The revisional jurisdiction does not permit re-appreciation of evidence unless findings are perverse, and recovery of stolen property is admissible under Section 27 of the Evidence Act.

ORDER :

Kauser Edappagath, J. 

This revision petition has been directed against the judgment in Crl.A No.51 of 2005 dated 05.04.2006 on the file of the Additional District & Sessions Court (Adhoc-I), Thodupuzha (for short 'the appellate court') as well as the judgment in C.C.No.87 of 2002 dated 02.02.2005 on the file of the Judicial First Class Magistrate Court, Idukki (for short 'the trial court')

2. The 3^rd accused is the revision petitioner. He along with the 1^st accused faced trial for the offences punishable under Sections 454, 380 r/w 34 of IPC. There were altogether three accused. Since the 2^nd accused was found to be juvenile, the case against him was split up and forwarded to the Juvenile Court, Thodupuzha.

3. The prosecution case, in short, is as follows:-

On 20.12.2001 at 12 noon, the accused persons, in furtherance of their common intention, broke open the lock of the outer door of the dormitory No.176 of the PWD building situated at Ward No.VI of the Vazhathoppu Panchayath, criminally trespassed into the room, and committed theft of gold elus (MO1) weighing 2 grams, worth Rs.800/- belonging to PW1 and thereby committed the offences.

4. On the side of the prosecution, PWs 1 to 10 were examined and Exts.P1 to P5 were marked. On the side of the defence, DWs 1 and 2 were examined and Ext.D1 was marked. MO1 was identified. After trial, the trial court found the 3^rd accused guilty for the offences punishable under Sections 454 and 380 of IPC and he was convicted for the said offences. He was sentenced to undergo rigorous imprisonment for a period of six months each and to pay a fine of Rs.1,000/- each under Sections 454 and 380 of IPC, in default to suffer rigorous imprisonment for one month. The substantive sentence were ordered to run concurrently. The 1^st accused was found not guilty and was acquitted of all the offences charged. The 3^rd accused preferred appeal before the appellate court challenging the conviction and sentence. The appellate court confirmed the conviction but modified and reduced the sentence to simple imprisonment for a period of one month each and to pay a fine of Rs.500/- each for the offences punishable under Sections 454 and 380 of IPC, in default to suffer simple imprisonment for 15 days. This revision petition has been filed challenging the conviction and sentence passed by the trial court as well as the appellate court.

5. I have heard Sri.Shahbaz Aman, the learned counsel for the revision petitioner and Sri.E.C.Bineesh, the learned Public Prosecutor.

6. The learned counsel for the petitioner submitted that there is no eyewitness to the incident and the conviction is based solely on the recovery of gold elus under Section 27 of the Evidence Act, which has not been legally proved. The learned counsel further submitted that PW1 did not properly identify MO1. On the other hand, the learned Prosecutor submitted that the prosecution has established the case beyond reasonable doubt through the evidence of PW1, 2, 5, 6 and 7 and re-appreciation of evidence is impermissible in a revision filed under Sections 397 r/w 401 of Cr.P.C.

7. The prosecution mainly relied on the evidence of PW1 and also the recovery of MO1, consequent to the confession statement made by the petitioner, to prove its case and to fix the culpability on the petitioner. PW1 is the de facto complainant and the owner of the stolen property. It is not much in dispute that he was residing in the room where the theft took place. The evidence of PWs 1, 3 and 4 would clearly prove that the theft had taken place in the room where PW1 was residing on 20.12.2001. Admittedly, there is no direct evidence to prove the theft of MO1 by the petitioner. The recovery of MO1 from the private financial institution run by PW5 was heavily relied on by the prosecution. PW10, the investigating officer, deposed that, after the arrest of the petitioner, on questioning, he stated that he had pledged the gold elus (MO1) at a financing institution at Cheruthoni for R