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Judgment
Justice S. Siri Jagan
The petitioner is the accused in C.C. No. 111/2000 before the Judicial First Class Magistrate-I, Kayamkulam. The prosecution was for offences punishable under Sections 457, 461 and 380 read with Section 34 of the Indian Penal Code. The petitioner was prosecuted along with two others. The prosecution case was as follows:
PWs 1 and 2 are man and wife. They were residing in Evoor Muri in Cheppadu village. At 3 a.m. on 23..8..1999, the 1st accused managed to enter into the house of PWs 1 and 2 through a gap created by the 2nd accused by chiseling the wooden window bars of the room and snatched away one sovereign of gold chain worn by the child of PWs 1 and 2, aged 3 years sleeping along with PW2. He also snatched away a gold chain weighing five sovereigns worn by PW2. He took away Rs. 1300/- in currency notes kept in a purse in the shirt of PW1 also. The accused thereby committed the offences charged against them. The prosecution examined PWs 1 to 4 and marked Exts. P1 to P6 as well as MOs1 to 3. The accused did not adduce any evidence. After considering the evidence adduced by the prosecution, the Magistrate convicted the petitioner and acquitted the other two accused. The petitioner was sentenced to undergo rigorous imprisonment for two years each u/s 457 and 380 of the Indian Penal Code and one year u/s 461 of the Indian Penal Code. The sentences were ordered to be undergone concurrently. The petitioner challenged the judgment of the Magistrate before the Additional Sessions Judge-I, Mavelikkara. The Sessions Judge upheld the conviction under Sections 457 and 380, but set aside the conviction u/s 461 of the Indian Penal Code. The petitioner is challenging the judgments of the courts below.
The contention of the petitioner is that the evidence adduced by the prosecution is not sufficient to convict the petitioner. According to him, no reliable evidence has been adduced to connect the petitioner with the crime. There were no eye witnesses. The petitioner has been convicted solely on the basis of the recovery u/s 27 of the Criminal Procedure Code purportedly in furtherance of the alleged confession made by him. The learned counsel submits that the recovery is totally vitiated. He points out that in fact, PW4, Smt. Rajeswari identified the second accused as the person who sold the small gold chain to PW3 and therefore the recovery cannot be believed at all. It is further submitted that PW3, to whom the petitioner was stated to have sold the small chain, turned hostile. As such, the evidence of PWs 3 and 4 could not have been relied upon to convict the petitioner. As far as the recovery from PW6 is concerned, it is submitted that the chain in question weighed 5 sovereigns, whereas the ingot recovered from PW4 weighed only 28 gms. Therefore, his evidence also cannot be relied upon, is the submission.
On the other hand, the learned Public Prosecutor would contend that the evidence is more than sufficient to convict the petitioner. The minor discrepancies would not go to the benefit of the petitioner, is the contention raised.
I have considered the rival contentions in detail. While considering revision petitions u/s 379 of the Criminal Procedure Code, I cannot re-appreciate the evidence as such and interfere with the judgments of the courts below unless the appreciation of evidence by the courts below is demonstrably perverse. Here, the theft has been clearly proved by PWs 1 and 2. The petitioner was arrested by the Sub Inspector of Police, Haripad in connection with Crime No. 291/1999 of his police station. The petitioner confessed to him about the theft involved in this case. His confession was marked as Ext. P3(a), based on which PW11, the Sub Inspect of Police, Karineelakulangara recovered the gold ingot from PW6. PW6 fully corroborated the evidence of PW11. He deposed that the petitioner sold to him 5 sovereigns of gold chain and the police recovered the ingot made melting the same from him. The fact that the ingot weighed only 28 grams is not of much relevance in deciding the guilt of the petitioner, since the evidence of PWs 6 and 11 holds good. Of course, on the basis of Ext. P3 (a) confession statement, the small ingot representing a small chain was also recovered from the shop of PW3. But, PW3 did not support the prosecution story. Therefore, he was declared hostile. PW4, the wife of PW3 spoke that Aneesh, A2, present in court, was familiar to her. She also was declared hostile. But that is not sufficient to absolve the petitioner from the charges, in view of the evidence of PWs 6 and 11. Therefore, I am not inclined to hold that the appreciation of evidence by the courts below is demonstrably perverse. Hence, I am not inclined to interfere with the judgments of the courts below.
Accordingly, the Criminal R.P. is dismissed.