IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933 Crl.Rev.Pet.No. 2467 of 2010() ------------------------------------------- CRA.155/2009 of SESSIONS COURT, KOLLAM CC.587/2007 of JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAVUR. .................... REVISION PETITIONER/APPELLANT/IST ACCUSED -------------------------------------------------------------------------- RAJESH, S/O.RAVEENDRAN, KARIKKATHIL PUTHEN VEEDU, KOTTATHALACHERY, PUTHOOR VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.B.DIPU SACH DEEV, SRI.E.NISHAD, SRI.RAVI KRISHNAN. RESPONDENT/RESPONDENTS/COMPLAINANT & STATE ----------------------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, PARAVUR POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY PUBLIC PROSECUTOR MR.SABU SREEDHARAN. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: rs S.S.SATHEESACHANDRAN, J -------------------------------------- Crl.R.P No.2467 OF 2010 ----------------------------------------- Dated this the 5th day of September 2011 ORDER Revision is by the 1st accused(A1) in C.C No.587/2007 on the file of the Judicial First Class Magistrate, Paravur. He was prosecuted with two others for the offences under Sections 379 and 414 r/w 34 IPC. Third accused (A3) remained at large, and, splitting up the case against him, trial proceeded against the revision petitioner (A1) and the other (A2), who had pleaded not guilty. The learned Magistrate found the revision petitioner (A1) guilty of the offence under Section 379 IPC and not guilty of the other offence. On his conviction, he was sentenced to undergo rigorous imprisonment for three years and to pay fine of `.5,000/- with default term of rigorous imprisonment for six months more. A2 was found not guilty and acquitted of the offence. 2. Appeal preferred by the 1st accused was turned down by the learned Sessions Judge, Kollam, affirming his conviction and sentence without any modification. Feeling aggrieved, he has preferred this revision. 3. The learned counsel for the petitioner/A1 submitted that there is no legal evidence to connect the accused with the offence he was convicted and sentenced by the two courts, concurrently. Crl.R.P No.2467 OF 2010 - 2 - The only material connecting him with the crime was the recovery of the stolen article, a motor vehicle, allegedly belonging to PW1, the de facto complainant, from the house of the third accused (A3), to whom the stolen vehicle was alleged to have been sold by the other two accused (A1 and A2). Recovery was effected on the basis of a disclosure statement purported to have been recorded from A1 while he was in custody, was the case of the prosecution. Counsel would submit that the officer who recorded that statement and thereafter effected the recovery of the article was not examined in the case. The only witness examined to prove the recovery was PW2, who is stated to have been present at the time when recovery was effected from the residential premises of the third accused. When the prosecution has not let in sufficient legal evidence to connect the accused with the offences imputed, and, more so, when it has got a case that recovery was effected on the basis of the disclosure statement from A1 while he was in custody, it is submitted by the counsel, nonproving of that statement is fatal to the case of the prosecution. So much so, the conviction of the accused is liable to be set aside, contends the counsel. 4. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I find some force in Crl.R.P No.2467 OF 2010 - 3 - the submissions made by the counsel. Though the prosecution has proved that the stolen article, the motor vehicle recovered belonged to PW1, the de facto complainant, and it was stolen while it was parked in his car porch as alleged, that is not sufficient to proceed against the accused to hold that they have committed the theft of that motor vehicle. Where the prosecution advanced a case that the recovery of stolen article from A3 was effected on the basis of the disclosure statement of A1, the present revision petitioner, to a police officer, that statement should have been proved by examining that officer. The judgment rendered by the Magistrate, nor that of the learned Sessions Judge, does not show why that officer was not examined in the case. PW2 is the Sub Inspector who accompanied the police officer who recorded the statement when recovery was effected. His evidence at the most would show the presence of the accused when the recovery was effected. From that alone it is not possible to hold that such recovery was effected at the instance of the accused and the disclosure statement made by him led to such recovery. PW3 is the police officer who laid the charge in the case. His evidence was also not sufficient to inculpate the accused for the offence imputed against him. When such be the case, learned counsel for the Crl.R.P No.2467 OF 2010 - 4 - petitioner is justified in contending that there is no legal evidence to found a conviction against the revision petitioner/A1 for the offences imputed against him. Conviction imposed against him is therefore liable to be set aside. Setting aside the conviction and sentence against the accused, he is acquitted of the offence under Section 379 IPC. Revision is allowed. vdv S.S.SATHEESACHANDRAN, JUDGE