Kerala High Court
Sathyabhama vs State Of Kerala on 5 October, 2018
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
FRIDAY ,THE 05TH DAY OF OCTOBER 2018 / 13TH ASWINA, 1940
Crl.Rev.Pet.No. 3129 of 2006
AGAINST THE ORDER/JUDGMENT IN CRA 49/2003 of I ADL.D.C.,
TRIVANDRUM
AGAINST THE ORDER/JUDGMENT IN CC 673/2000 of JMFC-V, TVM
(SPL.COURT-MARKLIST CASES)
REVISION PETITIONER/APPELLANT/2ND ACCUSED:
SATHYABHAMA, AGED 46 YEARS, D/O. BHAVANI,
RESIDING AT PUTHANVILA LANE,
KUMARAPURAM, MEDICAL COLLEGE WARD,
CHERUVAKKAL VILLAGE.
BY ADV. SRI.SUMAN CHAKRAVARTHY
RESPONDENT/RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SRI.C.K.PRASAD (PUBLIC PROSECUTOR)
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 05.10.2018, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.Rev.Pet.No. 3129 of 2006
-2-
O R D E R
The revision petitioner herein is the second accused in C.C. No. 673 of 2000 of the Judicial First Class Magistrate Court-v, Thiruvananthapuram. She and the first accused faced prosecution before the court below on the allegation that at the instance of the revision petitioner, the first accused committed theft of some gold ornaments from the house of one Joseph by braking open the door of the house to gain entry. The police registered the crime on the complaint made by the said Joseph, and during investigation, the two accused were arrested. The stolen articles were recovered by the police at the instance of the first accused on the basis of the statements given by him under Section 27 of the Indian Evidence Act, and such recovery was made at the house of the second accused. After investigation, the police Crl.Rev.Pet.No. 3129 of 2006 -3- submitted final report against the two accused under Sections 454, 461, 380 and 414 read with Section 109 of the Indian Penal Code.
2. The two accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against them. The prosecution examined six witnesses, and proved Exts.P1 to P3 documents in the trial court. The MO1 gold chain was also identified during trial.
3. The accused denied the incriminating circumstances when examined under Section 313 Cr.P.C.. They did not adduce any oral evidence, but Ext.D1 was proved on their side.
4. On an appreciation of the evidence, the trial court found the first accused guilty under Sections 454, 461 and 380 IPC, and he was sentenced to undergo different terms of jail sentence. Though the prosecution alleged that the Crl.Rev.Pet.No. 3129 of 2006 -4- commission of offence by the first accused was abetted by the second accused, the trial court did not find such a case against the second accused. However, the trial court found the second accused guilty under Section 414 IPC, and she was sentenced to undergo simple imprisonment for three moths, and to pay a fine of Rs. 500/-. She was not found guilty under Sections 454, 461 and 380 read with Section 109 IPC.
5. Aggrieved by the judgment of conviction under Section 414 of IPC, the second accused approached the Court of Session, Thiruvananthapuram, with Crl.A. No. 49 of 2003. In appeal, the learned First Additional Session Judge confirmed the conviction and sentence, and accordingly, dismissed the appeal. Now the second accused is before this Court in revision, challenging the legality and propriety of the Crl.Rev.Pet.No. 3129 of 2006 -5- conviction and sentence.
6. On a perusal of the materials, I find that there is no satisfactory evidence to prove the guilt of the second accused beyond reasonable doubt.
7. Of the six witnesses examined in the trial court, PW1, PW2 and PW6 are the main witnesses. The MO1 gold chain was identified by PW1 and PW2 during trial. This was recovered by the police at the instance of the first accused, and the recovery was made at the house of the second accused. PW6 recovered the gold chain on the basis of the statements given by the first accused under Section 27 of the Indian Evidence Act, and he was convicted by the trial court under Sections 454, 461 and 380 IPC. Even according to the prosecution, theft was actually committed by the first accused, and the prosecution would allege Crl.Rev.Pet.No. 3129 of 2006 -6- that the first accused committed the offences at the instigation of the second accused. But this was found against by the trial court, and the trial court found the second accused guilty only under Section 414 IPC, for having assisted the first accused to conceal the stolen article. So the question for consideration in the revision is whether there is satisfactory evidence to prove that the second accused had in any manner assisted the first accused to conceal or dispose of the stolen article.
8. The finding of the trial court as against the second accused is mainly contained in paragraph 7 of the trial court judgment that "she can only be found liable for the offence under Section 414 IPC as purchased or concealed MO1". Thus, it is quite clear that the trial court has not come to a definite finding whether the Crl.Rev.Pet.No. 3129 of 2006 -7- liability of the second accused is under Section 414 IPC or under Section 411 IPC. What is required for a finding or conviction under Section 414 IPC is that the main accused who committed theft was assisted by another person to conceal or dispose of the stolen article. Recovery of the stolen article was made at the instance of the first accused, and such recovery was made at the house of the second accused. To prove this fact, or the role of the second accused in any manner, there is only the evidence of PW6. Just because recovery was made at the house of the second accused, she cannot be found guilty under Section 414 IPC. There must be clear evidence to show that the stolen article was concealed by her at her house. If the concealment was made by the first accused himself, the second accused cannot be convicted. For a conviction under Section 414 IPC, there must be evidence to prove that the second accused had active role and Crl.Rev.Pet.No. 3129 of 2006 -8- complicity in concealing the stolen article, and the concealment should have been made by the second accused. Anyway, I find that the trial court itself has not come to a definite finding regarding the liability of the second accused, as to whether it is under Section 414 IPC or 411 IPC. In this case, there is no charge under Section 411 IPC, and there is also no finding under Section 411 IPC. Even if the finding possible at the best is Section 411 IPC, the second accused cannot be convicted now under Section 411 IPC in the absence of a definite charge under Section 411 IPC. I find that in the absence of proper and satisfactory evidence to prove the offence under Section 414 IPC, the second accused is entitled for acquittal.
In the result, this revision petition is allowed. The revision petitioner is found not guilty of the offence under Section 414 IPC, and Crl.Rev.Pet.No. 3129 of 2006 -9- accordingly, she is acquitted of the offence in revision. The conviction and sentence against the revision petitioner in C.C. No. 673 of 2000 of the trial court, confirmed in appeal by the Court of Session, Thiruvananthapuram, in Crl.A.No. 49 of 2003, will stand set aside.
Sd/-
P.UBAID JUDGE ds 6.10.2018