Cheriparamban Mujeebrehiman vs The State of Kerala

S. Siri Jagan, J.—The petitioner is the 2nd accused in C.C. No. 140 of 1997 before the Judicial First Class Magistrate''s Court, Nilambur. He along with two others were prosecuted for offences punishable under Sections 457, 380 and 461 read with Section 34 of the Indian Penal Code. The prosecution case as available in paragraph 2 of the judgment of the Magistrate is as follows:

On 9.5.1996 in between 9.30 p.m. and 4 a.m. in the morning, the accused together with the common intention of committing theft have trespassed to the "Sheeba Jewellery" of PW 1 at Pookkoottumpadam - Amarampalam by damaging the lock of it''s shattar. It is alleged that they have opened the shelf of the table and dishonestly taken away 120 grams of gold ornaments valuing about Rs. 18,000/- and 3 kilograms of silver ornaments. Thereby the accused have committed the offence punishable u/s as mentioned above.

The prosecution examined PWs 1 to 15 and marked Exts. P1 to P8 as also MOs 1 to 17. The accused did not adduce any evidence. The 3rd accused was absconding and therefore, the prosecution was continued against 1st and 2nd accused alone, splitting up the case against the 3rd accused. After considering the evidence of the prosecution, the 1st accused was acquitted for want of sufficient evidence, but, the 2nd accused, who is the petitioner herein, was convicted and sentenced to undergo rigorous imprisonment for a period of three years for offence punishable u/s 457 of the IPC, rigorous imprisonment for one year for the offence punishable u/s 380 of the IPC and rigorous imprisonment for six months for the offence punishable u/s 461 of the IPC. The sentences were ordered to run concurrently. The petitioner filed Criminal Appeal No. 128/2000 before the Additional District and Sessions Judge (Adhoc), Fast Track Court-I, Manjeri, which was dismissed confirming the conviction and the sentence. The petitioner is challenging the judgments of the courts below.

The contention of the petitioner is that there is no reliable evidence to convict the petitioner. According to him, he was arrested one month after the alleged incident. The alleged recovery is also very much suspect. According to the petitioner, PW 1, who was the defacto complainant and the owner of the ornaments, did not, at the time of filing complainant, describe the ornaments stolen from his shop and as such it is doubtful whether the ornaments recovered were his. He challenges the presumption drawn by the Magistrate u/s 114 of the Indian Evidence Act. According to him, the long lapse of time in arresting him would preclude the Magistrate from drawing the presumption u/s 114 of the Indian Evidence Act. It is further submitted that the 1st accused and the petitioner were together prosecuted for the same offence and when the 1st accused was acquitted, the same treatment should be meted out to the petitioner as well.

On the other hand, the learned Public Prosecutor would contend that there is very strong evidence to find the petitioner guilty of the offence charged against him. According to the learned Public Prosecutor, PW 1, from whose jewellery the articles were stolen, categorically identified MOs 11 to 17 recovered from the petitioner, while he was trying to sell it in a shop and that would be sufficient evidence to connect the petitioner with the theft. It is submitted that the petitioner tried to sell the ornaments to PW 2, who, on suspicion phoned up PW 14, the Circle Inspector of Police, Nilambur, who came to the spot and arrested the petitioner and recovered the gold ornaments from him. PW 2 gave evidence to that effect also. The arrest and recovery have been attested by independent witnesses, who gave evidence in support of the seizure also. As such the petitioner was apprehended with the stolen ornaments after the theft, which gave rise to the presumption u/s 114 of the Indian Evidence Act. Therefore, there is absolutely no doubt whatsoever regarding the guilt of the petitioner is the contention raised. It is submitted that, as against the 1st accused, the recovery from a shop in Bombay was disbelieved by the court and that is why the 1st accused was acquitted and the same treatment cannot be given to the petitioner against whom the recovery of some of the stolen ornaments have been proved beyond any reasonable doubt.

I have considered the rival contentions in detail.

PW 2 had given categoric evidence that the petitioner brought MOs 11 to 17 to his shop for sale. On suspicion, he phoned up the Police and PW 14, the Circle Inspector of Police came to the scene and arrested the petitioner along with MOs 11 to 17. PW 1, who is the defacto complainant had identified the ornaments seized from the petitioner as some of those stolen from his jewellery shop. The witnesses, who attested the seizure mahazar, also gave evidence in support of the prosecution case. These evidences are good enough to convict the petitioner finding him guilty of the offence beyond a reasonable doubt. Since the petitioner was found in possession of the ornaments after the theft, notwithstanding the fact that it was one month after the theft, in the absence of any explanation by the petitioner for his possession of the same, the presumption u/s 114 of the Evidence Act is available to the prosecution. As such, I do not find any perversity in appreciation of evidence by the courts below, without which I cannot interfere with the judgments of the courts below in exercise of powers u/s 397 of the Cr. P.C. The learned counsel for the petitioner makes a fervent plea for reducing the sentence. I do not find any extenuating circumstances to reduce the sentence as well.

In view of the above findings, I do not find any merit in this Criminal Revision Petition and accordingly, the same is dismissed.