Prasad vs The State Of Kerala
2021 Latest Caselaw 1217 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                         PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

WEDNESDAY, THE 13TH DAY OF JANUARY 2021/23TH POUSHA, 1942

              Crl.Rev.Pet.No.835 OF 2003(C)

   AGAINST THE JUDGMENT IN Crl.Appeal (Jail) 661/2001
     DATED 13-11-2001 OF ADDITIONAL SESSIONS COURT,
                     NORTH PARAVUR

 CC 189/1994 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I,
                         ALUVA


REVISION PETITIONER/APPELLANT/1st ACCUSED:

           PRASAD,
           S/O.KRISHNANACHARI,
           C.No.2142, VIYYOOR CENTRAL PRISON.

           BY ADV. SRI.R.T.PRADEEP

RESPONDENT/RESPONDENT/COMPLAINANT:

           THE STATE OF KERALA,
           REPRESENTED BY
           THE DIRECTOR GENERAL OF PROSECUTION,
           ERNAKULAM.

              BY SENIOR PUBLIC PROSECUTOR SRI.M.S.BREEZ



     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 04-01-2021, THE COURT ON 13-01-2021 PASSED THE
FOLLOWING:
 Crl.R.P.No.835 of 2003


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                             ORDER

The revision petitioner is the 1 st accused in

C.C.No.189/1994 on the file of the Judicial First Class

Magistrate Court-I, Aluva and the appellant in Crl.Appeal

(Jail) No.661/2001 on the file of the Additional Sessions

Judge, North Paravur. The offences alleged against the

accused are punishable under Sections 454, 461 and 380

read with Section 34 of the Indian Penal Code (hereinafter

referred to as 'the IPC').

2. The prosecution case in brief is that on

25.9.1993 at 4.45 am., the accused 1 and 2 in furtherance

of their common intention broke open the house of PW1

and committed theft of gold ornaments and thereafter the

stolen articles were sold to accused Nos.3 to 5. The

accused Nos.3 to 5 received the gold ornaments knowing

that the gold ornaments were stolen articles. Crl.R.P.No.835 of 2003

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3. On appreciation of the evidence, the learned

Magistrate found accused Nos.3 and 4 not guilty of the

offences alleged against them and accordingly they were

acquitted. The case against accused No.5 was refiled as

C.C.No.344/2001. However, the accused 1 and 2 were

convicted and sentenced to undergo rigorous

imprisonment for two years each for the offence under

Section 454 of the IPC and also to undergo rigorous

imprisonment for three years each for the offence under

Section 380 of the IPC and to undergo rigorous

imprisonment for one year each for the offence under

Section 461 of the IPC. Set off was also allowed.

4. PW1 lodged Ext.P1 FIS before police on

25.9.1993 at about 5 pm. PW1 stated that his house was

broken open and his gold ornaments were stolen. The Sub

Inspector of Police, Aluva arrested the revision

petitioner/1st accused and the 2nd accused at Crl.R.P.No.835 of 2003

..4..

Thiruvananthapuram on 03.11.1993. On the information

given by the revision petitioner/1st accused, accused Nos.2

to 5 were arrested.

5. According to PW1, his house was broken open

and gold ornaments were stolen on 25.9.1993. He would

say that 19 sovereigns of gold ornaments were stolen

from his custody. PW2 the wife of PW1 gave similar

evidence and identified MOs.1 series to 7. PW2 claimed

that MO1 series were purchased by PW1 for her and that

she received MOs.2 to 6 from her house.

6. Ext.P9 is the mahazar of the place of

occurrence. It is stated in Ext.P9 that wooden bars of the

window were broken and the almirah at the residence was

found broken open.

7. According to PW1, he had no document to show

ownership of MO1 series to MO6. However, PWs.1 and 2

identified MO1 series to MO6 before court. Crl.R.P.No.835 of 2003

..5..

8. PW3 claimed that the 1st accused had entrusted

MO5 with him for sale and that he in turn sold the same to

PW6. The Sub Inspector came to his house with the

accused on 03.11.1993. PW3 claimed to have pointed out

to the police PW6 who produced MO5. He is an attestor in

the seizure mahazar. PW3 identified MO5. PW6, who is

running a jewellery shop, stated that he had purchased

MO5 from PW3. He also contended that police came to his

shop and recovered MO5. PW7 is an attestor in the seizure

mahazar.

9. PW8 is running a private finance under the

name and style 'Girija Finance' and stated that the 1 st

accused sold MO2 to him for Rs.1,900/-. The police came

to him with the 1st accused. Accordingly, he produced

MO2. He is an attestor in Ext.P4 seizure mahazar.

10. PW5 is a financier advancing loan on the

security of gold ornaments. He claimed that one Crl.R.P.No.835 of 2003

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Udayakumar who is no more pledged a pair of studs.

According to him, the police came to him with the mother

of Udayakumar and he produced MOs.1 to 3 to the police

which, the latter took to custody as per Ext.P2.

11. PW14 is the fingerprint expert. Ext.P5 is his

report. PW14 examined the scene of occurrence on

26.9.1993 and developed 8 latent fingerprints from the

scene. Out of which one print was found fit for

comparison. On 29.10.1993, PW14 received the

fingerprint slip of the 1st accused from the Sub Inspector

of Police, Aluva. On examination, PW14 gave an opinion

that the fingerprint developed from the scene tallied with

the right thumb impression of the 1st accused.

12. PW19 the Sub Inspector of Police, Aluva

recorded Ext.P1 and registered the case. As part of

investigation, PW19 recovered MO7 series of broken

pieces of the wooden bars of the window from the place of Crl.R.P.No.835 of 2003

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occurrence. PW19 arrested the 1st accused on 03.11.1993

at 6 am. from the Railway Station, Thiruvananthapuram.

He recorded the Statement of the 1st accused at the

Thampannoor Police Station. On the basis of the

information, he recovered MO2. From his statement it is

disclosed that he had given studs to his mother for

pledging. On the information given by the mother, MO1

series were taken to custody from a financier, namely,

'Krishna Fund'.

13. PWs.3, 6 and 7 adduced evidence regarding the

recovery of MO5. PWs.1 and 2 identified MO5 as belonging

to them. MO1 series were recovered from Krishna Fund as

per the information furnished by the accused. The

evidence of PW14 and Ext.P5 would show that the

fingerprint of the 1st accused was found at the place of

occurrence. It has come out in evidence that the accused

was involved in several other cases. His fingerprint was Crl.R.P.No.835 of 2003

..8..

made available at the Crime Bureau. Hence the contention

that the accused was arrested on 03.11.93 and there was

no chance for collecting his fingerprint before that date

does not arise for consideration.

14. One of the basic importance of fingerprints is

that it helps in establishing identity of a person with

minimum time and efforts; and then enabling speedy

investigation. The fingerprint evidence has been referred

to as reliable piece of evidence. They are also permanent

and do not undergo any change. The distinguishing

features of the fingerprint are recorded by those who work

with the Government. A database or collection of these

prints is available to Law Enforcement Agencies in finding

someone and matching the prints for evidence in criminal

proceedings. In the case on hand, it was brought out that

the fingerprint of the accused was traced out from the

scene of occurrence and was compared with the Crl.R.P.No.835 of 2003

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fingerprint of the accused by the expert. The evidence

tendered by PW14 is admissible.

15. Both the trial court and the appellate court

concurrently held that the revision petitioner/1st accused

was guilty of the offences under Sections 380, 454 and

461 read with Section 34 of the IPC. Unless there is

violation of the procedure or perversity in reasoning

resulting in miscarriage or total failure of justice, it would

not be proper to interfere with the concurrent judgments

of conviction. There is nothing on record to show that the

view of evidence taken by the trial court as well as the

appellate court is perverse. Hence, the conviction under

Sections 380, 454 and 461 read with Section 34 of the

IPC is confirmed.

16. Coming to the question of sentence, the trial

court sentenced the accused to undergo rigorous

imprisonment for two years for the offence under Section Crl.R.P.No.835 of 2003

..10..

454 of the IPC and rigorous imprisonment for three years

for the offence under Section 380 of the IPC and rigorous

imprisonment for one year for the offence under Section

461 of the IPC respectively. The occurrence in this case

was on 25.9.1993. The sentence imposed against the 1 st

accused is reduced to two years for the offence under

Section 380 of the IPC. For the rest of the sentences

rendered no modification is required and the same stand

confirmed. The 1st accused is entitled to get admissible set

off as stated by the trial court in its judgment.

17. Resultantly, the criminal revision petition is

allowed in part. By sustaining the conviction under

Sections 380, 454 and 461 read with Section 34 of the

IPC, the sentence imposed by the trial court as well as the

appellate court for the offence under Section 380 of the

IPC is reduced to two years. For the rest of the offences,

the sentences imposed by the two courts below are Crl.R.P.No.835 of 2003

..11..

confirmed without any modification. The revision

petitioner is entitled to get admissible set off as stated by

the trial court in its judgment.

The Registry is directed to send back the records to

the trial court for execution of the sentence.

Sd/-

N.ANIL KUMAR, JUDGE skj