RAVEENDRAN Vs. STATE OF KERALA

JUDGEMENT

(1.) ACCUSED in C.C.No.43/96 on the file of Judicial First Class Magistrate -I,Aluva who was convicted and sentenced to rigorous imprisonment for one year for the offence under S.379 of Indian Penal Code is the revision petitioner.Charge against petitioner was that on the night of 25.5.1995 petitioner committed theft of MO1 gold chain from the neck of PW 1 while she was sleeping in her room by opening the window near to the place where she was sleeping and thereby committed offence under S.379 of Indian Penal Code.Petitioner pleaded not guilty.Prosecution examined 6 witnesses and marked Exts.P1 to P3 and identified MO1.Learned Magistrate on the evidence found him guilty and convicted and sentenced him as stated earlier.Petitioner challenged the conviction and sentence before Addl.Sessions Judge,N.Paravur in Crl.Appeal No.356/2000.Learned Addl.Sessions Judge on reappraising evidence confirmed conviction and sentence which is challenged in the revision preferred from jail.

(2.) REVISION petitioner would contend that courts below did not properly appreciate the evidence and the fact that there was no complaint or information furnished by PW 1 or her mother PW 2 with regard to theft till the recovery of MO1 under Exhibit P2 was made,was not properly appreciated and there is no evidence to prove that there was a theft as alleged or that recovery was made from the petitioner and therefore conviction and sentence is unsustainable.

(3.) EVIDENCE of PW 1,the daughter and the mother establish that they were sleeping in one room on the night of May 1995 when somebody snatched the chain from the neck of PW 1,while she was sleeping in a cot near to the window of the room.Adv.Mr.Krishna kumar vehemently argued that there is discrepancy between the evidence of PW 1 and PW 2 with regard to the exact location of the room where they were sleeping and when PW 1 deposed that she was sleeping in the south western room,evidence of PW 2 was that she was sleeping in the eastern room and therefore there was no consistent case even with regard to the scene of occurrence and therefore evidence of PWs 1 and 2 should have been disbelieved.Ext.P2 scene mahazar shows that south western room is the scene of occurrence.Evidence of PW 1 is also to that effect.I find no reason to disbelieve the evidence of PW 1.Learned counsel then argued that there was no complaint and even on this aspect there is no consistent case.Learned counsel pointed out that PW 1 in chief examination deposed that a complaint was filed and in cross examination stated that a complaint was filed by PW 2 and PW 2 in chief examination also deposed that a complaint was filed and according to prosecution no such complaint was filed and therefore the inconsistent evidence should have been properly appreciated to disbelieve their version.True,PW 1 deposed that a complaint was filed and when Police had come to the house and complaint was filed by PW 2.At the same time,PW 2 asserted that she has not filed any complaint.PW 2 in chief examination stated that a complaint was filed and then the mistake was realised by learned Public Prosecutor PW 1 was asked further question as to whether she had given the complaint in writing or orally.PW 2 then deposed that she did not go to the Police Station and did not give any complaint.Therefore on the evidence of PWs 1 and 2 it cannot be said that a complaint was preferred on the theft.The question is whether,the non filing of a complaint or non furnishing of an information about theft is fatal to the case.Courts below found that failure to lodge a complaint on theft was the absence of the husband of PW 2 who was gulf.Argument of learned counsel appearing for petitioner is that PWs 1 and 2 had no such case.Courts below came to the Conclusion relying on the evidence of PW 6 Investigating Officer.PW 6 was asked in cross examination with regard to the husband of PW 2 and PW 2 deposed that husband is in gulf.PW 6 deposed that it is the absence of husband of PW 2 was the reason for not furnishing information to the Police.On the fats and circumstances of the case,I find that failure to furnish a complaint is not fatal to the prosecution case and version of PW 1 that a complaint was filed is not correct.