IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 Crl.Rev.Pet.No. 501 OF 2008() ----------------------------- CRA.(J).144/2007 of ADDL. SESSIONS COURT (ADHOC)-II, KALPETTA CC.331/2006 of CHIEF JUDICIAL MAGISTRATE COURT, KALPETTA .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ------------------------------- CHANDRASEKHARAN @ THAMPI, C.NO.4508, CENTRAL PRISON, KANNUR. BY ADV. SMT.M.SINDHU THANKAN (STATE BRIEF) RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR, J. ------------------------------------------ CRL.R.P. NO. 501 OF 2008 ------------------------------------------ Dated this the 13th day of November, 2008 O R D E R Revision petitioner is the second accused in C.C.331 of 2006 on the file of Chief Judicial Magistrate, Kalpetta. He was convicted for the offences under sections 457, 380 and 461 read with section 34 of Indian Penal Code. Prosecution case was that on 13.2.2005 PW1 had locked her house situated near Meppadi Government High School and went to her parental home and returned back in the evening of 14.2.2005. She found that somebody entered the house, shelf opened and gold ornaments stolen. On verification it was found that the miscreant had entered the house removing the tiles on the roof of the kitchen and two blankets were also stolen apart from a gold chain weighing 1½ sovereigns, a gold bangle weighing ½ sovereign, two pairs of gold stud weighing ½ sovereign and four rings weighing ½ sovereign. PW1 went to the police station and furnished Ext.P1 F.I. Statement. Based on Ext.P1, Ext.P1(a) FIR was prepared and the crime was registered. PW4, Circle Inspector of Police, Kalpetta took over the investigation. On CRRP501/08 2 29.4.2005 at 00.15 hrs he arrested first accused at Meppadi and on the information furnished by first accused, recovered a gold ingot weighing 11.720 grams under Ext.P4 mahazar. PW4 arrested the revision petitioner on the same day. PW6 the Sub Inspector of Meppadi police station conducted the investigation and obtained custody of revision petitioner and questioned him. On the information furnished by revision petitioner and based on the information that he sold the gold chain to Arabian Jewellery, Kalpetta and as lead by the revision petitioner PW6 reached the shop of PW3 and PW3 produced a gold ingot weighing 28.900 grams which was recovered under Ext.P5 mahazar. After completing the investigation, charge was laid against both the accused. They pleaded not guilty. Prosecution examined 6 witnesses and marked 5 exhibits. Learned Magistrate on the evidence found the accused guilty for the offences under section 457, 380 and 461 of IPC. After hearing the petitioner he was sentenced to rigorous imprisonment for three years each for the offences under sections 457 and 380 of IPC and rigorous imprisonment for one year for the offence under section 461 IPC. The sentences were directed to be run concurrently. CRRP501/08 3 Petitioner was remanded to prison. From the prison petitioner challenged conviction by filing Crl.Appeal 144 of 2007. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. Revision is filed from jail. 2. Advocate M. Sindhu Thankan was appointed the counsel to argue the revision for the petitioner. Learned counsel and learned Public Prosecutor were heard. 3. Learned counsel vehemently argued that there is no evidence to prove that revision petitioner committed any of the offences. It was argued that revision petitioner was convicted solely based on the recovery of gold ingot under Ext.P5 recovery mahazar and the evidence of PW3 and there is no evidence to prove that the said gold ingot was prepared by melting the stolen articles and so based on the recovery petitioner could not have been convicted. It is therefore argued that the conviction and sentence are not sustainable. 4. Learned Public Prosecutor pointed out that evidence of PW6 the Sub Inspector of Police establish that gold ingot was recovered from PW3 solely based on the information furnished CRRP501/08 4 by the petitioner and evidence of PW3 establishes that the gold ingot was prepared by melting the gold ornaments sold by the revision petitioner to him and in the light of this evidence there is no reason to interfere with the conviction and sentence. 5. Learned Magistrate and the learned Sessions Judge appreciated the evidence of PW1 corroborated by Ext.P1 F.I. Statement furnished on the same day. Her evidence establish that she locked her house on 13.2.2005 and left to her paternal home and returned back on the evening of the next day and then it was found that theft was committed in her house and miscreant had entered the house after removing the tiles of the kitchen roof and thereafter broke opened the shelf and stolen the gold ornaments. There is no reason to disbelieve her evidence. 6. The evidence of PW5 establish that he arrested the revision petitioner. That aspect that not challenged. Evidence of PW6 establish that he obtained custody of the revision petitioner and questioned him. Evidence of PW6 that on questioning revision petitioner on the information collected that the gold ornaments were sold at Arabian Jewellery at Kalpetta and if CRRP501/08 5 revision petitioner was taken there he would point out the shop and the shop keeper to whom they were sold, was not challenged in the cross-examination. Evidence of PW3 corroborates the evidence of PW6 that along with revision petitioner PW6 reached the shop and PW3 produced the gold ingot prepared by melting the gold ornaments sold to him by the revision petitioner. Though identity of the gold ornaments were questioned there is no reason to disbelieve the evidence of PW3 that gold ingot produced by him was made by melting the gold ornaments sold by the revision petitioner. Petitioner has no case that the gold ornaments so sold were any other gold ornaments either belonging to revision petitioner or purchased by him or obtained by him from any other source. In such circumstances the view taken by the Courts below that recovery connects the revision petitioner to both the theft as well as commission of lurking house trespass is perfectly correct and warrants no interference. 7. Then the question is regarding the sentence. Though learned Magistrate awarded a sentence of rigorous imprisonment for three years each for the offences under section CRRP501/08 6 457 and 380 of Indian Penal Code, the sentences were directed to be run concurrently. Learned Magistrate also took note of the fact that petitioner is not the first offender. In such circumstances I do not find any reason to interfere with the sentence also. Revision is dismissed. M. SASIDHARAN NAMBIAR, JUDGE Okb/-