Sharafudheen vs State of Kerala

K. Ramakrishnan, J.—This is a jail revision taken on file sent through the accused in C.C. No. 310/11 of Judicial First Class Magistrate Court, No. - I, Kannur.

The revision petitioner was charge sheeted by the Sub Inspector of Police, Kannapuram Police Station in Crime No. 253/10 under Sections 457, 461 and Section 380 of Indian Penal Code.

The case of the prosecution was that on 10.09.2010, at about 1.30 hrs, the accused criminally trespassed into Sree Kunnin Mathilakam Siva Temple, situated at Kunnangad by breaking of the lock of the Sreekovil and committed theft of gold ornament weighing 4 grms adorned on the deity and Rs. 1500/- from the coin box and a DVD player kept in the room and thereby, he had committed the offence under Sections 457, 461 and Section 380 of Indian Penal Code.

When the accused appeared before the court below, after hearing the Legal aid Counsel appointed and Assistant Public Prosecutor, charge under Sections 457, 461 and 380 of Indian Penal Code was framed and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 8 were examined and Exts. P1 to P4 and MO1 were marked. After closure of the prosecution evidence, the accused was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he is innocent and he has been falsely implicated in the case. After considering the evidence on record, the learned magistrate found the revision petitioner not guilty under Section 461 of Indian Penal Code and he was acquitted under that charge. But, he was found guilty under Section 457 and Section 380 of Indian Penal Code and he was sentenced to undergo rigorous imprisonment for three years each and the also to pay a fine of Rs. 2,000/- each in default to undergo simple imprisonment for two months each for the respective offences. Set off was given for the period of detention undergone by him in this case. He filed Crl. Appeal No. 194/12 through jail before the Sessions Court, Thalassery and the same was made over to Additional Sessions Court, Ad hoc No. - II, Thalassery for disposal and the learned Additional Sessions Judge by the impugned judgment dated 13.02.2013 dismissed the appeal confirming the order of conviction and sentence passed by the court below. This was challenged by the petitioner by filing the revision through jail and it was numbered and since he is in custody, Adv. Shri P.G. Jayashankar was appointed as legal aid Counsel.

Heard the legal aid Counsel and the Public prosecutor.

Adv. Shri P.G. Jayashankar has argued that except the alleged confession, there is no other evidence to connect the revision petitioner. Further, the evidence of PWs 1 and 2 is not sufficient to identify MO1 as the article stolen, having acquitted under Section 461 of Indian Penal Code and other articles have not been recovered, courts below were not justified in convicting the appellant for the offence under Section 457 and 380 of Indian Penal Code also. The evidence of PW 6 regarding recovery also cannot be accepted. So, he prayed for acquittal of the accused. He further submitted that in case, this court found that there is no interference called for on the question of conviction, the sentence imposed is harsh.

The learned Public Prosecutor submitted that the evidence adduced on the side of the prosecution proved the guilt of the accused beyond reasonable doubt and both the courts below on facts found that the accused had committed the offence and there is no illegality committed and so, interference is not called for.

The case was originated on the basis of Ext. P2 complaint given by PW 2 - the Head Clerk of the Devaswam Office, when the theft of the gold ornament was found by PW 3 - the temple poojari and on that basis, PW 5 registered Ext. P3 First Information Report as Crime No. 253/10 of Kannapuram police station against unknown person. He conducted the investigation also. He went to the place of occurrence and prepared Ext. P1 scene mahazar in the presence of PW 1 and another. He questioned the witnesses and recorded their statements. While so, PW 8 happened to arrest the accused in connection with the investigation of another case and when he was questioned, it was revealed that he had committed the present offence also and on the basis of Ext. P4(a) confession statement given by him, he went to the shop of PW 6 and recovered MO1 from there as per Ext. P4 seizure mahazar in the presence of PW 7 and another. Thereafter, it was sent to the court and the investigation was completed and final report was filed. PW 2 is the Head Clerk of the Devasam office, when he came to know about the theft through PW 3, gave Ext. P2 complaint. Further, PW 3 had deposed about the theft of the article when he opened the temple on the next day of the incident. Further, he had stated that he had identified MO1 from PW 8''s office immediately after it was recovered. PW 2 -Clerk of the Dewaswam also identified MO1 as the articles stolen from the temple. The evidence of PW 6 will go to show that police came to their shop and he had admitted that he had purchased the gold ornaments including MO1 from him and he had produced the same before PW 8 which was seized as per Ext. P4 mahazar.

In Ext. P4(a), it was mentioned that;

It is on the basis of this statement and as lead by the revision petitioner that PW 8 went to the shop of PW 6 and recovered MO1 along with the other gold ornaments which were seized in connection with some other crime.

It is true that except this recovery, there is no other evidence to connect the accused. But, if the recovery of an article was proved on the basis of the statement given by the accused, then, it will be admissible under Section 27 of the Evidence Act and then, it can be presumed that he has found to be in possession of the stolen article which he had sold to PW 6 and if he is not able to account for the same, then, it can be presumed that he is either the thief or the receiver of the stolen article by virtue of explanation to Section 114 of the Evidence Act. Further, the accused had no case as to how he had come into possession of this article as well. There is nothing brought out to discredit the evidence of PWs 1, 2, 3 and 6, 7 and 8 regarding the theft of the article from the temple and recovery of the article on the basis of the statement given by the accused. So, under the circumstances, courts below were perfectly justified in coming to the conclusion that it was the revision petitioner who had trespassed into the temple premises and committed theft of MO1 and rightly convicted the revision petitioner for the offence under Section 457 and 380 of Indian Penal Code. Merely because he was acquitted under Section 461 is not a ground to disbelieve the entire prosecution case in view of the other corroborative evidence adduced on the side of the prosecution. So, the concurrent finding of court below on this aspect do not call for any interference as there is no illegality committed by the court below in convicting the revision petitioner for the above said offence.

As regards the sentence is concerned, the courts below have sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs. 2,000/- each and in default to undergo simple imprisonment for two months each for each offence. Considering the fact that he has involved in other crime also, courts below were perfectly justified in not invoking the provisions of Probation of Offenders Act in this case. Maximum punishment has been provided in this case. Considering the fact that he is in jail for some time now, this court feels that sentencing him to undergo rigorous imprisonment for two years and confirming the fine imposed will be sufficient and that will meet the ends of justice. So, the sentence imposed by the court below is modified as follows:

The revision petitioner is sentenced to undergo rigorous imprisonment for two years each and also to pay fine of Rs. 2,000/- each in default to undergo simple imprisonment for two months each for the offences under Sections 380 and 457 of Indian Penal Code.

With the above modification of the sentence imposed alone, the revision is disposed of.

This court place on record the appreciation for the manner in which Adv. Shri Jayashankar, legal aid Counsel argued the case effectively for protecting the interest of the revision petitioner.

Office is directed to communicate the copy of the order to the jail authorities to be served to the revision petitioner immediately.