Madhavan v. State of Kerala

## **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. 1461 OF 2017** **FROM JUDGMENT DATED 09.04.2013 IN CRIMINAL APPEAL NO.342 OF 2012 BY THE COURT OF ADDITIONAL SESSIONS JUDGE-I, MAVELIKKARA AGAINST THE JUDGMENT DATED 18.08.2011 IN C.C NO.454 OF 2010 BY THE COURT OF THE JUDICIAL FIRST CLASS MAGISTRATE, KAYAMKULAM** **REVISION PETITIONER/APPELLANT/ACCUSED NO.2:** ## **MADHAVAN** **AGED 33 YEARS,S/O.GOPALAN, KARUNANIDHI COLONY, SEELANAICKENPATTI,SALEM TAMIL NADU-636201.** **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-682031.** **SMT.PUSHPALATHA M K – SR. GP** **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.1461 of 2017 ## **P.G. AJITHKUMAR, J.** **-----------------------------------------------------------** **Crl.R.P.No.1461 of 2017** **----------------------------------------------------------Dated this the 10[th] day of June, 2024** ## **O R D E R** This is a revision petition filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973 against the conviction and sentence of the petitioner concurrently by the trial court and the appellate court. He along with two others was convicted by the trial court for offences punishable under Section 457 and 392 of the Indian Penal Code, 1860 (IPC). 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 in her house situated in Koippallykarazhma Muri in Peringala Village. PW2 is his daughter. Along with them, the newly born child of PW2 was also there in the house. The incident took place on 15.09.2009. The allegation of the prosecution is that accused Nos.1 to 3 criminally trespassed into the house along its kitchen door at about 1.30 a.m and committed 3 Crl.R.P.No.1461 of 2017 theft of gold ornaments worn by PWs 1 and 2, money and mobile phone kept in the almirah. The accused had threatened PWs 1 and 2 in order for their committing the theft. One of the mobile phones stolen from the house was received by the 4[th] accused knowing it to be stolen. With those allegations the final report was filed and the accused were tried on a charge for the offences punishable under Sections 457, 461, 392 and 411 read with 34 of the IPC. 4. The prosecution evidence consists of oral testimonies of PW1 to 11, Exts.P1 to P14 and MOs 1 to 8. The trial court after considering the said evidence in detail found accused Nos.1 to 3 alone guilty of the offences punishable under Section 457 and 392 read with 34 of the IPC. Accused No.4 was acquitted. The petitioner who is accused No.2 challenged his conviction and sentence in Crl.Appeal No.342 of 2012 , but it was unsuccessful. 5. The prosecution rests on the evidence of PWs 1 and 2 to prove the criminal tresspass and theft. They are mother and daughter residing together in the same house. Both of them deposed that at 1.30 a.m on 15.09.2009, accused No.1 to 3 entered into their house by breaking open 4 ## Crl.R.P.No.1461 of 2017 the kitchen door. PW1 woke up hearing the cry of PW2. She switched on the light and she saw 3 persons inside the house. It is her further version that the assailants threatened her and her daughter to handover the ornaments. They took away the gold ornaments, mobile phones and cash kept in the almirah and handbag. Earrings of PW2 was forcibly removed. After threatening PWs 1 and 2 that they planted bombs in the house, the accused left. Similar are versions of PWs 1 and 2 regarding the incident. Along with that Ext.P1 FI statement was placed reliance on by the courts below to hold that there occurred house breaking and theft inside the house of PW1. 6. One of the stolen mobile phones was recovered from the possession of accused No.4. It is MO6. MOs 1 to 4 ornaments were recovered from the possession of PW3 who is a jeweler. All those articles were identified by PWs 1 and 2 as the stolen ones. On the very next morning PW1 went to the police station and gave Ext.P1 FI statement. The descriptions of the ornaments and also about the thieves were given in Ext.P1, based on which PW10 registered Crime No.715 of 2009. From Ext.P5 scene mahazar, the lie of the 5 Crl.R.P.No.1461 of 2017 house and forcible opening of the kitchen door are able to be understood. From the said evidence and circumstances, the oral testimonies of PWs 1 and 2 regarding the stealing of gold ornaments, mobile phones and cash get sufficient corroboration and hence the same can be believed. The question remains is as to who committed the theft. 7. Accused No.4 was arrested by PW9 the investigating officer on 04.12.2009. Accused Nos.1 to 3 were arrested by PW9 on 16.02.2010. It is the version of PW9 that on the basis of the statement of accused No.4, MO6 mobile phone was recovered from his house. Ext.P6 is the mahazar for the same. The further version of PW9 is that based on the statement of the 1[st] accused, MO1 series bangles were recovered from the possession of PW3, based on the statement of the 2[nd] accused, MOs 2 and 3 rings were recovered from the possession of PW3 and MO4 series rings were recovered from the possession of PW3 based on the statement of accused No.3. Exts.P2, P3 and P4 are the respective mahazars. Ext.P2(a), P3(a) and P4(a) are respectively the statements of those accused. The said version of PW9 was not supported by PW3. PW3 deposed 6 Crl.R.P.No.1461 of 2017 that police threatened him that unless he produced the gold ornaments, he would be implicated in the case, and therefore he purchased, through his friend, gold ornaments and gave to police. Therefore the evidence of PW4 is not available to the aid of the prosecution to prove the recovery. 8. PW3 had filed CMP No.9060 of 2010 claiming custody of the gold ornaments seized from his possession. The said petition was dismissed by the trial court holding that he did not establish his right over the said articles. When the statement of accused Nos.1 to 3 helped PW9 to reach at PW3 and effect recovery of MOs 1 to 4, his resiling from his statement before the police makes him an untrustworthy witness. When PWs 1 and 2 identified MOs 1 to 4 as their stolen articles, the evidence tendered by PW9 regarding the recovery of those articles which gets support from the respective mahazars stands reliable. After appreciating the said evidence together with the attending circumstances, the trial court as well as the appellate court reached the concurrent finding that accused Nos.1 to 3 were guilty of the offences of house trespassing by night and robbery. Sustaining of injury by PW1 in the coarse of forcible 7 Crl.R.P.No.1461 of 2017 removal of her ornaments as also the threat to PWs 1 and 2 by the accused were deposed by these witnesses. I find no reason to disbelieve that version. In the circumstances, I find no reason to unsettle the concurrent findings by the courts below. 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]** . Viewed in the light of the proposition of law laid down in the aforesaid 8 Crl.R.P.No.1461 of 2017 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, this revision petition is dismissed. Sd/- **P.G. AJITHKUMAR JUDGE** PV