IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.Q.BARKATH ALI FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 Crl.Rev.Pet.No. 863 of 2001(C) ------------------------------------------- CRL.A.NO.219/1996 OF ADDL.SESSIONS COURT, KOTTAYAM, CC.NO.298/1993 OF JUDL. MAGISTRATE OF FIRST CLASS, CHANGANACHERRY. .................... REVISION PETITIONER/ APPELLANT/ 2ND ACCUSED: ---------------------------------------------------------------------------- OMANAKUTTAN, S/O. KUNJU KUTTAN, CHORICKAMPARA COLONY BHAGOM, VAKATHANAM KARA AND VILLAGE. BY ADVS. MR. M.V.S.NAMBOOTHIRY, MR.DEEPAK THOMAS, MR.RENJITH JOHN. RESPONDENTS/ RESPONDENT/ COMPLAINANT: ---------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. REKHA.C. NAIR. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/10/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 863 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Dated this the 16th day of October, 2009 O R D E R Revision petitioner is the second accused in C.C.No.298 of 1993 of the Judicial Magistrate of the First Class, Changanacherry and the appellant in Crl.A. No.219 of 1996of the Sessions Court, Kottayam Division. He was convicted under section 414 IPC IPC and sentenced to under go rigorous imprisonment for six months by the trial court, which is confirmed in appeal. The second accused has now come up in revision challenging his conviction and sentence. 2. The case of the prosecution, as shaped in evidence before the trial court, was that the revision petitioner who is the second accused along with the absconding first accused committed house breaking and theft of MOs.1 to 38 from the house of PW1 situated near Government Hospital by the side of Njaliyamkuzhy-Thengana public road during the night of 7-2-1993 and that thereby the accused committed the offence punishable under sections 457, 461, 380 and 414 read with section 34 IPC. The charge against the revision petitioner was only under section 414 IPC for having assisted the first accused in concealing the stolen property. 3. On appearance before the trial court, the revision petitioner as Crl.R.P. No. 863/01 2 well as the absconding first accused pleaded not guilty to the charges under sections 457, 461, 380 and 414 read with section 34 IPC. PWs.1 to 11 were examined and Exts.P1 to P9 and MOs.1 to 40 were marked on the side of the prosecution. When questioned under section 313 Crl.P.C., the accused persons denied the incident. Since the first accused absconded, the case against him was split up. On an appreciation of the evidence the learned Magistrate found the second accused guilty of the offence punishable under section 414 IPC, convicted him there under and sentenced him as aforesaid. Aggrieved by the above judgment, he filed Crl.A.No.219 of 1996, which was dismissed by the lower appellate court confirming his conviction and sentence. The second accused has come up in revision challenging his conviction and sentence. 4. The following points arise for consideration in this revision petition:- 1) Whether the conviction of the revision petitioner under section 414 IPC by the trial court, which is confirmed in appeal can be sustained? 2) Whether the sentence imposed on the revision petitioner is excessive or unduly harsh? Crl.R.P. No. 863/01 3 5. The counsel or the revision petitioner argued that the recovery of material objects on the basis of information allegedly given by the revision petitioner has not been properly proved before the trial court and that there is three days delay in registering the F.I.R. and on that ground the accused is entitled for acquittal. 6. PW1 is an aged lady. She is residing in the house in which the incident happened. On the date of the incident she has gone to her brother’s house and when she returned, she found that the door of the house opened and the articles stolen. PW2 is the person who was the caretaker of the house. He also testified regarding the theft occurred in the house. He identified MOs.1 to 35 as the articles stolen from the house. PW3 was given up by the prosecution. PW4 is a witness to the scene mahazar. PW5 is a witness to mahazar Ext.P3. He turned hostile and did not support the prosecution. PW6 is the father of the second accused. He is a witness to the recovery of one suitcase from his house at the instance of the first accused (house was rented out to the first accused). PW7 is a witness who purchased MO5 drilling machine and MO7 calculator from the first accused. They were recovered at the instance of the first accused. PW8 is an attestor to recovery mahazar Ext.P4 and the stolen articles were recovered at the Crl.R.P. No. 863/01 4 instance of the first accused. PW9 is the then Assistant Sub Inspector of Police, Vagathanak Police Station who arrested the second accused and recovered the material objects at his instance. The articles mentioned in Ext.P5 recovery mahazar Mos.24 to 30 and 34 to 38 were recovered from the culvert near Vakathanam Police Station. PW9 recorded the First Information Statement and registered the case. The evidence of PWs.1 and 2 clearly shows that theft occurred in the house on the night of 7-2-1993 and the articles MOs.1 to 38 were stolen from that house. The trial court as well as the appellate court have chosen to believe their evidence on these aspects. 7. The next question is whether the recovery of articles Mos.24 to 30 and 34 to 38 mentioned in Ext.P5 were recovered at the instance of the second accused. On this aspect, the evidence of PW9 clearly proved that the recovery of the said articles at the instance of the second accused. The counsel for the revision petitioner argued that the confession statement of the second accused was not produced before the trial court and that therefore, recovery of the said items were not proved as provided under section 27 of the Indian Evidence Act. No special format is prescribed for effecting recovery under section 27of the Indian Evidence Act. Further in Crl.R.P. No. 863/01 5 Ext.P5 the relevant portion of the confession statement of second accused is seen extracted. The trial court as well as the lower appellate court has chosen to believe the evidence of PW9 on this aspect. I have gone through his evidence. I find no reason to come to a different conclusion. Therefore, I am inclined to hold that the prosecution has succeeded in proving the recovery of the stolen article mentioned in Ext.P5 by PW9 at the instance of the second accused. He deposed that he arrested the revision petitioner and on questioning him it was understood that the stolen articles were given by the first accused. Revision petitioner concealed the above said stolen articles knowing it to be stolen which is an offence punishable under section 414 IPC. Therefore, I confirm the conviction of the revision petitioner under section 414 IPC. 8. As regards the sentence the trial court imposed a sentence of rigorous imprisonment for six months, which was confirmed in appeal. The alleged incident occurred in 1993, about 16 years back. The revision petitioner is aged about 50. No previous conviction is proved against him. Therefore, I feel that simple imprisonment till the rising of court and a fine of Rs.5,000/- would meet the ends of justice. 9. In the result, the revision petition is allowed in part. The Crl.R.P. No. 863/01 6 conviction of the revision petitioner under section 414 IPC is confirmed. The sentence is modified to the effect that the revision petitioner is sentenced to undergo simple imprisonment till the rising of court and to pay fine of Rs.5,000/-, in default to undergo simple imprisonment for three months. He shall surrender before the trial court on or before 16-11-2009 to receive the sentence. Two months’ time is granted for payment of fine. His bail bonds are cancelled. P.Q. BARKATH ALI, JUDGE mn Crl.R.P. No. 863/01 7 P.Q. BARKATH ALI, J. =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= Crl.R.P. No. 863 of 2001 =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-= O R D E R 16th day of October, 2009