IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 Crl.Rev.Pet.No. 628 of 2001() ----------------------------- CRA.128/1993 of ADDL.SESSIONS COURT, THALASSERY CC.305/1990 of JUDL.MAGISTRATE OF FIRST CLASS COURT, MATTANNUR .................... REVISION PETITIONER/3RD APPELLANT/ACCUSED NO.3: --------------------- A.P.JAMES @ KOCHU, S/O.PHILIP, ASSARIPARAMBIL HOUSE, ERUTHUKADAVU, ARABI P.O., ULICKAL (VIA) KANNUR DISTRICT. BY ADV. SMT.P.M.INDU RESPONDENT/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA , ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.628 of 2001 -------------------------------------- Dated this the 15th day of October, 2008. ORDER Heard both sides. 2. Third accused faced trial along with three others for offences punishable under Section 457 and 380 read with Section 34 of the Indian Penal Code (for short, 'the Code') the allegation being that on 27.7.1988 at about 2 a.m. they, in furtherance of common intention trespassed into vettekkorumakan temple, breaking open the lock of outer door and committed theft of idol, lamps, etc. A4 was acquitted by the trial court. A1 to A3 were convicted. They took up the matter in appeal. A1 to A3 were acquitted. This Court initiated suo motu revision, set aside the acquittal and remitted the case to the appellate court for fresh disposal. While so, first accused died. Appellate court convicted A3 and acquitted A2. A3 has come up in revision challenging his conviction and sentence. 3. Counsel for revision petitioner submitted that there is no sufficient evidence to convict the revision petitioner. According to learned counsel, the alleged discoveries at the instance of the revision petitioner are not properly proved and at any rate, there is no evidence of concealment. It is also submitted that there is no proper identification of the material objects alleged to be discovered at the instance of revision petitioner. Crl.R.P.No.628/2001 2 4. PW2 who gave first information regarding the alleged incident claimed that the temple belonged to his family. On getting information about the incident, he came to the temple and learned about the theft. He identified MO1 series and MO2 series as the stolen idols, lamps, etc. PW1, the temporary priest of the temple claimed that he was in charge of the temple in the absence of his uncle, from 25.7.1988 onwards. He claimed that he had closed the temple on 27.7.1988 after pooja. Next day, the lock of the outer door of the temple and sreekovil were seen broken. Idols and lamps kept in the temple were seen missing. PW 4 is the owner of the jeep. He was examined to say that revision petitioner and other accused had travelled in that jeep but he did not support the prosecution. PW5 is the registered owner of the jeep and claimed that he had sold the jeep to PW4. PW6 stated that his brother-in-law donated one of the stolen lamps to the temple. PW7 was examined to prove arrest of first accused and seizure of MO1 series but he did not support the prosecution. He admitted signature on Ext.P4, mahazar. PW8 claimed that as per direction of the Circle Inspector, he had taken out one lamp from an unused well in the presence of Circle Inspector and revision petitioner. He identified that lamp as MO2. He is an attestor in Ext.P6. PW9 is another attestor in Ext.P5, mahazar for seizure of the materials at the instance of revision petitioner but he did not support the prosecution. PW10 is a director of a bank. He claimed that in connection with theft in that bank, he had been to the Circle Inspector and accompanied him to the place wherefrom discovery as per Ext.P5 was made. He stated that on 26.1.1989 at about 5 p.m. he saw revision petitioner showing Crl.R.P.No.628/2001 3 a lamp in a well and one Narayanan (PW8) taking that lamp. He also claimed to have seen revision petitioner digging out an idol and lamp from the property behind the house of revision petitioner on 26.1.1989 at about 7 p.m. PW16, the Circle Inspector, Payyannur arrested revision petitioner and A2 on 23.1.1989 and recorded their statement. Allegedly on the information given by the revision petitioner and A2, recoveries as per Exts.P4 to P7 were made. 5. The only item of evidence pertaining to the revision petitioner is the alleged discovery of lamps as per Exts.P5 and P6. Going by Ext.P6, revision petitioner had told PW16 that he had kept the lamp in the unused well. Ext.P6 (a) is the relevant portion of the statement of revision petitioner. Ext.P5 (a) is the relevant portion of the statement of revision petitioner which led to the discovery as per Ext.P5. In Ext.P5(a), there is no mention of authorship of concealment. 6. MO2 series are three lamps. Exts.P5 and P6 refer only two lamps. One lamp in MO2 series was not discovered at the instance of revision petitioner. PW1 did not identify any of the material objects. PW2 stated that the stolen lamps (which include the one not discovered at the instance of revision petitioner) are the lamps stolen from the temple but PW6 was not made to identify any of those materials. PW10 also did not identify the lamp discovered on the information given by the revision petitioners as per Ext.P6(a). It is seen from evidence that PW10 only stated that said lamp is seen in court. He was not made to identify which of the lamp among MO2 series is the lamp covered by Ext.P6(a). The difficulty is that going by Ext.P7, one lamp was discovered on the Crl.R.P.No.628/2001 4 information allegedly given by the second accused. MO1 series do not contain any lamp. In short, apart from the two lamps discovered as per Exts.P5 and P6, one lamp also is included in MO2 series and witnesses were not made to properly identify which of the two lamps among those three lamps are covered by Exts.P5 and P6. The discovery of one lamp as per Ext.P5 is of no use since Ext.P5(a) does not contain any authorship of concealment. In the light of that, it is difficult to apply Ext.P6(a) against revision petitioner to say that he was in possession of the stolen lamp. If that be so, his conviction and sentence cannot be sustained. Resultantly, Revision Petition is allowed. Conviction and sentence imposed on revision petitioner are set aside and he is acquitted of the charges made against him giving him the benefit of doubt. Bail bond is cancelled. Crl.M.P.No. 3032 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.628/2001 5 Thomas P.Joseph, J. Crl.R.P.No.628 of 2001 ORDER 15th October, 2008