IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 28TH JANUARY 2009 / 8TH MAGHA 1930 Crl.Rev.Pet.No. 3433 of 2006() ------------------------------ CRA.58/2006 of ADDL. SESSIONS COURT (ADHOC-I), THODUPUZHA CC.419/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... REVN. PETITIONER/APPELLANT/ ACCUSED: --------------------------------------- JOSE,, S/O.JOSEPH, AGED 29 YEARS, RESIDING AT PUNNAKKATTIL HOUSE, NEDUMKANDAM POST, UDUMBANCHOLA TALUK, KALKUNTHAL VILLAGE, MANJAPETTY KARA, IDUKKI. BY ADV. DR.K.P.SATHEESAN SRI.K.K.RAJEEV RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No. 3433 OF 2006 -------------------------------------------------- Dated this the 28th day of January, 2009 O R D E R Revision petitioner, the first accused in C.C.419 of 2005 was convicted and sentenced for the offences under section 457, 380 and 461 read with section 34 of Indian Penal Code by Judicial First Class Magistrate, Nedumkandom. Revision petitioner challenged the conviction before Additional Sessions Court, Thodupuzha in Crl. Appeal 58 of 2006. Conviction was confirmed and sentence was modified. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard. 3. The learned counsel argued that revision petitioner was convicted solely based on the recovery of dried pepper from PW6, the Secretary of the Society under Ext.P9 recovery mahazar allegedly on Ext.P9(a) information furnished by the revision petitioner, but PW6 did not support the prosecution case and there is no evidence to prove that the article recovered CRRP 3433/2006 2 under Ext.P9 is the stolen article and therefore the conviction is not sustainable. 4. Prosecution case is that on the night of 6.10.2002 and before the early morning of 7.10.2002 four accused in furtherance of their common intention committed theft of 630 kg of dried pepper and Rs.1040/- in cash from the shop room of PW1 after breaking open the door and thereby committed offences under section 457, 380 and 461 read with section 34 of Indian Penal Code. Accused 2 and 4 were tried separately and were acquitted by the Magistrate under section 248(1) of Code of Criminal Procedure, after splitting and refiling the case as against the accused 1 and 4. After revision petitioner was arrested and produced, he was tried by the learned Magistrate. As the third accused was absconding the case against him was split up and refiled. Revision petitioner pleaded not guilty. Prosecution examined 13 witnesses and marked 15 exhibits and identified 5 material objects. Petitioner did not adduce evidence. Learned Magistrate on the evidence convicted revision petitioner which was confirmed by Additional Sessions Judge in appeal. Evidence of PW1 with Ext.P1 F.I. Statement establish that on the CRRP 3433/2006 3 morning of 7.10.2002 as informed PW1 reached his shop and found that the locks of the shop room were missing and shop room was broke open and 630 kg of dried pepper, out of which 450 kg was heaped in a corner and the remaining were kept in two sacks, were stolen along with cash of Rs.1040/-. PW1 lodged Ext.P1 F.I.Statement which was recorded at 5.30 p.m. on 7.10.2002. Based on it, Ext.P11 F.I.R was prepared and crime 255 of 2002 was registered by PW11, the Sub Inspector. PW13 investigated the case. He prepared Ext.P7 scene mahazar on the same day. On 10.10.2002 at about 1 p.m., he arrested the revision petitioner. According to PW13 on the information furnished by the revision petitioner that the pepper was sold in a shop and he would point out the shop, as pointed out by revision petitioner, PW13 reached Kattappana Marketing Society from where PW6, the Secretary purchased 382.09 kg of dried pepper and it was recovered under Ext.P9 mahazar. According to PW13 the recovery was effected on the information furnished by the revision petitioner. This evidence of PW13 was accepted by the Courts below, though PW6 turned hostile to the prosecution and denied the prosecution case that pepper was purchased by PW6 CRRP 3433/2006 4 from revision petitioner and it was recovered under Ext.P9. 5. As rightly argued by the learned counsel appearing for revision petitioner, conviction of the revision petitioner can be sustained only if it is proved that the dried pepper recovered under Ext.P9 is the dried pepper stolen from the shop of PW1 and that recovery was on the information furnished by the revision petitioner. Ext.P9(a) is the portion of the information relied on by the prosecution, which is to the effect that “the pepper has been sold to a shop at Kattappana central junction and if revision petitioner is taken there he will show the person and the shop where the pepper was sold.” PW6, the Secretary of the Society at the time of his examination turned hostile to the prosecution and stated that he did not purchase any pepper from the revision petitioner. The evidence of PW6 is that pepper was purchased on 7.10.2002 from one Biju as per the copy of the bill book shown to the witness at the time of cross-examination, and marked as MO3(a) and the pepper so purchased is not from the revision petitioner but from Biju. PW6 categorically deposed that the pepper was not purchased from the revision petitioner and he did not verify the actual identity of that person except CRRP 3433/2006 5 writing the name of the seller as Biju, Karakkal, Thovala. Therefore evidence of PW6 does not establish that the article recovered under Ext.P9 is the stolen article. PW1 also did not identify it as the stolen article. As per the evidence of PW1 the quantity of pepper stolen from his shop was 630 kgs. What was recovered under Ext.P9 is 382.09 kg and if at all it was purchased from the said Biju. PW9 did not make any investigation to find out the identity of Biju. Therefore there is no evidence to prove that what was recovered under Ext.P9 is the stolen article. If that be so, even if the article recovered under Ext.P4 recovery, was on the information furnished by the revision petitioner it is insufficient to connect revision petitioner to the theft committed in the shop of PW1. There is absolutely no other evidence to connect revision petitioner with the offences involved in this case. Therefore conviction of the revision petitioner for the offence under section 380 and 457 read with section 34 of Indian Penal Code is not sustainable. Revision is allowed. Conviction of revision petitioner in C.C.419 of 2005 on the file of Judicial First Class Magistrate, Nedunkandom as confirmed by Additional Sessions Judge, CRRP 3433/2006 6 Thodupuzha in Crl. Appeal 58 of 2006 is set aside. Revision petitioner is not found guilty of the offence under section 457 and 380 read with section 34 of Indian Penal Code. He is acquitted. As the learned counsel submitted that revision petitioner is undergoing sentence in C.C. 419 of 2005, if revision petitioner is not wanted in any other case, he shall be released from prison. M. SASIDHARAN NAMBIAR, JUDGE okb