Ousepachan @ Joseph Mathew vs State of Kerala

Justice S. Siri Jagan

The petitioner was prosecuted by the Judicial First Class Magistrate, Changanacherry for offence u/s 380 of the Indian Penal Code in Calendar Case No. 91 of 2000. The de facto complainant was PW1. He is a jewellery owner. The prosecution case is that the petitioner came to the jewellery shop of PW1 and asked PW1 to show some gold chains weighing about 2 sovereigns. While he was looking at various chains, PW1 went to attend a phone call. In the meanwhile, the salesman was attending to the petitioner. Thereafter, the petitioner wanted to see a Bombay chain. The salesman was sent to fetch a Bombay chain. While so, the petitioner left the shop. Immediately thereafter, when the chains taken out for showing the petitioner were being put back in their place of display, PW1 found that one gold chain weighing 2 sovereigns was missing. Immediately, he went out in search of the petitioner. The people standing there informed him that he went away in an autorichshaw bearing Reg. No. KL5-G/2545. PW1 thereafter complained to the police, pursuant to which the police conducted investigation and arrested the petitioner. On the basis of a conviction statement by the petitioner, the gold chain was recovered from a pit under the staircase of the house of the petitioner. On the basis of the same, the petitioner was prosecuted for theft. The Magistrate convicted the petitioner and sentenced him to undergo simple imprisonment for one year and to pay fine of Rs. 5000/-. The petitioner challenged the judgment of the Magistrate in Crl. A. No. 27/2005 before the Additional District and Sessions Judge, Fast Track Court (Ad Hoc-II), Kottayam. The District and Sessions Judge dismissed the appeal confirming the conviction and sentence. The said judgments are under challenge in this revision petition. The contentions of the petitioner are two fold. According to the petitioner, the delay in lodging the First Information Statement vitiates the prosecution. He submits that the alleged incident was on 6.11.1999, whereas the First Information Statement is dated 25.11.1999. He submits that the District and Sessions Judge himself in the judgment in criminal appeal, specifically found that the recovery is suspicious. Once recovery cannot be relied upon, then the petitioner could not have been convicted, is the contention raised. He points out that the mahazar witnesses for the recovery also turned hostile and refused to identify the gold chain as one recovered pursuant to the recovery. According to the learned counsel for the petitioner, these circumstances are more than sufficient to hold that the prosecution has not proved the guilt of the petitioner beyond a reasonable doubt.

The learned Public Prosecutor would contend that in the particular facts of this case, no particular significance can be attached to the delay in lodging the First Information Statement. He points out that PW1 has specifically deposed before the court that the factum of theft was immediately reported to the police and after some days, the First Information Statement was given. As such, the delay in lodging the First Information Statement does not in anyway affect the prosecution case, is the contention raised. As far as the recovery is concerned, he specifically points out that the recovery was pursuant to Ext.P2(a) confession statement of the petitioner and it cannot be assumed that the police officer, for the purpose of ensuring a successful prosecution, would bring forward a gold chain weighing two sovereigns at his own cost. It is pointed out that the evidence adduced in the case is sufficient to prove the guilt of the petitioner beyond a reasonable doubt.

I have considered the rival contentions in detail.

At the outset, I must remind myself of the limitation of my jurisdiction under Sections 397 and 401 of the Criminal Procedure Code in exercise of that jurisdiction. I cannot re-appreciate the evidence to come to a different conclusion with the concurrent findings of the courts below. Only if the appreciation of evidence by the courts below is demonstrably perverse, I can interfere with the judgments of the courts below in exercise of my revisional jurisdiction. In this case, PW1 had given evidence to the effect that the petitioner came to his jewellery shop ostentatiously with the intention of purchasing a gold chain weighing about 2 sovereigns. His presence in the shop has been proved by the evidence of PWs 1 and 2. The gold chain was found missing immediately after the petitioner left the shop. The petitioner could not, with any amount of certainty, pick holes in the evidence of PWs 1 and 2. As such, the presence of the petitioner in the shop just before the theft of the gold chain has been convincingly proved. A chain has been recovered pursuant to Ext.P2(a) confession statement of the petitioner. Of course, the mahazar witnesses turned hostile. But, at the same time, they did not dispute their signature in the mahazar and their presence in the house from where the gold chain was recovered. In the cross examination of the witnesses, the petitioner could not bring out anything to cast any doubt on the integrity of the investigating officer. The gold chain stated to be recovered has been identified by PW1 also. In these circumstances, I am of opinion that the suspicion expressed by the District and Sessions Judge on the recovery does not outweigh the convincing other evidence in support of the prosecution case. In fact, that must have been the reason why the District and Sessions Judge dismissed the petitioner''s appeal despite the suspicion he expressed abut the recovery. I am also satisfied that the evidence available on record is sufficient to prove the guilt of the petitioner beyond a reasonable doubt.

In the above circumstances, I do not find any perversity whatsoever in the appreciation of evidence by the courts below to enable me to exercise my powers of revision u/s 397 of the Criminal Procedure Code. Accordingly, the Criminal R.P. is dismissed.