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. 2563 of 2008() ------------------------------ CRA.137/2007 of SPL.COURT SPE/CBI-II & IV ADDL.SESSIONS COURT, ERNAKULAM CC.1045/2004 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOCHI .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: --------------------------------------- MANIL RAJ, S/O.MOHANAN, KUNJUVEETTIL HOUSE, MANJANAKKAD KARA, NARAKKAL VILLAGE. BY ADV. SRI.S.RAJEEV RESPONDENT(S): RESPONDENT/COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO. 439/2004 OF NARAKKAL POLICE STATION). PUBLIC PROSECUTOR SRI. P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/01/2009, ALONG WITH CRRP NO. 2891 OF 2008 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M. SASIDHARAN NAMBIAR,J. ------------------------------------------------- CRL.R.P.Nos. 2563 & 2891 of 2008 -------------------------------------------------- Dated this the 29th day of January, 2009 O R D E R Revision petitioners are accused 1 and 2 in C.C.1045 of 2004 on the file of Judicial First Class Magistrate-I, Kochi. They were convicted and sentenced for the offences under section 380 and 457 read with section 34 of Indian Penal Code. Conviction was confirmed by Additional Sessions Judge, Ernakulam in Crl. Appeals 137 of 2007 and 138 of 2007. Revision petitioner in Crl. Revision Petition 2891 of 2008 is the first accused and the appellant in Crl. Appeal 138 of 2007. Revision petitioner in Crl. Revision Petition 2563 of 2008 is the second accused and the appellant in Crl. Appeal 137 of 2007. Prosecution case was that on the night of 25.10.2004, before the morning of 26.10.2004, the two accused along with the juvenile accused in furtherance of their common intention broke open the lock of the computer room of Higher Secondary School, Elankunnapuzha and committed theft of 19 hard disks, 18 processors, 18 processor fans, 19 memories and 3 display cards CRRP2563 & 2891/2008 2 valued at Rs.87,000/- and thereby committed the offences. Ext.P1 F.I.Statement was lodged by PW1 the Computer Science teacher promptly and based on that information Ext.P6 F.I.R. was prepared and Crime 439 of 2004 of Narakkal police station was registered. PW8, the Circle Inspector, investigated the case. PW8 prepared Ext.P3 scene mahazar on 26.10.2004 itself and questioned the witnesses. According to PW8 he arrested second accused at 6 p.m. from Perumpilly junction on 30.10.2004 and on getting information about the first accused and the juvenile accused arrested first accused at 8.15 p.m. and also arrested the juvenile accused. When PW8 questioned the first accused based on the information furnished by the first accused, PW8 recovered hard disks and screw drivers which were stolen from the school and kept in the house of the first accused under Ext.P4 recovery mahazar in the presence of PWs 4 and 6 the attesting witnesses. On questioning the second accused and on the information furnished by him, the stolen processors and processor fans were recovered from the house of the second accused at Narakkal under Ext.P5 recovery mahazar at 10.15 a.m. On information furnished by the juvenile accused the other stolen articles were also recovered. After getting the stolen articles identified and CRRP2563 & 2891/2008 3 completing the investigation, PW8 laid the charge which was taken cognizance by the learned Magistrate. When charge for the offences under section 380 and 457 read with section 34 of Indian Penal Code was framed and read over, both the accused pleaded not guilty. Prosecution examined 8 witnesses and marked 7 exhibits. The accused did not adduce any evidence. It is on the said evidence learned Magistrate convicted both the accused and sentenced them to simple imprisonment for six months each and a fine of Rs.500/- each for the offences under section 380 and 457 of Indian Penal Code. The judgments of the Courts below show that revision petitioners were convicted solely based on the recovery under Exts.P4 and P5 recovery mahazars as there was no eye witness to the theft. Learned Magistrate and the learned Sessions Judge accepted the recovery. The finding of the learned Magistrate was that evidence of PW8 establish that the accused were arrested on 30.10.2004 and the stolen articles were recovered under Exts.P4 and P5 mahazars and therefore it is proved that the accused committed the offences. Learned Sessions Judge found that the discrepancy in the evidence of PWs 4 and 6 is not fatal and evidence establish that PW6 was the attesting witness to all the CRRP2563 & 2891/2008 4 recovery mahazars and recovery evidenced by Exts.P4 and P5 on the information of the accused established by the evidence of PWs 8 and 4 to 6 and evidence of PWs 1 and 2 establish the identity of the stolen articles which were entrusted under Ext.P2 Kacheett after recovery and therefore convicted the revision petitioners. 2. Learned counsel appearing for revision petitioners pointed out that though PW5 was examined as an attesting witness to Ext.P5 mahazar, he turned hostile and did not support the prosecution case at all. It was also pointed out that though PW6 was examined and he supported the prosecution, only Ext.P4 recovery mahazar was shown to PW6 and the evidence of PW6 was that he signed the mahazar from the police station and therefore evidence of PW6 do not establish recovery of the articles under Ext.P4 from the house of the first accused and therefore based on the evidence of PW6 Courts below could not have convicted the first accused. It was also argued that as per the evidence of PW4 he was an attesting witness to Ext.P4 and the evidence of PW4 did not establish the recovery under Ext.P4 recovery mahazar as according to PW4 the mahazar was signed from the house of the juvenile accused, Jinesh and he has no case CRRP2563 & 2891/2008 5 that he witnessed any recovery from the house of the first accused as stated in Ext.P4 recovery mahazar. Learned counsel pointed out that when PW6 did not give any evidence with regard to Ext.P5 recovery mahazar or the recovery evidenced by Ext.P5 and the evidence of PW5 did not support the recovery under Ext.P5, Courts below should not have accepted the evidence of PW8 to convict the second accused. It was pointed out that as per the evidence of PW8 also the recovery evidenced by Exts.P4 and P5 was not in the presence of any independent witnesses and therefore Courts below should not have accepted the evidence of PW8 that the recovery evidenced by Exts.P4 and P5 were made on the information furnished by the revision petitioners and therefore the conviction is not sustainable. 3. On going through the evidence of PWs 4 to 6 and 8 and the judgments of the Courts below, it is absolutely clear that the evidence was not properly appreciated. Though learned Sessions judge relied on the evidence of PW5 also to uphold the recovery, PW5 in fact did not support the prosecution case at all. His evidence is not helpful either to prove the recovery or to connect any of the accused to the recovery of the stolen articles. Though the Courts below relied on the evidence of PW6, apart CRRP2563 & 2891/2008 6 from deposing about Ext.P4 recovery mahazar, PW6 did not depose anything about the recovery evidenced by Ext.P5. Evidence of PW6 do not establish any recovery from the house of either the first accused or the second accused under Exts.P4 or P5. If the evidence of PW6 is to be believed, as there is no reason to disbelieve him as nothing was pointed out, he signed in Ext.P4 and P5 mahazars from the police station and not from the houses from where the stolen articles were allegedly recovered. If the recovery evidenced by Exts.P4 and P5 is true, PW6 should have accompanied PW8 to the houses of all the accused as he is the common attesting witness to all the mahazars. No question was put to PW6 in chief examination that he accompanied PW8 for the recovery or that he was present at the time of recovery evidenced by Exts.P4 and P5. Even PW8, investigating officer, did not depose that he brought PW6 to effect all the recoveries under Exts.P4 and P5, PW8 also did not depose that when the recovery was effected from the houses of accused 1 and 2 PW6 or PW4 was present. Therefore, evidence of PW6 do not establish the recovery from the houses of accused 1 and 2 as stated in Exts.P4 and P5. The evidence of PW4, who is the other attesting witness to Ext.P4 mahazar, is also insufficient to prove CRRP2563 & 2891/2008 7 the recovery. Though PW4 supported the prosecution case by admitting that he was an attesting witness to the mahazar, when recovery was effected from the houses of the first accused and the juvenile accused, if we are to believe the evidence of PW4, Ext.P4 recovery mahazar relating to the recovery effected from the house of first accused was signed by PW4 from the house of the juvenile accused. If that be the case, evidence of PW4 will not establish the recovery of the hard disks from the house of the first accused as seen in Ext.P4 recovery mahazar. 4. What remains is only the evidence of PW8. First of all from the evidence of PW8 it is not possible to believe the case that PW8 got the information with regard to the stolen articles from the information furnished by the revision petitioners. As per the evidence of PW8 after registration of Ext.P6 F.I.R., he prepared Ext.P3 scene mahazar and questioned the witnesses. He arrested the second accused on 30.10.2004 at 6 p.m. and on questioning the second accused, got information regarding first accused and the juvenile accused. It is not disclosed by PW8 on what basis he arrested the second accused as PW8 did not have any previous information with regard to the participation of the second accused in the offence till then. Even if it is taken that CRRP2563 & 2891/2008 8 PW8 questioned the second accused and got information with regard to the theft, based on that information revision petitioners cannot be convicted. Only the information which led to the recovery could be relied on, if it is proved that the recovery was effected on the information furnished by the respective accused. If the said information is to be relied on, the recovery is to be proved. When there is no evidence to prove that the recovery evidenced by Exts.P4 and P5 were made in the presence of the attesting witnesses shown in Exts.P4 and P5, which was disowned by them, it is not possible to rely on the recovery evidenced by Exts.P4 and P5 to convict the revision petitioners as has been done by the learned Magistrate. It is more so because even in chief examination PW8 had no case that when the recoveries were effected on the information furnished by the accused, the witnesses to the recovery mahazars were present or he procured the presence of the witnesses to effect the recovery. Unfortunately these aspects which are relevant and crucial to accept or reject the recoveries, was not considered by the learned Magistrate and the learned Sessions Judge. It is on the failure to appreciate the evidence properly, Courts below convicted the revision petitioners based on the recovery CRRP2563 & 2891/2008 9 evidenced by Exts.P4 and P5, when there is no acceptable, credible and reliable evidence to prove the recovery. As there is no other evidence to connect the revision petitioners with the offences, the conviction is not sustainable. Revision petitions are allowed. Conviction of the revision petitioners the accused in C.C. 1045 of 2004 on the file of Judicial First Class Magistrate-I, Kochi, as confirmed by Additional Sessions Judge, Ernakulam in Crl. Appeal 137 and 138 of 2007, is set aside. The accused are found not guilty of the offences charged. They are acquitted. The bail bonds executed by them stand cancelled. M. SASIDHARAN NAMBIAR, JUDGE okb