IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 13TH OCTOBER 2008 / 21ST ASWINA 1930 Crl.Rev.Pet.No. 1004 of 2001() ------------------------------ CRA.262/1996 of ADDL.SESSIONS COURT, KOTTAYAM CC.136/1993 of JUDL. MAGISTRATE OF FIRST CLASS-II, KOTTAYAM .................... REVN. PETITIONER/APPELLANT/ACCUSED: ---------------------------------------------- SURESH, S/O. KUNJUKUTTAN, RESIDING AT KUNNILTHUDY VEEDU, NELLAIKARA, NELLAI VILLAGE, OTTAPPALAM TALUK. BY ADV. SRI.JAMES KURIAN RESPONDENT/COMPLAINANT: ------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SMT.PUSHPALATHA.M.K THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. =========== Crl.R.P. No.1004 of 2001 =============================== Dated this the 13th day of October, 2008. O R D E R Heard. 2. Revision petitioner along with second accused (since his address was incomplete and he could not be traced, his name was deleted from the array of accused) was charge sheeted for offence punishable under Section 392 r/w 32 of the Penal Code (hereinafter called, 'the Code') alleging that on 8.10.1991 at about 10.30 a.m., they committed robbery. Learned Magistrate found revision petitioner guilty of the offence punishable under Section 380 of the Code, convicted him thereunder and sentenced him to undergo simple imprisonment for six months and payment of fine of Rs.10,000/-. Appeal was dismissed. Hence this revision. It is contended in the revision petition that conviction of revision petitioner is not sustainable. 3. Case is that on 8.10.1991 at about 10.30 a.m., revision petitioner and second accused entered the house of PW2, tried to strangulate her with MO1 and snatch the gold Crl.R.P. No.1004 of 2001 2 chain worn by her. First information (Ext.P1) was given by PW1. He is not a witness to the incident. PW2 stated that two persons came to her house and asked for water. On her giving water, they snatched the gold chain she was wearing. She could not identify the said persons. Later, she identified the gold chain at the police station. She got it released from court. PW5 stated that he saw police arresting revision petitioner on 14.10.1991 and searching his body. Police seized a gold chain. PW5 denied that he signed the mahazar. PW6, gold smith appraised the gold chain as per direction of police. PWs 7 and 10, official witnesses stated about arrest of revision petitioner on 14.10.1991 and seizure of gold chain as per Ext.P3. PW10 proved MO 1 bath towel allegedly used by revision petitioner to strangulate PW2 and MO2, torn jacket of PW2. 4. PW2 in fact, has not narrated the whole incident even. She only stated that two persons snatched her gold chain. She did not say that the incident occurred inside the house. She also did not say anything about the said persons using force against her, not to say about strangulation. MOs 1 and 2 were not Crl.R.P. No.1004 of 2001 3 shown to her and got identified. It is true that PWs 5, 7 and 10 stated about PW10 arresting revision petitioner on 14.10.1991 and seizing a gold chain. Unfortunately, that gold chain is not before court. That gold chain was not shown to any of prosecution witnesses and got identified. This assumes importance in the light of version of PW10 that originally, PW2 had stated a different version regarding the type of the gold chain she lost, which differed from the one seized. Thereafter PW2 was allegedly questioned on that. Thus, it is clear from the version of PW10 that initial version given by PW2 regarding the nature of the stolen gold chain did not suite the nature of gold chain seized as per Ext.P3. In that circumstances, it was the responsibility of prosecution to get back the gold chain released to PW2 and get it identified by PWs 2, 5, 7 and 10. Merely for the reason that a gold chain was seized from possession of revision petitioner, it cannot be said that it is the gold chain which PW2 allegedly lost. As such, conviction and sentence cannot be sustained. Crl.R.P. No.1004 of 2001 4 Resultantly, revision petition is allowed. Conviction and sentence on the revision petitioner are set aside and he is acquitted of the charge found against him. Bail bond is cancelled. Criminal Miscellaneous Petition No.4770/2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. bkn/-