The courts upheld a conviction under Section 379 IPC due to insufficient evidence for the original charges while emphasizing reliance on circumstantial evidence.

O R D E R

The accused in C.C No.577/1999 on the files of the Judicial First Class Magistrate Court, Kodungalloor has filed this revision petition, challenging his conviction and sentence for the offences under Sections 457 , 380 and 461 I.P.C by the said Court, which were upheld in Crl.A No.522/2003 of the Additional Sessions Court (Fast Track Court No.II-Adhoc) Adhoc, Thrissur.

2. The prosecution case is that the petitioner committed theft of 25 sovereigns of gold ornaments and a ladies wrist watch which belonged to PW1, in the midnight of 03.09.1998 by opening the window of the bedroom of the residence of PW1, and unfastening a suitcase kept in that bedroom by extending his hands through that window, and manipulating the lock of that suitcase.

3. Before the Trial Court, the prosecution examined 12 witnesses as PW1 to PW12, and brought on record 7 documents as Exts.P1 to P7. The stolen items recovered at the instance of the accused were marked as MO1 to MO3, MO4 series, MO5 to MO7, MO8 series and MO9 series. On the basis of the aforesaid evidence, the learned Magistrate found the petitioner guilty of commission of offences under Sections 457 , 461 and 380 I.P.C, and convicted him thereunder. He was sentenced to rigorous imprisonment for one year and fine Rs.3,000/- for the offence under Section 380 I.P.C, and rigorous imprisonment for one year, and fine Rs.500/- each for the offences under and 461 I.P.C. Default clauses of simple imprisonment for one year were provided for non-payment of the fine Rs.3,000/- imposed for the offence under I.P.C, and simple imprisonment for six months each for non-payment of the fines Rs.500/- each awarded for the offences under and 461 I.P.C. Though the petitioner challenged the aforesaid verdict in appeal, the learned Additional Sessions Judge declined to interfere with the findings of the learned Magistrate, and accordingly dismissed the appeal confirming the conviction and sentence awarded by the Trial Court. Aggrieved by the above concurrent verdicts of the Courts below, the petitioner is here before this Court with this revision petition.

4. As there was no representation from the part of the petitioner on repeated posting dates, notice was issued to him. The aforesaid notice was returned with the endorsement ‘not known’. In the above circumstances, Adv.Mr.Anwin John Antony was appointed as Amicus Curiae to represent the petitioner.

5. Heard the learned Amicus Curiae representing the revision petitioner, and the learned Public Prosecutor representing the State of Kerala.

6. The petitioner was prosecuted for the commission of the offences under Sections 457 , 461 and 380 I.P.C, solely on the basis of the circumstantial evidence brought out from the recovery of the stolen items at the instance of the petitioner. Though the theft involved in this case is said to have taken place in the midnight of 03.09.1998, the proceedings were initiated only after two months, when PW1 found her stolen gold chain (MO1) worn by the wife of the accused. The matter was reported to the police, leading to the recovery of the above gold chain. Investigations further revealed that the petitioner, along with his brother-in-law, had brought MO1 gold chain to the jewellery shop of PW10, who altered it by shortening the chain. PW10 had given evidence before the Trial Court in the above regard. The other stolen items which are marked as MO2, MO3, MO4 series, MO5 to MO7, MO8 series and MO9 series were also recovered on the basis of the information received by the Investigating Officer upon custodial interrogation of the petitioner. PW10 testified before the Court about the act of the accused handing over MO5 and MO6 also. It is by relying on the aforesaid evidence, that the Trial Court and the Appe