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2025 DIGILAW 1390 (KER)

Anand, S/O. Sreedharan v. State of Kerala

2025-05-23

KAUSER EDAPPAGATH

body2025
ORDER : Kauser Edappagath, J. This revision petition has been directed against the judgment in Crl.A No.51 of 2005 dated 05.04.2006 on the file of the Additional District & Sessions Court (Adhoc-I), Thodupuzha (for short 'the appellate court') as well as the judgment in C.C.No.87 of 2002 dated 02.02.2005 on the file of the Judicial First Class Magistrate Court, Idukki (for short 'the trial court') 2. The 3 rd accused is the revision petitioner. He along with the 1 st accused faced trial for the offences punishable under Sections 454, 380 r/w 34 of IPC. There were altogether three accused. Since the 2 nd accused was found to be juvenile, the case against him was split up and forwarded to the Juvenile Court, Thodupuzha. 3. The prosecution case, in short, is as follows:- On 20.12.2001 at 12 noon, the accused persons, in furtherance of their common intention, broke open the lock of the outer door of the dormitory No.176 of the PWD building situated at Ward No.VI of the Vazhathoppu Panchayath, criminally trespassed into the room, and committed theft of gold elus (MO1) weighing 2 grams, worth Rs.800/- belonging to PW1 and thereby committed the offences. 4. On the side of the prosecution, PWs 1 to 10 were examined and Exts.P1 to P5 were marked. On the side of the defence, DWs 1 and 2 were examined and Ext.D1 was marked. MO1 was identified. After trial, the trial court found the 3 rd accused guilty for the offences punishable under Sections 454 and 380 of IPC and he was convicted for the said offences. He was sentenced to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each under Sections 454 and 380 of IPC, in default to suffer rigorous imprisonment for one month. The substantive sentence were ordered to run concurrently. The 1 st accused was found not guilty and was acquitted of all the offences charged. The 3 rd accused preferred appeal before the appellate court challenging the conviction and sentence. The appellate court confirmed the conviction but modified and reduced the sentence to simple imprisonment for a period of one month each and to pay a fine of Rs.500/- each for the offences punishable under Sections 454 and 380 of IPC, in default to suffer simple imprisonment for 15 days. The appellate court confirmed the conviction but modified and reduced the sentence to simple imprisonment for a period of one month each and to pay a fine of Rs.500/- each for the offences punishable under Sections 454 and 380 of IPC, in default to suffer simple imprisonment for 15 days. This revision petition has been filed challenging the conviction and sentence passed by the trial court as well as the appellate court. 5. I have heard Sri.Shahbaz Aman, the learned counsel for the revision petitioner and Sri.E.C.Bineesh, the learned Public Prosecutor. 6. The learned counsel for the petitioner submitted that there is no eyewitness to the incident and the conviction is based solely on the recovery of gold elus under Section 27 of the Evidence Act, which has not been legally proved. The learned counsel further submitted that PW1 did not properly identify MO1. On the other hand, the learned Prosecutor submitted that the prosecution has established the case beyond reasonable doubt through the evidence of PW1, 2, 5, 6 and 7 and re-appreciation of evidence is impermissible in a revision filed under Sections 397 r/w 401 of Cr.P.C. 7. The prosecution mainly relied on the evidence of PW1 and also the recovery of MO1, consequent to the confession statement made by the petitioner, to prove its case and to fix the culpability on the petitioner. PW1 is the de facto complainant and the owner of the stolen property. It is not much in dispute that he was residing in the room where the theft took place. The evidence of PWs 1, 3 and 4 would clearly prove that the theft had taken place in the room where PW1 was residing on 20.12.2001. Admittedly, there is no direct evidence to prove the theft of MO1 by the petitioner. The recovery of MO1 from the private financial institution run by PW5 was heavily relied on by the prosecution. PW10, the investigating officer, deposed that, after the arrest of the petitioner, on questioning, he stated that he had pledged the gold elus (MO1) at a financing institution at Cheruthoni for Rs.550/- and he would point out the pawnbroker of the financial institution. He further deposed that thereafter as led by the petitioner he went to the financial institution of PW5, who produced the MO1 and he seized it as per Ext.P3 recovery mahazar. He further deposed that thereafter as led by the petitioner he went to the financial institution of PW5, who produced the MO1 and he seized it as per Ext.P3 recovery mahazar. The defence set up by the petitioner is that MO1 belongs to him and that he had pledged MO1 with PW5. Here is a case where the petitioner as well as the PW1 claimed that they are the owners of MO1. As stated already, it had come out in evidence that a theft had taken place at the room where PW1 was residing on 20.12.2001 and the matter was reported to the police. PW1 categorically stated that he used MO1 gold elus for 8 years and he could easily identify it. He also stated that there were some folding on MO1 by which he could identify it. He clearly identified MO1 at the court. That apart, it is pertinent to note that when PW1 was examined, the petitioner had no case that MO1 did not belong to PW1 but it belonged to him. Such a defence was set up later on, when PW10, the investigating officer was put in box. PW5 categorically deposed that he was the Manager of a private finance institution at Cheruthoni by name Aiswarya Bankers and the 3 rd accused came to his institution and pledged MO1, gold elus and subsequently, after two days, the police came with the petitioner and he produced the MO1 to the police. Thus, the recovery of MO1, consequent to the disclosure statement made by the petitioner while in police custody, stands proved from the evidence of PWs 1, 5 and 10. It is admissible under Section 27 of the Evidence Act. Both the appellate court and the trial court concurrently believed the evidence let in by the prosecution regarding the recovery. I see no reason to interfere with the said factual finding. 8. It is well settled that the revisional jurisdiction under Sections 397 and 401 of Cr.P.C was to confer power upon superior criminal courts a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precautions or apparent harshness of treatment. It has been consistently held by the Supreme Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. It has been consistently held by the Supreme Court that the jurisdiction of the High Court in revision is severely restricted and it cannot embark upon re-appreciation of evidence. In Shlok Bhardwaj v. Runika Bhardwarj and others [ (2015) 2 SCC 721 )], the Supreme Court held that the scope of revisional jurisdiction of the High Court does not extend to re-appreciation of evidence. Since there are concurrent findings of the appellate court and the trial court, this Court would be circumspect in invoking the revisional powers under Sections 397 r/w 401 of the Code of Criminal Procedure. It is only if the decision rendered by the appellate court and the trial court can be said to be either perverse, arbitrary or capricious, this Court can invoke such powers. 9. I have carefully gone through the entire records, evidence, proceedings and the judgments of the appellate court and the trial court. I find no impropriety or illegality therein warranting interference under the exercise of revisional powers vested with the courts. The sentence imposed by the appellate court also appears to be reasonable. There is no merit in the Criminal Revision Petition and accordingly it is dismissed.