IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 Crl.Rev.Pet.No. 1260 of 2001 ---------------------------------------------- CRA.100/1998 of II ADDL. SESSIONS COURT, PALAKKAD CC.120/1996 of 120/1996 of JFCM, PATTAMBI .................... REVN. PETITIONER/APPELLANT/ACCUSED NO.2: RAJU @ RAJEEV, S/P KOTHA, AGED 23 YEARS, THOTTAMKUNNATH VEEDU, KANAYAM, SHORANUR. BY ADV. SRI.JACOB SEBASTIAN RESPONDENT/RESPONDENT/COMPLAINANT: STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PP SRI.T.J.AMBOOKEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.6002/2001 IN CRL.R.P.NO.1260/2001 DISMISSED 22.5.2009 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ K.P. Balachandran, J. -------------------------- Crl.R.P.No.1260 of 2001 -------------------------- ORDER This is revision filed by the second accused in C.C.No.120/96 on the file of the Judicial First Class Magistrate's Court, Pattambi assailing the conviction and sentence passed by the Magistrate against him under Section 379 IPC read with Section 34 thereof, which was confirmed also in appeal by the Sessions Judge, Palakkad in Crl.A.No.100/98. 2. Petitioner, along with the first accused, was charge sheeted by the police on the allegations that they, at about 7 p.m. on 15.5.1996, in furtherance of their common intention, committed theft of a gold chain weighing 5½ sovereigns from the neck of PW1 from near the Pattambi Bridge on the Pattambi-Guruvayur public road. On the learned Magistrate finding the petitioner/second accused as also the first accused guilty of the offence under Section 379 IPC read with Section 34 thereof, and CRRP 1260/01 2 convicting them thereunder and sentenced them to undergo rigorous imprisonment for 1½ years each under Section 379 IPC with right of set off and granting the benefit of concurrency to the first accused with the sentence of imprisonment awarded in C.C.No.149/96 on the file of his court and directed return of MOs 1 and 2 to PW1. It is the concurrent verdicts so passed by the courts below that is assailed in this revision. 3. Learned counsel for the petitioner has taken me through the entire evidence in the case and strenuously argued for an acquittal of the petitioner/second accused contending that there is no clinching evidence to hold the petitioner/second accused guilty of the offence punishable under Section 379 IPC. 4. A gold chain weighing about 5½ sovereigns was being snatched away from the neck of PW1 at about 7 p.m. while she was walking with her husband through the Bridge which leads to Pattambi Town. CRRP 1260/01 3 Though they intimated the matter to the police they did not want to give a written complaint and cause a case being registered for fear that the husband of PW1 will find it difficult in that event to proceed to Gulf as he had come over on short leave from Gulf where he was employed. 5. PW11, the Circle Inspector of Police, Pattambi, effected arrest of the accused along with another, on suspicion, finding all the three travelling on a motor bike at 0.45 hours in the night on 10.7.1996 and questioned them separately and took them to the police station along with the motor bike and registered crime against them as Crime No.171/96 under Section 41(1)(d) read with Section 102 of the Cr.P.C. When the first accused was questioned, he gave information to PW11 that he, along with the petitioner/second accused, has, in the middle of May 1996, by about 7 p.m., snatched a gold chain from the neck of a lady walking along the Bharathapuzha Bridge. PW11 CRRP 1260/01 4 ascertained the genuineness thereof and registered Crime No.173/96 of Pattambi Police Station under Section 379 IPC read with Section 34 thereof against the petitioner/second accused and the first accused drawing up Exhibit P5 FIR. As lead by the first accused, PW11 went to the shop of PW2, a goldsmith and effected recovery of gold ingot of four sovereigns from him. It was further disclosed by the first accused that he made a bracelet of 1½ sovereigns and gave it to the petitioner/second accused on his request. On questioning the petitioner/second accused by PW11, he gave Exhibit P7 confession admitting of the first accused having given the bracelet to him and of his having pledged it at Vadanamkurisi Co-operative Bank for an amount of Rs.3,000/- under Exhibit P1 gold loan card and pursuant to the said information PW11 could effect recovery of the said bracelet from the said Bank under Exhibit P3 mahazar. CRRP 1260/01 5 6. The contention that is advanced before me by the learned counsel for the petitioner that PW2 is not having any licence to possess gold ingot and he has not maintained any record of the gold in his possession, though, being a goldsmith, engaged in gold smithi work, are all not of any merit when the recovery was established convincingly on evidence and the correctness of the confession made by the first accused and sharing of the booty, namely, the gold chain by giving a bracelet of 1½ sovereigns to the petitioner/second accused and his having taken four sovereigns converting it into ingot are established on the evidence in the case. The further contention of the learned counsel for the petitioner is that PW1, from whose neck was the gold chain snatched and stolen away, has admitted that she could see only the profile of the accused which was not sufficient to identify them is also not of any consequence in view of the fact that it is on the confession made by the first accused and CRRP 1260/01 6 on convincing the genuineness of the said confession that PW11 registered the crime after effecting their arrest in connection with another case. 7. PW2 is a goldsmith engaged in gold smithi work and he has surrendered a gold ingot weighing four sovereigns (32 gms) to PW11, the Investigating Officer when he was approached by PW11 along with the first accused conceding that the said gold ingot was purchased by him from the first accused paying an amount of Rs.11,000/-. That ingot was identified also by PW2 as MO1. Nothing has been brought out in cross-examination so as to disbelieve the testimony of PW2, who has given evidence supporting the surrender of the said MO1 ingot before PW11, the same having been purchased by him from the first accused. If at all PW2 had not purchased the said ingot of 32 gms, I have no doubt that he would not have surrendered the said valuable gold ingot to PW11 and given testimony CRRP 1260/01 7 before court admitting the said surrender which entails heavy loss for him. PW2 also had no animosity against the first accused so as to enable PW11 to obtain a conviction for the first accused. 8. PW4 is an attestor to Exhibit P2 mahazar where under MO1 gold ingot was taken into band avast by the Investigating Officer on its surrender by PW2 and his evidence also corroborates the testimony of PW2 that PW2 surrendered MO1 gold ingot before the police. 9. PW5 also supports the testimony of PWs 2 and 4 as regards recovery of MO1 gold ingot by PW11 from PW2 though he has not supported the prosecution case. PW11 was accompanied by the first accused as well. The fact that PW5 had not supported the testimony of PW2 that PW11 had been accompanied by the first accused is not of any avail for the reason that but for the first accused also accompanying PW11, PW2 would not have surrendered the gold ingot to PW11. Further, it is CRRP 1260/01 8 worthy to note that testimony of PW2 that the first accused had accompanied PW11 for the purpose of recovery of MO1 gold ingot from his shop is not assailed also in cross-examination of PW2. 10. PW3 was the Manager of Vadanamkurisi Co- operative Bank, who is having acquaintance with PW6. PW6 was a customer in his Bank. PW3 has deposed that PW6 had pledged a gold chain in his Bank and that the said chain was later surrendered to the police as it was disclosed to be a stolen article. MO2 is the said chain (bracelet) which PW3 surrendered to PW11 on being approached by PW11 with Exhibit P1 gold loan card. PW3 is not cross- examined at all either for the first accused or for the second accused. PW6 has given evidence corroborating the testimony of PW3 that when he went over to Vadanamkurisi Co-operative Bank for purchase of manure the second accused approached him and wanted a bracelet to be pledged in the Bank through him as the second accused was not having CRRP 1260/01 9 any membership in the said Co-operative Bank and thereupon he pledged the said MO2 chain entrusted by the second accused with him and obtained Rs.3,000/- which was handed over to the second accused. PW6 was not cross-examined on behalf of the first accused and on behalf of the second accused. The only question put to PW6 in cross- examination is as to whether he is having knowledge as to from where the second accused obtained the said bracelet and whether his information that it is a thondi article is from what the police informed him. 11. PW7 is attestor to Exhibit P3 mahazar where under MO2 was surrendered by PW3 to PW11 and his testimony is also not challenged at all in cross- examination. 12. PW8 is attestor to Exhibit P8 mahazar where under PW11 took into band avast Exhibit P1 gold loan card issued from the Vadanamkurisi Co- operative Bank in the name of PW6 through whom MO2 CRRP 1260/01 10 was pledged by the second accused at the said Co- operative Bank. PW8 has stated that he has got acquaintance with the second accused and that he signed in Exhibit P8 mahazar on the request of the police while he was on his way to his house to take meals; that the second accused was then found sitting in the police jeep along with the Circle Inspector and that it was near the house of the second accused that he thus saw them. He has also clarified that it is on the way to his house is the house of the second accused. Thus, the circumstances available from the evidence adduced by the prosecution give no room to doubt that the case is one falsely foisted by the police or that there is no convincing evidence to establish the seizure of MO2 by the police under Exhibit P3 mahazar pursuant to Exhibit P7 information furnished by the petitioner/second accused to PW11, the Investigating Officer. 13. It is further relevant to note that when CRRP 1260/01 11 the co-accused (A1) was questioned under Section 313 Cr.P.C., he has admitted the snatching of the gold chain from the neck of PW1 by the second accused while PW1 was walking along with her husband towards the Pattambi Bus Stand passing the Pattambi Bridge. He was riding a motor bike with the second accused as pillion rider. The first accused has further admitted that he has sold MO1 gold ingot weighing 32 gms to PW2 and that was later recovered by the police from PW2. Thus, relevant admissions are made by the first accused to Question Nos.2, 3 and 8 on examination under Section 313 Cr.P.C. The admission to Question NO.8 is also to the effect that on demand by the second accused, the gold chain snatched from the neck of PW1 was melted and a bracelet of 1½ sovereigns was made and given to the second accused and it is the balance gold ingot obtained on such melting that was sold to PW2 which was later recovered from PW2 on the basis of the information furnished by the CRRP 1260/01 12 first accused to PW11. It is that bracelet that was recovered by PW11 under Exhibit P3 mahazar pursuant to Exhibit P7 confession made by the petitioner/second accused and on surrender of Exhibit P1 gold loan card by the petitioner, which PW11 took into band avast under Exhibit P8 seizure mahazar. In the circumstances, the confessions made by the first accused bind also the petitioner/ second accused and the second accused has no explanation at all as regards the confession made by him, the truth of which is established by the recovery effected on the basis of Exhibit P7 information furnished by him. To the questions put to him in 313 examination, he has answered either that it is not correct or that he is not aware and he had nothing to say even when he was asked as to whether he has got anything else to say as regards the case. Thus, on the above evidence, I do not find any incorrectness, illegality or impropriety on the findings of the courts below that the CRRP 1260/01 13 petitioner/second accused is guilty of the offence under Section 379 IPC read with Section 34 thereof. The sentence awarded to the petitioner/second accused is also moderate and reasonable and any further reduction in the sentence awarded would render the sentence a flee bite sentence. This revision, in the circumstances, is devoid of any merit and is dismissed. 22nd May, 2009 (K.P.Balachandran, Judge) tkv CRRP 1260/01 14 K.P.Balachandran, J. -------------------------- Crl.R.P.No.1260 of 2001 -------------------------- ORDER 22nd May, 2009