IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN WEDNESDAY, THE 29^TH 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:

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 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 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,