SHAJU @ SHAJAHAN v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN SATURDAY, THE 6TH DAY OF AUGUST 2016/15TH SRAVANA, 1938 Crl.Rev.Pet.No. 1238 of 2009 --------------------------- AGAINST THE JUDGMENT IN CRA 174/2007 of THE COURT OF ADDL. SESSIONS JUDGE (ADHOC)-II, KALPETTA DATED 29-11-2008 AGAINST THE ORDER/JUDGMENT IN CC 59/2004 of C.J.M., KALEPETTA DATED 26-06-2007 REVISION PETITIONER(S)/APPELLANT/ACCUSED: ---------------------------------------- SHAJU @ SHAJAHAN, S/O.IBRAHIM,MECHERY HOUSE,DWARAKA,, NALOORNADU AMSOM, EDAVAKA,MANANTHAVADY. BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. PUBLIC PROSECUTOR SMT.LISHA M THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 06-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **ANU SIVARAMAN, J.** ## **= = = = = = = = = = = = = Crl.R.P.No.1238 of 2009** **= = = = = = = = = = = = = = Dated this the 6[th] day of August, 2016** ## **ORDER** - 1.The accused in C.C.No.59 of 2004 on the file of the Chief Judicial Magistrate Court, Kalpetta is the revision petitioner. He has approached this Court challenging the conviction and sentence imposed by the trial court for offences punishable under Sections 454, 380 and 461 IPC which were confirmed in Crl.A.No.174 of 2007 by the Court of Additional Sessions Judge (Ad hoc)-II, Kalpetta. - 2.The case of the prosecution in short was that on 21.09.2003 the accused, with the intention to commit theft, committed house breaking, entered the house of PW1 at Kaniyampatta Panchayat and committed theft of a C.D.player, amplifier, speaker, remote control, C.D.Cassettes, adaptor and cooling glass worth Rs.6,000/ after opening the shelf in which these items were kept. The complainant, as PW1, deposed that on 21.09.2003, she along with the members of family had locked CRRP.No.1238 of 2009 2 the house and left for Gudaloor at about 10.00 a.m and when she returned at 5 p.m she saw that the doors of the house were open and that the aforementioned items were lost from the house. A ventilator was found to be broken open and she found that the house had been broken into and the theft had been committed. After informing her relatives she had gone to the police station and made a complaint on the same day by around 7.15 p.m. Thereafter, it is stated that the revision petitioner was apprehended from Panamaram town at about 4.15 a.m. and on the next day his arrest was recorded. On questioning, he had stated that the stolen articles were kept in his house and he had taken the policeman to the said place and recovery of the stolen articles was effected. - 3.The prosecution had examined PW1 to PW4 and marked Exts.P1 to P4. MO1 and MO2 material objects were also marked. The trial court, relying on the evidence of PW1, who was the complainant, and PW2, who was an independent witness to the seizure mahazar, as well as PW3 and PW4, who are official witnesses, had found that the guilt of the accused CRRP.No.1238 of 2009 3 was sufficiently proved and had imposed the sentence of simple imprisonment for one year for offences under Sections 454, 380 and 461 IPC. Though the matter was taken in appeal before the Additional Sessions Judge (Ad hoc)- II, Kalpetta on the ground that there were inconsistencies in the evidence of PW3, the Sub Inspector and PW2, the attesting witness regarding the recovery of the articles as also disputing the reliability of the evidence, the said appeal came to be dismissed and the conviction and sentence were confirmed. This revision petition is preferred against the said judgments. - 4.Heard Sri.C.Jayakiran, learned counsel appearing for the revision petitioner and learned Public Prosecutor appearing for the Prosecution. - 5.It is contended by the learned counsel for the revision petitioner that the offences are alleged to have been committed on 21.09.2003. It is contended that non-production of stolen articles as material objects vitiates the proceedings. It is further contended that the discrepancies as regards the CRRP.No.1238 of 2009 4 time of recovery as mentioned in the seizure mahazar and in the oral testimony of PW2, who is the independent attesting witness, is fatal to the prosecution case. The main crux of the arguments raised by the learned counsel for the revision petitioner is to the effect that recovery of the stolen articles from the revision petitioner's house cannot be the basis for conviction in the absence of evidence regarding the authorship of concealment by the accused. In support of his contention learned counsel for the revision petitioner places reliance on the decision of this Court in **Sankaranarayanan v. State of Kerala** [(2006 (3) KLT 429]. The learned counsel would also rely on the decision of the Apex Court in **Asok v. State of Madhya Pradesh** [(2011) 5 SCC 123] to contend that the non production of the stolen articles as material objects is a flaw which would vitiate the case of the prosecution. - 6.The learned Public Prosecutor, on the other hand, would contend that this is a case of house trespass and theft, and the stolen articles, which had been recovered from the revision petitioner's house, had been released on Kychit to the owner of CRRP.No.1238 of 2009 5 the property. The articles had been identified by PW1 and property list had duly produced in court as Ext.P4. In the above circumstances, it is contended that production of stolen articles as material objects is absolutely unnecessary in the facts and circumstances of the case. It is submitted that the decision reported in **Asok's** case (supra) was with regard to the seizure of Ganja and smack from the accused and the said decision has no application in the facts of the present case. It is further argued that the revision petitioner had been taken into custody on the very next day, that is, 22.09.2003 and he had led the investigation officer to his house and pointed the stolen articles which were concealed in the attic of the house. The recovery was properly attested to by PW2 who was the independent witness. A slight discrepancy in the time of the seizure which is noticed in his deposition cannot be a ground to upset the prosecution case. In the above circumstances, it is contended that the facts of this case as borne out by the evidence adduced would only lead to the conclusion of the guilt of the accused and therefore the conviction and sentence is rightly imposed. CRRP.No.1238 of 2009 6 7.I have gone through the judgments of the trial court and the lower appellate court. The contention raised on behalf of the revision petitioner as well as prosecution has been considered with reference to the materials on record and the evidence adduced. In the instant case, the revision petitioner was found guilty of the offences under Sections 454, 380 and 461 IPC on the basis of the cogent evidence adduced by the prosecution. There is no material to hold that the evidence adduced was insufficient to establish the guilt of the accused. However, it is submitted by the learned counsel for the revision petitioner that the revision petitioner was aged only 19 years of age at the time of the incident. This aspect had been specifically argued before the trial court, but it does not appear to have been considered in its proper perspective. No report under the Probation of the Offenders Act was called for in the instant case. In any view of the matter, it is submitted that there is no record of any further conviction or complicity of the revision petitioner in any other offence. Taking into account the age of the revision petitioner at the time of the offence as also the CRRP.No.1238 of 2009 7 fact that he was not convicted of any further offences thereafter, this Court is of the opinion that it would not be in the interest of justice to confirm the sentence of imprisonment for one year as against the revision petitioner. - 8.In the result, this revision petition is partly allowed. The conviction of the revision petitioner under Sections 380, 454 and 461 IPC is confirmed. The sentence of imprisonment imposed on the revision petitioner are modified as the imprisonment till the rising of the court. To suffer the sentence of imprisonment, the revision petitioner shall surrender before the trial court on or before 9[th] September, 2016. This revision petition is ordered accordingly. **==> picture [26 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj6/8