IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 Crl.Rev.Pet.No. 3146 of 2008() ------------------------------ CRA.314/2003 of ADDL.SESSIONS COURT (ADHOC), ALAPPUZHA CC.788/2002 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVN. PETITIONER(S): APPELLANT ------------------------------ ABEL @ JIJI, S/O. ANTONY, MARUMANCHERRY HOUSE, WARD NO.II, KODAMTHURUTHU PANCHAYATH, CHERTHALA TALUK. BY ADV. SRI.C.K.SAJEEV RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PP SRI C M NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3146 OF 2008 ............................................ DATED THIS THE 4th DAY OF DECEMBER, 2008 ORDER Revision petitioner was convicted for the offence under Section 379 IPC by Judicial First Class Magistrate, Cherthala in C.C.788 of 2002 and conviction was confirmed by Additional Sessions Judge, Alappuzha in Crl.A.314 of 2003. Revision petition is filed challenging the conviction and sentence. 2. Learned counsel appearing for revision petitioner argued that the conviction of revision petitioner is based on recovery of the stolen Hero Honda motor cycle evidenced by Ext.P6 seizure mahazar from the shop of PW3 and evidence of PW3 does not support the prosecution case that the motor cycle was recovered on 30.7.2002 as stated in Ext.P6. It was argued that as per Ext.P6, when along with revision petitioner, PW5 the investigating Officer reached the shop of PW3, by name `Remi Auto Consulting', the motor cycle was parked in the front of that shop room and it was seized from there. But evidence of PW3 is that he had sold the motor cycle earlier to a person at Kottarakara and as insisted by PW5, he had gone to Kottarakara and paid Rs.22,000/- for which the motor cycle was earlier sold CRRP 3146/2008 2 to that person and along with the motor cycle, he went to police station on the next day and produced it before the police and therefore Ext.P6 is not a genuine seizure mahazar and based on Ext.P6, courts below were not justified in convicting petitioner. Learned counsel argued that evidence of PW5 also shows that when he went to the shop of PW3, the motor cycle was not there and the motor cycle brought there by the person riding it by 8.15 pm and if that be so, Ext.P6 cannot be true. Learned counsel also argued that when the recovery of the motor cycle is not on the information furnished by the revision petitioner and also not from PW3 as stated in Ext.P6, conviction of the petitioner based on Ext.P6 and the alleged confession is not sustainable and courts below did not properly appreciate the evidence and the conviction is to be set aside. 3. Learned Public Prosecutor submitted that courts below appreciated the evidence in the proper perspective and there is no reason to interfere with the conviction. 4. The prosecution case is that the motor cycle Hero Honda with registration No.KL4 E/3984 belongs to PW1 and had been parked, on the night of 30.10.2001, at the shed attached to his house and on the morning of 31.10.2001, the motor cycle was CRRP 3146/2008 3 found missing. Ext.P1 F.I.Statement was lodged immediately and based on that information, Ext.P8 F.I.R was prepared and crime was registered. But on investigation, neither the person who committed the theft nor the stolen article could be recovered. While so, PW5 arrested the two accused on finding them under suspicious circumstances under Section 41(1)(d) and 102 of Code of Criminal Procedure. When revision petitioner was questioned, on the information furnished by him, PW5 reached the shop of PW3 and found the stolen motor cycle parked opposite to the shop and thereafter under Ext.P6, the motor cycle was recovered. It is based on the said recovery, revision petitioner was convicted by learned Magistrate and the conviction was confirmed by learned Sessions Judge. The crucial question therefore is whether the recovery of MO1 motor cycle under Ext.P6 is based on the information furnished by revision petitioner and if so, whether it connects revision petitioner with the theft. 5. If the prosecution case is to be believed, on the information furnished by revision petitioner, along with revision petitioner, PW3 reached the shop of PW3 at about 8.10 pm on 30.7.2002 and the motor cycle was found parked in front of that CRRP 3146/2008 4 shop room and it was identified as the stolen article. It was seized under Ext.P6. PW3 is one of the attesting witness to Ext.P3 recovery mahazar. The other attesting witnesses to Ext.P3, Radhakrishnan was not examined. Evidence of PW3 is that along with accused, PW5 had reached the shop on the night of 30.7.2002 and the S.I wanted the motor cycle to be produced before him. According to PW3, the motor cycle was earlier sold by him to a person at Kottarakara and as insisted by PW5, he had gone to Kottarakara and after paying Rs.22,000/- which was the consideration received by him earlier, the motor cycle was obtained back PW3 produced it before PW5 at the police station only on 31.7.2002. This version of PW3 is against the evidence of PW5 as well as the recovery stated in Ext.P6 mahazar. PW3 was not declared hostile by the prosecution and his said version was not challenged at all. Therefore as it stands, the evidence of PW3 is to the effect that when PW5 reached his shop, the motor cycle was not there and at that time possession of the motor cycle was with the person who purchased it earlier and PW3 proceeded to his place at Kottarakara and obtained possession of the motor cycle after paying the consideration and produced it before PW5 on the next day. Learned counsel pointed out that when Ext.P6 CRRP 3146/2008 5 mahazar was prepared on 30.7.2002, Ext.P7 mahazar prepared by PW5, while seizhing the R.C. Book and other records of the motor cycle, only on 31.7.2002 and that too, as stated in Ext.P7 when they were produced before PW5on 31.7.2002. There is force in the submission of the learned counsel that if the motor cycle was there with PW3 on 30.7.2002, as stated in Ext.P6 mahazar and as deposed by PW6, the records of the motor cycle including the registration certificate would have been with PW3 on 30.7.2002 and if so, the said records would have been seized along with the motor cycle itself. The fact that the documents relating to the vehicle were seized by PW5 only on 31.5.2007 and that too, when they were produced before PW5 by PW3 fortifies the evidence of PW3 that the motor cycle was not with him on 30.7.2002. When the evidence of PW3 establishes that he had sold the motor cycle earlier to a person at Kottarakara, naturally the records of the vehicle should also be with that person at Kottarakkara and that can only be the reason why records were produced only on 31.7.2002. If that be the case, the motor cycle could not have been produced before PW5 on 30.7.2002 as stated in Ext.P6. Therefore as rightly argued by learned counsel appearing for revision petitioner, Ext.P6 seizure is tainted and CRRP 3146/2008 6 based on Ext.P6, revision petitioner cannot be convicted. Apart from the recovery, evidenced by Ext.P6, which is found unbelievable, there is no other evidence to connect revision petitioner with the theft. Therefore conviction of the petitioner is not sustainable. 6. Revision petition is allowed. Conviction of petitioner for the offence under Section 379 IPC in C.C.788 of 2002 as confirmed in Crl.A.314 of 2003 is set aside. Petitioner is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR, JUDGE lgk/-