Kerala High Court
Biju vs State Of Kerala on 29 May, 2024
Author: P.Somarajan
Bench: P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
WEDNESDAY, THE 29TH DAY OF MAY 2024 / 8TH JYAISHTA, 1946
CRL.REV.PET NO. 478 OF 2024
CRIME NO.110/2007 OF PEROORKADA POLICE STATION, THIRUVANANTHAPURAM
AGAINST THE JUDGMENT DATED 25.06.2015 IN CRA NO.178 OF 2013 OF
ADDITIONAL SESSIONS COURT-I, THIRUVANANTHAPURAM
AGAINST THE JUDGMENT DATED 09.04.2013 IN CC NO.951 OF 2008 OF
JUDICIAL MAGISTRATE OF FIRST CLASS -V(SPECIAL COURT FOR MARKLIST
CASES), THIRUVANANTHAPURAM
REVISION PETITIONER/APPELLANT/ACCUSED:
BIJU, AGED 37 YEARS,
S/O. CHANDRA BABU, KANAVILA VEEDU, NEAR KUNDUKULAM
RADIO PARK, GUMASTHAN KUNNU, THOPPICHANTHA, MELATTINGAL
VILLAGE, CHIRAYINKEEZHU TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN - 691502
BY ADV SHAJIN S.HAMEED
RESPONDENT/RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM, PIN - 682031
PP SRI SANGEETHARAJ N R
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.REV.PET NO. 478 OF 2024
2
ORDER
This revision is against the conviction of
accused for the offence under Section 392 IPC and the
order of sentence by the trial court and the first
appellate court. It was brought under challenge based
on the reason that the identity of the accused was
not proved satisfactorily. The name of accused did
not find a place either in the FIS or FIR. No test
identification parade was conducted and as such, the
identification made by the victim while in the box
cannot be relied on, it was argued. But it is a case
wherein the alleged article of theft was recovered in
the form of gold ingots from a jewellery based on the
alleged disclosure statement while under police
custody. PW3 had deposed in tune with the prosecution
case regarding the entrustment of gold chain and its
conversion to gold ingots, which was recovered based
on the disclosure statement. The accused did not
forward any explanation as to the possession of gold
chain alleged to have been given to PW3 recovered in
CRL.REV.PET NO. 478 OF 2024
pursuance of disclosure statement in the form of gold
ingots. The unexplained possession would sufficiently
bring home the guilt of accused and the recovery can
safely be brought under the purview of an admissible
evidence under Section 27 of the Evidence Act, which
would sufficiently prove both the identity and guilt
of accused. The concurrent judgment of conviction
regarding theft of gold chain hence deserves no
interference.
2. In order to bring home the larger offence
punishable under Section 392 IPC, mere commission of
theft alone is not sufficient. In order to attract
the larger offence punishable under Section 392 IPC,
if it is pertaining to theft, there should be
allegation that the accused voluntarily causes or
attempt to cause death, hurt or wrongful restraint or
fear of instant death or of instant hurt or of
instant wrongful restraint to any person in the
course of commission of theft or carrying away the
article of theft, otherwise, the larger offence under
CRL.REV.PET NO. 478 OF 2024
Section 392 IPC will stand attracted. In the instant
case, no such allegation is raised pertaining to
causing voluntarily or attempt to cause death, hurt
or wrongful restraint or fear of instant death or
instant wrongful restraint either in the course of
commission of theft or in the course of carrying away
the article of theft. Necessarily, only a minor
offence punishable under Section 379 IPC will stand
attracted. Being a minor offence, it is not at all
necessary to frame charge for the said offence.
Hence, the conviction will stand modified to the
minor offence punishable under Section 379 IPC. The
accused/revision petitioner is found not guilty of
the larger offence punishable under Section 392 IPC,
hence acquitted of the said offence, but found guilty
of the offence under Section 379 IPC and is convicted
thereunder and sentenced to undergo simple
imprisonment for a period of one year and a fine
amount of Rs.25,000/- (Rupees Twenty Five Thousand
only), in default, to undergo simple imprisonment for
four months. On recovery of the fine amount, an
CRL.REV.PET NO. 478 OF 2024
amount of Rs.20,000/- shall be released to the
defacto complainant under Section 357(1)(b) Cr.P.C.
and rest of the amount shall be adjusted towards the
cost incurred by the State Government in prosecuting
the case. The petitioner shall appear before the
trial court within a period of two months from today.
The Criminal Revision Petition will stand allowed
in part accordingly.
Sd/-
P.SOMARAJAN
JUDGE
msp
