Baiju @ Biju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 13TH DAY OF DECEMBER 2016/22ND AGRAHAYANA, 1938** **Crl.Rev.Pet.No. 213 of 2008 ( )** **-------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.185/2007 of ADDITIONAL SESSIONS COURT (ADHOC-1), KOTTAYAM DATED 6.8.2007** **AGAINST THE JUDGMENT IN CC 99/2005 of J.M.F.C.,ERATTUPETTA DATED 24-01-2007** **REVISION PETITIONER(S)/ACCUSED:** **----------------------------------------BAIJU @ BIJU, S/O.JOSEPH, PALLIPPATTU HOUSE, KANJIKUZHY VILLAGE, VENMANI, IDUKKI.** **BY ADVS.SRI.LAL GEORGE SMT.ANN SUSAN GEORGE** **RESPONDENT(S)/COMPLAINANT:** **-------------------------STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, OFFICE OF THE ADVOCATE GENERAL,** **ERNAKULAM.** **BY SR. PUBLIC PROSECUTOR SRI.D. CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.213 of 2008 ---------------------------------------------Dated this the 13[th] day of December, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.185/2007 of Additional Sessions Judge, Kottayam. Five persons were charge sheeted in C.C. No.99/2005 by the Judicial First Class Magistrate Court-I, Erattupetta u/s.379 r/w.34 IPC. The learned Magistrate convicted the 1[st] accused to undergo simple imprisonment for six months u/s.379 IPC. A2 to A5 were acquitted and set at liberty. Against that, the accused preferred the above appeal before Additional Sessions Court, Kottayam, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. 2. The charge against the accused is that on 16.10.2004 Crl.R.P. No.213/2008 2 at 2 a.m., the 1[st] accused with four other accused, according to their common intention stolen 151 rubber sheet from the house of PW2, which was owned by PW1, as a result, sustained a loss of 5004/-, thereby committed the offence₹ punishable u/s.379 r/w.34 IPC. To prove the offence, prosecution examined PW1 to PW9 and marked Exts.P1 to P6 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. The learned Magistrate convicted the accused. 3. The offence was registered on the basis of information given by the 1[st] accused. PW9, S.I. of Police, Pala deposed in the trial Court that while questioning the 1[st] accused in connection with 587/2004, he made a confession in this case. On the basis of that, S.I. registered a crime 591/2004 of Pala Police Station, which was marked in the trial Court as Ext.P5. On the basis of that information, PW9 Crl.R.P. No.213/2008 3 arrived at the shop of PW4 from where the rubber sheets were stolen. Ext.P1 is the Mahazar. PW5 and PW6 attested seizure mahazar. Ext.P1(a) is the disclosure portion made by the 1[st] accused. Subsequently, PW7 registered a crime of Melukavu Police Station and Ext.P2 is the FIR. PW8 S.I. of Police, Melukavu prepared Ext.P3 mahazar and recorded statement of witnesses and completed the investigation. 4. According to Section 27 of Indian Evidence Act, when any fact is deposed by a person and anything is discovered in consequence of the information received from a person accused by an offence while in the custody of a police officer. So much of such information relates distinctly to the facts thereby discovered is admissible if that fact is proved. Therefore, it is clear that if any fact is actually discovered in consequence to the information given by an accused person in the custody of a police officer, it is an incriminating article against him. 5. The Apex Court in _**Earabhadrappa**_ v. S _**tate of**_ Crl.R.P. No.213/2008 4 _**Karnataka**_ [AIR 1983 SC 446] held that - Section 27 is an exception to Sections 25 and 26 and is a proviso to Section 26. It makes admissible so much of the statement of the accused which leads to the discovery of a fact deposed to by him and connected with the crime irrespective of the question whether it is confessional or not. The essential ingredient is that the information given by the accused must lead to the discovery of the fact which is direct outcome of such information. Secondly, only such portion of information given as distinctly connected with the said discovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. When these ingredients are proved, the embargo on the statement of the accused before the Police while in custody, will not apply. 6. In another decision in _**Golkonda Venkateswara Rao**_ v. _**State of A.P**_ . [AIR 2003 SC 2846] held that,- The provisions of Section 27 of the Evidence Act are based on the Crl.R.P. No.213/2008 5 view that if a fact s actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and consequently, the said information can safely be allowed to be given in evidence because if such an information is further fortified and confirmed by the discovery of articles or the instrument of crime and which leads to the belief that the information about confession made as to the articles of crime then cannot be false. In this case, the material objects and other articles were recovered on the basis of information given by the accused. 7. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating Crl.R.P. No.213/2008 6 the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. Therefore, the conviction under Section 379 IPC is only to be confirmed. 8. Learned counsel appearing for the revision petitioner submitted that the incident occurred 12 years back and he prays forleniency in the sentence. In the circumstance, this Court obtained a report from the District Probation Officer, Idukki who reported that the revision petitioner is residing with his cousin, he is unmarried and engaged in rubber tapping work. He is maintaining good relation with his father but strange relation with his mother. His family owned four acres of land and a residential building. From the nature of offence and the circumstances Crl.R.P. No.213/2008 7 under which it was committed in spite of sentencing him to any imprisonment this court is of the opinion that he may be released on probation of good conduct under Sec.4 of the Probation of Offenders Act. The revision petitioner is directed to surrender in the Judicial First Class Magistrate Court, Erattupetta and execute a bond for Rs.5,000/- with two sureties each for the like sum to the satisfaction of the learned Magistrate. He shall be under the supervision of District Probation Officer, Idukki for a period of one year. He shall not commit similar offence and shall maintain peace and good behaviour in future. If any of the above condition is violated, the sentence imposed by the trial court shall stand revive. This Criminal Revision Petition is disposed of as above. ## **P.D. RAJAN, JUDGE.** acd