IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1805 of 2008()
1. KUNJAPPY, S/O.THOMAS, KONATTU
... Petitioner
Vs
1. STATE OF KERALA,REPRESENTED BY THE
... Respondent
For Petitioner :SRI.R.SURAJ KUMAR
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :01/07/2008
O R D E R
V.RAMKUMAR, J.
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CRL.R.P. NO. 1805 OF 2008
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Dated this the Ist day of July 2008
ORDER
The accused in C.C.104/1996 on the file of the JFCM II,
Kottarakkara is the revision petitioner.
2. The case of the prosecution can be summarised as
follows:
On 3.10.1995 at about 10.30 p.m. the accused with the
intention of committing theft of valuables from the house of PW1
bearing building No.IV/483 in Pooyappally village criminally
trespassed into the residential house of PW1 after breaking open
the door and committed theft of a gold ring weighing 800 mgs.
kept in a ladies bag, a cuticura powder tin, two sarees and an
Ajanta wall clock.
3. On the accused pleading not guilty to the charge framed
against him by the trial court for the aforementioned offences,
the prosecution was permitted to adduce evidence in support of
its case. The prosecution altogether examined 10 witnesses as
PWs. 1 to 10 and got marked 3 documents as Exts. P1 to P3
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and 4 material objects as MOs.1 to 4.
4. After the close of the prosecution evidence, the
accused was questioned under Section 313 (1)(b) Cr.P.C. with
regard to the incriminating circumstances appearing against him
in the evidence for the prosecution. He denied those
circumstances and maintained his innocence.
5. The learned Magistrate, after trial, as per judgment
dated 9/3/2001 found the revision petitioner guilty of the
offences and sentenced him to rigorous imprisonment for three
years under section 457 IPC and rigorous imprisonment for one
year under Section 461 IPC and rigorous imprisonment for three
years and to pay a fine of Rs.5,000/- and on default, to suffer
simple imprisonment for six months under Section 380 IPC. On
appeal preferred by the revision petitioner as Crl.Appeal
No.60/2001 before the Sessions Court, Kollam, the second
additional sessions judge, Kollam, as per judgment dated
18/1/2008, dismissed the appeal confirming the conviction
entered and the sentence passed. Hence, this Revision.
6. Learned counsel appearing for the revision petitioner
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made the following submissions before me in support of the
revision:-
Even though the occurrence took place on 3.10.1995,
recovery was affected only on 16.10.1995 after a lapse of nearly
13 days. PW1 who claimed to have lost the material objects in
question would state that she had lodged a complaint before the
police on the very next day. But no such complaint is
forthcoming. The FIR was registered only after the arrest of the
accused and recovery of the properties. The gold ring which was
seized from the revision petitioner at the time of his arrest is not
MO1 gold ring but another ring and the weight of the two rings
did not tally. These circumstances have been overlooked by the
courts below while recording the conviction against the revision
petitioner.
7. I am afraid that I cannot agree with the above
submissions. PWs.1 and 2 are a mother and a daughter who are
the inmates of the house in question where the theft took palce.
Since PW2, the daughter was taken to the hospital by her mother
PW1, on 3.10.1995, they returned from the hospital only on the
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next day morning i.e. 4.10.1994. When they reached their
house, they found the door broke open and the wall clock, a tin
of Cuticura powder, 8 sarees and a gold ring weighing 800 mg.
belonging to the child of PW2 kept in a ladies bag in the almirah
on the western room of the house were missing. Since PW1
entertained a suspicion that it was the revision petitioner who is a
neighboring resident who must have committed the theft, she
informed the police. Even though the complaint lodged by PW1
before the Pooyappally Police Station was not summoned or
marked, the fact remains that the police came to the spot and
prepared Ext.P1 scene mahazar. During the course of
investigation, the revision petitioner was arrested on 16.10.1995
by PW10, the Circle Inspector of Police, Perinthalmanna under
suspicious circumstances. The accused was at that time
attempting to sell MO2 Ajanta clock and was also having a gold
ring in his possession and he was not able to satisfactorily
account for his possession of the same. PW1, therefore registered
a case against him under Section 41(1)(d) Cr.P.C. Based on
Ext.P3(a) confession made by the revision petitioner, the
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investigating officer recovered MO1 a gold ring from PW4, the
jeweller who also supported the case of the prosecution when
examined before the trial court. PW10 registered a case against
him under Section 41(1)(d) Cr.P.C. MO3 Cuticura powder tin and
MO4 series consisting of two series were also seized at the
instance of the revision petitioner. Both PWs.1 and 2 have
identified MOs.1 to 4 as the properties which were stolen from
their house. The uncanny knack of women to identify their
personal belongings is an attribute which has been taken note of
by the apex court. Both the courts below had no doubt in
appreciating the evidence of the prosecution witnesses,
particularly PWs. 1 and 2. With regard to the difference in the
weight of MO1 gold ring and gold ring which was seized at the
time of his arrest, the courts below have taken note of the
evidence to hold that MO1 was not the gold ring which was
actually found at the time of the arrest of the accused and
therefore both those rings cannot have the same identity. MO1
gold ring was actually seized on the strength of the confession
made by the accused as per Ext.P3(a). The conviction recorded
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by the courts below after a careful evaluation of the oral and
documentary evidence in the case does not call for any
interference by this court and is accordingly confirmed.
9. With regard to the sentence imposed on the revision
petitioner also, it cannot be said that the same is
disproportionately harsh or excessive.
10. The learned PP, on instructions, submitted that the
petitioner was involved in three other crimes of which he has
been convicted in one case and acquitted in two cases. Such
being the antecedents of the petitioner, penal servitude by way
of incarceration alone can serve as sufficient deterrence to such
daring offenders. I do not find any good ground to interfere with
the conviction entered and the sentence passed against the
revision petitioner.
This revision is accordingly dismissed.
Dated this the Ist day of July, 2008
V.RAMKUMAR,
JUDGE
CRRP 1805/2008 7
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