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. 3429 of 2006() ------------------------------ CRA.60/2006 of ADDL. SESSIONS COURT (ADHOC), THODUPUZHA CC.234/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT, NEDUMKANDOM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- JOSE, S/O.JOSEPH, AGED 29 YEARS, RESIDING AT PUNNAKKATTIL HOUSE, ETTUMUKKU BHAGAOM, NEDUMKANDAM POST, UDUMBANCHOLA TALUK, KALKUNTHAL VILLAGE, MANJAPETTY KARA, IDUKKI. BY ADV. DR.K.P.SATHEESAN SRI.K.K.RAJEEV RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------------------- STATE OF KERALA(S.I. OF POLICE, NEDUMKANDAM), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/01/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No.3429 OF 2006 -------------------------------------------------- Dated this the 28th day of January, 2009 O R D E R Revision petitioner was convicted and sentenced for the offence under section 457, 461 and 380 read with section 34 of Indian Penal Code by Judicial First Class Magistrate, Nedumkandom. Conviction for the offence under section 457 and 380 was confirmed by Additional Sessions Judge, Thodupuzha in Crl. Appeal 60 of 2006. Conviction for the offence under section 461 of Indian Penal Code was set aside and he was acquitted of the said offence. Revision is filed challenging the conviction. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. Learned counsel argued that revision petitioner was convicted solely based on the recovery of MO2 series of dried pepper from the shop of PW5 under Ext.P4 recovery mahazar based on Ext.P4(a) the alleged confession made by the revision petitioner and when there is no acceptable and credible evidence CRRP 3429/2006 2 to prove that what was recovered under Ext.P4 was the stolen article the conviction is not sustainable. 4. Prosecution case is that revision petitioner along with second accused in furtherance of their common intention committed theft of 170 kg of dried pepper kept in two sacks and a cash of Rs.1000/- from the house No.686 of Ward No.IV of Nedumkandom Panchayat where PW1 and his wife were residing and they thereby committed the offences. Second accused was earlier tried separately and was acquitted under section 248(1) of Code of Criminal Procedure. Revision petitioner pleaded not guilty. Prosecution examined 7 witnesses and marked 6 exhibits and identified MOs 1 and 2. learned Magistrate relying on the evidence of PW1 found that there was theft of dried pepper and cash from the house of PW1 on the night of 9.8.2002. Relying on Ext.P4 recovery mahazar and the evidence of PW7 the Sub Inspector, it was found that MO2 series of dried pepper were recovered by PW7 under Ext.P4 recovery mahazar from the shop of PW5. Relying on the evidence of PW5 it was held that the dried pepper recovered under Ext.P4 is the stolen article and as the recovery was on the information furnished by the revision CRRP 3429/2006 3 petitioner he was convicted. The question is how far the recovery is proved as on the information furnished by revision petitioner whether the article recovered under Ext.P4 is proved to be the stolen article. 5. As rightly found by the Courts below evidence of PW1 with ext.P1 F.I. Statement establishes that on the morning of 10.8.2002 PW1 found that somebody had entered his house through the kitchen door and committed theft of 170 kg of dried pepper which was kept on the upstair room of the house in two sacks. Nothing was pointed out to disbelieve the evidence of PW1 with regard to the factum of the theft. 6. The Courts below relied on the recovery of MO2 series on dried pepper from the shop of PW5, under Ext.P4 recovery mahazar to convict revision petitioner. Though PW5 admitted that under Ext.P4 mahazar pepper was recovered from his shop, PW5 deposed that the said pepper was not purchased from the revision petitioner and was the pepper purchased just day before the recovery. PW5 turned hostile to the prosecution and deposed that he did not purchase any pepper from the revision petitioner. Therefore even though recovery of MO2 CRRP 3429/2006 4 series of pepper under Ext.P4 mahazar is proved by the evidence of PW5 and 7, the evidence of PW5 does not help the prosecution to establish that the pepper so recovered is the pepper which was sold to PW5 by the revision petitioner or was the stolen article. 7. Courts below relied on the evidence of PW1 to find that the pepper recovered under Ext.P4 is the stolen pepper. Though PW1 deposed that he had received the pepper from the Court, on executing bond after it was produced before the Court and it is the pepper which was stolen from his house, PW1 did not give any date to ascertain the identity of the pepper so received from the Court as the stolen pepper. It cannot be disputed that PW1 cannot identify the dried pepper by sight as the stolen pepper. True Ext.P1 F.I. Statement shows that the dried pepper which was stolen from his house were stored in two sacks and he could identify the sacks. But in Ext.P1, PW1 did not disclose any data so as to ascertain the identity. Even when PW1 was examined, he did not give any data based on which the sacks could be identified as the stolen sacks. Though PW1 deposed that by the way in which it was stitched and tied CRRP 3429/2006 5 he could identify the sacks, such a case was not stated in Ext.P1 F.I. Statement. PW1 also did not depose that he identified the pepper received from the Court as the stolen pepper, because of the nature of the stitch or the way in which it was tied. Moreover it is seen that this evidence of PW5 was not put to the revision petitioner, at the time of questioning under section 313 of Code of Criminal Procedure so as to use it against the revision petitioner. Even if it was put to the revision petitioner, when revision petitioner had no such case in Ext.P5 F.I. Statement and did not depose that he identified the stolen article based on the stitch or the nature of the stitch, it is not possible to accept the evidence of PW1 that the sacks in which he received the pepper from the Court on executing the bond, were the sacks stolen from his house. Moreover, when asked in cross-examination whether PW5 could definitely say that these are the sacks which were stolen, PW1 answered in the negative. Therefore based on that evidence of PW1 it is not possible to hold that the pepper which was recovered under Ext.P4 from the shop of PW5 was the dried pepper which was stolen from his house on the night of 9.8.2002. If that be so, there is no evidence to connect revision CRRP 3429/2006 6 petitioner with the theft of pepper or the cash from the house of PW1 on the night of 9.8.2002. In such circumstances convicti n of the Revision petitioner is not sustainable. Revision is allowed. Conviction of the revision petitioner in C.C. 234 of 2005 for the offence under section 457 and 380 read with section 34 of Indian Penal Code by Judicial First Class Magistrate, Nedumkandom and confirmed by Additional Sessions Judge, Thodupuzha in Crl. Appeal 60 of 2006 is set aside. Revision petitioner is found not guilty of the offences. He is acquitted. As the learned counsel submitted that revision petitioner is undergoing sentence in C.C.234 of 2005, if revision petitioner is not wanted in any other case, he shall be released from prison. M. SASIDHARAN NAMBIAR, JUDGE okb