR, JUDGE. skr // True copy // P.A. to Judge.