Abdul Latheef vs State Of Kerala

Johnson John, J.

The revision petitioner is the third accused in C.C. No. 482 of 2004 of the Judicial First Class Magistrate Court-II, Hosdurg and the appellant in Crl. Appeal No. 203 of 2010 of the Sessions Court, Kasaragod.

The trial court and the appellate court found the accused guilty of the offences under Sections 457 and 380 of IPC and he is sentenced to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of 6 months for the offence under Section 457 IPC. He is also sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5000/- and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months for the offence under Section 380 IPC. Aggrieved by the concurrent findings of the trial court and the appellate court, the accused filed the present revision petition.

The prosecution case is that the petitioner, along with 3 other accused, committed housebreaking by night by removing the roof tiles of house No. V/389 of Uduma Panchayath owned by the de facto complainant at about 3.30 a.m. on 29.8.2001 and committed theft of a suitcase containing gold ornaments. The accused persons also committed theft of a CD player and a rado watch owned by the de facto complainant. Since the second accused was a juvenile, his case was forwarded to the Juvenile Court and as accused Nos. 1 and 4 were absconding, the case against them was split up.

In the trial court, PWs 1 to 8 were examined and Exhibits P1 to P7 and MOs 1 to 4 were marked from the side of the prosecution and no evidence adduced from the side of the accused.

After trial and hearing both sides, the petitioner was convicted and sentenced as aforesaid. The findings of the trial court was confirmed in appeal and aggrieved by the above concurrent findings of the trial court and appellate court, the petitioner filed this revision petition contending inter alia that the prosecution has not examined any independent witness and that the conviction is solely based on the recovery effected by the Investigating Officer on the basis of the alleged disclosure statement of the accused .

6.Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.

The Investigating Officer is examined as PW8 and his evidence shows that when he questioned one Khader @ Abdul Khader in Crime No. 270 of 2002 of Bekal Police Station, he got information about the accused persons in this case and thereafter on 04.06.2004, he arrested the third accused in this case. The evidence of PW8 in chief examination shows that he recorded the confession statement of the accused and on the basis of the disclosure statement of the accused that he kept two bangles in a bag containing dress and that the said bag was kept under a bench in his house and as led by the accused, the witness reached the house of the accused along with the accused and as pointed out by the accused, the bag and bangles were recovered. The seizure mahazar is marked as Exhibit P4 and the relevant portion of the confession statement of the accused is marked as Exhibit P4(a).

PW5 is an attesting witness in Exhibit P4, seizure mahazar and he identified MO1 series bangles and his signature in Exhibit P4 mahazar. The evidence of PW5 shows that he accompanied PW8 at the time of recovery of two bangles from a house. However, PW5 has deposed that he cannot identify the person who was present in the jeep along with the police. PW2 is the owner of the gold bangles and she identified MO1 series gold bangles before the court. The de facto complainant, who has given Exhibit P1, First Information Statement, was no more at the time of trial. PW1, who is the daughter of the de facto complainant, identified the signature of the de facto complainant in Exhibit P1.

PW6 registered Exhibit P6 FIR. The learned counsel for the petitioner argued that the de facto complainant has not given the description of the gold ornaments in the First Information Statement and he only stated that the bag contained 75 sovereigns of gold ornaments. However, it is pertinent to note that PW3 has clearly deposed that the suitcase containing gold ornaments was entrusted to PW1 through PW2 on 26.08.2001, when they left the place in connection with the marriage of a near relative and on the next day, they came to know about the theft.

According to PW3, the gold ornaments in the stolen suitcase belong to her and her sister PW2 and subsequently, the police recovered two of the stolen bangles and she identified the same before the police. PW3 identified her stolen bangles before the court as MO1 series. The above evidence of PW3 before the court is not challenged in cross examination. Even though PW8 was seriously cross examined, nothing is brought out to discredit his evidence in chief examination regarding the recovery of MO1 series bangles on the basis of the disclosure statement of the accused.

It is well settled that the revisional court cannot act as an appellate court and the power of the revisional court under Sections 397 to 401 Cr.P.C cannot be equated with the power of an appellate court. In State  of  Kerala  v.  Puttumana  Illath  Jathavedan  Namboodiri [(1999) 2 SCC 452 = 1999 SCC (Cri) 275], the Honourable Supreme Court held thus:

“5. … In its revisional jurisdiction, the High Court can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. In other words, the jurisdiction is one of supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. On scrutinizing the impugned judgment of the High Court from the aforesaid standpoint, we have no hesitation to come to the conclusion that the High Court exceeded its jurisdiction in interfering with the conviction of the respondent by reappreciating the oral evidence. ...”

In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123 = (2015) 2 SCC (Cri) 19], the Honourable Supreme Court held thus:

“14. … Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is non-consideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.”

As noticed earlier, in the present case, the trial court and the appellate court found that the evidence of PW8, Investigating Officer, regarding the recovery of MO1 series bangles on the basis of the disclosure statement of the accused is reliable and trustworthy. Even though, PW5, the witness to the recovery, deposed that he is not in a position to identify the person who was present along with the police at the time of recovery, his evidence clearly shows that he witnessed the recovery of MO1, series gold bangles, by PW8 on 04.06.2004. The evidence of PW3 that MO1 series gold bangles forms part of the gold ornaments stolen from the house of the de facto complainant, is not challenged in cross examination. Therefore, I find that the revision petitioner has not succeeded in establishing that the judgment under challenge is vitiated due to any illegality, irregularity or error of law.

It is well settled that the High Court, in exercise of revisional jurisdiction, shall not interfere with the impugned judgment, unless it is perverse or wholly unreasonable or there is non-consideration of any relevant material. It is also well settled that the impugned judgment cannot be set aside merely on the ground that another view is possible.

In the present case, the trial court and the appellate court found that the evidence of PW8 regarding the recovery of MO1 series bangles on the basis of the disclosure statement of the accused is supported by the evidence of PW3, the owner of the property and PW5, attesting witness to the seizure mahazar.

Considering the nature and gravity of the offence, I find that this is not a fit case to invoke the provisions of the Probation of Offenders Act while exercising the revisional jurisdiction. Further, elapse of time is not a ground to trivialize the seriousness of the crime committed by the offender. It is pertinent to note that the trial court has already taken a lenient view in the matter of punishment and therefore, I find that the sentence imposed by the trial court and confirmed by the appellate court requires no modification. This revision petition is devoid of merit and is liable to be dismissed.

In the result, this revision petition is dismissed.