Prakashan vs State of Kerala

K. Ramakrishnan, J.—The 2nd accused in C.C. No. 143/99 on the file of the Judicial First Class Magistrate, Chavakkad and the appellant in Crl. A. No. 300/2001 on the file of the 3rd Additional Sessions Judge, Thrissur is the revision petitioner herein. The revision petitioner along with the 1st accused in the case were charge sheeted by the Sub Inspector of Police, Guruvayoor Police Station in Crime No. 297/98 of that police station u/s 379 read with Section 34 of Indian Penal Code. The case of the prosecution in nutshell was that on 12.12.98 at about 4 a.m., both the accused in furtherance of their common intention of committing theft from near Guruvayoor Bus stand, first accused committed theft of purse containing Identity Card and Rs. 172/- from the pocket of P.W. 1 and handed over the same to the 2nd accused, who is the revision petitioner herein and thereby both of them have committed the offence punishable under 379 read with 34 Indian Penal Code.

After investigation, final report was filed against the accused persons for the above said offence. When they produced before the court, after hearing both sides, charge u/s 379 read with Section 34 Indian Penal Code was framed against them and the same was read over and explained to them and they pleaded not guilty. P.Ws. 1 to 4 were examined and Exhibits P1 to P3 and MOs. I to III series were marked on the side of the prosecution. After closure of prosecution evidence, the accused were questioned u/s 313 of Code of Criminal Procedure and they denied all the incriminating circumstances brought against them in the prosecution evidence. The revision petitioner further submitted that, he was admitted in Gurvayoor Devaswam Hospital on 11-12-98 at 6.30 a.m. and discharged only at 8 p.m. and he was taken to the police station by P.W. 3 while he was in the hospital and falsely implicated in the case. He had not committed any offence. In order to prove this case D.W. 1 was examined and Exhibit D1 was marked. After considering evidence on record, the learned Magistrate found both the accused guilty u/s 379 read with Section 34 of Indian Penal Code and convicted them there under and sentenced them to undergo rigorous imprisonment for one year each. Set off was allowed for the period of detention undergone by them in this case as under-trial prisoners. Aggrieved by the order of conviction and sentence passed by the learned Magistrate, the present revision petitioner filed Criminal Appeal No. 300/2001 before the Sessions Court, Thrissur and the same was disposed of by the 3rd Additional Sessions Judge, Thrissur by judgment dated 12-6-2003 dismissing the appeal. Dissatisfied with the same, the present revision has been filed by the revision petitioner, who is the 2nd accused in the lower court.

Heard the counsel for the revision petitioner and learned public prosecutor.

The counsel for the revision petitioner submitted that, except the interested version of P.W. 1 and official witness P.W. 2 and P.W. 3, there is no other independent witnesses examined to prove the arrest and seizure especially when the alleged incident happened in Guruvayoor Bus Stand. Further the evidence of D.W. 1 will go to show that there was no possibility for 2nd accused to be present at the place of occurrence as alleged by the prosecution. There is discrepancy in the evidence of P.W. 1 regarding the place of occurrence and the manner in which the incident happened. All these will go to show that the case of the prosecution is not probable and believable and the revision petitioner is entitled to get acquittal giving him the benefit of doubt.

The counsel for the petitioner also submitted that, considering the nature of offence and the amount involved, the punishment awarded is excessive. The revision petitioner was in jail for nearly 6 months. So that can be treated as sufficient punishment if ultimately this court found that he is guilty of the offence.

On the other hand, the learned public prosecutor submitted that, there is no illegality committed by both the courts in arriving at the conclusion that the revision petitioner had committed the offence along with the 1st accused and being the revisional court, the power is limited and there is no necessity for interference in this case.

The case of the prosecution was that, on 10-12-1998, P.W. 1 came to Guruvayoor for worship and since there was Harthal on 11-12-98, he could not go back to his native place. So he stayed in the Guruvayoor bus stand on that night and at about 4 a.m. he felt that somebody was taking his purse from his pocket and immediately he got up and he saw that two accused persons standing there. When he asked about the same with them, there was some altercation occurred between them. On hearing his hue and cry, P.Ws. 2 and 3, the police officers on patrol duty came there and on examination of the body of the 2nd accused, MO. II the purse, MO. I identity card and MO. III series currency notes belonging to P.W. 1 were found in the possession of the 2nd accused and they were seized by P.W. 2 and P.W. 3. Thereafter all of them went to the police station and on the basis of Exhibit P1 statement given by P.W. 1, a head constable attached to the Guruvayoor Police Station registered a crime as Crime No. 297/98 against both the accused persons u/s 379 read with Section 34 Indian Penal Code. The articles found from the possession of the 2nd accused were seized by P.W. 3 as per Exhibit P2 seizure mahazar in the presence of P.W. 2 and another. Thereafter the investigation was conducted by P.W. 4 the Assistant Sub Inspector of Police and he completed the investigation and submitted a final report against the accused persons.

It is true that except the evidence of P.W. 1 and official witnesses P.Ws. 2 and 3, there is no independent witness either cited or examined on the side of prosecution to prove the incident. The evidence of P.W. 1 will go to show that he came to Guruvayoor for worship on 10-12-98 and he was compelled to stay on 11-12-98 on account of harthal declared by some political party. He also deposed that while he was sleeping in the bus stand, at about 4 a.m. on 12-12-98, he felt somebody taking his purse from his pocket and immediately he woke up and saw these two accused persons standing near him. When he made enquiry with them, they quarreled with him and there was some altercation occurred and at that time P.Ws. 2 and 3 came there and on examination of the body of 2nd accused, the revision petitioner herein, the articles belonging to P.W. 1 (MO. I to MO. III) were found and they were seized as per Exhibit P2 mahazar from the spot by P.W. 3. Except some minor discrepancies in the evidence of P.W. 1, there was nothing brought out to discredit his evidence regarding the incident. Those discrepancies cannot be said to be material in nature so as to disbelieve the evidence of P.W. 1 regarding the incident. Further both the accused including the revision petitioner were arrested from the spot and the stolen articles were recovered from the possession of the present revision petitioner. P.W. 1 identified both the accused from the spot and also from the court. Since the arrest was made from the spot while an altercation was going between the accused persons and P.W. 1, there is no question of doubting the identification of the accused persons made by P.W. 1 arises as there was sufficient opportunity for him to see and identify them. The police officers P.W. 2 and P.W. 3 are corroborated the evidence of P.W. 1 regarding altercation, arrest of both accused and seizure of MO. I to III from the revision petitioner. Further, P.W. 1 categorically stated that he has no enmity against the accused persons for giving any false evidence against them. The accused have no claim over MOs. I to III. MO. I is an Identity card of P.W. 1 and the discrepancy in MO. I identity card has been explained by him in the court when questioned by the Court on this aspect. So all these things will go to show that prosecution has proved beyond reasonable doubt that it was the accused persons including the revision petitioner who had committed the crime.

The case of the revision petitioner was that, he was not really present at the place of occurrence and in fact when he was undergoing treatment in Devaswam hospital on 11-12-98, he was taken by P.W. 3 from there and falsely implicated in the case. In order to prove this case, D.W. 1 was examined and entry in the register maintained in the hospital was marked as Ext. D1. That will only go to show that the revision petitioner was admitted in the hospital on 11/12/98 at 6 a.m. and he was discharged on the same day at 8 p.m. He was admitted there with complaint fever. The evidence on D.W. 1 will go to show that no police officer came to hospital and took the revision petitioner from the hospital. If such things happened, this would have been noted in the hospital registers and intimation would be given to the authorities. No such thing was done in this case. So that will falsify the case of the revision petitioner that he was taken to custody from hospital and falsely implicated in the case.

It is true that the incident occurred from the bus stand. It is also brought out in evidence that on hearing hue and cry of P.W. 1, some people gathered there apart from the police officers. But P.W. 3 has categorically stated that though he asked the persons present to sign the mahzar as witness, none had come forward to sign the seizure mahazar as witness. That possibility cannot be ruled out as well. Further the persons coming to the Guruvayoor bus stand need not belong to that place as well. So they may be reluctant to be a witness in such circumstances. So, under the circumstances non citing or examining of independent witness in such circumstances cannot be said to be fatal to disbelieve the case of the prosecution. So under the circumstances, it can be safely concluded that, prosecution has proved beyond reasonable doubt that the accused persons have committed theft of MO. II purse from the possession of P.W. 1 containing MO. I identity card and MO. III series currency notes and thereby they have committed the offence punishable under 379 read with 34 Indian Penal Code and the courts below were perfectly justified in convicting the revision petitioner for the offence alleged. I don''t find any reason to interfere with the finding of the courts below on this aspect. As regards the sentence is concerned, considering the nature of offence alleged, the courts below found that it is not a fit case to invoke the benevolent provisions of the Probation of Offender''s Act and I am not inclined to interfere with that observations of the courts below considering the nature of offence alleged. Though it is mentioned in the judgment of the trial court that since both the accused involved in number of cases and there are previous convictions also to their credit, there is nothing mentioned in the judgment regarding the particulars of the case registered against them and the number of cases ended in conviction. It is seen from the judgment of the trial court that the revision petitioner was in custody from 12/12/98 to 29/12/98 and thereafter again from 23/5/2000 to 22/11/2000. Thereafter he was treated as a convicted prisoner. However considering the amount involved, I feel that, the period of one year imprisonment imposed by the court below appears to be little harsh and awarding 7 months rigorous imprisonment will be sufficient punishment and that will be ends of justice. So the order of the court below sentencing the revision petitioner to undergo rigorous imprisonment for one year is set aside and the same is modified as follows:-

The revision petitioner is sentenced to undergo rigorous imprisonment for 7 months. The period of detention already undergone by him as under-trial prisoner is directed to set off against the sentence u/s 428 Code of Criminal Procedure. The revision petition is disposed of by confirming the order of conviction entered by the courts below against the revision petitioner but modifying the sentence to the extent mentioned above.