Biju and BIJU K. CHACKO v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 12TH DAY OF APRIL 2013/22ND CHAITHRA 1935 Crl.Rev.Pet.No. 438 of 2008 ( ) -------------------------------- AGAINST THE ORDER/JUDGMENT IN CRL.A 275/2006 of DISTRICT.& SESSIONS COURT,PATHANAMTHITTA DATED 03-10-2007 AGAINST THE ORDER/JUDGMENT IN CC 220/2004 of JUDICIAL .FIRST CLASS MAGISTRATE.-II, PATHANAMTHITTA DATED 30.06.2006 ## REVISION PETITIONERS/APPELLANTS/ACCUSED:: ------------------------------------------------------------------------------------ 1. BIJU, S/O.RAMAKRISHNAN, MANNORATHURA VEEDU, NATTASSERY, PERUMBAYIKODE KOTTAYAM. 2. BIJU.K.CHACKO, S/O.CHACKO. KOTTUKANDATHIL, VADAVATHOOR, VIJAYAPURAM. BY ADVS.SRI.BECHU KURIAN THOMAS SRI.ROSHEN.D.ALEXANDER RESPONDENT/RESPONDENT/COMPLAINANT:: ------------------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R BY PUBLIC PROSECUTOR SMT.M.MADHUBEN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-04-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: AV ## **P.D.RAJAN, J.** ## **-----------------------------Crl.R.P.No.438 of 2008 -----------------------------Dated this the 12[th] day of April, 2013** ## **ORDER** Revision petitioners were convicted by the trial court under Section 379 r/w 34 IPC and sentenced to undergo rigorous imprisonment for three years each and also directed to pay fine of Rs.5,000/- each under the aforesaid section. An appeal filed was dismissed by the Sessions Court, Pathanamthitta confirming the conviction passed by the trial court. Challenging the said judgments this criminal revision petition has been preferred. 2. The prosecution case was that on 02.09.2003 at 2.30p.m. PW1 was walking along the Patakkala public road. When she reached at the place of occurrence, accused came there in a motor bike, driven by the second accused, A1 who was a pillion rider, snatched the gold chain weighing 22gm from the neck of PW1 and both of them flee from there in the same vehicle. 3. On 10/9/2003 the Sub Inspector of police, Karukachal, was conducting vehicle inspection, arrested the revision petitioners and he registered a Crime No.234/2003 of Karukachal police station. During interrogation, three gold chains were recovered 2 Crl.R.P.No.438 of 2008 from their possession and he realised that those are articles were stolen and MO1 belongs to PW1. In this circumstances, on the basis of that information, he registered a Crime No.263/2003 under Section 379 r/w.34 IPC and forwarded the FIR to Koippuram police, since the place of occurrence was within the limits of Koippuram police station in Pattanamthitta District. After getting FIR from Karukachal police station, Koippuram police re-registered the crime as 262/2003 of Koippuram police station and proceeded with investigation. After completing investigation, they laid charge before the trial court. 4. In the course of trial prosecution examined PWs.1 to 8 and marked Exts.P1 to P5 and admitted MO1 in evidence. The incriminating circumstances brought out in evidence were denied by the revision petitioners while questioning under Section 313 Cr.PC. They did not adduce any defence evidence and the trial court convicted the accused. Aggrieved by that they preferred an appeal before the Sessions Judge, Pathanamthitta where the conviction was confirmed. 5. Heard both sides. The learned counsel appearing for the revision petitioner contended that there is inordinate delay in 3 Crl.R.P.No.438 of 2008 registering the case against the revision petitioners and the reason for the delay was not properly explained by the prosecution. According to PW1, she saw MO1 gold chain at Karukachal Police station immediately after two days of the incident but the police registered the crime only on 10.09.2003. This non-explanation of delay affects the credibility of the prosecution case. Moreover, there is no independent corroboration to the alleged seizure. When these facts are not properly explained by the police, revision petitioners are entitled to get the benefit of doubt. 6. The learned Public Prosecutor strongly resisted the above argument and contended that independent witnesses were present at the time of seizure of gold ornaments, which was proved through Ext.P2 seizure mahazar. Immediately after the arrest in Crime No.234/2003 of Karukachal police station, they were interrogated and on the basis of that information Crime No.263/2003 of Koyippuram police station was registered by the police, after identifying MO1 gold chain. This circumstances were clearly highlighted by Karukachal police when they transferred FIR to Koippuram police station, since the place of occurrence is Crl.R.P.No.438 of 2008 4 within the jurisdiction of Pathanamthitta district. The reason for delay was not challenged by the revision petitioners in the trial court. In the absence of such dispute nothing was brought out in record to discredit the credibility of the police officer, who conducted the investigation and finally charge sheeted. Hence she prays to not interfere in the findings recorded by the trial court. 7. In this circumstances, I have considered whether there is any illegality or irregularity in the finding recorded by the court below? If so the conviction passed under Section 379 read with 34 IPC is sustainable in law? It is pertinent to note that the prosecution case is based upon the oral testimony of PW1. According to her evidence, on 02.09.2003 at 2.30 p.m. while she was proceeding to Pattakala-Ayirikkavu road and reached at Valiyanakuzhi , revision petitioners came there in a motor bike and the pillion rider of the motor bike snatched her 22 gms. gold chain from her neck. Before snatching the gold, he beat her left shoulder and after that they left the place at a high speed. PWs.2 and 3 were present at the place of occurrence and saw the incident. After reaching at her house, she informed this matter to 5 Crl.R.P.No.438 of 2008 her husband. Subsequently he contacted Koyippuram Police, through telephone and reported the incident. After two days she got information from Karukachal police that the accused were arrested in connection with another crime. When she reached there the Sub Inspector of police shown her three gold chains and she identified her MO1 gold chain. On 14.09.2003 Koyippuram police questioned her and prepared the mahazar. PW1 was crossexamined by the defence counsel. Nothing has been brought out by the defence counsel to discredit her evidence. But she answered in cross-examination that she visited the Karukachal police only on 11.09.2003. 8. The eyewitnesses PW2 and PW3 supported the evidence on PW1 and gave a similar version. Analysing the oral testimony of PWs.1 to 3, it is found that MO1 gold chain was snatched by two persons on 02.09.2003 and PW1 identified her gold chain after arresting the accused, by the Karukachal police. The crime was re-registered by PW6 on 13.09.2003, while he was working as Head Constable at Koippuram police station. Ext.P3 is the FIR in crime No.263/2003. He got Ext.P3 through special messenger. When these witnesses were examined by the Crl.R.P.No.438 of 2008 6 defence counsel, the documents and details of the original crime 234/2003 was also noted. This shows that they have no dispute with regard to the crime 234/2003 of Karukachal police station. PW5 attested the Ext.P2 mahazar. But he did not see the seizure of MO1. The original of Ext.P2 was produced in original Crime before Judicial First Class Magistrate, Changanassery. 9. The investigation was conducted by PW7, while he was working as Sub Inspector of Karukachal police station, the revision petitioners were interrogated in connection with crime No.234/2003 which was registered under Section 41(I)(b) Cr.PC on 10.09.2003. They were unable to explain about MO1, and during interrogation he (A1) admitted that on 02.09.2003 at 2.30p.m. he snatched MO1 from one lady. On the basis of this information, they registered a crime No.263/2003, under Section 379 r/w.34 IPC. Ext.P4 is the FIR. PW7 categorically admitted that while they were inspecting vehicle on pubic road, they inspected the vehicle documents of KL-5.G/7975, at that time they found, MO1 and other two gold chains with that documents. Since the place of occurrence was within the jurisdiction of Koyippuram police station, the entire records and MOs were transferred to that police 7 Crl.R.P.No.438 of 2008 for further investigation. I found no ambiguity in the evidence given by PW7. He admitted that he recorded statement of PW1 on 11.09.2003 and nothing has been brought out to discredit the evidence of PW1 during cross examination. The question of delay was not asked to PW7, who is a competent witness conducted the investigation. From the entries it is found that the original crime was committed in the Kottayam District and this crime was committed within the Pattanamthitta district. Hence records were transfered to the Koippuram police station, Pathanamthitta District through special messenger. Considering the explanation given by the investigating officer, I am of the opinion that the delay in this case was properly explained. The learned counsel relied on two decisions **Azeez v. State of Kerala, [2013 (1) KHC 362 (SC)] & Thulia Kali v. State of Tamil Nadu [1972 (3) SCC 393]** which were not applicable to the facts of the case. 10. Another argument was that the independent witnesses were not present, when MO1 was seized from the vehicle of revision petitioners. It is found that the seizure mahazar was attested by independent witnesses. PW5 is one of the witnesses. When he was examined before court, he turned hostile and Crl.R.P.No.438 of 2008 8 deposed that he did not see the seizure. Apex court in a decision reported in **Niranjan Ishwarlal Joshi v. State of Maharashtra [1994 Crl.L.J.300]** held that if witnesses turned hostile, the court cannot thrown out the prosecution case on that ground alone. Court has to then scrutinize the prosecution evidence far more rigorously. It has to under take very minute and rigorous examination so as to whether that material is absolutely credible and strong enough to sustain a conviction. The question of strong evidence has been considered in numerous cases. The requirements of independent witnesses provided under Section 100(4) Cr.PC are the witnesses, who should be an independent responsible of the locality. If the evidence of the police officer is found reliable, there is no fault in accepting it. Even though, revision petitioners contended that there is no independent corroboration, I am of the opinion that the seizure was according to law and no circumstances are brought out in evidence to disbelieve PW7. There is no infirmity in the testimony of police officials. Police officials discharged their duty in good faith and seizure was corroborated with independent witness of PW2 and 3. The rule of prudence however only requires the careful scrutiny of Crl.R.P.No.438 of 2008 9 the evidence of police officials, since they are interested in the rest of the case projected by them. The trial court considered all these aspects and I am of the view that conviction and sentence passed by the trial court are only to be confirmed. This revision is dismissed accordingly. Sd/P.D.RAJAN, JUDGE AV /True Copy/ P.A to Judge