Antony @ Satheesh Kumar v. State

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 13TH AUGUST 2008 / 22ND SRAVANA 1930 Crl.Rev.Pet.No. 4232 of 2007(D) ------------------------------CRA.35/2007 of I ADDL. SESSIONS COURT, PALAKKAD C.C. NO. 290 OF 2005 OF J.F.C.M. II, PALAKKAD .................... REVN. PETITIONER: ACCUSED ------------------------- ANTONY @ SATHEESH KUMAR, CONVICT NO.6363, CENTRAL PRISON, VIYYOOR. BY ADV. SRI.SUNIL V MOHAMMED(STATE BRIEF) RESPONDENTS: COMPLAINANT ------------------------ STATE, REP. BY THE CIRCLE INSPECTOR OF POLICE, TOWN SOUTH POLICE STATION, CRIME NO. 28/04. BY PUBLIC PROSECUTOR SRI.C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 13/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V. RAMKUMAR, J. `````````````````** ## **Crl.R.P. No. 4232 of 2007 `````````````````** ## **Dated: 13-08-2008** ## **O R D E R** In this Revision preferred from the Central Prison, Viyyur , the revision petitioner who was the sole accused in C.C. 290 of 2005 on the file of the J.F.C.M. II, Palakkad for offences punishable under Sections 457 and 380 I.P.C. 2. The case of the prosecution can be summarised as follows:- On 27-1-2004 at about 2'O clock in the night the accused gained entry into the shop by name Victory Voice belonging to P.W.6 situated at Sulthanpet within the limits of Palakkad Municipality after demolishing the asbestos sheet on the roof and committed theft of three sound mixers, one design light, three chordless mike, one tape deck and 20 mikes kept in an almirah after breaking open the said almirah and thereby committed offences punishable under Sections 457, 380 and 461 I.P.C. 3. On the accused pleading not guilty to the charge framed against him by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its Crl.R.P. No. 4232 of 2007 -:2:- case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 8 documents as Exts. P1 to P8. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 8[th] January 2007 acquitted the revision petitioner of the offence punishable under Section 461 I.P.C. but convicted him for the offences punishable under Sections 457 and 380 I.P.C. For the conviction under Sections 457 and 380 I.P.C. he was sentenced to rigorous imprisonment for two years each. The substantive sentences were directed to run concurrently. On appeal preferred by the revision petitioner as Crl.Appeal (Jail) No. 35 of 2007 before the Sessions Court, Palakkad, the learned Addl. Sessions Judge as p[er judgment dated 4-09-2007 dismissed the appeal confirming the conviction entered and the sentence passed against him. Hence this Revision. 6. I heard Adv. Sri. Sunil Muhammed , the learned counsel Crl.R.P. No. 4232 of 2007 -:3:- appearing for the revision petitioner on State Brief and Adv. Sri.C.M. Nazar, the learned Public Prosecutor who defended the State. 7. What is unravelled by the oral and documentary evidence in the case is the following:- P.W6 (Basheer) who is the de facto complainant is conducting a shop by name Victory Voice at Sulthanpetta Junction of Palakkad. He had left his shop in the night on 27-1-2004 at about 8.30 p.m. after locking the same. When he reached in the shop on the next day morning at 8.30 a.m. he found the asbestos sheet on the roof was broken. On inspecting the shop he discovered that three mixers, three sound mixers, one design light, three chord less mikes, one tape deck and 20 mikes valued at about 6,70,000 were missing. He thereupon lodged Ext.P8 F.I. statement before the Palakkad Town South Police which registered the case as Crime No. 28 of 2004. P.W5 was the Circle Inspector of Town South Police Station (Madhu) who was the Circle Inspector of Police, Town South Police Station, Palakkad , took over the investigation of the case on 28-1-2004 at about 9.30 a.m. on that day. He proceeded to the shop room in question and prepared Ext.P1 seizure mahazar which revealed the fact that the asbestos sheet on the roof of the shop room had been broke open for gaining entry into the shop room. He forwarded Ext.P5 Crl.R.P. No. 4232 of 2007 -:4:- report to the Magistrate for including Sec. 461 I.P.C. During the course of investigation, on getting credible secret information to the effect that the accused was at Ambathur in Madras, he proceeded to Madras along with P.W.6 and his police party and arrested the revision petitioner/accused at 4 p.m. on 20-2-2004 from flat No. 24 of an apartment by name Ramson Malligai Apartment at Ambathur in Madras. On interrogation the revision petitioner/accused confessed that he would produce the properties which had been kept in his house. Accordingly, he produced a diamond model PRO Mixer on which a sticker of American Flag was seen stuck, a 4040 S model Ahuja Programme tape deck, 20 mikes, 8 covers for keeping the mikes , one chord wire, a blue coloured rexin bag with the writing Sony on it. P.W.5 seized those six items at 5 p.m. under Ext.P2 mahazar in which the confession statement made by the revision petitioner is extracted as Ext.P2 (a). Thereafter on the strength of the confession made by the accused that he had given two of the mixers to one Shanker having his shop at Villivakkom, Matha Street, the revision petitioner led the police party to Easwari Audios at Villivakkom South , Matha Street, Madras and seized a mixer unit by name power house horizon and another mixer unit by name Allen and Heat 22100 from Shanker who was running the said shop as per Crl.R.P. No. 4232 of 2007 -:5:- Ext.P3 mahazar in which the aforesaid confession is extracted as Ext.P3 (a). P.W.1 had identified the above properties both from the place of seizure as well as in court. 8. The learned counsel appearing for the revision petitioner made the following submissions before me in support of the revision:- P.W.6 has not been able to produce any document showing his ownership or possession of the above properties in the shop in question. Hence in cannot be concluded that the properties seized from the flat of the accused and Easwari Audios belonging to Shanker were the properties allegedly stolen from the shop of P.W.6 at Sulthanpet in Palakkad. The facts of the case do not satisfy the tests for circustantial evidence as laid down in _**AIR 2002 SC 3164 - Bodh Raj @ Bodha and Others v. State of Jammu and Kashmir, Sathyanesan v. State of Kerala - 1984 KLT 774 and and Another v. State of M.P. & 2002 (7) SC 317 - Ashish Bathan v.**_ _**State of M.P.**_ Mere suspicion howsoever strong that the accused could be the person behind the theft cannot take the place of legal evidence unless the prosecution is able to prove the guilt of the accused beyond reasonable doubt. _**AIR 1952 SC 343 - Hanumant Govind v. Nagundkar.**_ The fact that P.W.6 accompanied P.W.5 to Madras on 19-2-2000 and the further fact that the accused was Crl.R.P. No. 4232 of 2007 -:6:- arrested only on the next day improbabilise the prosecution case. 9. I am afraid that I cannot agree with the above submissions. P.W.6 went to Madras on 19-2-2000 and the accused was arrested on the next day. It was during the cross-examination of P.W.5 the investigating officer that it was elicited by the accused himself that the purpose of his going to Madras was on getting secret and credible information that the stolen properties were at Ambathur in Madras where the accused is residing. 10. Merely because P.W.6 was not able to produce documentary evidence showing his possession or ownership of the sound mixers, mike sets etc. it cannot be straight away concluded that he was not in possession of those gadgets particularly in the backdrop of the fact that the accused has no case that any of those properties seized either from his flat or at his instance from Easwari Audios, belong to him. He did not lay any claim over those properties by filing a petition under Sec. 451 Cr.P.C. Under these circumstances, the identification of those items by P.W.6 as the properties which were stolen from his shop has been credible and acceptable. The conviction recorded and the sentence passed by the trial court which had the unique advantage of seeing the witnesses and assessing their credibility and which have been endorsed by the Crl.R.P. No. 4232 of 2007 -:7:- lower appellate court do not suffer from any infirmity so as to warrant interference by this Court. This Revision is accordingly dismissed. The sentence imposed on the revision petitioner also cannot be said to be harsh or excessive having regard to the fact that the offences were committed during the dead of the night in a daring manner. Hence I do not find any good ground for interference with the sentence as well. **V.Ramkumar, Judge.** ani. Crl.R.P. No. 4232 of 2007 -:8:- **V. RAMKUMAR, J. ````````````````` Crl.R.P. No. 4232 of 2007 ````````````````` Dated: 13-08-2008 O R D E R**