IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 Crl.Rev.Pet.No. 1275 of 2003 ----------------------------------------------- CRA.28/1999 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CC.748/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG .................... REVN. PETITIONER/APPELLANT/ACCUSED: P.MOOSA, S/O.HYDER, AGED 32 YEARS, MEETHIGUDA RAILWAY GATE, PALLIKKARA P.O PALLIKKARA, KASARAGOD DIST. BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.M.SANTHOSHKUMAR RESPONDENT/RESPONDENT: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.MP.5300/2003 IN CRRP 1275/2003 DISMISSED 16.7.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1275 of 2003 -------------------------- ORDER Petitioner, the first accused in C.C.No. 748/1995, who was convicted and sentenced for the offences under Sections 457 and 380 of Indian Penal Code by Judicial First Class Magistrate-I, Hosdrug, filed this revision challenging the conviction and sentence, as confirmed by Additional Sessions Judge, Kasaragod in Crl.A.No.28/1999. Prosecution case is that PW2 is having a Stationery shop in Building No.W-XI-245 and 246 in Ajanur Village. On 13.6.1995 morning, when PW2 went to the shop to open it, it was found that the shop was broke opened and stationery articles, including, clothes, cool box, calculators, tea dust, soaps, etc. worth Rs.9,954.50 were stolen. PW2 furnished Exhibit P1 F.I. Statement to PW8, the Head Constable, who recorded it and based on Exhibit P1, Crime 337/1995 was registered under Exhibit P5 FIR. PW10, the Sub CRRP 1275/03 2 Inspector of Police, conducted the investigation. He prepared Exhibit P7 scene mahazar and questioned the witnesses. Meanwhile, petitioner was found under suspicious circumstances by PW7, the Circle Inspector of Police, Hosdrug, at about 3 a.m. on 27.7.1995, carrying MO19 air bag. When PW7 questioned him and examined the air bag, it was found that it contained clocks, time pieces and other stationery articles, a total of forty seven items. As petitioner failed to give proper explanation for the possession, suspecting that they are stolen articles, petitioner was arrested and MOs 1 to 19 were seized under Exhibit P2 mahazar. Crime No.408/1994 of Hosdrug Police was registered for the offences under Sections 41(1)(d) and 102 of Code of Criminal Procedure under Exhibit P4 FIR. Investigation was entrusted to the Sub Inspector of Police. PW6, the Sub Inspector of Police, conducted the investigation. He arrested the second accused on 2.8.1995 and recovered a car CRRP 1275/03 3 stereo and a calculator from him. On 4.8.1995, he arrested the third accused and under Exhibit P3 mahazar recovered a calculator. Getting information that first accused was arrested, a request was submitted to call for the seized articles in that crime. After completing the investigation, charge was laid against the three accused. All of them pleaded not guilty. 2. Prosecution examined ten witnesses and marked nine exhibits and identified twenty material objects as the stolen articles. Accused did not adduce any evidence. 3. Learned Magistrate, on the evidence, found accused 2 and 3 not guilty of the offences disbelieving the seizure on their information and acquitted them. Accepting recovery of MOs 1 to 19 from the petitioner, proved by the evidence of PW7, petitioner was convicted. Though petitioner challenged the conviction and sentence, learned Additional Sessions Judge, on re-appreciation of CRRP 1275/03 4 evidence, confirmed the conviction and sentence and dismissed the appeal. This revision is filed challenging the conviction and sentence. 4. Learned counsel appearing for the petitioner and learned Public Prosecutor were heard. 5. Arguments of the learned counsel are that revision petitioner was not arrested by PW7 along with MOs 1 to 19 and evidence of PWs 3 and 7 should not have been relied on. It was argued that the Railway Gate Keeper was not made an attester to Exhibit P2 mahazar and he was not examined and in such circumstances, courts below should not have accepted the recovery and hence, the conviction, based on the recovery, is not sustainable. It is also argued that when the case as against accused 2 and 3 was disbelieved by the learned Magistrate and the alleged recovery of cool box was also not accepted, based on the recovery of MOs 1 to 19, conviction of the petitioner is not sustainable. CRRP 1275/03 5 6. Learned Public Prosecutor pointed out that evidence of PW7, the Circle Inspector of Police, with the evidence of PW3, the Police Constable, who was there along with PW7 at that time, corroborated by Exhibit P2 mahazar, establish that petitioner was arrested by PW7 and MOs 1 to 19 were recovered under Exhibit P2 recovery mahazar and petitioner has no explanation whatsoever for the possession of the stolen articles and in such circumstances, conviction is perfectly legal. 7. Evidence of PW2 with Exhibit P1 F.I. Statement establish that on the morning of 13.6.1995 when PW2 went to the shop building, he found that the shop was broke opened on the night and stationery articles, kept in the shop, were stolen. PW2 furnished Exhibit P1 statement showing the details of the articles stolen. PW7, the Circle Inspector of Police, Hosdrug, while on patrol duty, found petitioner walking carrying MO19 air bag along the public road leading to Iqbal Railway Gate CRRP 1275/03 6 at 3 a.m. Getting suspicious, PW7 stopped the jeep and questioned the petitioner and examined MO19 air bag. Finding that it contained clothes and stationery articles and suspecting that they were stolen, petitioner was asked to explain the possession of the articles. As he could not give any satisfactory explanation, under Exhibit P2 mahazar, those MOs 1 to 19 were seized and petitioner was arrested and under Exhibit P4, Crime No.408/1995 for the offences under Sections 41(1) (d) and 102 of Code of Criminal Procedure was registered. The case was investigated by PW6. 8. Though recovery of cool box was not accepted by the learned Magistrate, for the failure of the prosecution to produce the same, evidence of PW3 and PW7, corroborated by Exhibit P2 mahazar, were accepted. Though it was argued that evidence of PWs 3 and 7 should not have been believed, as the Railway Gate Keeper was not even made a witness to Exhibit P2 mahazar, when PWs 3 and 7 were examined, CRRP 1275/03 7 no question was put to them whether the Railway Gate Keeper had witnessed the arrest or the seizure. Exhibit P2 seizure mahazar shows that petitioner was arrested at a distance of seventy metres away from the Railway Gate. In such circumstances, it cannot even be presumed that the Gate Keeper had witnessed the incident and that too, at the odd hour of 3 a.m. Hence, non examination of the Gate Keeper is not fatal and on that basis, either the arrest or the seizure cannot be disbelieved. 9. PW2 had identified MOs 1 to 18 as the stolen articles. Petitioner has no explanation as to how he happened to be in possession of MOs 1 to 19. In such circumstances, I find no reason to interfere with the finding of the courts below that it was the petitioner who committed the theft after breaking open the shop room on the night of 12.6.1995. Therefore, conviction of the petitioner for the offences under Sections 457 and 380 of CRRP 1275/03 8 Indian Penal Code is perfectly legal. 10. Then the only question is regarding the sentence. Learned Magistrate sentenced the petitioner to rigorous imprisonment for one year each for the offences under Sections 457 and 380 of Indian Penal Code providing that sentences shall run concurrently. Set off was also allowed. The sentence is only reasonable. I find no reason to interfere with the sentence also. Revision is dismissed. petitioner is directed to appear before Judicial First Class Magistrate-I, Hosdrug on 30.08.2010. The Magistrate is directed to execute the sentence. 16th July, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 1275/03 9 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.1275 of 2003 -------------------------- ORDER 16th July, 2010