IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 Crl.Rev.Pet.No. 505 of 2001 -------------------------------------------- CRA.97/1999 of SESSIONS COURT, THRISSUR CC.765/1995 of JFCM, KUNNAMKULAM .................... REVN. PETITIONER/2nd APPELLANT/2nd ACCUSED: BIJU, S/O UKKRU, KOLADI HOUSE, MARATHAMKODE DESOM, KIDANGOOR, THRISSUR. BY ADV. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM REPRESENTING THE C.I. OF POLICE, KUNNAMKULAM. BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/08/2010 ALONG WITH CRL.R.P.NO.14 OF 2002, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.Nos.505 of 2001 & 14 of 2002 -------------------------- COMMON ORDER Revision petitioners are the accused in C.C.No. 765/1995 on the file of Judicial Magistrate's Court, Kunnamkulam, who were the appellants in Crl.A.No.97/1999. Accused 1, 3 and 4 are the revision petitioners in Crl.R.P.No.14/2002 and second accused is the revision petitioner in Crl.R.P.No.505/2001. Prosecution case is that husband of PW1 is working in Bahrain. She, along with her mother PW2 and children, were residing in a house at Marathamcode. On the night of 27.5.1995, as usual, they slept at 9 p.m. On the next day morning when PW2 woke up, it was found that the drawer of the table was found opened. PW2 called PW1. PW1, on verification, found that gold ornaments, watches and VCP were stolen from the house and the burglars had entered the house by CRRP 505/01 & 14/02 2 removing the tiles of the roof and committed theft. PW1 furnished Exhibit P1 F.I. Statement at 9.30 a.m. and based on it, crime was registered under Exhibit P16 FIR. While the case was being investigated, getting information that first accused is involved in the case, he was called to the police station and PW11 questioned him on 11.6.1995. On getting information that other accused are also involved, accused 2 and 3 were arrested at 4.10 p.m. from Marathamcode Bus Stand. All the three accused were taken to the police station and questioned. Based on the information furnished by the first accused MOs 6 and 7 watches were recovered under Exhibit P6 mahazar on 11.6.1995 at 5.30 p.m. in the presence of PW10. On the information furnished by the third accused MO2 gold chain, MO3 padasaram and MO4 series of gold biscuits were recovered at 6 p.m. in the presence of PW7, the attesting witness, under Exhibit P2 mahazar, from PW4, where the third accused allegedly kept them in a bundle. On the CRRP 505/01 & 14/02 3 information furnished by the third accused, MO8 VCP was also recovered under Exhibit P9 mahazar at 7.20 p.m. On the information furnished by the second accused, MO1 waist chain (Mutharanjanam) was recovered under Exhibit P5 mahazar in the presence of PW9. PW12 arrested the fourth accused on 18.8.1995. On the information furnished by the fourth accused, MO9 wedding ring of PW1 was recovered under Exhibit P4 mahazar from PW5 in the presence of PW6. 2. After completing the investigation, charge was laid before Judicial First Class Magistrate's Court, Kunnamkulam alleging that the four accused committed offences under Sections 380, 457 and 461 of Indian Penal Code read with Section 34 of Indian Penal Code. Petitioners pleaded not guilty. Prosecution examined 12 witnesses and marked 12 exhibits and identified MOs 1 to 9. 3. Learned Magistrate, on the evidence, found the accused guilty of the offences. They were convicted and sentenced to rigorous imprisonment CRRP 505/01 & 14/02 4 for six months each for the offences under Sections 380, 457 and 461 of Indian Penal Code providing that the sentences shall run concurrently. Set off was also allowed. Petitioners challenged the conviction and sentence before Sessions Court, Thrissur in Crl.A.No.97/1999. Learned Sessions Judge, on re-appreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 4.Learned counsel appearing for the petitioners and learned Public Prosecutor were heard. 5. Argument of the learned counsel is that there is no legal evidence to connect the petitioners with the offences. It is pointed out that petitioners were convicted based on the recoveries effected by PW11, allegedly based on the information furnished by the petitioners and recoveries of MOs 1 to 9 were not proved to be made on the confession statements of the petitioners. It was argued that though MOs 6 and 7 were identified as the stolen articles belonging to PW1, Exhibit P1 CRRP 505/01 & 14/02 5 F.I. Statement does not show that there was any theft of watches or gold biscuits and therefore, courts below should not have relied on the recovery of MOs 6 and 7 and MO4 series and should not have held that second accused or the third accused committed the offences. It was also argued that on the evidence, courts below should not have relied on the evidence of PW11, as the prosecution case is improbable and unbelievable. It was argued that though the theft was on 27.5.1995 night, first accused was arrested only on 11.6.1995 at 3 p.m. and it is alleged that based on the confession statement of the first accused, accused 2 and 3 were arrested on the same day from Marathamcode Bus Stand at 4.10 p.m. and they were taken and questioned at the police station. Then accused 1 to 3 made a confession and based on that confession, MOs 2, 3 and 4 series were recovered under Exhibit P2 seizure mahazar and MO8 was recovered under Exhibit P9 seizure mahazar and MOs 6 and 7 were recovered under Exhibit P6 mahazar. It was argued CRRP 505/01 & 14/02 6 that recovery of MO1 based on the confession made by the second accused was at 6.30 p.m. under Exhibit P5 seizure mahazar and it is not possible to effect all the recoveries within the stipulated period as shown in the mahazars, when they are at far off places. It was, therefore, argued that recoveries alleged against accused 1 to 3 under Exhibits P2, P5, P6 and P9 mahazars should not have been believed by the courts below. It was also argued that MO9 wedding ring was allegedly recovered on 18.8.1995 after the fourth accused was arrested and questioned and based on the information furnished by him. In such circumstances, courts below should not have relied on the said recoveries and even if it is relied on, it is insufficient to prove that fourth accused has been in possession of the stolen articles soon after the theft. Therefore, the presumption available under Section 114 of Indian Evidence Act should not have been drawn. Argument is that, at best, the only inference that could be drawn is CRRP 505/01 & 14/02 7 that fourth accused is the purchaser of stolen articles, as the recovery was only on 18.8.1995, when the theft was on 27.5.1995 night. Learned counsel also argued that evidence of PW4, the attesting witness, even if believed, would only show that recovery was effected from the shop of George and not from the shop of PW5 and in such circumstances, the conviction, based on the said recovery, is not sustainable. Learned counsel finally argued that petitioners be granted the benefit of Probation of Offenders Act, as they were not involved in any other crime previously. 6. Learned Public Prosecutor pointed out that the trial court and the appellate court appreciated the evidence in the proper perspective and evidence establish that it was the petitioners who committed the theft after breaking open the house during night. In such circumstances, there is no reason to interfere with the conviction and sentence. 7. Exhibit P1 F.I.Statement of PW1 was recorded at 9.30 a.m. on 28.5.1995, immediately after the CRRP 505/01 & 14/02 8 theft. Evidence of PW1, corroborated by the evidence of her mother PW2, with Exhibit P1 F.I. Statement, establish that PWs 1 and 2 and the children of PW1, all slept in the front room of the house on the night of 27.5.1995 and in the early morning when PW2 woke up, it was found that drawer of the table was opened and valuables kept therein were stolen. PW1, thereafter, furnished Exhibit P1 F.I. Statement, based on which crime was registered under Exhibit P12 FIR. Evidence of PW11, the Investigating Officer, establishes that he proceeded to the house of PW1 and prepared Exhibit P3 scene mahazar. There was no eye witness to the theft. Therefore, the case would depend only on the recoveries effected by PW11 subsequently. 8. Learned Magistrate and learned Sessions Judge accepted the evidence of PW11 with regard to the arrest of the petitioners as well as portions of the statements which led to the recovery of stolen articles. Evidence of PWs 1 and 2 establish that there was theft on the night of 27.5.1995 and CRRP 505/01 & 14/02 9 watches, gold ornaments and a VCP were stolen from the house. MOs 6 and 7 are the two watches, which were identified by PWs 1 and 2, as the articles stolen on that night. Though PW1 was cross- examined, for the omission to mention in Exhibit P1 F.I. Statement that MOs 6 and 7 were also stolen on that night, evidence of PW2 that MOs 6 and 7 are the watches stolen from the house on that night was not challenged in cross-examination. Except cross- examining PW1, the fact that MOs 6 and 7 were omitted to be mentioned as the stolen articles in Exhibit P1 F.I. Statement, evidence of PW1 that MOs 6 and 7 belong to her or her capacity to identify MOs 6 and 7, was not challenged. In such circumstances, for the omission to mention MOs 6 and 7 in Exhibit P1 F.I. Statement, I cannot agree with the submission of the learned counsel that based on the recovery of MOs 6 and 7, first accused cannot be convicted. If MOs 6 and 7 are the stolen articles belonging to PW1, which were stolen on that fateful night and they were recovered based on CRRP 505/01 & 14/02 10 the information furnished by the first accused, evidence is, definitely, admissible and if that is accepted, it would point out the guilt of the first accused. Learned counsel argued that entire recoveries are artificial and therefore, should not have been believed and the fact that recoveries were made after 4 p.m. on 11.6.1995 and were completed by 7.30 p.m. on the same day, in spite of the fact that places are far away and so the recovery should have been disbelieved by the courts below. 9. I have gone through the evidence of PW11, the Investigating Officer as well as the evidence of PW10, the attesting witness to Exhibit P6 seizure mahazar. Evidence of PW11 establishes that based on the information furnished by the first accused, along with the first accused PW1 reached the house of the first accused and MOs 6 and 7, which were kept in the shirt of the first accused at his house, were recovered under Exhibit P6 seizure mahazar. Though PW10 turned hostile to the CRRP 505/01 & 14/02 11 prosecution, it is clear from his evidence that he turned hostile for the reason that first accused is his brother-in-law. Though PW10, when cross- examined by the prosecutor, denied that first accused is related to him, in further cross- examination, PW10 admitted that first accused is the brother of his wife Thanka. In such circumstances, for the reason that PW10 turned hostile to the prosecution, the recovery cannot be disbelieved, if the evidence of PW11 is credible and trustworthy. Though learned counsel argued that evidence of PW11 should not have been believed by the courts below, on going through the evidence, I find no reason to disbelieve the evidence of PW11 as sought for, especially when, both the trial court and the appellate court, on proper analysis of the evidence, accepted that evidence. If that be so, recovery of MOs 6 and 7 watches, based on the information furnished by the first accused, it is established that first accused is connected with the offences. CRRP 505/01 & 14/02 12 10. There is force in the argument of the learned counsel that MO4 series of gold biscuits were omitted to be mentioned by PW1 in her Exhibit P1 F.I. Statement. Even when she was examined as PW1, she did not depose that MO4 series of gold biscuits were stolen from her house, though MO4 series were identified as the stolen articles. 11. Evidence of PW7, the attesting witness, if believed, establish that recovery of Mos 2, 3 and 4 series were effected in his presence. Even if it is taken that due to the omission to mention about the loss of MO4 series by PW1 in Exhibit P1 F.I. Statement or PWs 1 and 2 from the witness box, recovery of MO4 series cannot be connected to the offences. That will not affect the prosecution case or the conviction. MOs 2 and 3 were also recovered under Exhibit P2 seizure mahazar. The argument of the learned counsel is that though PW7 admitted that he attested Exhibit P2 mahazar, according to his evidence, he attested the document from the shop of George and so, it cannot be from the shop CRRP 505/01 & 14/02 13 of PW4, as alleged in Exhibit P2 and therefore, recovery of MOs 2 and 3 also should not have been relied on. 12. Evidence of PW4 is to the effect that third accused used to come to his shop and third accused had entrusted a bundle to be kept in his shop and he had thus kept the bundle handed over by the third accused and later, police, along with the third accused, came to the shop and in the presence of the police, he produced the bundle and the ornaments found in the bundle were recovered under Exhibit P2 mahazar. Evidence of PW4 establishes that third accused used to entrust bundles representing that they are dresses to be kept in the shop of PW4 and therefore, he received the bundle, which was subsequently recovered by the police under Exhibit P2 mahazar. Though learned counsel argued that evidence of PW4, in chief examination, is that on 27.5.1995 third accused came to his shop and entrusted a bundle, which was later recovered by the police, when the police came CRRP 505/01 & 14/02 14 along with the third accused and it was pointed out that evidence in cross-examination is that it was kept two days prior to the date of recovery and if that be so, those ornaments could have been entrusted to PW4 on 9.6.1995 and not soon after the theft. It is also argued that according to PW4, he signed in Exhibit P2 from the shop of George and hence, courts below should not have relied on the evidence of PWs 4, 7 and 11 to uphold the recovery. 13. I have gone through the evidence of PWs 4, 7 and 11. Though PW4 deposed that third accused entrusted a bundle which was subsequently produced before the Investigating Officer, when the case was being investigated, in cross-examination, it was deposed that third accused entrusted the bundle two days prior to its production, it is to be borne in mind that PW4 was not giving evidence by referring to Exhibit P2 mahazar, but, on re-collecting his memory. Evidence was adduced after two years of the recovery. In such circumstances, evidence of PW4 cannot be appreciated to the effect that the CRRP 505/01 & 14/02 15 bundle was entrusted by the third accused to PW4 only two days prior to 11.6.1995. On appreciating the entire evidence in the proper perspective, it is clear that MOs 2 and 3 are the stolen gold ornaments belonging to PW1 and identified by PWs 1 and 2 as the stolen articles. Evidence of PWs 4 and 11 with Exhibit P2 mahazar establish that MOs 2 and 3 were recovered solely on the information furnished by the third accused. Similarly, evidence of PW11 with Exhibit P9 mahazar shows that MO8 VCP was also recovered on the information furnished by the third accused. The said recovery is also credible and reliable. Therefore, even if it is taken that, for the reason that theft of MO4 series of gold biscuits was not mentioned in Exhibit P1 F.I. Statement and so, they are not the stolen gold biscuits, recovery of MOs 2 and 3 under Exhibit P2 mahazar, connects the third accused with the stolen articles. 14. Evidence of PW11 with Exhibit P5 mahazar establish that on the information furnished by the CRRP 505/01 & 14/02 16 second accused that he has kept the gold waist chain in the drawer of the table kept in his bed room and if he is taken there, he would point out the same, PW11 took him to House No.VI/514 where the second accused was residing and in the presence of PW9, MO1 waist chain was recovered. Though learned counsel argued that PW9 did not depose specifically that second accused was also present at the time of recovery, that question was not put to the witnesses, either by the prosecution or by the defence. But, PW9 deposed that in his presence, under Exhibit P5 mahazar, MO1 gold waist chain was recovered. On appreciating the entire evidence in the light of the evidence tendered, I find no reason to disbelieve that recovery also. Therefore, the said evidence connects the second accused also with the offences. 15. Evidence of PW11 establishes that while the case was being investigated, the fourth accused was arrested on 18.8.1995. Based on the information furnished by him, MO9 wedding ring of PW1, lost CRRP 505/01 & 14/02 17 from her house, was recovered under Exhibit P4 mahazar. Argument of the learned counsel is that even if the recovery is believed, it is not soon after the theft, as the theft was on 27.5.1995 and the recovery was on 18.8.1995. It is argued that in such circumstances, no presumption could be drawn that petitioner committed the theft. Though MO9 was recovered under Exhibit P4 mahazar on 18.8.1995, evidence of PW5, from whom the recovery was effected, establishes that it was entrusted to him by the fourth accused two months earlier to the recovery. Learned counsel argued that, that portion of the evidence of PW5 cannot be believed when he deposed that he could not say when it was entrusted. But, on going through the evidence of PW5, it is clear that possession of MO9 with the fourth accused was soon after the theft and he sold it to PW5 immediately. Therefore, recovery of MO9 connects the fourth accused with the offences. 16. When the entire evidence is appreciated in the proper perspective, I find no reason to CRRP 505/01 & 14/02 18 disbelieve the evidence of PW11, corroborated by Exhibits P4, P5, P6 and P9 mahazars. Evidence establish that except MO9, the other stolen articles were recovered without much delay. Though MO4 series of gold biscuits are not proved to be the stolen articles, in view of the failure of PW1 to mention it in Exhibit P1 F.I. Statement and also at the time of recording the evidence, recovery of Mos 2, 3 and 8 conclusively establish that petitioners together, in furtherance of their common intention, committed theft by breaking open the house during midnight. Therefore, conviction of the petitioners for the offences under Sections 380, 457 and 461 of Indian Penal Code is perfectly legal. 17. Then the only question is whether the sentence awarded is reasonable and whether petitioners are entitled to get the benefit of Probation of Offenders Act. 18. Though there is no evidence to prove that petitioners were previously convicted, considering CRRP 505/01 & 14/02 19 the nature of the offences, I find it not in the interest of justice to release the petitioners by granting the benefit of the benevolent provisions of Probation of Offenders Act. Though separate sentence of imprisonment for six months each for the offences was awarded by the learned Magistrate, the sentences were directed to run concurrently. In such circumstances, I find no reason to interfere with the sentence also. Revision is dismissed. Petitioners are directed to appear before Judicial First Class Magistrate, Kunnamkulam on 16.08.2010. The Magistrate is directed to execute the sentence. 5th August, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 505/01 & 14/02 20 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.Nos.505 of 2001 & 14 of 2002 -------------------------- COMMON ORDER 5th August, 2010