SHAJI @ ALEX PAYAS v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938** **Crl.Rev.Pet.No. 4009 of 2006 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO. 399/2004 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC-1), PATHANAMTHITTA DATED 07-07-2006** **AGAINST THE JUDGMENT IN CC 831/2002 of J.M.F.C.-I,PATHANAMTHITTA DATED 25-11-2004** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------SHAJI @ ALEX PAYAS, S/O.PAYAS, PARAYIL HOUSE, VANCHITHARA MURI, KOZHENCHERY TALUK.** **BY ADVS.SRI.S.SANTOSH KUMAR (PERUNAD) SRI.P.M.MOHAMMED SHIRAZ** **RESPONDENT(S)/RESPONDENTS/COMPLAINANT:** **--------------------------------------** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R, BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07-12-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P. No.4009 of 2006 ---------------------------------------------Dated this the 7[th] day of December, 2016 ## **ORDER** This revision petition is preferred by the first accused against the judgment in Crl.Appeal No.399/2004 of Additional District & Sessions Judge (Adhoc-I), Pathanamthitta. He was charge sheeted in C.C. 831/2002 of Judicial First Class Magistrate-I, Pathanamthitta, which was filed u/s.379 IPC and sentenced to simple imprisonment for one year. The 2[nd] accused was acquitted . Against that, the 1[st] accused preferred the above appeal before Additional Sessions Judge, Pathanamthitta, 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 10.7.2002 between 3.30 and 3.45 p.m, A1 and A2 have stolen a motor Crl.R.P.No.4009/2006 2 cycle bearing registration No.KL-8-B-389 belonging to PW1, which was parked at Tharayil mukku junction. The accused had shared the common intention to commit theft of the motor cycle. On the basis of information given by PW1, Aranmula Police registered a crime and after completing investigation, laid charge in the trial Court. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P7 as documentary evidence and admitted MO1 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. Hence, the learned Magistrate convicted the accused. 3. As there was no representation for the revision petitioner on 30.9.2016, the case was posted to 6.10.2016 with a direction to the High Court Legal Service committee to appoint a legal aid counsel for providing legal aid to the revision petitioner. Accordingly, Adv. Muhammed Shiraz was appointed as the legal aid counsel. He submitted that the Crl.R.P.No.4009/2006 3 independent witnesses did not support the prosecution case. The recovery was effected without examining the witnesses from the place where MO1 was recovered. When there is no evidence to prove the alleged theft, conviction is unsustainable. He also submitted that as per the report of the District Probation Officer, Pathanamthitta, the revision petitioner is not involved in any other case and that he may be released u/s.4(10 and (3) of the Probation of Offenders Act. 4. I heard the learned Public Prosecutor also. 5. The case is based upon the recovery of stolen article. Prosecution case shows that the accused was arrested in connection with another case in **C.C. No.1147/2000** , which was also pending in the Judicial First Class Magistrate Court, Pathanamthitta. In that crime, the first accused was questioned and he admitted the offence in this case also. On the basis of information given by the first accused, MO1 motor cycle was seized from the house of Crl.R.P.No.4009/2006 4 **CW4** . For that, he prepared Ext.P1 mahazar. The disclosure portion was marked as Ext.P1(a). The independent witnesses PW2 and 3 attested Ext.P1 mahazar. After identifying the motorcycle, PW4 produced the article before Court. Ext.P7 is the 151A form. 6. The Apex Court in _**Earabhadrappa**_ v. S _**tate of 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 Crl.R.P.No.4009/2006 5 these ingredients are proved, the embargo on the statement of the accused before the Police while in custody, will not apply. ## 7. Apex Court in _**K. Chinnaswamy Reddy**_ v. _**State of A.P.**_ ## [AIR 1962 SC 1788] held as follows: “Section 27 is an exception to Ss.25 and 26 of Evidence Act, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police “whether it amounts to confession or not” which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to discovery of a fact may be proved under S.27. It s only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the curt cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Where in a case under S.411 IPC, the accused stated that he would show the place where he had hidden the ornaments, the whole of the statement relates distinctly to the discovery of the ornaments and is admissible under S.27 of the Indian Evidence Act. The words “when he had hidden distinctly related to th e actual discovery that took place by virtue of that statement. Also these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered 6 Crl.R.P.No.4009/2006 are connected with the crime i.e, in this case, the prosecution will have to s how that they are stolen property “ The owner of the property PW4 identified the stolen article. PW6, Assistant Sub Inspector recorded Ext.P2 statement of PW4 and registered Ext.P3 FIR. He also prepared Ext.P4 scene mahazar and recorded the statement of witnesses. After identifying the name and address, he furnished Ext.P5 report. Even though these witnesses were cross examined by the defence counsel nothing has been brought out to discredit the evidence. The trial court rightly appreciated the evidence and convicted the accused under Sec.379 IPC. There is no illegality or irregularity in the finding. Therefore the conviction under Sec.379 IPC is confirmed. 8. Learned counsel appearing for the revision petitioner submitted that no criminal antecedents were reported against the revision petitioner. Criminal Courts have the power to pass only sentence that are provided by law. The report submitted by the DPO, Pathanamthitta shows Crl.R.P.No.4009/2006 7 that no conviction is passed against him in any other criminal case and he recommended to release the accused under Sec.4(1) and (3) of the Probation of Offenders Act. Considering the nature of offence and the circumstance under which it was committed, I am of the opinion that this is a fit case to release the accused under Sec.4 of the Probation of Offenders Act. The petitioner is directed to surrender in the trial court and execute a bond for Rs.5,000/- with two sureties each for the like sum to the satisfaction of the Trial court. He shall not commit similar offence during this period. If the above condition is violated, the sentence imposed by the trial court will be imposed. **.** This Criminal Revision Petition is disposed of as above **P.D. RAJAN, JUDGE.** acd