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2023 DIGILAW 927 (KER)

Abdul Gafoor @ Manu S/o Saidu v. State of Kerala

2023-11-17

P.G.AJITHKUMAR

body2023
ORD ER : 1. The accused in C.C No.66 of 2010 on the files of the Judicial First Class Magistrate Court-I, Tirur is the revision petitioner. He was convicted and sentenced by the trial court for the offences under Sections 457, 380 and 461 of the Indian Penal Code, 1860. In the appeal, his conviction and sentence for the offences under Sections 457 and 380 of the IPC were confirmed. His Conviction and sentence under section 461 were set aside. The petitioner challenges the said concurrent findings leading to conviction and sentence in this revision, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973. 2. As per the order dated 17.02.2020 in Crl.M.A No.1 of 2020, additional respondent No.2 who is the defacto complainant was impleaded. 3. Heard the learned counsel for the petitioner and the learned Public Prosecutor. 4. The allegations against the petitioner were that, he broke open the back side door of the residential house bearing door No.VII/223 of Valanchery Panchayath at about 9.00 p.m. on 28.08.2009. PW1 is the owner of that building. The petitioner having gained entry to the building broke open the Almirah kept inside and stole one mobile phone, a digital camera, two torches and a few spray bottles together worth Rs.40,000/-. 5. No crime regarding the incident was soon registered, since no complaint was lodged by PW1. The petitioner was arrested by PW3 who was the Sub Inspector of Police, Perinthalmanna Police Station on 01.11.2009. While he along with his colleagues was on patrol duty, happened to intercept the petitioner who was riding a motorcycle. He was arrested in connection with Crime No.201 of 2009 of Kolathur Police station. In his body search, MO1 mobile phone was found. It was revealed that the said mobile phone was stolen from the house of PW1. Under Ext.P1 Seizure Mahazar, MO1 was seized to which PW2 is a witness. On the basis of the information he had gathered regarding the theft occurred in the house of PW1, he had registered Crime No.714 of 2009 of Perinthalmanna Police station. Ext.P2 is that F.I.R. Since the place of occurrence was within the local limits of Valancherry Police Station, the matter was transferred to the said station and that resulted in registration of Crime No.430 of 2009. Ext.P4 is the FIR. PW5 had registered that crime. Ext.P2 is that F.I.R. Since the place of occurrence was within the local limits of Valancherry Police Station, the matter was transferred to the said station and that resulted in registration of Crime No.430 of 2009. Ext.P4 is the FIR. PW5 had registered that crime. It was PW4 who conducted the investigation. He visited the house of PW1 on 14.11.2009 and prepared a Scene Mahazar, Ext.P3. After necessary investigation he had submitted the final report also. 6. At the trial that took place after framing of the charge and its denial by the petitioner, PW1 to 5 were examined and Exts.P1 to P4 were marked. When the petitioner was questioned under Section 313 of the Code of Criminal Procedure, he took the stand that MO1 was his mobile phone. The trial court after appreciating the evidence took the view that what PW1 deposed can be believed and in the light of the other evidence, the accused was proved to have committed the offences with which he was charged. The appellate court on observing that there was no evidence to prove that the Almirah, where stolen articles were kept was broken open, conviction for the offence under Section 461 of the IPC could not be sustained. The appellate court however, held that the evidence let in by the prosecution proved beyond doubt that the petitioner had broken open the house of PW1 during night and committed theft of MO1 mobile phone. 7. The learned counsel for the petitioner would submit that even if the evidence tendered by the prosecution that MO1 was recovered from the possession of the petitioner is believed, there cannot be a successful prosecution against him. Since PW1 had not lodged any complaint, the other articles which were allegedly stolen have not been recovered and the evidence of PW1 alone is available to prove theft, the prosecution could only fail. The learned counsel pointed out that no worthwhile investigation was conducted by PW4 and by placing reliance on the statement of PW1 alone, the prosecution was launched against the petitioner. When PW1 did not lodge a complaint despite loss of very valuable articles, that too after breaking open the house, his credibility is at stake. The alleged recovery was on 01.11.2009 whereas the alleged theft was on 28.08.2009. When PW1 did not lodge a complaint despite loss of very valuable articles, that too after breaking open the house, his credibility is at stake. The alleged recovery was on 01.11.2009 whereas the alleged theft was on 28.08.2009. By that delay itself, the prosecution cannot have a contention that the recovery of MO1 has a proximity to the act of theft. 8. PW1 explained why he has not lodged a complaint regarding the theft. He is employed abroad. On 28.08.2009, he was at home. On that day he along with members of his family went to his wife’s house. On the next morning he came back to find that there occurred the theft. Soon he had to go abroad and therefore he did not lodge a complaint. The fact that a complaint is not lodged against the theft shall not by itself makes the case of the prosecution altogether false. The question is whether the evidence tendered by the prosecution is unreliable or suspicious on account of that failure. 9. PW1 was cross examined at length. He had stated is quite convincing. There is absolutely no reason to doubt his veracity. Petitioner has no case that PW1 has even prior acquaintance with him. If so, there is absolutely no reason for him to state false in court. Therefore I find no reason to unsettle the findings of the court below that the evidence of PW1 proved that the theft as alleged by the prosecution. 10. PW2 is a witness to Ext.P1 and the seizure of the mobile phone from the possession of the petitioner. He stated regarding the search of the body of the petitioner and seizure of the mobile phone. He admitted his signature in Ext.P1 also. But he failed to identify MO1 as the mobile phone so seized. He was not cross examined by the petitioner. When his evidence stands reliable, his failure to identify MO1 in court does not matter. PW3 categorically deposed in court regarding the circumstances in which MO1 was seized from the possession of the petitioner. It was an accidental search and seizure . His evidence gets support from the oral testimony of PW2. PW3 identified MO1 in court. Therefore it stands proved that MO1 was seized from the possession of the petitioner on 01.11.2009. 11. Identification of MO1 by PW1 as his mobile phone is assailed by the learned counsel for the petitioner. It was an accidental search and seizure . His evidence gets support from the oral testimony of PW2. PW3 identified MO1 in court. Therefore it stands proved that MO1 was seized from the possession of the petitioner on 01.11.2009. 11. Identification of MO1 by PW1 as his mobile phone is assailed by the learned counsel for the petitioner. It is submitted that no documentary evidence such as, the purchase bill, document carrying IMEI number., etc were not produced and evidence of PW1 cannot therefore be believed. It is true that similar mobile phones would be available and the identification of MO1 by PW1 in court shall be approached with caution. PW1 stated convincingly that he purchased MO1 and gave it for the use to his son. Since it was in the custody of PW1 for quite some time, his identification of MO1 can certainly be believed. No inconsistency in that regard has been brought out also. 12. In such circumstances, the findings of the court below that MO1 was stolen from the house of PW1 stands proved. When such a stolen property was found in the possession of the petitioner, the presumption allowed under Section 114(a) of the evidence act is that he is the thief or he has received the same knowing it to be stolen. It is for him to explain for the possession. He tried to contend that MO1 was his own phone. But that plea is unsupported by any evidence or materials. 13. In such circumstances, the findings entered by the courts below that the petitioner had committed theft of MO1 from the house of PW1 after breaking it open cannot said to be perverse or improper. The fact that all the stolen articles were not recovered is not a reason to doubt the reliable evidence brought on record by the prosecution. In the circumstances I find no reason to interfere with the conviction of the accused under Section 457 and 380 of the IPC. 14. The sentence imposed is rigorous imprisonment for a period of 2 years and to pay a fine of Rs.2000/- under Section 457 of IPC and to undergo rigorous imprisonment for a period of 1½ years and to pay a fine of Rs.1500/- under Section 380 of the IPC. 15. 14. The sentence imposed is rigorous imprisonment for a period of 2 years and to pay a fine of Rs.2000/- under Section 457 of IPC and to undergo rigorous imprisonment for a period of 1½ years and to pay a fine of Rs.1500/- under Section 380 of the IPC. 15. Having regard to the submissions of the learned counsel for the petitioner, the affidavit filed by the 2 nd respondent that he has no further grievance against the petitioner and on an anxious consideration of the circumstances of the petitioner, I am of the view that the sentence imposed on him requires interference. The substantive sentence alone is modified. The petitioner is sentenced to undergo rigorous imprisonment for a period of 9 months under Section 457 of IPC and to undergo rigorous imprisonment for a period of 9 months under Section 380 of the IPC. Amount of fine and default sentence shall be the same. The terms of substantive sentence shall run concurrently. Set-off is allowed to the allowable extent. Revision petition is allowed to the above extent.