Suresh vs State of Kerala

P. Ubaid, J.—The revision petitioner herein is the first accused in S.C. No. 444/2010 of the Court of Session Muvattupuzha, tried and disposed of by the learned Assistant Sessions Judge, Muvattupuzha. He and his wife faced prosecution on a charge under Section 457, 380 and 413 of the Indian Penal Code (for short the ''IPC'') on the allegation that at about 1:30 a.m. on 31/07/2009 they committed house breaking to the house of one Reji at Ikkaranad, and committed theft of articles like mobile phones, 4= sovereigns of gold ornaments and CDs. The revision petitioner was arrested by the police on 01/08/2009 at 5:30 p.m. Crime in this case was registered by the police on the First Information Statement given by the said Reji. The stolen articles were recovered by the Sub Inspector of police on the basis of the statement given by the revision petitioner under Section 27 of the Evidence Act. Some of the properties were later recovered by the Circle Inspector of police during investigation.

The revision petitioner pleaded not guilty to the charge framed by the trial court under Sections 457, 380 and 413 IPC. The prosecution examined 12 witnesses and marked Exts. P1 to P16 documents. The stolen properties were identified during trial as MO1 to MO8 series. In defence, the accused did not adduce any oral evidence, but Exts. D1 to D3 were marked. On an appreciation of evidence the learned Assistant Sessions Judge found the accused guilty under Sections 457, 380 IPC. As regards Section 413 IPC he was found not guilty. On conviction he was sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs. 5000/- each under Sections 457 and 380 IPC. Aggrieved by the conviction and sentence he approached the Court of Session, Ernakulam with Crl. Appeal No. 151/2012. In appeal the learned Additional Sessions Judge (Adhoc-I), Ernakulam confirmed the conviction and sentence. Now he is before this Court in revision, challenging the legality and propriety of the conviction and sentence.

The revision petitioner preferred this revision through the Superintendent of the central jail where he is undergoing sentence. On hearing the learned counsel and the learned Public Prosecutor, and on a perusal of the case records, I find no illegality or irregularity or impropriety in the conviction made by the courts below. The only illegality alleged by the revision petitioner in the memorandum of revision is that scientific investigation was not made by the Investigating Officer, or that necessary finger prints and foot prints were not collected and compared during investigation. Comparison of finger prints or foot prints will only provide a circumstance, and on the basis of such evidence alone a conviction cannot be made. If the prosecution has evidence otherwise to prove the alleged offence, it is quite immaterial that scientific investigation was not made. That apart, no illegality or irregularity is seen alleged in the memorandum of revision.

The case on facts stands well proved by the evidence given by the PW1 and PW2, and also the police officers who recovered the stolen articles. The witnesses who attested the seizure mahazar also well supported the police officers who made recovery. PW1 and PW2 well identified the stolen articles during trial. Out of the eight properties MO2 to MO6 were recovered by the Sub Inspector examined as PW11, and the other properties were recovered by the Circle Inspector, examined as PW12. These two police officers have given definite evidence regarding the statements given by the accused, which lead to the recovery of the stolen articles under Section 27 of the Indian Evidence Act. I find no reason to disbelieve the evidence given by these police officers regarding recovery. PW4 attested the Ext. P3 recovery mahazar and PW6 attested the Ext. P4 recovery mahazar. Ext. P3 relates to the recovery of MO2 to MO6 and Ext. P4 relates to the recovery of MO1 and MO8 series properties. PW4 and PW6 well supported the prosecution, and they stated in definite terms that they had seen the police officers recovering the stolen articles in this case. They also stated that the recovery was made at the instance of the revision petitioner. Just because the stolen properties do not have any identification mark the evidence or identification given by the material witness cannot be doubted. They have well identified their own properties during trial. The accused has no claim on any of the properties. He has also no explanation how he came in possession of the properties that belong to PW1 and PW2. Thus I find that the prosecution has well proved the case on facts, and I find no reason for interference in revision. Thus I find that the conviction made by the courts below in this case is quite legal.

Of course the offences under Sections 457 and 380 are triable by the court of Judicial First Class Magistrate. Had it been tried by a Judicial First Class Magistrate, the sentence would not have been gone beyond imprisonment for three years. Sentence for five years happened to be imposed only because the case was tried in the court of Session. The Court of Session happened to try the case on a charge made under Section 413 IPC. I find that such a charge was made by the police without any basis or material. Anyway, I find that the sentence in this case can be modified reasonably.

In the result, this revision petition is allowed in part, confirming the conviction against the revision petitioner under Sections 457 and 380 IPC. However, with some modifications in the sentence.

Accordingly, the jail sentence imposed by the courts below under Sections 457 and 380 IPC will stand modified and reduced to rigorous imprisonment for two years each. The two sentences will run concurrently.

Forward a copy of this order immediately to the Superintendent of the Central Jail.