Kerala High Court
Madhavan vs State Of Kerala on 10 June, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
MONDAY, THE 10TH DAY OF JUNE 2024 / 20TH JYAISHTA, 1946
CRL.REV.PET NO. 1461 OF 2017
FROM JUDGMENT DATED 09.04.2013 IN CRIMINAL APPEAL NO.342
OF 2012 BY THE COURT OF ADDITIONAL SESSIONS JUDGE-I,
MAVELIKKARA AGAINST THE JUDGMENT DATED 18.08.2011 IN C.C
NO.454 OF 2010 BY THE COURT OF THE JUDICIAL FIRST CLASS
MAGISTRATE, KAYAMKULAM
REVISION PETITIONER/APPELLANT/ACCUSED NO.2:
MADHAVAN
AGED 33 YEARS,S/O.GOPALAN, KARUNANIDHI COLONY,
SEELANAICKENPATTI,SALEM TAMIL NADU-636201.
BY ADVS.
SRI.P.B.AJOY
SRI.T.M.DOLGOVE
RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE CIRCLE INSPECTOR OF
POLICE,KAYAMKULAM,THROUGH THE PUBLIC
PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM,
PIN-682031.
SMT.PUSHPALATHA M K - SR. GP
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
FINAL HEARING ON 03.06.2024, THE COURT ON 10.06.2024
DELIVERED THE FOLLOWING:
2
Crl.R.P.No.1461 of 2017
P.G. AJITHKUMAR, J.
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Crl.R.P.No.1461 of 2017
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Dated this the 10th day of June, 2024
ORDER
This is a revision petition filed under Section 397 read
with 401 of the Code of Criminal Procedure, 1973 against
the conviction and sentence of the petitioner concurrently by
the trial court and the appellate court. He along with two
others was convicted by the trial court for offences
punishable under Section 457 and 392 of the Indian Penal
Code, 1860 (IPC). The appeal preferred by the petitioner
was dismissed.
2. Heard the learned counsel for the petitioner and
the learned Public Prosecutor.
3. PW1 was residing in her house situated in
Koippallykarazhma Muri in Peringala Village. PW2 is his
daughter. Along with them, the newly born child of PW2 was
also there in the house. The incident took place on
15.09.2009. The allegation of the prosecution is that
accused Nos.1 to 3 criminally trespassed into the house
along its kitchen door at about 1.30 a.m and committed
theft of gold ornaments worn by PWs 1 and 2, money and
mobile phone kept in the almirah. The accused had
threatened PWs 1 and 2 in order for their committing the
theft. One of the mobile phones stolen from the house was
received by the 4th accused knowing it to be stolen. With
those allegations the final report was filed and the accused
were tried on a charge for the offences punishable under
Sections 457, 461, 392 and 411 read with 34 of the IPC.
4. The prosecution evidence consists of oral
testimonies of PW1 to 11, Exts.P1 to P14 and MOs 1 to 8.
The trial court after considering the said evidence in detail
found accused Nos.1 to 3 alone guilty of the offences
punishable under Section 457 and 392 read with 34 of the
IPC. Accused No.4 was acquitted. The petitioner who is
accused No.2 challenged his conviction and sentence in
Crl.Appeal No.342 of 2012 , but it was unsuccessful.
5. The prosecution rests on the evidence of PWs 1
and 2 to prove the criminal tresspass and theft. They are
mother and daughter residing together in the same house.
Both of them deposed that at 1.30 a.m on 15.09.2009,
accused No.1 to 3 entered into their house by breaking open
the kitchen door. PW1 woke up hearing the cry of PW2. She
switched on the light and she saw 3 persons inside the
house. It is her further version that the assailants
threatened her and her daughter to handover the
ornaments. They took away the gold ornaments, mobile
phones and cash kept in the almirah and handbag. Earrings
of PW2 was forcibly removed. After threatening PWs 1 and 2
that they planted bombs in the house, the accused left.
Similar are versions of PWs 1 and 2 regarding the incident.
Along with that Ext.P1 FI statement was placed reliance on
by the courts below to hold that there occurred house
breaking and theft inside the house of PW1.
6. One of the stolen mobile phones was recovered
from the possession of accused No.4. It is MO6. MOs 1 to 4
ornaments were recovered from the possession of PW3 who
is a jeweler. All those articles were identified by PWs 1 and 2
as the stolen ones. On the very next morning PW1 went to
the police station and gave Ext.P1 FI statement. The
descriptions of the ornaments and also about the thieves
were given in Ext.P1, based on which PW10 registered Crime
No.715 of 2009. From Ext.P5 scene mahazar, the lie of the
house and forcible opening of the kitchen door are able to be
understood. From the said evidence and circumstances, the
oral testimonies of PWs 1 and 2 regarding the stealing of
gold ornaments, mobile phones and cash get sufficient
corroboration and hence the same can be believed. The
question remains is as to who committed the theft.
7. Accused No.4 was arrested by PW9 the
investigating officer on 04.12.2009. Accused Nos.1 to 3 were
arrested by PW9 on 16.02.2010. It is the version of PW9
that on the basis of the statement of accused No.4, MO6
mobile phone was recovered from his house. Ext.P6 is the
mahazar for the same. The further version of PW9 is that
based on the statement of the 1st accused, MO1 series
bangles were recovered from the possession of PW3, based
on the statement of the 2nd accused, MOs 2 and 3 rings were
recovered from the possession of PW3 and MO4 series rings
were recovered from the possession of PW3 based on the
statement of accused No.3. Exts.P2, P3 and P4 are the
respective mahazars. Ext.P2(a), P3(a) and P4(a) are
respectively the statements of those accused. The said
version of PW9 was not supported by PW3. PW3 deposed
that police threatened him that unless he produced the gold
ornaments, he would be implicated in the case, and
therefore he purchased, through his friend, gold ornaments
and gave to police. Therefore the evidence of PW4 is not
available to the aid of the prosecution to prove the recovery.
8. PW3 had filed CMP No.9060 of 2010 claiming
custody of the gold ornaments seized from his possession.
The said petition was dismissed by the trial court holding
that he did not establish his right over the said articles.
When the statement of accused Nos.1 to 3 helped PW9 to
reach at PW3 and effect recovery of MOs 1 to 4, his resiling
from his statement before the police makes him an
untrustworthy witness. When PWs 1 and 2 identified MOs 1
to 4 as their stolen articles, the evidence tendered by PW9
regarding the recovery of those articles which gets support
from the respective mahazars stands reliable. After
appreciating the said evidence together with the attending
circumstances, the trial court as well as the appellate court
reached the concurrent finding that accused Nos.1 to 3 were
guilty of the offences of house trespassing by night and
robbery. Sustaining of injury by PW1 in the coarse of forcible
removal of her ornaments as also the threat to PWs 1 and 2
by the accused were deposed by these witnesses. I find no
reason to disbelieve that version. In the circumstances, I
find no reason to unsettle the concurrent findings by the
courts below.
9. The power of revision under Section 401 of the
Code is not wide and exhaustive. The High Court in the
exercise of the powers of revision cannot re-appreciate
evidence to come to a different conclusion, but its
consideration of the evidence is confined to find out the
legality, regularity and propriety of the order impugned
before it. When the findings rendered by the courts below
are well supported by evidence on record and cannot be said
to be perverse in any way, the High Court is not expected to
interfere with the concurrent findings by the courts below
while exercising revisional jurisdiction. [See: State of
Kerala v. Puttumana Illath Jathavedan Namboodiri
(1999) 2 SCC 452; Sanjaysinh Ramrao Chavan v.
Dattatray Gulabrao Phalke (2015) 3 SCC 123; Kishan
Rao v. Shankargouda (2018) 8 SCC 165]. Viewed in the
light of the proposition of law laid down in the aforesaid
decisions, the findings of the courts below leading to the
conviction of the petitioner cannot be said to be perverse,
irregular or improper. Hence, the said concurrent findings of
the courts below are not liable to be interfered with by this
Court, in exercise of the powers of revision under Section
401 of the Code.
Accordingly, this revision petition is dismissed.
Sd/-
P.G. AJITHKUMAR
JUDGE
PV
