Sudhakumar vs State of Kerala

Justice P. Bhavadasan

The revision petitioner is the first accused in Crime No. 194/96 of Kattakkada Police Station for having committed the offence punishable under Sections 454, 461 and 380 r/w Section 34 IPC.

The prosecution allegation is that on 6.7.96 at 12 noon, the revision petitioner along with another person, committed house breaking and committed theft of gold ornaments. A complaint was laid before the police by PW1 who is the owner of the house. PW2 is the wife of PW1. PW13, who is the Investigating Officer, arrested the first accused on 1.8.96 and the second accused on 28.4.96. Based on the confession statement said to have been given by the accused, various gold ornaments were recovered. The investigation was completed and charge was laid before court.

The trial court took cognizance of the offence. The second accused absconded and so, the case against him was split and re-numbered as CC No. 999/07. On appearance of the first accused, the necessary formalities were complied with. The particulars of the offence were read to him, to which he pleaded not guilty and claimed to be tried. The prosecution, therefore, had PWs 1 to 13 and had Exts.P1 to P18 marked. MO1 to 14 were also got identified and marked. After close of the complainant''s evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all incriminating circumstances brought out in evidence against him and maintained that he is innocent. However, he chose to adduce no evidence in support of his defence.

The courts below, on an appreciation of the evidence in the case, found that the offence as against the first accused has been made out by the prosecution and therefore, the trial court convicted and sentenced him to undergo simple imprisonment for two years each for the offences punishable under Sections 454, 461 and 380 r/w 34 IPC. He was also directed to pay a fine of Rs. 5,000/-for the offence punishable u/s 380 IPC in default of payment of which he shall undergo simple imprisonment for a further period of six months. It was also ordered that the sentences shall run concurrently and set off as per law will be allowed. In appeal, the conviction and sentence passed by the trial court were confirmed and the appeal was dismissed.

At the time when this revision petition was taken up for hearing, the Learned Counsel for the revision petitioner submitted that he is not addressing this Court on the merits of the case, but only prays for some leniency to be shown in the matter of sentence.

However, in order to ascertain whether there is any illegality or impropriety in the orders passed by the courts below, the judgments of the courts below were carefully perused. Both the courts below have chosen to

accept the evidence of PWs 1 to 4 and have come to the conclusion that the accused was involved in the theft.

PW1 is the defacto complainant. He is a doctor by profession. PW1 deposed that on 6.7.96 at about 9 am, a stranger approached him and enquired whether he would examine the child of the stranger. PW1 asked the person to go to the consulting room with the child. Then the stranger replied that he had not brought the child with him and that he would bring the child within half an hour. Thereafter, he did not return.

PW2, who is the wife of PW1 is also employed and they used to leave home in the morning after entrusting the key of the house with PW3 who is their part time servant. PW3 used to lock the house and entrust the key with the uncle of PW1. At 3 pm, when PW1 returned home along with his wife, he found that theft has been committed in the house.

PW3 deposed that after PW1 left for hospital, the accused came there along with a child and he was directed to come at 4 pm. The accused again came there at 11 am and enquired whether the doctor had left. Subsequently, she came to know that theft has been committed in the house.

The evidence of PW4 is to the effect that on the date of alleged theft, he had seen the first accused, along with another, proceeding along the road near the house of PW1 at about 11 am. According to PW5, on the same day, at 12.30 noon, he saw the first accused along with another came near the place and he stated before police that he had suspicion about the involvement of both the persons in the alleged theft.

PW13, who is the Investigating Officer, deposed that the crime was registered by CW14 who is no more. He spoke about the various recoveries made by him as per Ext.P6 and other seizure mahazars on the basis of the confession statements said to have been given by the accused.

PW6 attested Ext.P6 mahazar. PW11 is another witness who has attested Ext.P6 mahazar. PW9 is an Assistant working in Muthoot Bankers, Kollam. According to PW9, the first accused approached him, introducing himself as Udayan and pledged some gold ornaments for Rs. 24,500/-. He also introduced a woman as his wife, who also pledged some gold ornaments for Rs. 30,000/-. The relevant pages of the gold loan ledger maintained by PW9 have been produced and marked as Exts.P4 and P5. The relevant portion of the confession statement which led to the recoveries of various material objets is also marked as Ext.P6(a). The courts below on an appreciation of the evidence, came to the conclusion that the recoveries have been proved by the evidence of PW13 and the respective witnesses. It is also found that the recoveries are made on the basis of the confession statement said to have been given by the first accused. Both the courts below have analysed the evidence in considerable detail and have come to the conclusion that the offence has been made out. The findings are based on appreciation of evidence and it is not shown that the findings are either perverse or unwarranted by the evidence on record, warranting interference under the revisional jurisdiction. The conviction as ordered by the trial court as confirmed by the appellate court is therefore, only to be confirmed.

Now, what remains is the plea of leniency regarding the sentence. The petitioner is not shown to be involved in offence of the similar nature. He has already undergone 292 days of imprisonment. Considering the fact that he has no criminal antecedents, it is felt that some leniency can be shown to the petitioner with regard to the sentence.

In the result, while confirming the conviction of the revision petitioner under Sections 454, 461 and 380 r/w Section 34 IPC as ordered by the trial court and as confirmed by the appellate court, the sentence is modified as to simple imprisonment for one year for each of the offences and he is also directed to pay a fine of Rs. 5,000/for the offence u/s 380 IPC in default of payment of which, he has to undergo simple imprisonment for four months.

The revision petition dismissed subject to the above modifications.