Partly allowed

N.v.Madhavan v. State of Kerala

Kerala HC21 Feb 2012Crl.Rev.Pet/169/2012

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Kerala partially allowed the appeal, affirming the conviction for theft and criminal breach of trust but modifying the sentence. The court held that the confession-based recovery was sufficient despite discrepancies in fingerprints and weights, finding the courts below justified in accepting the evidence. However, considering the facts, it reduced the subs

What did the court decide?

The conviction is affirmed. The substantive sentences for offences under Sections 457 and 380 of the IPC are reduced to two years rigorous imprisonment each, running concurrently, instead of three yea

N.v.Madhavan Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P. BHAVADASAN

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TUESDAY, THE 21ST DAY OF FEBRUARY 2012/2ND PHALGUNA 1933

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C.R.R.P. NO. 169 of 2012

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CRL. APPEAL NO:201/2010 OF THE ADDL. SESSIONS COURT (ADHOC-I), KASARAGOD C.C. NO:614/2003 OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-II,HOSDRUG

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PETITIONER/APPELLANT/ACCUSED:-

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N.V. MADHAVAN, AGED 36 YEARS, S/O. BATTYAN, RESIDING AT NALAMVATHUKKAL, BARA P.O., BARA VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.

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BY ADV. SRI. JAWAHAR JOSE

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RESPONDENT/RESPONDENT/COMPLAINANT & STATE:-

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STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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BY PUBLIC PROSECUTOR SRI. T.R. RAJESH

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THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 21-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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C.R.R.P. NO. 169 of 2012

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APPENDIX

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PETITIONER'S ANNEXURES:-

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ANNEX.A - CERTIFICATE ISSUED FROM THE CENTRAL PRISON, KANNUR.

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RESPONDENT'S ANNEXURES:- NIL

//TRUE COPY//

P.A. TO JUDGE.

P.BHAVADASAN, J.

---------------------------------------------------Crl.RP No.169 of 2012

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---------------------------------------------------Dated this the 21^st day of February 2012

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Order

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The accused was prosecuted for the offence punishable under Ss.457, 380 and 461 of IPC. He was found guilty and was convicted and sentenced as

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follows :

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“The accused is sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs.5,000/- (Rupees Five Thousand only) u/s 457 of IPC. In default of payment of fine, the accused shall undergo rigorous imprisonment for six months. The accused is also sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs.5,000/- (Rupees Five Thousand only) u/s 380 of IPC. In default of

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Cr.RP 169/12

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payment of fine, the accused shall undergo rigorous imprisonment for six months. The accused is further sentenced to undergo rigorous imprisonment for one year for the offence u/s 461 of IPC. Sentence shall run concurrently. Set off allowed.”

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In appeal, the conviction and sentence was confirmed.

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PW2 is the wife of PW1. They were residing in the house where the alleged theft is stated to have been committed. On 30.12.2002, at 4 pm, PW1 and his wife went to Bangalore to meet their daughter who was studying there. They returned on 2.1.2003 in the morning. To their dismay, they found that the house was seen broke open and theft was committed in their house. PW1 laid Ext.P1 F.I. Statement, which was recorded by PW11, who registered crime as Ext.P11 F.I.R. The investigation was conducted by PWs 12 and

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Cr.RP 169/12 3

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The accused was arrested on 19.3.2003 at 1.45 pm and based on his confession statement, material objects were recovered. PW15 completed the investigation and laid charge before court.

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The Judicial First Class Magistrate Court-II, Hosdurg took cogizance of the offence. On appearance of the accused, the necessary formalities were complied with. The particulars of the offence were read out to him to which he pleaded not guilty and claimed to be tried. PWs 1 to 15 were examined and Exts.P1 to P14 were marked from the side of the prosecution. On close of the prosecution evidence, the accused was questioned under S.313 of Cr.P.C. He denied all incriminating circumstances brought out in evidence against him and maintained that he is innocent. MOs 1 to 23 were also marked. But he chose to adduce no evidence.

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Cr.RP 169/12

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On an appreciation of the evidence in the

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case, the trial court as well as the lower appellate court

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came to the conclusion that the prosecution has succeeded in proving the recovery of the material objects, based on the confession statement of the accused and that is sufficient evidence of the offence committed by him. Accordingly, he was convicted and sentenced as already mentioned.

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The learned counsel for the revision

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petitioner raised the following points for consideration of this court :

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1.It is seen from the evidence of PWs 12 and 13 that no

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steps are taken to compare the chance finger prints with that of the finger prints of the petitioner, by a finger print expert.

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2.There is difference in the weight of the ornaments said to have been recovered based on the confession

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Cr.RP 169/12

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statement of the accused between those made

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mention of in Ext.P1 F.I. statement.

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3.If one goes strictly by the evidence of the witnesses,

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the time of seizure spoken to by them do not tally with the timings made mention of in the respective seizure mahazars.

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The learned counsel for the revision petitioner contended that the recovery of material objects stated to have been made by PW15 based on the confession statement is highly artificial to suit the prosecution case.

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That the theft happened, is a fact not in dispute. The main item of evidence is the recovery of the material objects based on the confession statement of the accused. Both the courts below have considered the evidence in considerable detail and have come to the conclusion that the evidence of PWs 12 and 13 are

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Cr.RP 169/12

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convincing enough and are acceptable regarding the recoveries effected.

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PW3 is a witness to a seizure mahazar. He has also attested Ext.P3 recovery mahazar in which one Chandran has produced gold weighing 21 gms which was pledged by the accused.

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PW4 would depose that he had signed the seizure mahazar from the residence of the accused. He had witnessed the recovery of two gold bangles, one gold chain, two gold coins, two gold lockets and one set of ear studs. PW5 is another attestor to Ext.P4 to P6 mahazars. PW6 deposed that he is conducting finance business at Mattummel and that on 31.1.2003, the accused had pledged the gold chain weighing 21 gms. with him. PWs 7 to 9 are jewellers who purchased gold ornaments from the accused. PW10 is the Manager of a service co-operative bank, who deposed that he has

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Cr.RP 169/12

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attested Ext.P9 seizure mahazar.

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It is true that there are slight differences in the time as spoken to by the prosecution witnesses with that of those entered in the respective seizure mahazars. But, one has to notice that the offence was committed in the year 2003 whereas the depositions of witnesses are taken in the year 2006. Passage of time has to be taken into consideration while appreciating the evidence. The witnesses are examined only in 2006. It is unwise to insist mathematical precision in the evidence of witnesses.

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However, there seems to be some substance in the contention raised by the learned counsel for the revision petitioner that the chance finger prints collected from the site were not compared with the finger prints of the accused. No satisfactory explanation was offered by the prosecution regarding

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Cr.RP 169/12

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that aspect. But, that by itself cannot be taken as a ground to defeat the prosecution case. The evidence of PWs 12 and 13 along with the recovery of the material objects shows that the recovery was based on the confession statement given by the accused and the recoveries were made at the instance of the accused. Both the courts below have accepted the exhibits and found the evidence of PWs 12 and 13 and the witnesses to the recoveries, to be acceptable and convincing enough.

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Regarding the difference in the weight of the ornaments, it is marginal and negligible. So also the contention with regard to time of recovery. It is true that PWs 4 and 5 are common witnesses to Exts.P4 to P6. Merely because they are common witnesses, that is not a ground to doubt the prosecution case. It is not shown that they have any reason to falsely implicate the

Cr.RP 169/12

accused in the case.

It is true that PW13 would say that the

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material objects were recovered on the basis of the confession statement on the same day on which the accused was arrested. There is nothing to disbelieve the version given by PW13. Both the courts below have evaluated the evidence in considerable detail and have reached identical conclusions. It is not shown that the findings of the courts below are either perverse or unwarranted by the evidence on record. It is felt that on the basis of the available materials, no other conclusions are possible. The accused was rightly

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found guilty of the offence and rightly convicted for the respective offences.

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The learned counsel for the revision petitioner then made a ferment plea seeking leniency of this court regarding the sentence imposed. The learned

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Cr.RP 169/12

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counsel submitted that the accused has no criminal antecedents and he ought to have been released under the Probation of Offenders Act. The learned counsel pointed out that the accused has aged parents and three children, whom he is to maintain and look after.

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In the facts and circumstances of the case, the courts below were fully justified in declining to invoke the provisions of the Probation of Offenders Act. However, it is felt that the substantive sentences imposed for the offence punishable under Ss.457 and 380 of IPC are slightly on the higher side, going by the facts of the case. Justice would be served by sentencing the accused to suffer rigorous imprisonment for two years for the offence punishable under S.457 and two years' rigorous imprisonment for the offence punishable under Section 380 of IPC, instead of three years as imposed by the lower appellate court. The

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Cr.RP 169/12

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substantive sentences shall run concurrently. Rest of

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the sentence shall stand.

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Subject to the above modification, the revision

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petition is disposed of.

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P.Bhavadasan, Judge

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sta

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Cr.RP 169/12 12

N.v.Madhavan v. State of Kerala

Case brief

What is this about?

What did the court decide?

N.v.Madhavan v. State of Kerala

Case brief

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