IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 Crl.Rev.Pet.No. 3982 of 2008() ------------------------------ CRA.73/2006 of SESSIONS COURT, KOZHIKOE CC.135/2005 of SPL. JUDL.FIRST CLASS MAGISTRATE COURT (MARAD CASES), KOZHIKODE .................... REVN. PETITIONER(S): APPELLANT/2ND ACCUSED ------------------------------ T.P. SHAMEER ALIAS BABU, S/O. MARAKKAR, ASARIKANDI HOUSE, CHERUVANNUR, KOZHIKODE. BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.No.3982 OF 2008 -------------------------------------------------- Dated this the 29th day of January, 2009 O R D E R Revision petitioner, the second accused in C.C.135 of 2005 on the file of Special Judicial First Class Magistrate, (Marad Cases), Kozhikode, was convicted for the offence under section 379 of Indian Penal Code along with first accused on the finding that he was the pillion rider of the motor vehicle driven by the first accused on 5.4.2003 at about 12.30 p.m. and it was he who snatched MO1 chain from the neck of PW2. Prosecution case was that at 12.30 p.m. while PW2, the wife of PW1, along with one Geetha was walking, one person riding a motorbike and another person was walking approached PW2 and the person who came by walking snatched MO1 chain from her neck and escaped in the motorbike. PW2 on returning back to the house informed it to PW1 who lodged Ext.P1 complaint before the Sub inspector on the same day evening. It is the case that PW7 the Sub Inspector arrested both of the accused on 14.5.2003 after finding them in suspicious circumstances in Muhammed Ali road CRRP 3982/2008 2 and on questioning the accused, on the confession made by the first accused that he had sold the gold chain to a shop at Kammath lane and would point out the shop and the person who purchased the gold chain and as led by the first accused PW7 reached there and recovered MO1 under Ext.P2 recovery mahazar from the shop of PW3. It was found that revision petitioner snatched the gold chain from the neck of PW2 in furtherance of their common intention and thereby both the accused committed the offences. Even though as against first accused, there is his confessiion recorded by PW7, which is admissible under section 27 of the Evidence Act which led to the recovery of MO1, which is proved to be the stolen gold chain by the evidence of PW2, that confession cannot be used as against the revision petitioner. There is no case that revision petitioner furnished any information which led to the recovery. The only evidence based on which the revision petitioner was convicted by the learned Magistrate and confirmed by the learned Sessions Judge was the identification of revision petitioner by PW2. 2. True, PW2 at the time of evidence identified MO1, as the stolen gold chain and revision petitioner as the person who CRRP 3982/2008 3 snatched the chain from her neck. As rightly argued by the learned counsel appearing for the revision petitioner in Eaxt.P1 F.I. Statement lodged by PW1 there is no allegation that PW2 had any opportunity to identify the persons, either the rider of the motorbike or the pillion rider who snatched the chain. Even when PW2 was examined, she did not disclose any identification marks or features of the culprits which enables her to subsequently identify revision petitioner as the person who snatched the chain. PW2 also deposed that she did not identify revision petitioner from the police station and she is identifying him for the first time from the box. In further cross-examination PW2 deposed that revision petitioner was shown to her on the morning of her examination in Court by her husband PW1. In such circumstances based on the identification made by PW2 from the witness box alone, in the absence of any other material it is not possible to conclusively hold that it was the revision petitioner who either snatched the gold chain or was the pillion rider of the motor cycle on that day. If that be the case, based on the identification made by PW2 alone revision petitioner cannot be convicted. Unfortunately there is no other evidence CRRP 3982/2008 4 against the revision petitioner, though learned Public Prosecutor on instructions submitted that revision petitioner is involved in several cases of this nature. In such circumstances conviction of the revision petitioner is not sustainable. Revision is allowed. Conviction of the revision petitioner in C.C.135 of 2005 as confirmed in Crl. Appeal 73 of 2006 is set aside. Revision petitioner is found not guilty of the offence under section 379 of Indian Penal Code. He is acquitted. M. SASIDHARAN NAMBIAR, JUDGE okb