Prakasan and Another vs State of Kerala

V. Ramkumar, J.—The revision petitioners, who are accused Nos. 2 and 3 in C.C. 1434/2003 on the file of JFCMI, Aluva for offences punishable under Sections 457, 380 and 461 read with Section 34 IPC, challenge the conviction entered and sentence passed against them concurrently by the courts below.

The case of the prosecution can be summarised as follows:

On 15-6-2001 at about 1.15 a.m. the first accused Rajendran broke open the front door of the house of PW1 Grorge at Edathalakara in Aluva East Village using a chisel and committed theft of gold ornaments and cash worth Rs. 9,500/-, causing a total loss of Rs. 60,500/- after breaking open the almirah inside the house. The accused have thereby committed the aforementioned offences.

On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 9 witnesses as PWs. 1 to 9 and got marked 7 documents as Exts.P1 to P7 and chisel as MOI.

After the close of the prosecution evidence, the accused were questioned u/s 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They did not adduce any defence evidence when called upon to do so.

The learned Magistrate, after trial, as per judgment dated 30-4-2004 found the revision petitioners guilty of the offence punishable under Sections 457, 461 and 380 IPC and sentenced them to undergo simple imprisonment for two years each under Sections 457 and 461 IPC and sentenced them to undergo simple imprisonment for one year each u/s 380 IPC. On appeal preferred by the revision petitioners before the Sessions Court, North Paravur, the lower appellate court, as per judgment dated 20-10-2005, confirmed the conviction entered and the sentence passed against the revision petitioners. Hence, this Revision.

What is untrammeld by the oral and documentary evidence of the case is the following:

PW1, who is the owner of the house, was not present in the house at the time when the theft took place in the light of 14-6-2001. Hearing the news of hospitalisation of his wife he had gone to the hospital on that day and when he reached his house next day morning, he noticed the front door broke open. On entering the house, he found the almirah also broke open and the cloths and other articles were lying strewn in the house. He soon realised the theft of gold ornaments and cash worth Rs. 61,000/-. He, accordingly, lodged ExtP1 complaint before the Aluva Police who registered the case a Crime No. 1028/ 2001, PW7, the Sub Inspector of Kunnathunadu Police Station arrested the first accused on 28-3-2003 in connection with another case, viz. Crime No. 53/2003 of the said police station. On interrogation, A1 confessed that the stolen articles were entrusted with A2 and A3. Thereupon PW7 registered Crime No. 84/2003, Ext.P6 is the FIR. On the strength of the confession made by A1 and as led by A1, PW7 reached the house of A2. On the strength of the statement by A3, PW7 reached the house of A3. On the strength of the confession by A2 and A3, PW7 proceeded to Pavizham Jewellery at Perunna and seized 148 gms. of gold ingot from the jeweller, who identified A2 and A3 as the persons from whom he had purchased the gold ornaments which he had melted and converted into gold ingot.

Thus, the evidence which has been adduced by the prosecution does not show that the revision petitioners, who are A2 and A3, had any role in committing the house breaking by night of any role dishonest breaking of the almirah inside the house of PW1. The evidence only shows that A2 and A3 had received the booty from A1 and had sold the gold ornaments to the jewellery shop owner. If so, A2 and A3 cannot be convicted for offences punishable under Sections 457, 461 and 380 IPC. Conviction recorded against the revision petitioners for offences punishable under Sections 457, 461 and 380 is not proper. But the evidence definitely suggests that A2 and A3 had received the stolen ornaments from A1 and had sold the same to the jeweler. If so, the revision petitioners cannot escape a conviction u/s 411 IPC for having dishonestly received the stolen properties. u/s 222(2) Cr.P.C. the revision petitioners can be convicted of the said offence without a charge. Accordingly, the revision petitioners are convicted for the offence punishable u/s 411 IPC. The antecedents of the revision petitioners were ascertained through the PP, who submitted that they are not involved in any other case in any of the police station in the Ernakulam District.

Hence for the conviction u/s 411 IPC, each of the revision petitioners are sentenced to simple imprisonment for three months. They shall surrender before the trial court within two weeks from today to receive the sentence.