IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH SEPTEMBER 2008 / 25TH BHADRA 1930 Crl.Rev.Pet.No. 508 of 2001() ----------------------------- CRA.406/1994 of II ADDL.SESSIONS COURT, ERNAKULAM CC.236/1993 of JUDL.MAGISTRATE OF FIRST CLASS-II, MUVATTUPUZHA .................... REVISION PETITIONER/APPELLANT/ACCUSED: ------------------ MOHANAN, S/O.NARAYANAN, ATHIKKATTUKUZHY, NECHOOR KARA, MANEED VILLAGE. BY ADV. SRI.P.B.ASOKAN SRI.E.A.THANKAPPAN RESPONDENT/RESPONDENT/COMPLAINANT: ------------- STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE, PIRAVOM POLICE STATION, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/09/2008, THE COURT ON 16/09/2008 PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.508 of 2001 -------------------------------------- Dated this the 16th day of September, 2008. ORDER Going by the case of the prosecution PW1 was opening the front door of her house to go to latrine to attend the call of the nature at about mid- night on 18.2.1993. The lights on the varandha were burning. At that time, the revision petitioner attempted to make his entry into the room by pushing the door and tried to snatch the gold chain PW1 was wearing. PW1 successfully resisted the attempt of the revision petitioner and she, in that process sustained injuries. On hearing the hue and cry, the daughter of PW1 woke up and came to the scene. Revision petitioner snatched the gold chain the daughter (PW2) was wearing. He got a portion of the gold chain and ran away, the remainder remaining with PW2. Though an attempt was made to apprehend the revision petitioner, that did not succeed. The next day PW1 gave information to the Police (Ext.P1) based on which Crime No.31 of 1993 was registered for the offence punishable under Section 394 of Indian Penal Code. PW10 conducted investigation and submitted final report in the Court of Judicial First Class Magistrate II, Muvattupuzha. The learned Magistrate took cognizance of the offence, filed the case as C.C.No.236 of 1993 and tried the revision petitioner. He was found guilty, convicted and sentenced to undergo rigorous imprisonment for one year under Section 379 of Indian Penal Code. He was acquitted of the charge under Section 394 of Indian Penal Code. Feeling aggrieved, the revision Crl.R.P.No.2418/2001 2 petitioner preferred an appeal to the Sessions Court, Ernakulam as Criminal Appeal No.406 of 1994. Learned II Additional Sessions Judge heard the Criminal Appeal, but, dismissed. Hence this, revision. 2. Heard learned counsel for the revision petitioner and the Public Prosecutor. 3. Learned counsel for the revision petitioner submits that evidence of PWs 1, 2, 4 and 5 regarding the alleged incident is quite unbelievable. It is also contended that the investigation conducted by PW10 was not fair. Learned Public Prosecutor submitted that the evidence of PWs 1, 2, 4 and 5 was correctly appreciated by the courts below in reaching the conclusion that the revision petitioner committed the offence punishable under Section 379 of Indian Penal Code. 4. Though, at the time of hearing the learned counsel submitted that there was some affair between PW2 and the revision petitioner and that the revision petitioner had allegedly been to the house of PW2 on the invitation of PW2, he fairly conceded that no such case was pleaded by the revision petitioner when questioned under Section 313 of Code of Criminal Procedure, nor suggested to PW1 or PW2. Though, it was suggested to PWs 1 and 2 that the revision petitioner was acquainted to them even before the alleged incident, they answered in the negative. Crl.R.P.No.2418/2001 3 5. It is true that PW1 stated about the alleged incident. According to her, she had a tussle with the revision petitioner resisting his attempt to snatch her gold chain . It is then that her husband, PW3 woke up and came to the scene. Thereafter, PW2 came to the scene and then the revision petitioner snatched the gold chain PW2 was wearing. MO1 is said to be the portion of the gold chain with thali which PW2 could retained with her. But, as to what happened to the remaining portion of the gold chain allegedly taken by the revision petitioner, the prosecution did not have any successful reply except PW10 stating that the remaining portion of the gold chain could not be traced. 6. Though PW4, son of PW1, claimed to have woke up on hearing the hue and cry, seen the revision petitioner running away and claimed to have chased him, that version of PW4 appears to be quite unbelievable. The reason is that PW5 who claimed to be a neighbour would say that on hearing the hue and cry from the house in question, he came to the scene and found the revision petitioner running away. PW5 is specific that at that time, he had not seen PW4 chasing the revision petitioner and instead, PW4 was remaining at his house. It is also difficult to think that PW5 who claimed to have woke up on hearing the hue and cry reached the scene of occurrence even before PW4 had come to the scene. Thus, the evidence of PWs 4 and 5 become quite doubtful. Crl.R.P.No.2418/2001 4 7. It is interesting to note that as per the prosecution version the revision petitioner who was unsuccessful in snatching the gold chain of PW1 who was aged 59 years at the relevant time, made an attempt to snatch away the gold chain worn by PW2 aged about 29 years at the relevant time and succeeded in part. 8. The seizure of MO1 series to MO3 series is really shrouded in suspicious circumstances. MO2 is the watch and MO3 series are the chappels allegedly belonging to the revision petitioner. Those articles are said to have been handed over to PW10 on the next day by PW2. But, none of PWs 1, 2, 4 and 5 stated that they saw the revision petitioner wearing MO2 watch or MO3 series chappels. Nor did they say that in the course of alleged tussle between the revision petitioner and PW1 or PW2, MO2 or MO3 series had fallen down from the person of the revision petitioner. A further fact to be noted is that going by Ext.P2 there was no sort of damage on MO2 watch. If it had fallen down from the person of the revision petitioner, one reasonably and naturally expected some damage on the watch. According to PWs 1 and 2, revision petitioner was wearing a white dhoti and white shirt with black stripes at the relevant time. Learned counsel submits that it is quite unlikely that wearing such dress, chappels and watch as pleaded by the prosecution, the revision petitioner would have made an attempt to commit the offence under Section 394 of Indian Penal Code. The argument of the learned counsel cannot be said to be without merit. Crl.R.P.No.2418/2001 5 9. Though, in Ext.P4 there is reference to some of the neighbouring houses situated near the house in question, none from that houses appeared to be the witnesses for the prosecution and so far as PW5 is concerned, there is no mention in Ext.P4 about his house. In the circumstances, I am inclined to think that the case of the prosecution regarding the involvement of the revision petitioner is quite doubtful and the version of PWs 1, 2 , 4 and 5 do not appear to be true. It appears that they were suppressing the truth. Based on such evidence, the conviction of the revision petitioner under Section 379 of Indian Penal Code cannot be sustained, is liable to be set aside and I do so. It follows that the sentence imposed on the revision petitioner is also liable to be set aside. Revision Petition is allowed. The conviction and sentence passed on the revision petitioner for the offence punishable under Section 379 of Indian Penal Code are set aside and he is acquitted of that charge. Bail bond executed by him shall stand cancelled. Crl.M.P.No.2418 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.2418/2001 6 Thomas P.Joseph, J. Crl.R.P.No.508 of 2001 ORDER 16th September, 2008.