Benny @ Viswanathan, C.No.2623 vs State Of Kerala
2022 Latest Caselaw 2815 Ker

CRL.R.P NO.262/2018                    1




                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
     WEDNESDAY, THE 16TH DAY OF MARCH 2022 / 25TH PHALGUNA, 1943
                       CRL.REV.PET NO. 262 OF 2018
      AGAINST THE JUDGMENT IN CRL.A NO.79/2017 OF THE SESSIONS
                              COURT, PALAKKAD
     CC 2020/2014 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHITTUR
REVISION PETITIONER/S:

                BENNY @ VISWANATHAN, C.NO.2623
                AGED 43 YEARS
                CENTRAL PRISON AND CORRECTIONAL HOME,
                VIYYUR.P.O, THRISSUR

                BY ADV SMT. REMYA M L (STATE BRIEF)
RESPONDENT/COMPLAINANT:

                1. STATE OF KERALA, REPRESENTED BY THE
11




                   PUBLIC PROSECUTOR,
                   DISTRICT AND SESSIONS COURT, PALAKKAD.
                2. SUB INSPECTOR OF POLICE,
                   KOLLENGODE POLICE STATION,
                   PALAKKAD DISTRICT.

                BY SMT.M.K.PUSHPALATHA -SR.PUBLIC PROSECUTOR


         THIS    CRIMINAL   REVISION       PETITION   HAVING   COME   UP   FOR
ADMISSION ON 16.03.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
 CRL.R.P NO.262/2018              2




                             O R D E R

This revision petition has been directed against the judgment

in Crl.A (Jail) No.79/2012 dated 8.8.2017 on the file of the

Session Court, Palakkad (for short 'the appellate court') confirming

the judgment in C.C.No.2020/2014 dated 24.2.2016 passed by the

Judicial First Class Magistrate Court, Chittur (for short 'the trial

court').

2. The 1st accused is the revision petitioner. He faced

trial for the offences punishable under Sections 457, 380 and 461

r/w 34 of IPC.

3. The prosecution case in short is that the revision

petitioner along with the 2nd accused in furtherance of their

common intention to commit theft, broke into the house of CW8

Asharaf Khan at Kuttamkuzhi in Kollengode on 8.4.2011 at around

4 am., and stealthily infiltrated into and thieved away the gold

chain of 4 sovereigns worn by the de facto complainant (PW1) and

another gold chain of 1 sovereign worn by her daughter and few

other ornaments kept in the almarah as well while they were in

deep sleep and the accused also had stolen away a gold bracelet of

3 1/2 sovereigns and a pair of ear rings of 1/4 sovereigns kept in

an almarah and thus looted away the jewels totally worth

Rs.1,10,000/- from the said house.

4. The revision petitioner alone faced trial. Since the 2nd

accused was absconding, the case as against him was split up.

5. On the side of the prosecution, PWs 1 to 9 were

examined and Exts.P1 to P13 were marked. MOs1 to 3 were

identified.

6. After trial, the court below found the revision petitioner

guilty under Sections 457, 380 and 461 r/w 34 of IPC. He was

sentenced to undergo simple imprisonment for a period of three

years and to pay a fine of Rs.1,000/-, in default to undergo simple

imprisonment for a period of one month for the offence punishable

under Section 457 r/w 34 of IPC, to undergo simple imprisonment

for a period of two years and to pay a fine of Rs.1,000/-, in

default to undergo simple imprisonment for a period of one month

for the offence punishable under Section 380 r/w 34 of IPC. He

was further sentenced to undergo simple imprisonment for a period

of one year for the offence under Section 461 r/w 34 of IPC. The

substantive sentences were ordered to be run concurrently.

Aggrieved by the said conviction and sentence, the revision

petitioner preferred appeal, which was dismissed by the appellate

court. Challenging the conviction and sentence passed by both the

courts below, the revision petitioner preferred this revision.

7. I have heard Smt.Remya M.L, the learned counsel (State

Brief) appearing for the appellant and Smt.M.K.Pushpalatha, the

learned Senior Public Prosecutor.

8. The prosecution mainly relied on the evidence of PWs.

1, 2, 3, 4, 5, 7, 9 and 10 to prove the incident and to fix the

culpability on the accused. PW1 is the de facto complainant.

Ext.P1 first information statement was marked through her. She

clearly deposed that while she was sleeping at her house on

8.4.2011, she felt somebody pulling the gold chain worn by her

and though she made an attempt to hold him, he overpowered her

and escaped through the front door of the house. She further

deposed that on hearing her hue and cry, her father, PW5, got

up and searched all over the house. She also deposed that they

could detect that the gold chain worn by her child was also taken

away and on further search, they could find that the jewels kept

in the almarach was also thieved away. She clearly identified the

accused at the box. She also identified the gold ingot alleged to

have been seized by the police, which was marked as MO1. PW5,

the father of PW1 gave evidence in tune with the evidence given

by PW1. However, he could not identify the accused. To

corroborate the evidence of PWs 1 and 5, the prosecution has

adduced the evidence regarding the recovery of gold ornaments.

The evidence of PW8 along with PWs 2, 4 and 10 would show

that after the revision petitioner was arrested, he was released in

police custody and on the basis of the disclosure statement made

by him, the gold ingot weighing 30.05 grams made out of the

stolen gold sold away by him to the jeweller was recovered as per

ext.P2 seizure mahazar. The jeweller was examined as PW2. The

confession statement was proved through PW8, the Circle Inspector

of Police, Kollengode who recovered MO3 gold ingot. The police

officer who accompanied PW8 for effecting the recovery was also

examined as PW4. Thus, the recovery of gold ingot consequent to

the disclosure statement made by the revision petitioner stands

clearly proved. Both the courts below concurrently found that the

prosecution has succeeded in establishing beyond reasonable doubt

that the revision petitioner has committed the offences as alleged.

9. It is settled that the jurisdiction of the High Court in

revision is severally restricted and it cannot embark upon re

appreciation of evidence. The Apex Court in State Of Maharashtra

vs Jagmohan Singh Kuldip Singh Anand and others (2004(7) SCC

659) has held that while exercising the revisional powers under

Section 397 r/w 401 of Cr.P.C, the court is required to find out if

there is any illegality or impropriety in the findings of the trial

court and it is not open to the High Court to exercise the

revisional powers as a second appellate forum. Since there are

concurrent findings of two courts below, this Court should be slow

in invoking the revisional powers under Section 397 r/w 401 of

Cr.P.C. I have carefully gone through the entire records, evidence,

proceedings and judgments of the two courts below. I find no

impropriety or illegality therein warranting interference in exercise

of revisional powers vested with this Court. That apart, the

learned Public Prosecutor submitted that the revision petitioner has

already suffered the sentence and he was already released from jail

on 27.10.2018.

For the reasons stated above, the Crl.Revision Petition stands

dismissed.

Sd/-

DR. KAUSER EDAPPAGATH JUDGE ab