Subramanian vs State Of Kerala

A. Badharudeen, J.

This Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure and the revision petitioner is the 2nd accused in C.C.No.501/2010 on the files of the Judicial First Class Magistrate Court, Pattambi. The revision petitioner assails judgment in the above case dated 07.09.2013 and the judgment in Crl.Appeal No.306/2013 on the files of the Additional Sessions Court, Palakkad dated 30.09.2015 arose therefrom.

Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant documents to exercise the power of revision available to this Court.

The case of the prosecution is that at about 4 p.m on 21.02.2006, accused Nos.1 and 2 with dishonest intention of committing theft travelled together on a motorcycle bearing Registration No.KL 8/Z7257 and when they reached near the defacto complainant, a lady aged 60 years, the 1st accused snatched away the gold chain worn by the defacto complainant weighing 1¼ sovereigns and they disappeared from the scene of occurrence to hide themselves. On these facts, crime was registered alleging commission of offence punishable under Section 379 Cr.P.C r/w 34 of the Indian Penal Code.

On completion of investigation, final report was filed before the Magistrate Court and the learned Magistrate secured the presence of the revision petitioner and numbered the case as C.C.No.468/2006. Thereafter the case against the 2nd accused was split up and refiled as C.C.175/2007. While the case was pending as C.C.175/2007 also, the 2nd accused remained absconding and at this juncture, as per the order of the Chief Judicial Magistrate, the case against the 2nd accused was included in the register of long pending cases (L.P.No.77/2009). Thereafter, the 2nd accused had appeared and the case again renumbered as C.C.No.501/2010.

The trial court secured the presence of the 2nd accused for trial and tried the matter. PWs 1 to 5 were examined and Exts.P1 to P4 were marked on the side of the prosecution.

When opportunity was given to the accused to adduce evidence, after questioning him under Section 313 of the Code of Criminal Procedure, the accused did not adduce any evidence.

On evaluation of the evidence, the trial court convicted the accused for the offence punishable under Sections 379 r/w 34 of IPC and he was sentenced to undergo simple imprisonment for one year for the said offensce.

The 2nd accused/revision petitioner challenged the verdict of the Magistrate Court vide Crl.Appeal.No.306/2013. As per judgment dated 30.09.2015, the learned Additional Sessions Judge also confirmed the conviction and sentence.

The learned counsel for the revision petitioner raised 2 grounds while impeaching the veracity of the concurrent verdicts of conviction as well as sentence. The first ground argued is that the identity of the accused is not proved and the evidence of PW1 alone is relied on by the trial court to prove the identity of the accused. Therefore, the courts below went wrong in convicting and sentencing the 2nd accused without identifying him as a traveller as pillion rider on the motorcycle, at the time of occurrence. The second point argued is that even the gold chain alleged to be stollen was not produced before the court and without the aid of the gold chain, conviction was entered into. Therefore, it is submitted by the learned counsel for the petitioner that the conviction suffers illegality and the same deserves interference.

Whereas the learned Public Prosecutor submitted that even though the identification relied on by the courts below is dock identification, the trial court recorded the demeanor of PW1, when PW1 identified the 2nd accused. The evidence of PW1 extracted in paragraph 6 of the trial court judgment would go to show that PW1 made an imprint of the features of the 2nd accused at the time of commission of this crime. Therefore, the identity dispute would not succeed.

At the same time, the learned Public Prosecutor argued that non production of M.O1 is not fatal, since PW1 categorically given evidence before the trial court that M.O1 was released by kychit and the copy of the kychit got marked as Ext.P1. Therefore, the conviction and sentence do not require interference, is the submission of the learned Public Prosecutor.

In this matter, the 1st accused is still absconding and the case against him has been pending in the long pending register. The 2nd accused alone was tried.

Firstly, the question of identity of the 2nd accused is required to be addressed. PW1 was aged 64 at the time of her examination on 18.08.2011. Her evidence is that at about 4 p.m while she was near the house of Unnimoothar near Perinkannur Puthenkalam, 2 persons coming on a bike, reached near her and one person got out of the bike and snatched away her chain weighing 1 ¼ sovereigns of gold. Thereafter, PW1 given evidence further that the gold chain was snatched away by the 1st accused Shamsudheen and the pillion rider was the 2nd accused, by name Subramanian. Then PW1 identified Subramanian at the dock and also given evidence that she obtained the gold chain by executing Ext.P1 kychit. During cross examination, she stated that after the occurrence, she did not see the accused and it was for the first time she identified him at the dock. When question was asked in the above line, the witness answered that “എനിക്ക് അയാളു屲牆 മുഖം മറക്കാൻ പറ്റു屲 屲?, and then she cried at the witness box. The above statement along with the demeanour of the witness were recorded in the deposition of PW1, to show the nature of the said evidence. It is strange to see that no effective cross examination was carried out to shake the version of PW1 in any manner. Cross examination was limited to 2-3 questions, including the suggestion that the 2nd accused had no role in this occurrence and he was not a rider on the alleged motorcycle at the time of occurrence. In fact, there is no serious cross examination disputing identification of the accused at the dock. Regarding the identity of the 2nd accused as the person who travelled on the motorcycle along with the 1st accused after sharing common intention to commit theft, the manner in which PW1 identified at the dock would suggest that PW1 got an opportunity to have an imprint of the face of the accused with his features to identify him and accordingly she identified the accused at the dock. Apart from the evidence of PW1, PW5 is the person who signed Ext.P4 scene mahazar and his evidence as regards to Ext.P4 is not challenged by cross examination. Similarly, PW4 given evidence that 10 gram of gold chain was recovered from `Saasu Enterprises’, a shop at Puttekkara and the same was recovered on the assertion that the gold chain was handed over by Shamsudheen (1st accused) to PW3 – Santhosh. Regarding the recovery of gold chain also, there was no cross examination. PW3 (Santhosh), from whom the gold chain was recovered, fully supported the prosecution case stating that the 1st accused pledged the gold chain at the time when the shop was about to close. He also given evidence to the effect that, at the time of pledging the gold, he enquired about the 1st accused since the 1st accused was not familiar to him. Then the 1st accused pointed out the familiarity of his father with PW3. Therefore, he received 10.230 gram of gold chain and it was recovered by the police. PW2 is the Investigating Officer, who also supported registration of crime as well as recovery of gold chain as per Ext.P4 scene mahazar and Ext.P3 seizure mahazar.

In this matter, the prosecution case is that accused 1 and 2, with a common intention to commit the offence of theft, reached near PW1 and snatched away the gold ornament worn by her. Later the same was recovered at the instance of the 1st accused, based on his disclosure statement suggesting authorship of concealment. Insofar as the occurrence is concerned, the evidence of PWs 1 to 5 read along with Exts.P1 to P4 appears to be convincing. The learned Magistrate as well as the learned Sessions Judge also discussed the dispute regarding the identity of the 2nd accused, who travelled as pillion rider on the motorcycle, at the time of occurrence and given emphasis to the response given by PW1 during cross examination to the effect that she could not forget the face of the 2nd accused, to hold that the identification of the 2nd accused at the instance of PW1 is sufficient.

As per the evidence available, the 2nd accused is the person, who travelled as pillion rider on the motorcycle at the time of occurrence, after sharing common intention to commit the offence of theft and thereby committed the offence of theft, as alleged by the prosecution. Therefore, the trial court rightly convicted the revision petitioner for the offence punishable under Section 379 r/w 34 of IPC and the said conviction was confirmed by the appellate court. Therefore, the conviction does not require any interference and the same stands confirmed.

Though the trial court did not intend to invoke Section 4 of the Probation of Offenders Act, the learned Sessions Judge made an attempt in this behalf and in paragraph 14 it has been stated as under:

“14. Report of the District Probation Officer, Thrissur is obtained. He submitted that he obtained report from the D.C.R.B., Thrissur Rural that the accused was involved in crime cases previously, that the accused and his family members did not give the details of the above case and that the situation is not conducive for his reformation. The District Probation Officer opined that this not a fit case to invoke the benevolent provisions of the Probation of Offenders Act. The officer also furnished copy of the letter given by the Deputy Police Superintendent, D.C.R.B., Thrissur Rural stating that the accused was involved earlier in four crime cases. The offences alleged in the above crimes are under Sections 380, 395, 401 and 379 I.P.C.”

Adverting to the above report, the learned Sessions Judge also not considered release of the accused under Section 4 of the Probation of Offenders Act.

Coming to the sentence, the learned counsel for the revision petitioner sought leniency in the matter of sentence highlighting the pathetic situation of the revision petitioner at present. Acting on the said plea, I am inclined to modify the sentence for a period of six months.

In the result, this Revision Petition stands allowed in part. The sentence imposed against the second accused stands modified and thereby the revision petitioner/the 2nd accused is sentenced to undergo the modified sentence of simple imprisonment for six months for the offence punishable under Section 379 r/w Section 34 of IPC.

The revision petitioner is directed to surrender before the trial court within two weeks from today to undergo the sentence. If he fails to do so, the trial court is directed to execute the sentence without fail. The bail bond executed by the revision petitioner/2nd accused stands cancelled.

Registry is directed to forward a copy of this order to the trial court for information and execution of the sentence without fail.