IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 Crl.Rev.Pet.No. 2471 of 2003() ------------------------------ CRA.164/2003 of SESSIONS COURT, KASARAGOD CC.416/2002 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED ------------------------------------------ V.VICTOR D'SOUZA, AGED 34 YEARS, S/O. MAURISHA D'SOUZA, KULATHUVAYAL IN MEENJA VILLAE, KASARGOD DISTRICT. BY ADV. SRI.SURESH KUMAR KODOTH RESPONDENT(S): RESPONDENTS/COMPLAINANT/STATE -------------------------------------------- 1. STATION HOUSE OFFICER, MANJESWAR, KASARGOD DISTRICT. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. By PUBLIC PROSECUTOR SMT.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.2471 OF 2003 --------------------------------------------- Dated 26th July, 2010 O R D E R Petitioner, the second accused in C.C.416/2002 on the file of Chief Judicial Magistrate, Kasargod along with first accused were convicted and sentenced for the offences under Sections 457 and 380 read with Section 34 of Indian Penal Code. They challenged the conviction and sentence before Sessions court, Kasargod in Crl.A.159/2003 and 164/2003. Learned Sessions Judge on re-appreciation of the evidence set aside the conviction of the first accused but confirmed conviction of the petitioner. Sentence was modified to rigorous imprisonment for six months and a fine of Rs.2,000/- and in default CRRP 2471/03 2 imprisonment for three more months. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 3. Argument of the learned counsel is that reason for acquitting the first accused is applicable to the case against the petitioner also and learned Sessions Judge should have acquitted the petitioner also. It was pointed out that petitioner was convicted based on recovery of Mos.1,2 and 4 on the information furnished by the petitioner under Ext.P3 after his arrest and seizure of MO.3, on 30/6/2002 at about 6.30 p.m and case of the said arrest was not accepted by the learned Sessions Judge and therefore, learned Sessions Judge should not have believed the recovery of MO.1,2 and 4 from the petitioner and hence conviction is CRRP 2471/03 3 illegal. Learned counsel finally submitted that as the incident was in 2002, at this distant point of time petitioner may not be sent to prison. 4. Learned Public Prosecutor submitted that recovery of Mos.1, 2 and 4 from the house of petitioner under Ext.P3 mahazar proved by the evidence of PW7 with the evidence of PW1 prove that they are the stolen articles and it establishes that petitioner committed the offences and therefore, there is no illegality or irregularity in the conviction or the sentence. 5. Prosecution case is that PW1 a school teacher had closed the house and had gone to the house of his uncle on 15/6/2002. When he got information on the next day that theft was committed in his house, he returned to the house and finding that house was broke CRRP 2471/03 4 opened and theft was committed, he furnished Ext.P1 FI statement based on which crime 219/2002 of Manjeswar police station was registered for he offence under Sections 457 and 380 read with Section 34 of Indian Penal Code under Ext.P1(a) FIR. PW7 arrested both the accused on 30/6/2002 at 6.30 p.m finding them under suspicious circumstances and on questioning, based on the information furnished Mos.1, 2 and 4 stolen articles were seized under Ext.P2 mahazar. Though learned Magistrate accepted the evidence of PW7 regarding the arrest as well as recovery of material objects based on the information furnished by both the accused and convicted them, learned Sessions Judge on re-appreciation of the evidence found that case of PW7 that petitioner and first accused was found at Hosangadi under suspicious circumstances at about 6.30 p.m on CRRP 2471/03 5 30/6/2002 cannot be believed. Learned Sessions Judge also found that recovery of stolen articles on the information furnished by the first accused cannot be believed as the said statement does not show the authorship of the articles and therefore, the said evidence cannot be used to convict the first accused. It is on that ground first accused was acquitted. But recovery was found acceptable to the case of the petitioner, as stolen articles were recovered from the house of the petitioner himself. Argument of the learned counsel is that evidence of PW7 should not have been relied on. 6. Ext.P3 recovery mahazar shows that portion of the statement of petitioner as well as first accused which alleged lead to the recovery were extracted to show that recovery was based on the information furnished by the CRRP 2471/03 6 accused. But that statement extracted in Ext.P3 is not the substantive evidence. Substantive evidence is the evidence tendered by PW7, as the statement furnished to him which led to recovery. Evidence of PW7 shows that portion of the statement of the first accused which according to PW7 led to the recovery, is only that articles are there in a particular place. It does not disclose the authorship. It is in such circumstances, learned Sessions Judge did not rely on that portion of the evidence of PW7 to convict the first accused and acquitted him. 7. But statement proved by the evidence of PW7 furnished by the petitioner which led to recovery of Mos.1,2 and 4 is entirely different. Evidence of PW7 is that when petitioner was questioned, he furnished the following information. “I have kept the CRRP 2471/03 7 articles in my house and if I am taken to my house, I will produce the TV, Mixi etc.” This statement is admissible in evidence. It establishes the authorship of Mos.1,2 and 4. ownership. Evidence of PW7 establish that based on this information and as led by the petitioner he reached the house of the petitioner on 1/7/2002 at about 9.15 am and petitioner produced Mo.1 TV, MO.2 Mixi and MO.4 suit case and they were recovered under Ext.P3 recovery mahazar. Evidence of PW1 establish that Mos.1,2 and 4 belonged to him and they were stolen from his house on 15/6/1996. Identity of Mos.1,2 and 4 as the stolen articles were conclusively proved by the evidence of PW1. Evidence of PW7 establish that those stolen articles were recovered based on the information furnished by the petitioner. Hence the said statement of the petitioner CRRP 2471/03 8 which led to the recovery is definitely admissible under Section 27 of Indian Evidence Act. The evidence therefore, conclusively establish that it was the petitioner who committed theft of Mos.1,2 and 4. Evidence of PW1 establishes that theft was committed after breaking open the house. In such circumstances, conviction of the petitioner for the offences under Sections 457 and 380 read with Section 34 of Indian Penal Code is perfectly legal and correct and warrants no interference. 8. Then the only question is regarding the sentence. Learned Sessions Judge has taken a lenient view and reduced the substantive sentence to rigorous imprisonment for six months and a fine which was reduced from Rs.10,000/- to Rs.2,000/- with a default sentence of imprisonment for three months. Though learned counsel vehemently argued that CRRP 2471/03 9 sentence is to be reduced further and considering time lag, petitioner may not be sent to prison, on the facts and circumstances of the case, I find it not in the interest of justice to interfere with the sentence except by providing that sentence is simple imprisonment, instead of rigorous imprisonment and default sentence is one month instead of three months. Revision is allowed in part. Conviction of the petitioner for the offences under Sections 457 and 380 of Indian Penal Code as confirmed by learned Sessions Judge is confirmed. Sentence is modified to simple imprisonment for six months and a fine of Rs.2,000/- and in default simple imprisonment for one month. Petitioner is also entitled to get set off as provided under Section 420 of Indian Penal Code. CRRP 2471/03 10 M.SASIDHARAN NAMBIAR, JUDGE. uj.