IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 8TH JANUARY 2009 / 18TH POUSHA 1930 Crl.Rev.Pet.No. 4133 of 2007() ------------------------------ CRA.364/1999 of ADDL. SESSIONS COURT (ADHOC)-II, TRIVANDRUM CC.221/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED NO.2 --------------------------------------------------------- MADHU, AGED 46, S/O.APPU NADAR, VADAKKE VARIKKA PLAVU VILA PUTHEN VEEDU, PERUMPAZHUTHOOR DESOM, PERUMPAZHUTHOOR VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): COMPLAINANT ------------------------------------- STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.MUHAMMED PUZHAKKARA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.4133 OF 2007 =========================== Dated this the 8th day of January,2009 ORDER Based on the recovery of stolen articles from a bag in the possession of a passenger of an autorikshaw whether the driver of the autorikshaw could be convicted for the offence under section 380 of IPC is the question to be settled in the revision. 2. Prosecution case is that on 31.1.1995 with the dishonest intention of committing theft and in furtherance of their common intention revision petitioner, the second accused, along with first accused Rajan committed theft of M01 car sterio and M02 speaker, of Fiat Car bearing reg.No.KL-01 3232 belonging to the father-in-law of the son of PW1 and they thereby committed the offence under section 380 read with Section 34 of I.P.C. Revision petitioner was the driver of an autorikshaw. PW5 the Sub Inspector while on patrol CRRP 4133/2007 2 duty, along with PW2 the Assistant Sub Inspector of Police and police constables while on patrol duty at about 1-30 p.m on 15.2.1995 found autorikshaw KEV 8236 driven by the revision petitioner with the first accused as its passenger proceeding along Pavancode junction. Finding the police party the autorikshaw tried to turn and escape. When PW5 along with PW2 intercepted and got the autorikshaw stopped and on examination PW1 found a bag containing M01 and 2 the stolen articles along with M03 and 5 to 10 implements like screw driver, spanner and cutting plier etc. and on the failure of the passenger and the driver to give proper explanation, suspecting theft he arrested them and seized the material objects and prepared Ext.P2 F.I.R under section 41(1)(d) and 102 of Code of Criminal Procedure. Later PW1 identified M0s 1 and 2 as the stolen articles. It is based on the recovery of M0s 1 and 2, revision petitioner was convicted. Though petitioner challenged the conviction before Sessions Court, Thiruvananthapuram in Crl.A.364/1999 learned CRRP 4133/2007 3 Sessions Judge dismissed the appeal which is challenged in the revision. 3. On hearing the learned counsel appearing for the revision petitioner and the learned Public Prosecutor, I find no evidence to connect the revision petitioner with the offence. Though M0s.1 and 2 were proved to be stolen articles, by the evidence of PW1 and that there was a theft of car stereo and speaker as deposed by PW1, there is no evidence to prove that revision petitioner was connected to the theft in any way. The fact that revision petitioner was driving the autorikshaw with first accused as its passenger and the first accused was possessing M04 bag containing M0s 1 and 2 other implements, or possession of M04 bag containing the stolen articles by the first accused cannot be taken as possession of revision petitioner or joint possession or was with the consent or knowledge of the revision petitioner. Even if revision petitioner was unaware of the contents of M04 bag, which was in the possession of the passenger of his autorikshaw, if the police CRRP 4133/2007 4 party came from the opposite side, there could be valid reason for the revision petitioner, not to stop the autorikshaw. As deposed by PW4 revision petitioner was not having driving licence within him at that time. Therefore for the sole reason that the autorikshaw was not stopped or its driver tried it to turn and escape, a conclusion cannot be reached that revision petitioner either committed theft or was aware of the fact that first accused was carrying the stolen articles. In such circumstance, in the absence of any other evidence, whatsoever to connect the revision petitioner with the theft or possession of the stolen articles, conviction of the revision petitioner for the offence under section 380 read with section 34 of IPC is not sustainable. The revision petitioner is atleast entitled to get the benefit of doubt. Revision is allowed. Conviction of the revision petitioner in C.C.221/1999 on the file of Judicial First Class Magistrate, Thiruvananthapuram as confirmed by the Sessions Judge, Thiruvananthapuram in Crl.A.364/1999 is set aside. CRRP 4133/2007 5 Revision petitioner is found not guilty of the offence. He is acquitted. Bail bond executed stands cancelled. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006