IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD DECEMBER 2008 / 12TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 159 of 2008() ----------------------------- CRA.370/2001 of ADDL.SESSIONS COURT, THALASSERY(ADHOC-II) CC.102/2000 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVN. PETITIONER(S): APPELLANTS/2ND ACCUSED: -------------------------------------------- CHOTTANTAKATH MUHAMMAD, S/O.UMMER, AGED 41 YEARS, KOOLIE, KOOVERI THALIPARAMBA, KANNUR. BY ADV. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH SMT.R.LEELA RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI C M KAMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 3/12/2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 159 OF 2008 ............................................ DATED THIS THE 3rd DAY OF DECEMBER, 2008 ORDER Revision petitioner is the second accused in C.C.102 of 2000 on the file of Judicial First Class Magistrate, Payyannur. Petitioner, along with the first accused were charged for the offence under Section 457 and 318 read with Section 34 IPC. Prosecution case was that on the evening of 10.11.1999, PW1, the owner of Al-Ameen Agencies, Payyannur closed his shop room, locked it and returned to his house. On the morning of 11.11.1999, at about 8 am, he reached the shop. PW1 found the lock opened. On entering the room PW1 found two gunny bags of pepper containing one quintal and 10 kg of pepper stolen. PW1 went to Payyannur police station and furnished Ext.P1 F.I.Statement, based on which Ext.P4 F.I.R was prepared and Crime 388 of 1999 was registered. Police prepared Ext.P2 scene mahazar on the same day and PW6, Sub Inspector conducted the investigation. Meanwhile, PW5, S.I of Taliparamba police station found both the accused under suspicious circumstances at Taliparamba. They were arrested and a Crime was registered under Section 41 of Code of Criminal Procedure. PW5, on questioning the accused and getting information that they are involved in the offence registered by Payyannur police station, intimated the matter to S.I of Police, CRRP 159/2008 2 Payyannur. PW6, Sub Inspector submitted a petition before Judicial First Class Magistrate, Taliparamba and obtained custody of the accused. On the information furnished by first accused and as led by him, MO1 series of two gunny bags of pepper were recovered from the shop of PW7, in the presence of his son, PW8 under Ext.P6 recovery mahazar from Mangalore . Prosecution case is that the said gunny bags of pepper were stolen from the shop of PW1. On the information furnished by revision petitioner under Ext.P3 seizure mahazar, MO2 crow bar was recovered. It is after investigation, charge was laid before Judicial First Class Magistrate, Payyannur for the offence under Section 457 and 380 read with Section 34 IPC. Both the accused pleaded not guilty. Prosecution examined eight witnesses and marked seven exhibits and identified Mos 1 and 2. 2. Learned Magistrate, on the evidence, convicted both the accused and sentenced them to rigorous imprisonment for two years for the offence under Section 457 and rigorous imprisonment for two years for the offence under Section 380 IPC. Petitioner challenged the conviction before Sessions Court, Thalassery in Crl.A.370 of 2001. First accused challenged the conviction in Crl.A.447 of 2001. Learned Additional Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed both the appeals. Revision petitioner is challenging his conviction and sentence in this revision CRRP 159/2008 3 petition. 3. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 4. The argument of learned counsel appearing for revision petitioner is that there is absolutely no evidence to connect revision petitioner with the offences alleged. It was pointed out that revision petitioner was convicted solely based on the extra judicial confession allegedly made by him and recovery of MO2, crow bar under Ext.P3 recovery mahazar and as there is no evidence to prove that the MO2 was used for the offence committed, his conviction is not sustainable. 5. On going through the judgments of courts below, it is clear that evidence was not properly appreciated with regard to the case against revision petitioner. Evidence of PW1 corroborated by Ext.P1 F.I.Statement establishes that his shop room was broke open on the night of 10.11.1999 and two gunny bags containing pepper were stolen. There is no direct evidence as to how the theft was committed or how the culprits entered the shop room. Though first accused could be connected to the theft based on the recovery of MO1 series of gunny bags of pepper, identified as the stolen articles, there is absolutely no evidence as against the revision petitioner. The alleged extra judicial confession made by revision petitioner or first accused that revision petitioner is involved in the offences, cannot be used CRRP 159/2008 4 against revision petitioner to convict him. MO2 crow bar was recovered by PW6, based on the information furnished by the revision petitioner. Even if it is accepted, unless there is evidence to prove that it is making use of MO2 crow bar, the theft was committed from the shop of PW1, revision petitioner cannot be connected to the theft. There is absolutely no evidence to prove that MO2 was either used or was with the culprits on that night. Therefore based on the recovery of MO2 or the alleged extra judicial confession alone, revision petitioner cannot be convicted. Except this, there is no evidence to connect the revision petitioner with the theft. Unfortunately, this was omitted to be taken note of by courts below. Hence conviction of revision petitioner is not sustainable. Revision is allowed. Conviction of revision petitioner for the offence under Section 457 and 380 read with 34 IPC in C.C.102 of 2000 on the file of Judicial First Class Magistrate, Payyannur is set aside. He is found not guilty and is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE lgk/-