Madhavan v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 10[TH] DAY OF JUNE 2024 / 20TH JYAISHTA, 1946 CRL.REV.PET NO. 1460 OF 2017** **AGAINST THE JUDGMENT DATED 25.07.2013 IN CRA NO.324 OF 2012 OF ADDITIONAL SESSIONS COURT-I, MAVELIKKARA AND THE JUDGMENT DATED 22.08.2011 IN CC NO.384 OF 2010 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KAYAMKULAM CRIME NO.170/2010 OF KAYAMKULAM POLICE STATION, ALAPPUZHA REVISION PETITIONER/APPELLANT/ACCUSED NO.2:** **MADHAVAN AGED 33 YEARS AGED 33 YEARS, S/O. GOPALAN, KARUNANIDHI COLONY, SEELANAICKENPATTI, SALEM, TAMIL NADU - 636 201.** **BY ADVS. SRI.P.B.AJOY SRI.T.M.DOLGOVE** ## **RESPONDENT/RESPONDENT/STATE:** **STATE OF KERALA** **REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, KAYAMKULAM, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. SMT.SHEEBA THOMAS, PUBLIC PROSECUTOR** **THIS CRIMINAL REVISION PETITION HAVING COME UP FOR FINAL HEARING ON 03.06.2024, THE COURT ON 10.06.2024 DELIVERED THE FOLLOWING:** 2 Crl.R.P.No.1460 of 2017 ## **P.G. AJITHKUMAR, J.** **----------------------------------------------------------Crl.R.P.No.1460 of 2017** **----------------------------------------------------------Dated this the 10[th] day of June, 2024** ## **O R D E R** This revision under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 is directed against the conviction and sentence of the petitioner concurrently by the trial court and the appellate court. He along with two others were convicted by the trial court for offences punishable under Sections 457 and 380 read with Section 34 of the Indian Penal Code, 1860. The appeal preferred by the petitioner was dismissed. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 3. PW1 was residing near Alumood-Cheravally Temple junction in the building bearing Door No.KMC 24/174. PW2 is her niece and PW3 is the daughter. The incident occurred on the night of 04.02.2010. PW1 was sleeping in the main room and, PWs.2 and 3 were in the neighbouring room. PW1 woke 3 Crl.R.P.No.1460 of 2017 up hearing the cry of PWs.2 and 3. She switched on the lights. She saw a person in the hall. On seeing her, he walked out along the door of the kitchen. Two more persons were in the house and another outside the house. They escaped. An anklet and a bracelet worn by PW2 and a portion of the gold chain worn by PW3 were snatched away by the assailants. It was with the said allegations the prosecution was initiated. 4. The petitioner was the 2nd accused. He along with accused Nos.1 and 3 were tried. The fourth person was not be traced out. Apart from the evidence of PWs.1 to 3, who identified accused Nos.1 to 3 as the thieves, the recovery effected under Section 27 of the Evidence Act, 1872 was also placed on reliance by the prosecution. PW4, a jeweller from whom MOs.1 and 2, which are the stolen bracelet and a piece of gold chain recovered, did not support the case of the prosecution. But the trial court by placing reliance on the evidence of PWs.1 to 3 regarding the theft and the evidence of PW8, the Circle Inspector of Police, who effected recovery in the course of investigation, found all the accused guilty. The 4 Crl.R.P.No.1460 of 2017 appellate court re-appreciated the evidence in detail and found that there was no reason to interfere with the findings of the trial court. 5. The learned counsel for the petitioner would submit that for want of proper identification and unreliable nature of the evidence concerning recovery, a conviction could not be legally entered into. It is submitted that while PWs.2 and 3 were asleep, their gold ornaments were allegedly stolen and there was no possibility for identifying the thieves. No test identification parade was held. The identification of accused Nos.1 to 3, practically, the first time in court cannot be believed. PW4 denied having received stolen property from the accused, but also stated that gold ornaments were obtained from him by putting him under threat. When PW4 deposed so in court, the entire case of the prosecution got demolished. Accordingly, the learned counsel for the petitioner would contend that the impugned judgments are liable to be set aside. 6. The learned Public Prosecutor would point out that PW4 made a purposeful deviation from his previous statement 5 Crl.R.P.No.1460 of 2017 and when his claim petition to get back MOs.1 and 2 was dismissed by the trial court, it was a _fait accompli_ that he stated falsehood in court. PWs.1 to 3 could see the assailants in the electric light inside the house and also the light available from the neighbouring houses. During the investigation, they saw the assailants at the police station. According to the learned Public Prosecutor that along with the evidence regarding recovery proved beyond doubt the charge levelled against the accused. 7. The trial court considered the evidence tendered by the prosecution in detail. As regards the act of theft the version of PWs.1 to 3 are cogent. Accused did not have a case that a false case was created by them. The incident occurred at 2.00 a.m. on 04.02.2010. At about 9.15 in the morning PW1 went to the police station and lodged a complaint, based on which a crime was registered as per Ext.P8. PW9 is the Sub Inspector of police, who registered the crime. PW2 deposed convincingly that while sleeping she woke up feeling somebody touching her foot. Her anklet and bracelet were 6 Crl.R.P.No.1460 of 2017 found missing. PW3 had a tussle with one of the assailants while he tried to snatch her gold chain. He could grab only a portion of the gold chain. It is their version that light from the neighbouring house was available. Immediately, the light in the hall of the house was switched on by PW1 also. In such circumstances, identification of the accused by PWs.1 to 3 cannot be doubted. 8. True, PW4 did not support the prosecution. Accused Nos.1 and 2 were arrested in connection with crime No.215 of Kayamkulam Police Station on 17.02.2010. It was on the basis of their confession, MOs.1 and 2 were seized from the possession of PW4. His version in court deviating from his previous statement cannot be given much importance. Having signed Exts.P3 and P4 mahazars under which MOs.1 and 2 were seized, his departure from the statement before the police make him an unreliable witness. PW7, a neighbouring shop owner, stated admitting his signing Ext.P3. Although PW4 raised a claim on MOs.1 and 2, that was rejected by the trial court after a full fledged inquiry. Having regard to all such 7 Crl.R.P.No.1460 of 2017 aspects, I find no reason to interfere with the concurrent findings rendered by the trial court and the appellate court, which led to the conviction of the petitioner and his co-accused. 9. The power of revision under Section 401 of the Code is not wide and exhaustive. The High Court in the exercise of the powers of revision cannot re-appreciate evidence to come to a different conclusion, but its consideration of the evidence is confined to find out the legality, regularity and propriety of the order impugned before it. When the findings rendered by the courts below are well supported by evidence on record and cannot be said to be perverse in any way, the High Court is not expected to interfere with the concurrent findings by the courts below while exercising revisional jurisdiction. See: **State of Kerala v. Puttumana Illath Jathavedan Namboodiri [(1999) 2 SCC 452]; Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke [(2015) 3 SCC 123]; Kishan Rao v. Shankargouda [(2018) 8 SCC 165** ]. 8 Crl.R.P.No.1460 of 2017 10. Viewed in the light of the proposition of law laid down in the aforesaid decisions, the findings of the courts below leading to the conviction of the petitioner cannot be said to be perverse, irregular or improper. Hence, the said concurrent findings of the courts below are not liable to be interfered with by this Court, in exercise of the powers of revision under Section 401 of the Code. Accordingly, the revision petition is dismissed. Sd/- ## **P.G. AJITHKUMAR, JUDGE** dkr