IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 10TH JUNE 2008 / 20TH JYAISHTA 1930 Crl.Rev.Pet.No. 722 of 2008() ----------------------------- C.C.NO.486 OF 2004 ON THE FILE OF THE J.F.C.M-, RAMANKARI CR.APPEAL NO.585/2006 ON THE FILE OF THE ADDL.SESSIONS JUDGE, FAST TRACK II, ALAPPUZHA. REVN. PETITIONER: REVISION PETITIONER/APPELLANT/3RD ACCUSED --------------------------------------------------------------------------------------------------------------------- BINOY, S/O.KUTTAPPAN, NALAIRATHILCHIRA VEEDU, CHERUKARA KARAYIL, KAVALAM VILLAGE, KUTTANAD TALUK, ALAPPUZHA. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) RESPONDENTS: RESPONDENT/COMPLAINANT ---------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 10/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. =================== Cr.R.P.No.722 of 2008 =================== Dated: 10.06.2008 O R D E R The petitioner, who is the 3rd accused in C.C.No.486 of 2004 on the file of the J.F.C.M, Ramankari for offences punishable under Sections 457 and 380 read with 34 IPC stands convicted for the afsoresaid offences and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- and on default to pay the fine to simple imprisonment for one month under Section 457 IPC and simple imprisonment for one year and to pay a fine of Rs.1,000/- and on default to pay the fine to simple imprisonment for one month under Section 380 IPC 2. The case of the prosecution an be summarised as follows: Sometime in the midnight of 5.8.04, the 3 accused persons in furtherance of their common intention to commit theft, committed lurking house tresspass by night by entering into Pazhayatharavadu house belonging to PW1 situated at Kavalam Vadakkum Muri in Kavalam village, after gaining entry into the Crl.R.P.No.722 of 2008 -:2:- house by removing its roof tiles on the north-eastern corner. They thereafter committed theft of Copper utensils altogether worth Rs.9,240/- kept inside the house. 3. On the accused pleading not guilty to the charge framed against them by the trial court for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 6 documents as Exts. P1 to P6 and 6 material objects as Mos.1 to 6. 4. After the close of the prosecution evidence, the accused were questioned under Sec. 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against them in the evidence for the prosecution. They denied those circumstances and maintained their innocence. They did not adduce any defence evidence when called upon to do so. 5. The learned Magistrate, after trial, as per judgment dated 21.05.06 acquitted the accused Nos.1 and 2 but convicted the revision petitioner/3rd accused of the aforementioned offences and imposed the sentence as aforesaid. On appeal preferred by the revision petitioner before the Addl.Sessions Judge, Fast Track Crl.R.P.No.722 of 2008 -:3:- Court- II, Alappuzha, the lower appellate court as per judgment dated 20.05.07 confirmed the conviction entered and the sentence passed against the revision petitioner. Hence, this Revision. 6. I heard the learned counsel for the petitioner and the learned Public Prosecutor. The only material on which the petitioner was convicted by the trial court is the recovery of Mos.1 to 6 from a thodu on the strength of the alleged confession statement given by the petitioner as recorded in Ext.P3 recovery mahazar. The said confession does not show that it was the revision petitioner who had secreted those vessels at the place indicated by him. Hence the said statement does not contain the authorship of concealment which is inevitable to bring the evidence within the ambit of Section 27 of the Evidence Act. The only other use of the said statement is to prove the conduct of the revision petitioner under Section 8 of the Evidence Act. There also there is nothing to indicate that it was the petitioner who had secreted those vessels at the spot pointed out by him. Hence in the light of the decision reported in Sankara Narayanan V/s. State of Kerala (2006(3)KLT 429) the Crl.R.P.No.722 of 2008 -:4:- petitioner could not be convicted for the sole circumstance of his pointing out the vessels at the spot in question. It was overlooking this vital aspect of the matter that the petitioner was found guilty by both the courts. The conviction entered and sentence passed against the petitioner are accordingly set aside and the revision petitioner is acquitted of the offences punishable under Sections 457 and 380 IPC and shall be set at liberty. However, I do not interfere with the final disposal of material objects as passed by the trial court under Section 452 Cr.P.C. V.Ramkumar, Judge. sj