IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 2ND JUNE 2009 / 12TH JYAISHTA 1931 Crl.Rev.Pet.No. 752 of 2001() ----------------------------- CRA.81/1994 of SESSIONS COURT, PATHANAMTHITTA CC.129/1991 of JUDL.MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- HENTRY VICTOR @ BABURAJ, S/O.THANKAPPAN NADAR, PALUMKAL CHERUPUSHPA VILASOM BUNGALOW, PARASSALA PAKUTHI, PARASSALA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.S.SUBHASH CHAND SRI.V.V.SHAJI SRI.DOMY JAMES RESPONDENT(S)/RESPONENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 02/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.752 of 2001 -------------------------------------- Dated this the 2nd day of June, 2009. ORDER Heard counsel for petitioner and the Public Prosecutor. 2. Learned Judicial First Class Magistrate, Thiruvalla tried the petitioner in C.C.No.129 of 1991 for offences punishable under Sections 467, 469 and 380 of the Indian Penal Code on the allegation that on 22.11.1986 at about 2 a.m. petitioner trespassed into the house of PW2 with intent to commit theft, removed MOs 1 and 2 from the possession of PW2 and thereby committed the offences. Learned magistrate found the petitioner guilty, convicted him thereunder and sentenced him to undergo imprisonment for various periods. Appellate court dismissed the appeal as appellant and counsel were absent and there was no representation. Hence this revision. 3. PW1 is the first informant and son of PW2. They identified MOs 1 and 2 and claimed that the same were stolen from their house on the night of 22.11.1986. PW1 stated that he was asleep. According to PW2, he had been to the church at the relevant time. PW8 is said to have arrested the petitioner on 15.11.1987 when he gave information regarding his alleged involvement in the incident on hand. PW7, investigating officer questioned the petitioner and on the information given by the petitioner, effected discovery of MOs 1 and 2 on 20.11.1987 at about 12 p.m. Ext.P2 is the mahazar for seizure and Ext.P2(a) is 2 the information allegedly given by the petitioner. According to the prosecution, petitioner sold MOs 1 and 2 to PW3 to whom petitioner led PW7. PW3 produced MOs 1 and 2 which PW7 took to custody as per Ext.P2. PW4 is an attestor in Ext.P2. PW3 admitted that he produced MOs 1 and 2 but not at the place stated in Ext.P2. He produced MOs 1 and 2 at T.B., Changanacherry. His brother was also present on the occasion. Hiself and brother attested Ext.P2. PW3 denied that he purchased MOs 1 and 2 from the petitioner though he admitted that one Ravi had introduced the petitioner to him. 4. It is seen that the learned Sessions Judge has dismissed the appeal for default for absence of the appellant and counsel against the settled position of law as stated by the binding authorities that once a Criminal Appeal is admitted it cannot be dismissed for default notwithstanding the absence of appellant/counsel and that in such cases appellate court should either appoint a counsel for the appellant or go through the records and decide the case on merit. Certainly judgment of the appellate court suffers from an illegality. But in the nature of the evidence let in by the prosecution I do not consider it necessary to send back the case for decision since in my view that would not serve any purpose. That MOs 1 and 2 were stolen from the house of PWs 1 and 2 is spoken by them and, I find no good reason to disbelieve that, also in the light of first information given by PW1 immediately after the incident. Their evidence does not point to the involvement of petitioner in the incident. Petitioner is said to have sold MOs 1 and 2 to PW3. But, PW3 denied that. There is no evidence to show that the petitioner had sold MOs 1 and 2 to PW3. 3 5. Seizure of MOs 1 and 2 as per Ext.P2 cannot brought within the purview of Section 27 of the Evidence Act, reason being that neither in Ext.P2(a) nor in the evidence of PW3 there is anything about authorship of sale of MOs 1 and 2 with PW3. On the other hand what is proved by Ext.P2(a) and the evidence of PW7 is only that petitioner was aware that MOs 1 and 2 were with PW3 and petitioner pointed out PW3 from whom PW7 recovered MOs 1 and 2. At the best that is only a conduct admissible under Section 8 of the Evidence Act but in the absence of any other evidence connecting the petitioner with the crime, that is not sufficient to warrant conviction of the petitioner. Petitioner therefore is entitled to an acquittal. Resultantly, this revision petition succeeds. Conviction and sentence imposed on the petitioner are set aside and he is acquitted of the charges against him. Bail bond is cancelled. Crl.M.A.No. 3523 of 2001 will stand dismissed. THOMAS P.JOSEPH, Judge. cks 4 Thomas P.Joseph, J. Crl.R.P.No.752 of 2001 ORDER 2nd June, 2009.