IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 22ND JANUARY 2009 / 2ND MAGHA 1930 Crl.Rev.Pet.No. 4165 of 2008() ------------------------------ CRA.469/2003 of SESSIONS COURT, THALASSERY CC.445/1999 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TALIPARAMBA .................... REVN. PETITIONER/APPELLANT/ACCUSED: --------------------- THARAMMAL RAJEEVAN S/O. NARAYANAN, DRIVER, ANDOOR AMSOM, DESOM TALIPARAMBA TALUK. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO.4165 OF 2008 ------------------------------------------ Dated 222nd January 2009 O R D E R Revision petitioner is the accused in C.C.445/1999 on the file of Judicial First Class Magistrate, Taliparamba. Revision petitioner was convicted and sentenced for the offence under Sections 457 and 380 of Indian Penal Code. Revision petitioner challenged the conviction before the Sessions Court, Thalassery in Crl.A.469/2003. Learned Sessions Judge on re-appreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner argued that as per the prosecution case theft was on 11/4/1998 and though PW1 claimed MO.1 as the stolen gold chain, the discrepancy in her evidence with regard to the weight of the gold chain stolen and MO.1 was not properly appreciated. It was argued that what was recovered as MO.1 is a gold chain weighing 30 gm. when what was stolen from the CRRP 4165/08 2 house of PW1 was gold chain weighing 36 grams and there is no identifying mark for PW1 to identify MO.1 as her gold chain and therefore, courts below should not have relied on the evidence of PW1 to hold that Mo.1, gold chain is the stolen article. Learned counsel argued that even though according to prosecution case a chain weighing 36 gram was stolen, PW1 did not lodge a complaint and the FIR was registered only after the arrest and disclosure of the incident by revision petitioner and therefore, courts below should have appreciated the evidence with care and caution. Learned counsel also argued that as per the prosecution case revision petitioner was arrested by PW8, Sub Inspector in another case on 31/3/1999 and it is based on the confession made by the revision petitioner on questioning by PW8, Ext.P4 FIR was registered but it was registered only on 13/4/1999 and this aspect was not properly appreciated by the courts below. Learned counsel also argued that recovery made by PW2 under Ext.P3 was not based on the confession made by revision petitioner and therefore based on the confession revision petitioner should not have been convicted. CRRP 4165/08 3 3. Learned Public Prosecutor based on the instructions as prosecutor was directed to get information whether revision petitioner is involved in other case submitted that revision petitioner is the accused in eleven cases out of which he was convicted in five cases for the offences under Sections 457 and 380. 4. On hearing the learned counsel and going through the judgments of courts below, I find no reason to interfere with the conviction or the sentence. Though the theft was on 11/4/1998, PW1 did not lodge a complaint with regard to the theft. But I find no reason to disbelieve the evidence of PW1 or the factum of theft on that ground. It may be that PW1 might have thought the futility of filing a complaint before the police as there is no eye witness to the incident and for that reason alone evidence of PW1 with regard to the theft cannot be disbelieved. Similar is the case with the discrepancy in the weight of the gold chain. Argument of the learned counsel is that when as per evidence of PW1 gold chain which was stolen from her house was of 36 gm. And MO.1 recovered under Ext.P3 is only 30 gms. and so courts below CRRP 4165/08 4 should have found that what was stolen was different. What was deposed by PW1 was that gold chain which was stolen while PW1 had gone to take bath after keeping it in the bed room was having 4 sovereign. If so, it would be 32 gms. Discrepancy of two gms. in MO.1 is not a relevant fact to disbelieve the evidence of PW1 on that ground. It could be that PW1 would not have known the exact weight and she might have deposed the weight on her assessment. 5. Though learned counsel argued that information for Ext.P4 was furnished on 31/3/1999, evidence of PW8 explain the discrepancy. What is stated in Ext.P4 is only that revision petitioner was arrested on 31/3/1999 in Crime 144/1999 which was registered under Sections 457 and 380 of Indian Penal Code and while questioning he made confession based on which Ext.P4 FIR was registered. Ext.P3 recovery mahazar corroborates the evidence of PW8. PW8 got custody of revision petitioner on 12/4/1999 and thereafter questioned revision petitioner and he made confession based on which MO.1 was recovered and Ext.P4 FIR was registered. Courts below appreciated the evidence in proper perspective and found that MO.1 CRRP 4165/08 5 is the gold chain which was stolen from PW1. PW1 is the best person to identify her gold ornament. There is no reason to disbelieve the evidence of PW1 with regard to the identity. In such circumstances, courts below rightly convicted revision petitioner for the offence under Sections 380 and 457 of Indian Penal Code. 6. Then the only question is regarding the sentence. Learned Magistrate awarded simple imprisonment for six months for the offence under Section 380 and simple imprisonment for one month for the offence under Section 457 of Indian Penal Code with a direction to run both sentences concurrently. Considering the fact that accused is involved in several cases of this nature, I find no reason to interfere with the sentence. Revision petition is dismissed. M.SASIDHARAN NAMBIAR, JUDGE. uj.