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2026 DAILYLAW 617 (KER)

Sajimon A/S Saji S/o Natesan v. State of Kerala

2026-06-01

Jobin Sebastian

body2026
ORDER : 1. This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure challenging the judgment dated 06.08.2015 in Criminal Appeal No. 355/2011 on the file of the Additional Sessions Judge-I, Alappuzha, arising out of the judgment dated 08.07.2011 in C.C. No. 696/2006 on the file of the Judicial First Class Magistrate Court-II, Cherthala, whereby the revision petitioner herein, along with the second accused in the said case, was found guilty and convicted for the offence punishable under Section 379 read with Section 34 of the Indian Penal Code . The revision petitioner herein is the first accused in the said case. 2. The prosecution case is that, on 27.06.2006 at about 10:45 a.m., while PW1, the de facto complainant, and PW2 were walking along the side of a public road, the accused persons, in furtherance of their common intention, came on a motorcycle bearing Registration No. KRA-8320, ridden by the 2nd accused with the 1st accused as the pillion rider, and the 1st accused snatched the gold chain weighing 1½ sovereigns worn by PW1, thereby committed theft of the said chain. Thus, the accused are alleged to have committed the offence punishable under Section 379 read with Section 34 of the Indian Penal Code . 3. During the trial, in order to bring home the guilt of the accused, the prosecution had examined eleven witnesses as PW1 to PW11 and marked Exts. P1 to P8. MO1 and MO2 were identified and marked. 4. After trial, the learned Magistrate found both the accused guilty of the offence punishable under Section 379 r/w 34 IPC and sentenced them to undergo Simple imprisonment for two years and to pay a fine of Rs.2,000/- each. In default of payment of the fine, the accused Nos.1 and 2 were ordered to undergo simple imprisonment for three months. 5. Aggrieved by the same, the accused preferred an appeal before the Sessions Court, Alappuzha. The learned Sessions Judge who heard the appeal confirmed the judgment of conviction as well as the order of sentence passed by the Trial Court and accordingly dismissed the appeal. Aggrieved thereby, the first accused has preferred the present revision petition. 6. Heard Sri.Syleshwaren Nair R., the learned counsel for the revision petitioner/1 s t accused, and Smt. Anima M., the learned Public Prosecutor, and also perused the records. 7. Aggrieved thereby, the first accused has preferred the present revision petition. 6. Heard Sri.Syleshwaren Nair R., the learned counsel for the revision petitioner/1 s t accused, and Smt. Anima M., the learned Public Prosecutor, and also perused the records. 7. The learned counsel for the revision petitioner contended that both the trial court and the appellate court erred in appreciating the evidence in its proper perspective and consequently arrived at a finding of guilt against the accused without a proper evaluation of the facts and evidence on record. According to the learned counsel, the identification of the accused by PW1, the de facto complainant, who allegedly lost her gold chain in the incident, is not reliable and cannot be safely acted upon, particularly in the absence of corroboration through a Test Identification Parade. The learned counsel also pointed out certain discrepancies in the testimonies of PW1 and PW2. It was further argued that the recovery evidence adduced by the prosecution constitutes only a weak piece of evidence and ought not to have been relied upon by the trial court for recording the conviction. On these premises, it was contended that the judgment passed by the appellate court, which is under challenge in this revision petition, is liable to be set aside and the accused is entitled to be acquitted. 8. Per contra, the learned Public Prosecutor submitted that the prosecution case is founded on the direct ocular testimony of PW1, which finds sufficient corroboration from the evidence of PW2 and the other prosecution witnesses. According to the learned Public Prosecutor, the recovery evidence adduced in the case also lends substantial support to the prosecution version, and therefore, there is no reason to interfere with the impugned judgment. It was further contended that there is no legal requirement that the testimony of an injured witness must necessarily be corroborated by independent evidence before it can be relied upon, provided that such testimony is otherwise found to be credible and trustworthy. 9. Before entering into a discussion on the rival contentions, it is pertinent to note that it is well settled through a series of judicial pronouncements that a court exercising revisional jurisdiction will interfere with the judgments or orders of the trial court or the appellate court only if the same suffer from illegality, impropriety, or perversity. 9. Before entering into a discussion on the rival contentions, it is pertinent to note that it is well settled through a series of judicial pronouncements that a court exercising revisional jurisdiction will interfere with the judgments or orders of the trial court or the appellate court only if the same suffer from illegality, impropriety, or perversity. Unless the judgment passed by the learned magistrate or by the appellate court is perverse or the view taken by the court is unreasonable, or there is non-consideration of any relevant material, or there is palpable misreading of records, the revisional court is not justified in interfering with the judgment. The revisional court cannot act like an Appellate Court. 10. In State of Kerala v. Jathavedan Namboodiri, AIR 1999 SC 981 , the Hon'ble Supreme Court held thus: “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 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.” 11 . Keeping the above principles in mind, while reverting to the case at hand, it is evident that the prosecution allegation is that the accused snatched the gold chain worn by PW1 while she was walking along the side of a public road. The consistent case of the prosecution is that the 1st accused, who is alleged to be the main perpetrator, came on a motorcycle along with the 2nd accused and snatched the gold chain belonging to PW1. To establish the guilt of the accused, the prosecution primarily relies upon the testimony of PW1, the victim of the occurrence. The consistent case of the prosecution is that the 1st accused, who is alleged to be the main perpetrator, came on a motorcycle along with the 2nd accused and snatched the gold chain belonging to PW1. To establish the guilt of the accused, the prosecution primarily relies upon the testimony of PW1, the victim of the occurrence. Both the trial court and the appellate court have placed reliance on the evidence of PW1, having found her testimony to be cogent, convincing and trustworthy, and capable of forming the basis of a conviction. I find no reason to interfere with the concurrent findings of the trial court and the appellate court regarding the credibility and reliability of PW1's testimony in proving the occurrence. Further, it is discernible from the impugned judgments that the evidence of PW1 finds sufficient corroboration from the testimony of PW2, who was examined as an independent eyewitness to the incident. I find no reason to disbelieve the evidence of PW1 and PW2, particularly when there is nothing on record to indicate that either of them harboured any animosity, ill will or ulterior motive against the accused to falsely implicate them in a case of theft. Their evidence inspires confidence and appears to be natural and consistent with the prosecution version. 12. The main contention raised by the learned counsel for the revision petitioner pertains to the identification of the accused by PW1 before the Court. According to the learned counsel, the evidence on record itself establishes that PW1 had no prior acquaintance with the accused. Therefore, the identification of the accused made for the first time before the Court, that too during the course of trial, cannot be safely relied upon, particularly in the absence of corroboration through an earlier Test Identification Parade. While considering the aforesaid contention, it is apposite to note that the substantive evidence regarding identification is the identification made before the Court. A Test Identification Parade is not substantive evidence; its purpose is only to lend assurance to the identification made in Court. Therefore, where the identification of the accused before the Court is found to be convincing and reliable, the absence of a Test Identification Parade is not, by itself, fatal to the prosecution case. It is only when the in-court identification appears doubtful or unreliable that the Court may look for corroboration from an earlier Test Identification Parade. Therefore, where the identification of the accused before the Court is found to be convincing and reliable, the absence of a Test Identification Parade is not, by itself, fatal to the prosecution case. It is only when the in-court identification appears doubtful or unreliable that the Court may look for corroboration from an earlier Test Identification Parade. In the case at hand, the evidence of PW1 discloses that she had sufficient opportunity to observe the accused at the time of the occurrence. Her testimony indicates that she was able to clearly see the faces of the accused from a close distance during the incident. In such circumstances, I find no reason to disbelieve the identification of the accused made by PW1 before the Court merely because no Test Identification Parade was conducted during the course of investigation. 13. Likewise, the trial court as well as the appellate court have duly considered and accepted the identification made by PW1, and I find no infirmity in the approach adopted by the trial court and the appellate court. The identification made by PW1 before the trial court inspires confidence and is capable of being relied upon. Consequently, the contention advanced by the learned counsel for the revision petitioner assailing the identification of the accused is devoid of merit and is liable to be rejected. 14. Moreover, in the present case, it is evident that the gold chain allegedly snatched from PW1 was subsequently recovered from the possession of the first accused. According to the prosecution, after the occurrence, the motorcycle in which the accused travelled met with an accident and when the police took them into custody in connection with the said incident, the stolen gold chain was found in the possession of the first accused. From the impugned judgment it is discernible that the prosecution had adduced convincing evidence to prove the recovery of the gold chain from the possession of the accused. 15. In view of the principles embodied under Section 114(a) of the Indian Evidence Act, 1872 , when stolen property is found in the possession of a person soon after the commission of theft, the Court may presume that such person is either the thief or a receiver of stolen property, unless the contrary is proved. 15. In view of the principles embodied under Section 114(a) of the Indian Evidence Act, 1872 , when stolen property is found in the possession of a person soon after the commission of theft, the Court may presume that such person is either the thief or a receiver of stolen property, unless the contrary is proved. In the present case, the recovery of the gold chain soon after the alleged occurrence from the possession of the second accused is a circumstance which justifies the drawing of such a presumption against the accused. When such a presumption arises, the burden shifts to the accused to offer a plausible explanation as to how he came into possession of the stolen property immediately after the theft. In the case at hand, no satisfactory explanation has been offered by the accused regarding such possession. Consequently, the only reasonable presumption that can be drawn is that the accused is either the thief or a receiver of stolen property. 16 . In short, I find no reason to interfere with the well-considered judgment passed by the trial court, which was confirmed on appeal by the learned Sessions Judge. However, having regard to the family and financial constraints of the first accused, as projected by the learned counsel for the revision petitioners, I am of the view that the sentence imposed by the appellate court is somewhat harsh and warrants interference. Moreover, considering the nature of the offence alleged, the year in which the incident occurred, and the other attending circumstances, I am of the view that some leniency can be shown in the matter of sentence. In the result, the revision petition is allowed in part. Accordingly, while confirming the conviction, the sentence imposed by the appellate court for the offence punishable under Section 379 read with Section 34 of the Indian Penal Code is modified as follows: (i) The 1st accused shall undergo simple imprisonment for one month and shall pay a fine of Rs.2,000/-. In default of payment of the fine, the first accused shall undergo simple imprisonment for seven days. (ii) Set-off is allowed.