Kerala High Court
Abdul Latheef vs The State Of Kerala on 10 October, 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE JOHNSON JOHN
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CRL.REV. PET. NO. 362 OF 2012
JUDGMENT DATED 10.01.2012 IN CRA NO.203 OF 2010 OF SESSIONS
COURT, KASARAGOD
JUDGMENT DATED 27.05.2010 IN CC NO.482 OF 2004 OF JUDICIAL
MAGISTRATE OF FIRST CLASS -II,HOSDRUG
REVISION PETITIONER/APPELLANT/3RD ACCUSED:
ABDUL LATHEEF
AGED 30 YEARS, S/O.ABDUL RAHIMAN, PALLIKKAL HOUSE,
KOTTIKULAM BEACH, PALLIKARA II VILLAGE, KASARAGOD DISTRICT.
BY ADV SRI. JAWAHAR JOSE
RESPONDENT/RESPONDENT/COMPLAINANT & STATE:
THE STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
BY SMT. MAYA M.N., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
08.10.2024, THE COURT ON 10.10.2024 DELIVERED THE FOLLOWING:
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JOHNSON JOHN, J.
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Crl. R.P No. 362 of 2012
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Dated this the 10th day of October, 2024.
ORDER
The revision petitioner is the third accused in C.C. No. 482 of 2004
of the Judicial First Class Magistrate Court-II, Hosdurg and the appellant
in Crl. Appeal No. 203 of 2010 of the Sessions Court, Kasaragod.
2. The trial court and the appellate court found the accused guilty
of the offences under Sections 457 and 380 of IPC and he is sentenced
to undergo rigorous imprisonment for 3 years and to pay a fine of
Rs.5000/- and in default of payment of fine, to undergo rigorous
imprisonment for a further period of 6 months for the offence under
Section 457 IPC. He is also sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.5000/- and in
default of payment of fine, to undergo rigorous imprisonment for a
further period of six months for the offence under Section 380 IPC.
Aggrieved by the concurrent findings of the trial court and the appellate
court, the accused filed the present revision petition.
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3. The prosecution case is that the petitioner, along with 3 other
accused, committed housebreaking by night by removing the roof tiles of
house No. V/389 of Uduma Panchayath owned by the de facto
complainant at about 3.30 a.m. on 29.8.2001 and committed theft of a
suitcase containing gold ornaments. The accused persons also
committed theft of a CD player and a rado watch owned by the de facto
complainant. Since the second accused was a juvenile, his case was
forwarded to the Juvenile Court and as accused Nos. 1 and 4 were
absconding, the case against them was split up.
4. In the trial court, PWs 1 to 8 were examined and Exhibits P1 to
P7 and MOs 1 to 4 were marked from the side of the prosecution and no
evidence adduced from the side of the accused.
5. After trial and hearing both sides, the petitioner was convicted
and sentenced as aforesaid. The findings of the trial court was
confirmed in appeal and aggrieved by the above concurrent findings of
the trial court and appellate court, the petitioner filed this revision
petition contending inter alia that the prosecution has not examined any
independent witness and that the conviction is solely based on the
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recovery effected by the Investigating Officer on the basis of the alleged
disclosure statement of the accused .
6.Heard the learned counsel for the revision petitioner and the
learned Public Prosecutor.
7. The Investigating Officer is examined as PW8 and his evidence
shows that when he questioned one Khader @ Abdul Khader in Crime
No. 270 of 2002 of Bekal Police Station, he got information about the
accused persons in this case and thereafter on 04.06.2004, he arrested
the third accused in this case. The evidence of PW8 in chief examination
shows that he recorded the confession statement of the accused and on
the basis of the disclosure statement of the accused that he kept two
bangles in a bag containing dress and that the said bag was kept under
a bench in his house and as led by the accused, the witness reached the
house of the accused along with the accused and as pointed out by the
accused, the bag and bangles were recovered. The seizure mahazar is
marked as Exhibit P4 and the relevant portion of the confession
statement of the accused is marked as Exhibit P4(a).
8. PW5 is an attesting witness in Exhibit P4, seizure mahazar and
he identified MO1 series bangles and his signature in Exhibit P4 mahazar.
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The evidence of PW5 shows that he accompanied PW8 at the time of
recovery of two bangles from a house. However, PW5 has deposed that
he cannot identify the person who was present in the jeep along with the
police. PW2 is the owner of the gold bangles and she identified MO1
series gold bangles before the court. The de facto complainant, who has
given Exhibit P1, First Information Statement, was no more at the time
of trial. PW1, who is the daughter of the de facto complainant, identified
the signature of the de facto complainant in Exhibit P1.
9. PW6 registered Exhibit P6 FIR. The learned counsel for the
petitioner argued that the de facto complainant has not given the
description of the gold ornaments in the First Information Statement and
he only stated that the bag contained 75 sovereigns of gold ornaments.
However, it is pertinent to note that PW3 has clearly deposed that the
suitcase containing gold ornaments was entrusted to PW1 through PW2
on 26.08.2001, when they left the place in connection with the marriage
of a near relative and on the next day, they came to know about the
theft.
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10. According to PW3, the gold ornaments in the stolen suitcase
belong to her and her sister PW2 and subsequently, the police recovered
two of the stolen bangles and she identified the same before the police.
PW3 identified her stolen bangles before the court as MO1 series. The
above evidence of PW3 before the court is not challenged in cross
examination. Even though PW8 was seriously cross examined, nothing is
brought out to discredit his evidence in chief examination regarding the
recovery of MO1 series bangles on the basis of the disclosure statement
of the accused.
11. It is well settled that the revisional court cannot act as an
appellate court and the power of the revisional court under Sections 397
to 401 Cr.P.C cannot be equated with the power of an appellate court. In
State of Kerala v. Puttumana Illath Jathavedan Namboodiri
[(1999) 2 SCC 452 = 1999 SCC (Cri) 275], the Honourable Supreme
Court held thus:
"5. ... In its revisional jurisdiction, the High Court can call for
and examine the record of any proceedings for the purpose of satisfying
itself as to the correctness, legality or propriety of any finding, sentence
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or order. In other words, the jurisdiction is one of supervisory
jurisdiction exercised by the High Court for correcting miscarriage of
justice. But the said revisional power cannot be equated with the power
of an appellate court nor can it be treated even as a second appellate
jurisdiction. Ordinarily, therefore, it would not be appropriate for the
High Court to reappreciate the evidence and come to its own conclusion
on the same when the evidence has already been appreciated by the
Magistrate as well as the Sessions Judge in appeal, unless any glaring
feature is brought to the notice of the High Court which would
otherwise tantamount to gross miscarriage of justice. On scrutinizing
the impugned judgment of the High Court from the aforesaid
standpoint, we have no hesitation to come to the conclusion that the
High Court exceeded its jurisdiction in interfering with the conviction
of the respondent by reappreciating the oral evidence. ..."
12. In Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao
Phalke [(2015) 3 SCC 123 = (2015) 2 SCC (Cri) 19], the
Honourable Supreme Court held thus:
"14. ... Unless the order passed by the Magistrate is perverse or
the view taken by the court is wholly unreasonable or there is non-
consideration of any relevant material or there is palpable misreading of
records, the Revisional Court is not justified in setting aside the order,
merely because another view is possible. The Revisional Court is not
meant to act as an appellate court. The whole purpose of the revisional
jurisdiction is to preserve the power in the court to do justice in
accordance with the principles of criminal jurisprudence. The revisional
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power of the court under Sections 397 to 401 CrPC is not to be equated
with that of an appeal. Unless the finding of the court, whose decision is
sought to be revised, is shown to be perverse or untenable in law or is
grossly erroneous or glaringly unreasonable or where the decision is
based on no material or where the material facts are wholly ignored or
where the judicial discretion is exercised arbitrarily or capriciously, the
courts may not interfere with decision in exercise of their revisional
jurisdiction."
13. As noticed earlier, in the present case, the trial court and the
appellate court found that the evidence of PW8, Investigating Officer,
regarding the recovery of MO1 series bangles on the basis of the
disclosure statement of the accused is reliable and trustworthy. Even
though, PW5, the witness to the recovery, deposed that he is not in a
position to identify the person who was present along with the police at
the time of recovery, his evidence clearly shows that he witnessed the
recovery of MO1, series gold bangles, by PW8 on 04.06.2004. The
evidence of PW3 that MO1 series gold bangles forms part of the gold
ornaments stolen from the house of the de facto complainant, is not
challenged in cross examination. Therefore, I find that the revision
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petitioner has not succeeded in establishing that the judgment under
challenge is vitiated due to any illegality, irregularity or error of law.
14. It is well settled that the High Court, in exercise of revisional
jurisdiction, shall not interfere with the impugned judgment, unless it is
perverse or wholly unreasonable or there is non-consideration of any
relevant material. It is also well settled that the impugned judgment
cannot be set aside merely on the ground that another view is possible.
15. In the present case, the trial court and the appellate court
found that the evidence of PW8 regarding the recovery of MO1 series
bangles on the basis of the disclosure statement of the accused is
supported by the evidence of PW3, the owner of the property and PW5,
attesting witness to the seizure mahazar.
16. Considering the nature and gravity of the offence, I find that
this is not a fit case to invoke the provisions of the Probation of
Offenders Act while exercising the revisional jurisdiction. Further, elapse
of time is not a ground to trivialize the seriousness of the crime
committed by the offender. It is pertinent to note that the trial court has
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already taken a lenient view in the matter of punishment and therefore,
I find that the sentence imposed by the trial court and confirmed by the
appellate court requires no modification. This revision petition is devoid
of merit and is liable to be dismissed.
In the result, this revision petition is dismissed.
sd/-
JOHNSON JOHN,
JUDGE.
Rv
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