IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN FRIDAY, THE 4TH DECEMBER 2009 / 13TH AGRAHAYANA 1931 Crl.Rev.Pet.No. 2887 of 2009() --------------------------------------- CRA.849/2004 of ADDL.SESSIONS COURT, PARAVUR CC.1976/1998 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): APPELLANT/1ST ACCUSED --------------------------------- JOSE, AGED 39,S/O. AUGUSTY, KALLIDAYIL HOUSE, ARAMANAKKARA KARA, RAMAPURAM, PALA. BY ADV. MR.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------- 1. STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. SUB INSPECTOR OF POLICE, KURUPPUMPADY. PUBLIC PROSECUTOR MR.RITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2009 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN,J. ---------------------------- Crl.R.P.No. 2887 OF 2009 ---------------------------------- Dated this the 4th day of December, 2009 O R D E R On 14.07.1991, at the small hours, a theft occurred at the Prathibha Library Arts and Sports Club at Pralayakkad within the territorial limits of the Kuruppampady Police Station. PW1 is the Secretary and PW2 is the President of the Library. The door was broke opened and T.V worth Rs.2,500/-, a Radio worth Rs.750/-, a Wall clock worth Rs.150/- and a speaker worth Rs. 100/- were stolen. On the next day, PW1 filed a First Information Statement on the basis of which the Sub Inspector of Police Kuruppampady, who was examined as PW6, registered a case as Cr.No.101/1991. PW6 took over the investigation. He prepared Ext.P3 scene mahazar. During the course of investigation, he arrested the revision petitioner. According to PW6, on the basis of a statement given by the revision petitioner, the clock, T.V and Radio were seized. While so, the investigation was taken over by PW5, another Sub Inspector, who completed the investigation and filed the a charge Crl.RP.No. 2887 / 2009 2 sheet against 6 accused persons. 2. It is reported that the original 2nd accused was tried separately and acquitted. The 3rd and 4th accused could not be apprehended. The 4th and 5th accused were tried as accused 1 and 2 in C.C.No.1976/1998 before the Judicial Magistrate of the 1st Class Perumbhavoor. 3. On the side of the prosecution PWs.1 to 6 were examined and Exts.P1 to P8(a) were marked. The revision petitioner is the 1st accused. The revision petitioner and other accused took a defence of total denial. No defence evidence was let in. The learned Magistrate on appraisal of the evidence arrived at a conclusion of guilty as against the revision petitioner. The other accused was found not guilty and acquitted under Section 248(1) of Code of Criminal Procedure. The Revision petitioner was convicted for offence under Section 457 and 380 IPC and was sentenced to rigorous imprisonment for two years and a fine of Rs.2,000/- for offence under Section 457 I.P.C. For offence under Section 380 IPC he was sentenced to rigorous imprisonment for one year and a fine of Rs. 1000/-. In Crl.Appeal No. 849/2004, by judgment dated 25.6.2009, the Additional Sessions Judge North Paravur confirmed Crl.RP.No. 2887 / 2009 3 the conviction and sentence. Assailing the legality and correctness and propriety of the above conviction and sentence as confirmed in this appeal, this revision petition was filed by the 1st accused. Regarding the house breaking and theft of the articles, there is the oral evidence of PW1 and 2 which the court below had believed. That finding was not assailed by the learned counsel. Having heard either side, I find that the conclusion of the courts below is on the basis of the evidence and requires no interference. The question to be considered is whether the revision petitioner was the offender or not. In other words, what is to be examined is that whether the revision petitioner can be connected with the house breaking and theft. 3. Though it was alleged by the prosecution that on the basis of the statement given by the revision petitioner, the Clock ,T.V and the Radio were recovered, the person said to have received the clock was reported dead and no evidence regarding the recovery of clock was adduced. The T.V and the Radio were, according to PW6, recovered from PW3 and PW4 by virtue of Ext.P8 and P7 recovery mahazar. Ext.P8(a) and P7(a) are the relevant portions of the statement of the revision petitioner. Ext.P8(a) and 7(a) statements Crl.RP.No. 2887 / 2009 4 did'nt contain a version that it was the revision petitioner who sold the T.V and Radio . PW3 and 4 from whom those articles were seized denied of purchasing the clock and T.V from the revision petitioner. According to PW4, the T.V was purchased from one Asokan who is the original first accused as per the report of the police. He denied the suggestion that it was purchased from the revision petitioner or that revision petitioner was known to him. According to PW3, he purchased the T.V from another person. He had also deposed that he didn't know the revision petitioner. The evidence of PW3 and 4 being what is mentioned above the revision petitioner cannot be connected with the stolen articles. It is also pertinent to not that even according to PW6, the revision petitioner had not stated that the T.V and Radio were sold by the revision petitioner. What can be inferred from the statements, if it is given by him as alleged by the prosecution, is that the revision petitioner knew the person who had been possessing the stolen articles. So, the statement given by the revision petitioner cannot be accepted as a document to connect him with the offence alleged. Since PW3 and 4 had denied of having purchased the articles recovered from the revision petitioner it could not be held that the revision petitioner was Crl.RP.No. 2887 / 2009 5 in possession of the stolen articles so as to connect him with the offence alleged by virtue of presumption under Section 114 of the Evidence Act. Since Pws. 3 and 4 had denied of purchase from the revision petitioner and Ext.P7(a) and P8(a) didn't mention that the revision petitioner had sold the articles seized, no conviction would lie against the revision petitioner. Such being the materials on record I find that the courts below had gone wrong in arriving at a conclusion of guilt against the revision petitioner. The conviction and sentence under challenge are not sustainable. In the result, the revision petition is allowed. While setting aside the conviction and sentence under challenge, revision petitioner is acquitted. P.S.GOPINATHAN,JUDGE. mns