IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN WEDNESDAY, THE 30TH SEPTEMBER 2009 / 8TH ASWINA 1931 Crl.Rev.Pet.No. 529 of 2002() ----------------------------- CRA.19/1997 of ASSISTANT SESSIONS COURT, KALPETTA SESSIONS CASE NO.49/1996 of ASST.SESSIONS JUDGE, SULTHANBATHERY REVN. PETITIONERS: REVN. PETITIONER/APPELLANTS/ACCUSED 1 & 2: --------------------------------------------------------------- 1. AJITH, S/O. MADHAVAN, MANIYANA VILASAM, THRIKKAIPATTA, VYTHRI TALUK, MANANTHAVADY. 2. BIJU, S/O. CHANDRAN, THACHUPURATH HOUSE, EZHAMCHIRA, VYTHIRI TALUK. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: RESPONDENTS/COMPLAINANT/STATE: --------------------------------------------- 1. S.I. OF POLICE, MEPPADI POLICE STATION, WYNAD. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.RITHWIK SRI.CIBI THOMAS THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 30/09/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.S.GOPINATHAN, J. ---------------------------------------- Crl.R.P.No.529 of 2002 ---------------------------------------- Dated this the 30th day of September, 2009 ORDER The revision petitioners are accused 1 and 2 in S.C.49 of 1996 on the file of the Assistant Sessions Judge, Sulthan Bathery. The revision petitioners along with another were prosecuted by P.W.19, the then Circle Inspector of Police, Kalpetta alleging offences under Sections 450, 324, 397 and 307 I.P.C. The report was filed before the Chief Judicial Magistrate, Kalpetta. The learned Magistrate took cognizance and on finding that the offence is exclusively triable by a Court of Session, by order dated 23.5.1996 in C.P.5 of 1996, committed the case to the Court of Session, Kalpetta. From there, it was made over to the Assistant Sessions Judge, Sulthan Bathery. The learned Assistant Sessions Judge, after hearing the prosecution and the accused, framed charge for offences under Sections 457/450, 392, 394 and 307 read with Section 397 I.P.C. The accused pleaded not guilty. Hence, they were sent for trial. On the side of the prosecution, P.Ws.1 to 20 were examined and Exts.P1 to P14 were marked. M.Os.1 to 13 were also marked. The plea of the accused was one of total denial. No defence evidence was Crl.R.P.No.529 of 2002 2 adduced. During the course of the cross-examination of the witness, Ext.D1, a portion of the statement of the witness was marked. The learned Assistant Sessions Judge, on appraisal of the evidence, arrived a finding that the revision petitioners are guilty for offences under Sections 451, 392 and 394 I.P.C. Accordingly, they were convicted and sentenced to rigorous imprisonment for three years and fine of Rs.3,000/- each under Section 451 I.P.C., rigorous imprisonment for five years and a fine of Rs.3,000/- each under Section 394 I.P.C. For non- payment of fine, default sentence of rigorous imprisonment for 1 year each was also ordered. The third accused was found not guilty and acquitted. Aggrieved by the above conviction and sentence, Crl.A.No.19 of 1997 was preferred before the Sessions Judge, Wayanad. The Additional Sessions Judge, Ad-hoc, Kalpetta, to whom the appeal was made over, by judgment dated 15.5.2002, concurred with the trial court. Assailing the legality, correctness and propriety of the above conviction and sentence, as confirmed in appeal, this revision petition was filed. 2. PW.4, the victim is reported no more. The revision petitioners along with the legal heirs of PW.4 filed a join petition, Crl.R.P.No.529 of 2002 3 as Crl.M.A.6982/09 under Section 320 of the Code of Criminal Procedure praying to record the compounding of the case. As the offences under Section 392 and 394 I.P.C. are non- compoundable, the petition is rejected. 3. The prosecution in brief is that at midnight in between 14.7.1995 and 15.7.1995, the revision petitioners along with the 3rd accused in furtherance of their common intention of committing robbery and murder, committed criminal trespass to the house of the defacto complainant who was examined as PW.4 and after break opening the door of the house committed robbery of gold chain and ear stud weighing 1 ½ sovereign, a brass lamp and an umbrella after throttling and beating her at head with a stick. 4. From the evidence on record, it is revealed that soon after the alleged occurrence PW.4 went to her neighbour who was examined as PW.1 and reported that her elder son Kunjappan and her grand children beat at her head with a stick and that during the scuffle, gold chain and ear stud fell down. PW.4 had bleeding injury at her head. PW.1 immediately fetched a vehicle and PW.4 was rushed to the hospital with the help of Crl.R.P.No.529 of 2002 4 other neighbours. On the next day, PW.1 went to the Meppady Police Station and reported. Head Constable attached to the Police Station recorded the statement given by PW.1 which was marked as Ext.P1 and registered a case as Crime No.105/95 under section 324 I.P.C. read with section 34 I.P.C. as against Kunjappan (son of PW.4) and others. Ext.P11 is the First Information Report. However, there was no much progress in the investigation. On 22/8/1995 PW.19, the Circle Inspector of Police, Kalpatta while on patrol duty at 2.00 a.m. arrested the revision petitioners and the other accused from a bus-waiting shed near Anandapadma Theatre in a suspicious circumstance and a case as Crime No.202/95 was registered under section 41 of the Code of the Criminal Procedure as evidenced by Ext.P13. It is reported that at the time of arrest the first revision petitioner was in possession of a holy cross and two bills from a jewellery evidenced by Ext.P10 mahazar. According to PW.19 on further interrogation, the second revision petitioner confessed that an umbrella and a kerosene lamp had been kept in a shop of one Kader who was examined as PW.7. On the basis of the information so given, the second revision petitioner was taken to Crl.R.P.No.529 of 2002 5 the shop of PW.7 who handed over a folding umbrella, a metal kerosene lamp, a chopper and a knife. It was seized on the basis of Ext.P4 statement. Ext.P4(a) is the statement given by the second revision petitioner. 5. On interrogation, the first revision petitioner stated that he had sold a chain to a jewellery at Padinjarethara and as led by him PW.19 proceeded to the shop of PW.11 who handed over a gold ingot weighing 7.5grams which was identified and marked as MO.7. Ext.P8 (a) is the statement so given by the first revision petitioner and Ext.P8 is the mahazar prepared for the seizure of M.O.7. The first revision petitioner had further stated that the ear stud was sold to one Sobha Jewellery and on the basis of statement so given by the first revision petitioner, PW.19 went to the shop of PW.9 who handed over a gold ingot weighing 4gms which was marked as M.O.6. It was seized on the strength of Ext.P6 mahazar. Ext.P6 (a) is the confession statement given by the first revision petitioner. According to PW.19 on further investigation, it is revealed that those material objects seized on the basis of the information given by the revision petitioners are the articles robbed from the Crl.R.P.No.529 of 2002 6 house of PW.4 for which crime No.105/95 was registered and accordingly the charge sheet was laid before the Chief Judicial Magistrate, Kalpetta. 6. Now in support of the prosecution case there is the only testimony of PWs.1 and 4. PW.1 had deposed that PW4 stated that she was hurt by Kunjappan and two grand children and as requested by PW.4 she was taken to the hospital in the night itself and on the next day when he went to the house of PW.4 he saw the gold chain, ear stud, umbrella and lamp lying inside the house of PW.4. However, no material object was identified by PW.1. 7. In Ex.P1 according to PW.1 it was alleged by PW.4 that she was hurt by her son Kunjappan and grand children. There is no case of any robbery but the allegation was that the ear stud and chain were lost during scuffle. 8. PW.4, the defacto complainant in fact did not give any evidence supporting the prosecution case. The deposition of the witnesses would show that she was sick and old and she could not give answer to the questions. Hence, only the holy cross, lamp and umbrella which were marked as MOs.1 to 3 were got Crl.R.P.No.529 of 2002 7 identified. There is no whisper in her evidence that she was robbed by the revision petitioners or by any other person. That being the evidence of PWs.1 and 4, the only material available on record to connect the revision petitioners with the crime alleged is the so-called confession statement given by revision petitioner to PW.19. Though the revision petitioners had given statements to PW.19 regarding the gold chain, ear stud, kerosene lamp and umbrella there is no whisper that those material objects were robbed by them from the house of the revision petitioner. In the light of Ext.P1 and in the nature of the evidence of PW4 it is even doubtful whether there was any robbery or attempt to commit murder. If the evidence of PW.1 is given reliance, the hurt to PW.4 was caused by her son and grand children and not by the revision petitioners. If the evidence of PW.1 is believed, the articles robbed were there in the house in the next day. So, on the alleged day there was no robbery. Then when it was lost and how seems to be a mystery. The recovery being gold ingots, it is rather difficult to conclude that it relates to the chain and stud of PW.4. As regards the cross, there is no case for PW.4 that any cross was lost. With the above evidence on record, I am unable Crl.R.P.No.529 of 2002 8 to connect the revision petitioners with the offence alleged. I find that the courts below had not properly appreciated the evidence on record. Probably the revision petitioners could not have accounted the sale of the gold chain or stud, but that may not amount to evidence against the revision petitioners to convict for the offence alleged. There is wide gap between the crime and the revision petitioners. I find that there is no evidence to connect the revision petitioners with the offence alleged. The revision petitioners are entitled to an order of acquittal. This revision petition is allowed as above. The fine amount if any deposited by the revision petitioners shall be refunded to them. P.S.GOPINATHAN, JUDGE skj.