IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 25TH MAY 2010 / 4TH JYAISHTA 1932 Crl.Rev.Pet.No. 94 of 2003() ---------------------------- CRA.16/1999 of OF ADDL.SESSIONS JUDGE, MANJERI CC.459/1996 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- C.ASHRAF S/O. ENTHEENKUTTY, KATTIPARUTHY, TIRUR, MALAPPURAM DISTRICT BY ADV. SRI.BABU S. NAIR RESPONDENT(S): RESPONDENT/STATE ------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VALANCHERI POLICE STATION-THOUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-13 BY PUBLIC PROSECUTOR SRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.280/03 IN CRRP 94/03 DISMISSED 25/5/10 SD/-M.SASIDHARAN NAMBIAR,JUDGE. //True copy// PA to Judge. M.SASIDHARAN NAMBIAR,J. --------------------------------------------- CRL.R.P.NO.94 OF 2003 --------------------------------------------- Dated 25th May, 2010 O R D E R Petitioner, second accused in C.C.459/1996 on the file of Judicial First Class Magistrate, Tirur filed this revision challenging the conviction and sentence for the offences under Section 380 of Indian Penal Code and 53 A of Kerala Police Act. Prosecution case is that on 22/7/1996 at about 11.30 p.m the two accused in furtherance of their common intention broke open Alfa Electronics, a shop owned by PW1 situated at Valanchery Town, by breaking open its shutters and committed theft of MO.1 VCP and thereby committed the offences. Accused pleaded not guilty. Petitioner was defended by a CRRP.94/03 2 counsel appointed by the court as he was in custody at the time of trial. Learned Magistrate on the evidence of Pws.1 to 6, Exts.P1 to P6 and Mos.1 and 2 convicted and sentenced the second accused to rigorous imprisonment for three months for the offence under Section 380 of Indian Penal Code and rigorous imprisonment for two months for the offence under Section 53 A of Kerala Police Act and acquitted the first accused. Petitioner challenged the conviction and sentence before Sessions court, Manjeri in Crl.A.16/1999. Learned Additional Sessions Judge on re- appreciation of the evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision. 2. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. CRRP.94/03 3 3. Argument of the Learned counsel is that courts below did not properly appreciate the evidence and omitted to take note of the fact that in Ext.P1 FI statement itself PW1 has stated that petitioner was taken into custody some days earlier to 1/8/1996 and in such circumstances, recovery of MO.1 made from PW4 by PW7 Sub Inspector should not have been relied on. It is argued that when petitioner has already been arrested and was in the custody of the police, prosecution case that he was arrested subsequently on 2/8/1996 should not have been believed and if recovery under Section 27 of Evidence Act of MO.1 is disbelieved, there is absolutely no evidence to prove the theft and therefore, the conviction is not sustainable. 4. PW1 is the owner of electronic repairing shop at Valanchery by name Alfa CRRP.94/03 4 Electronics. Evidence of PW1 is that a person from Ponnani had entrusted MO.1 VCP for repairing and he had kept it at the shop and for purchasing materials he had gone to Chennai and on 22/7/1996 he was not in the shop. As per Ext.P1 FI statement furnished by PW1, on his return from Chennai he was informed by Abdulrahiman, the mechanic of the shop that on the night of 22/7/1996 a thief had entered the shop by breaking open the shutter, but no theft was committed. In Ext.P1, PW1 stated that said mechanic was not aware of the articles entrusted with PW1 and therefore, he did not know that MO.1 was stolen and finding that MO.1 was missing, PW1 lodged Ext.P1 statement before the police regarding the theft. It is stated in Ext.P1 that petitioner was arrested by the police some days earlier and PW1 suspects that theft of VCP was committed by CRRP.94/03 5 the petitioner and it was sold in a shop at Gulf Bazar, Angadipuram by name Shabna owned by one Hamsa who was examined as PW4. Argument of the learned counsel is that PW1 disclosed on 1/8/1996 itself that MO.1 was with PW4 and therefore, recovery of MO.1 from PW4 on 2/8/1996 cannot be based on the information disclosed by the petitioner. True, if petitioner was arrested some days prior to 1/8/1996 as stated by PW1 in Ext.P1 FI statement, evidence of PW6 that he was arrested on 2/8/1996 and based on the information furnished by the petitioner MO.1 was recovered cannot be correct. But, even if the recovery is not believed as based on the information furnished by petitioner, there is more than sufficient evidence to uphold the conviction for the offence under Section 380 of Indian Penal Code. CRRP.94/03 6 5. Evidence of PW1 that MO.1 VCP was entrusted to him for repairing and it was at his shop when he had gone to Chennai and it was missing when he came back on 1/8/1996 was not challenged in cross examination. So also the identity of MO.1 as the stolen VCP was not challenged. Therefore, evidence of PW1 proves true facts. There was a theft on the night of 22/7/1996 while he was in Chennai, and MO.1 VCP was stolen on that night from the shop, which was entrusted to PW1 for repairing. 6. MO.1 was seized from PW4. Evidence of PW4 establishes that it was produced by him before the Sub Inspector on 2/8/1996 and it was seized under Ext.P3 mahazar. PW3 the attesting witness to Ext.P3 mahazar deposed that VCP was produced by PW4 in his presence. Evidence of PW4 is that he produced MO.1 before PW6 Sub Inspector and then it was seized under Ext.P3. CRRP.94/03 7 Evidence of PW3 that he has witnessed to the incident and both of them signed in Ext.P3 were not challenged. Therefore, it is proved that MO.1 was seized from PW4. Evidence of PW4 is that MOs.1 and 2 VCPs were sold to PW4 by the petitioner two years prior to the date of the seizure. That evidence of PW4 was also not challenged. Argument of Learned counsel appearing for the petitioner is that as it was the State Brief who was defending the petitioner, failure to cross examine is not fatal. I cannot agree. Whether it is State Brief or by a counsel appointed by the accused, if there is no cross examination, it is fatal. Evidence of PW4 was evidently not challenged because petitioner did not dispute the fact that he had sold MO.1 to PW4. In such circumstances, even if the recovery under Section 27 of Evidence Act based on the CRRP.94/03 8 information furnished by the petitioner, which lead to recovery, is disbelieved, evidence of PW4 connects the petitioner with the theft of MO.1. There is no explanation for the petitioner how he came to possesses MO.1 but for the theft. There is no case for the petitioner even when questioned under Section 313 of Code of Criminal Procedure that he came to possess MO.1 as an innocent purchaser without knowledge that it is a stolen article. In such circumstances, finding of the courts below that petitioner committed theft of MO.1 and his conviction for the offence under Section 380 of Indian Penal Code is perfectly legal and correct. So also when MO.2 was recovered and evidence of PW4 proves that it was sold to him by the petitioner and petitioner has no explanation for the possession of MO.2 his Conviction for the CRRP.94/03 9 offence under Section 53 A of Kerala Police Act is also perfectly legal and correct. 7. Then the only question is with regard to sentence. Learned Sessions Judge sentenced the petitioner for the offence under Section 380 of Indian Penal Code for rigorous imprisonment for three years. He was sentenced to rigorous imprisonment for two months for the offence under Section 53 A of Kerala Police Act. Considering the entire facts and circumstances of the case, interest of justice will be met, if the sentence is reduced to rigorous imprisonment for two years, for the offence under Section 380 of Indian Penal Code. Sentence for the offence under Section 53 A does not warrant any interference. But both the sentence shall run concurrently. Revision is allowed in part. Conviction of the petitioner for the offence under Section CRRP.94/03 10 380 of Indian Penal Code and conviction and sentence for the offence under Section 53 A of Kerala Police Act are confirmed. Sentence for the offence under Section 380 of Indian Penal Code is modified to rigorous imprisonment for two years. Both sentence shall run concurrently. Petitioner is entitled to set off as provided under Section 428 of Code of Criminal Procedure for the period he was under custody in this case. M.SASIDHARAN NAMBIAR, JUDGE. uj.