A single judge dismissed a criminal revision petition challenging conviction and sentence for theft offenses. The High Court upheld the conviction based on custodial recovery and corroboration, finding non-examination of a gate keeper as non-fatal.
Conviction and sentence for theft under Sections 457 and 380 IPC confirmed; revision dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR
FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932
Crl.Rev.Pet.No. 1275 of 2003
----------------------------------------------CRA.28/1999 of ADDL.SESSIONS COURT (ADHOC-I), KASARAGOD CC.748/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, HOSDRUG
REVN. PETITIONER/APPELLANT/ACCUSED:
P.MOOSA, S/O.HYDER, AGED 32 YEARS, MEETHIGUDA RAILWAY GATE, PALLIKKARA P.O PALLIKKARA, KASARAGOD DIST.
BY ADV. SRI.A.MOHAMED MUSTAQUE SRI.M.SANTHOSHKUMAR
RESPONDENT/RESPONDENT:
STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.K.S.SIVAKUMAR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
ORDER ON CRL.MP.5300/2003 IN CRRP 1275/2003
DISMISSED
16.7.2010
SD/-M.SASIDHARAN NAMBIAR, JUDGE
/TRUE COPY/
M.Sasidharan Nambiar, J.
Crl.R.P.No.1275 of 2003
ORDER
Petitioner, the first accused in C.C.No.
748/1995, who was convicted and sentenced for the offences under Sections 457 and 380 of Indian Penal Code by Judicial First Class Magistrate-I, Hosdrug, filed this revision challenging the conviction and sentence, as confirmed by Additional Sessions Judge, Kasaragod in Crl.A.No.28/1999. Prosecution case is that PW2 is having a Stationery shop in Building No.W-XI-245 and 246 in Ajanur Village. On 13.6.1995 morning, when PW2 went to the shop to open it, it was found that the shop was broke opened and stationery articles, including, clothes, cool box, calculators, tea dust, soaps, etc. worth
Rs.9,954.50 were stolen. PW2 furnished Exhibit P1 F.I. Statement to PW8, the Head Constable, who recorded it and based on Exhibit P1, Crime 337/1995 was registered under Exhibit P5 FIR. PW10, the Sub
CRRP 1275/03
2
Inspector of Police, conducted the investigation. He prepared Exhibit P7 scene mahazar and questioned the witnesses. Meanwhile, petitioner was found under suspicious circumstances by PW7, the Circle Inspector of Police, Hosdrug, at about 3 a.m. on 27.7.1995, carrying MO19 air bag. When PW7 questioned him and examined the air bag, it was found that it contained clocks, time pieces and other stationery articles, a total of forty seven
items. As petitioner failed to give proper explanation for the possession, suspecting that they are stolen articles, petitioner was arrested
and MOs 1 to 19 were seized under Exhibit P2 mahazar. Crime No.408/1994 of Hosdrug Police was registered for the offences under Sections 41(1)(d) and 102 of Code of Criminal Procedure under Exhibit P4 FIR. Investigation was entrusted to the Sub Inspector of Police. PW6, the Sub Inspector of Police, conducted the investigation. He arrested the second accused on 2.8.1995 and recovered a car
CRRP 1275/03
3
stereo and a calculator from him. On 4.8.1995, he arrested the third accused and under Exhibit P3 mahazar recovered a calculator. Getting information that first accused was arrested, a request was submitted to call for the seized articles in that crime. After completing the investigation, charge was laid against the three accused. All of them pleaded not guilty.
marked nine exhibits and identified twenty material objects as the stolen articles. Accused did not adduce any evidence.
accused 2 and 3 not guilty of the offences disbelieving the seizure on their information and acquitted them. Accepting recovery of MOs 1 to 19 from the petitioner, proved by the evidence of PW7, petitioner was convicted. Though petitioner challenged the conviction and sentence, learned Additional Sessions Judge, on re-appreciation of
CRRP 1275/03
4
evidence, confirmed the conviction and sentence and dismissed the appeal. This revision is filed challenging the conviction and sentence.
revision petitioner was not arrested by PW7 along with MOs 1 to 19 and evidence of PWs 3 and 7 should not have been relied on. It was argued that the Railway Gate Keeper was not made an attester to Exhibit P2 mahazar and he was not examined and in such circumstances, courts below should not have accepted the recovery and hence, the conviction, based on the recovery, is not sustainable. It is also argued that when the case as against accused 2 and 3 was disbelieved by the learned Magistrate and
the alleged recovery of cool box was also not accepted, based on the recovery of MOs 1 to 19,
conviction of the petitioner is not sustainable.
CRRP 1275/03
5
was arrested by PW7 and MOs 1 to 19 were recovered under Exhibit P2 recovery mahazar and petitioner has no explanation whatsoever for the possession of the stolen articles and in such circumstances, conviction is perfectly legal.
Statement establish that on the morning of 13.6.1995 when PW2 went to the shop building, he found that the shop was broke opened on the night and stationery articles, kept in the shop, were stolen. PW2 furnished Exhibit P1 statement showing the details of the articles stolen. PW7, the Circle Inspector of Police, Hosdrug, while on patrol duty,
found petitioner walking carrying MO19 air bag along the public road leading to Iqbal Railway Gate
CRRP 1275/03
6
at 3 a.m. Getting suspicious, PW7 stopped the jeep and questioned the petitioner and examined MO19 air
bag. Finding that it contained clothes and stationery articles and suspecting that they were stolen, petitioner was asked to explain the possession of the articles. As he could not give any satisfactory explanation, under Exhibit P2 mahazar, those MOs 1 to 19 were seized and petitioner was arrested and under Exhibit P4, Crime No.408/1995 for the offences under Sections 41(1) (d) and 102 of Code of Criminal Procedure was registered. The case was investigated by PW6.
CRRP 1275/03 7
no question was put to them whether the Railway Gate Keeper had witnessed the arrest or the seizure. Exhibit P2 seizure mahazar shows that petitioner was arrested at a distance of seventy metres away from the Railway Gate. In such circumstances, it cannot even be presumed that the Gate Keeper had witnessed the incident and that too, at the odd hour of 3 a.m. Hence, non examination of the Gate Keeper is not fatal and on
that basis, either the arrest or the seizure cannot be disbelieved.
articles. Petitioner has no explanation as to how he happened to be in possession of MOs 1 to 19. In such circumstances, I find no reason to interfere with the finding of the courts below that it was the petitioner who committed the theft after breaking open the shop room on the night of 12.6.1995. Therefore, conviction of the petitioner for the offences under Sections 457 and 380 of
CRRP 1275/03 8
Indian Penal Code is perfectly legal.
sentence. Learned Magistrate sentenced the petitioner to rigorous imprisonment for one year each for the offences under Sections 457 and 380 of Indian Penal Code providing that sentences shall run concurrently. Set off was also allowed. The sentence is only reasonable. I find no reason to interfere with the sentence also.
Revision is dismissed. petitioner is directed to appear before Judicial First Class Magistrate-I, Hosdrug on 30.08.2010 . The Magistrate is directed to execute the sentence.
16th July, 2010 tkv
(M.Sasidharan Nambiar, Judge)
CRRP 1275/03
9
M.Sasidharan Nambiar, J.
Crl.R.P.No.1275 of 2003
ORDER
16th July, 2010
3 issues framed by the court
Whether the conviction and sentence for theft and dishonestly taking possession of stolen property can be interfered with on the ground of non-examination of the railway gate keeper as an attester.
Whether the custodial recovery of stolen articles without satisfactory explanation by the accused and uncorroborated conviction warrants revising interference.
Whether the concurrent sentence of rigorous imprisonment for one year each for the two offences is reasonable.
2 provisions across 2 enactments
P.Moosa
State of Kerala
M.Sasidharan Nambiar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
