IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 13TH JANUARY 2009 / 23RD POUSHA 1930 Crl.Rev.Pet.No. 2743 of 2007() ------------------------------ CRA.123/2000 of I ADDL. SESSIONS COURT, KOLLAM SC.362/1998 of ASSISTANT SESSIONS COURT, KOTTARAKKARA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ----------------------------------------------------------- ASHRAF @ SWITCHU, S/O. MALAKKARU MEERAN RAWTHER, CHARUVILA PUTHEN VEEDU, NEAR H.S., MANCHALLOOR MURI, PATHANAPURAM VILLAGE, KOLLAM. BY ADV. SRI.S.GIRISH RESPONDENT(S): /RESPONDENT/COMPLAINANT: -------------------------------------- THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/01/2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. ------------------------------------------ CRL.R.P.NO. 2743 OF 2007 ------------------------------------------ Dated 13th January 2009 O R D E R Revision petitioner is the third accused in S.C.362/1998 on the file of Assistant Sessions Judge, Kottarakkara. Circle Inspector of Police, Kollam submitted a final report against seven accused including revision petitioner alleging that they committed an offence under Section 395 of Indian Penal Code. Out of the seven accused accused 1,6 and 7 absconded and only accused 2,3,4 and 5 were tried. The case against accused 2,3,4 and 5 were committed to Sessions court, as the reminding accused were absconding. Prosecution case was that on the mid night of 16/11/1996 when PW3 was sleeping inside the house of brother of PW2, after locking the house from inside and keeping the key in the lock near the window, accused took the key through the window and thereafter opened the door and entered the house and they pressed the neck of PW3 who was sleeping on the south eastern portion of the ground floor and tied his CRRP 2743/07 2 legs and hands with a plastic coir and gagged his mouth with cloth and covered his face with cloth, disconnected the telephone connection and kept the kitchen door opened and thereafter committed theft of various foreign made items which were kept inside the house worth about Rs.One Lakh, which were brought to India by the brother of PW2, the owner of the house and all accused thereby committed the offence under Section 395 of Indian Penal Code. Accused 2 to 5 pleaded not guilty. Prosecution examined 14 witnesses and marked 15 exhibits and identified 69 material objects. Though accused were called upon to adduce evidence, after hearing the prosecution and the defence under Section 232 of Code of Criminal Procedure, they did not adduce any evidence. Learned Assistant Sessions Judge thereafter found fourth accused not guilty and acquitted under Section 235 of Code of Criminal Procedure. Accused 2,3 and 5 were convicted and sentenced to rigorous imprisonment for five years each for the offence under Section 395 o I.P.C. Accused 2 and 3 challenged the conviction before Sessions court, Kollam in Crl.A.121/2000 and 123/2000 respectively. Learned Additional Sessions Judge on re-appreciation of evidence CRRP 2743/07 3 found that recovery of Mos.68 and 69 under Ext.P15 recovery mahazar by PW14 Circle Inspector claimed to be based on the information furnished by second accused but MOs.68 and 69 were not established to be the stolen articles. For this reason holding that there is no evidence to connect second accused with the offence, set aside the conviction and acquitted second accused. Accepting recovery of Mos.7 and 8 under 12 to 67 under Ext.P6 recovery mahazar made by PW14 Circle Inspector based on the information furnished by the revision petitioner corroborated by PW9, the attesting witness to Ext.P6, learned Additional Sessions Judge confirmed the conviction of revision petitioner and dismissed Crl.A.123/2000 filed the by revision petitioner. Revision is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel appearing for revision petitioner argued that as per final report submitted under Section 173(2) of the Code, though Ext.P10 FIR was prepared and crime 212/1996 was registered on 17/11/1996, the case was registered against only three CRRP 2743/07 4 or four unknown culprits and till Ext.P12 report was filed in court by PW14, name of the accused were not disclosed in the case and Ext.P12 report was received by the court only on 6/12/1996 when for the first day mentioned the name of the accused including revision petitioner was incorporated and as per prosecution case PW12, Sub Inspector arrested accused 1 to 3 on 19/11/1996 and registered crime 246/1996 of Ochira police station and after questioning the accused and getting information that they are the accused in a case committed within the jurisdiction of Pathanapuram police station altered the offence from Section 41 (a) and (d) and Section 102 of the Code of Criminal Procedure to Section 457 and 380 of Indian Penal Code and transferred the case to Pathanapuram police station where crime 348/1996 was registered and accused were in judicial custody in that crime and while so PW14 obtained custody of the accused and on questioning got information that they are involved in this offence and while so, Mos.7, 8 and 12 to 67 were recovered under Ext.P6 recovery mahazar on the information allegedly furnished by the revision petitioner and it is relying on the said recovery, revision petitioner was convicted. It was CRRP 2743/07 5 argued that Ext.P6 recovery mahazar shows that recovery was effected on 4/12/1996 and Ext.P6 was prepared at 3.30 p.m on 4/12/1996 and as per Ext.P6 mahazar revision petitioner is the third accused in crime 212/1996 registered under Ext.P10 FIR and on 4/12/1996 revision petitioner was not an accused in the case at all as Ext.P12 report whereunder revision petitioner was impleaded as an accused for the first time as per report dated 5/12/1996 and therefore courts below should not have relied on the recovery evidenced by Ext.P6 at all. It was also argued that even though Ext.P12 report prepared on 5/12/1996, reached court on 6/12/1996 as seen from the initial of the Magistrate and court seal, Ext.P6 recovery mahazar allegedly prepared one day earlier to Ext.P12 report reached the court only on 10/12/1996 as seen from the initial of the Magistrate. It was further argued that if Ext.P6 was in existence on 4/12/1996 or at least on 5/12/1996 it would have been forwarded at least along with Ext.P12 report and fact that revision petitioner was described as third accused in Ext.P6 shows that mahazar was prepared only subsequent to the submission of Ext.P12 report and this aspect was not properly considered by the courts below CRRP 2743/07 6 and if it was considered courts below would not have accepted the recovery and convicted revision petitioner based on the recovery. Learned counsel also argued that there is no acceptable evidence to prove that Mos.7 and 8 and Mos.12 to 67 are the stolen articles as details to identify them were not disclosed either in Ext.P2 FI statement or at the time of evidence and evidence of PW2 identifying them as the stolen article should not have been relied on by the courts below and as revision petitioner was convicted solely based on the recovery, conviction is to be set aside. 4. There is force in the submission of the learned counsel appearing for revision petitioner. Though PW3 was sleeping inside the house and prosecution case was that culprits entered the house and tied the hands and legs of PW3 and gagged him with cloths and covered his face with another cloth and he could escape from the place where he was tied only after the culprits left the house, neither prosecution nor PW3 has a case that PW3 could identify any of the culprits. There was no other eye witness to prove the identity of the decoits. Revision petitioner was convicted solely based on the recovery of Mos.7 and 8 CRRP 2743/07 7 torch and batteries and Mos.12 to 67 the cloths and dresses recovered under Ext.P6 recovery mahazar. Ext.P2 FI statement and Ext.P10 FIR, prepared based on Ext.P2, establish that even the number of the persons involved in the commission of the offence was not known either to PW2 or PW3 or the police when the case was registered. Ext.P2 FI statement though discloses the details of the articles found stolen, except stating that stolen articles include a foreign made torch and dresses, no other details are furnished to fix the identity of Mos.7 and 8. Similarly except stating that some saris were stolen details of the dresses including the fact that undergarments were also stolen were not mentioned in Ext.P2. Ext.P2 does not give any data to fix the identity of Mos.7,8 and 12 to 67 as the stolen article. 5. As per the evidence of PW12, Sub Inspector of Police along with accused 1 and 2, revision petitioner was arrested on 19/11/1996 under suspicious circumstances along with a VCR from a lodge and crime 246/1996 was registered. Revision petitioner was produced before the Magistrate and was remanded to judicial custody. After questioning the accused and CRRP 2743/07 8 getting information that offence was committed within the jurisdiction of Pathanapuram police station and the offence committed were under Sections 457 and 380 of Indian Penal Code, FIR was transferred to Pathanapuram police station after altering the offence to one under Sections 457 and 380 of Indian Penal Code. Based on that crime 348/1996 of Pathanapuram police station was registered which was also investigated by PW14 Circle Inspector. Evidence of PW14 shows that custody of accused was obtained in crime 348/1996 and it is on questioning the accused, recovery of stolen articles in this case was effected. Even after getting information that accused 1 to 3 committed dacoity along with others in respect of this case and in spite of the fact that crime 212/1996 based on Ext.P2 FI statement of PW2 was registered on 17/11/1996, PW14 did not file a report in crime 212/1996 and sought production of accused 1 to 3 who were in judicial custody in crime 348/1996 or seek custody of the accused for questioning in crime 212/1996 or effecting recovery of stolen articles in crime 212/1996. Instead based on the information furnished by revision petitioner under Ext.P6 recovery mahazar, PW14 recovered Mos.7 and 8 and 12 to 67 in the presence of CRRP 2743/07 9 PW9 attesting witness. As rightly argued by learned counsel appearing for revision petitioner, when Ext.P12 report was prepared by PW14 circle Inspector on 5/12/1996 whereunder, for the first time names of accused were disclosed to the court including the name of revision petitioner, third accused therein Ext.P6 mahazar was seen prepared on 4/12/1996 at the time of effecting recovery at 3.30 p.m on 4/12/1996 which reached the court only on 10/12/1996. It is not explained why Ext.P6 report was not forwarded to the Magistrate on 4/12/1996 on the date it was purportedly prepared or at least on 5/12/1996 when Ext.P12 report prepared on 5/12/1996 was forwarded to the court. Therefore, the very recovery evidenced by Ext.P6 casts sufficient doubt with regard to its genuineness. 6. When the only evidence to connect revision petitioner with the offence is the recovery effected by PW14 under Ext.P6, the next question is whether the articles so recovered are proved to be the stolen articles. True, Mos.7 and 8 and 12 to 67 are claimed to be stolen articles. Question is whether there is sufficient evidence to prove that they are the stolen articles. Mos.7 is a torch light of foreign made CRRP 2743/07 10 and Mo.8 batteries. Ext.P2 does not throw any light to fix the identity of the torch light stolen from the house on the night of 16/11/1996. Though PW2 identified MO.7 as the stolen torch light, he did not give any data as to on what basis PW2 identified MO.7 as the stolen article. It is clear from the evidence of PW2 that if instead of MO.7 some other foreign made torch light was produced, PW2 would have identified it as the stolen torch, because PW2 had no case that prior to his identification of MOs.7 and 8, he had seen MO.7 or MO.8 and had noted any special mark or even the make of the torch light identified as the stolen articles. Similar is the case with MOs.12 to 67 dresses which include even undergarments, underskirts and saris. Neither Ext.P2 FI Statement nor the evidence of PW2 give any indication to enable the court to accept the identify of MOs.12 to 67 by PW2 as stolen articles. PW2 in the ordinary course could not have identified the undergarments or saris of the family of his brother, who is in foreign country. In such circumstances, based on the identity of Mos.7,8 and 12 to 67 it is not possible to hold that revision petitioner committed the offence. There is no other evidence to connect revision CRRP 2743/07 11 petitioner with the offence, as learned Assistant sessions Judge and learned Sessions Judge convicted revision petitioner solely based on the recovery. Therefore, the conviction is not sustainable. Revision is allowed. Conviction of revision petitioner for the offence under Section 395 of Indian Penal Code is set aside. Revision petitioner is found not guilty of the offence. Bail bond executed by him stands cancelled. He is set at liberty. M.SASIDHARAN NAMBIAR, JUDGE. uj.