IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 Crl.Rev.Pet.No. 950 of 2009() ---------------------------------------- CRA.452/2007 of ADDL. SESSIONS COURT (ADHOC), KALPETTA C.C. NO.288/2006, JFCM-II, THAMARASSERY .................... REVN. PETITIONER(S): APPELLANT/1ST ACCUSED: --------------------------------------------------------------------- ABDUL RAZACK, S/O.MOIDEEN, EDAKKUNNUMMEL HOUSE, THACHAMPOYIL P.O., THAMARASSERY, KOZHIKKODE DISTRICT. BY ADV. SRI.K.G.ANIL BABU SRI.CYRIAC KURIAN RESPONDENT(S): RESPONDENT/COMPLAINANT: --------------------------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, THIRUVAMPADY POLICE STATION. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.950 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 1st day of July, 2009 O R D E R -------------- Along with accused No.2 petitioner faced trial in the court of learned Judicial First Class Magistrate-II, Thamarassery in C.C. No.288 of 2006 for offence punishable under Section 380 read with 34 of the Indian Penal Code (for shot, “the Code”). 2. Case is that on 1.8.2006 at about 5.45 p.m. petitioner and accused No.2 in furtherance of their common intention committed theft of M.O.1, roll of aluminium wire belonging to the Kerala State Electricity Board from the car porch of P.Ws.3 and 6. Learned magistrate found petitioner and accused No.2 guilty, convicted and sentenced them to undergo rigorous imprisonment for six months. Petitioner preferred an appeal but without success. Hence this revision. 3. It is contended by learned counsel that involvement of the petitioner in the alleged incident is not proved. Learned Public Prosecutor submitted that there is no reason to interfere with the conviction and sentence in the light of the evidence on record. 4. P.Ws.1 and 2 are the officials of the Electricity Board. Their evidence is that aluminium wire was kept in the car porch of P.Ws.3 CRL. R.P. No.950 of 2009 -: 2 :- and 6 on 14.7.2006. It was stolen on 1.8.2006. P.W.6 is the wife of P.W.3. P.Ws.3 and 6 also stated that M.O.1 was kept in their premises on 14.7.1996. P.W.6 stated that on 1.8.1996 at about noon while she was reading newspaper she saw an autorikshaw going in a slow speed along the road in front of her house and returning after sometime. Later she saw a person who collected the roll of aluminium wire from her compound crossing over the compound wall and going away in the autorikshaw. 5. Next evidence is that of P.W.5, a Jeep driver. He stated that he found the autorikshaw and its driver (petitioner) at Kodanchery near the bus stop after 5.00 p.m. Local people had detained the petitioner. There were a few pieces of aluminium wire on the platform of the autorikshaw and another roll of aluminium wire (identified as M.O.1) about 5-6 metres away from the autorikshaw. Police came there and took the autorikshaw and the aluminium wire into custody. He is an attester in Ext.P4, mahazar. P.W.7, Assistant Sub Inspector of Police stated that while on patrol duty he got information about a person being detained with aluminium wire at Kodanchery, reached there and found the petitioner with the autorikshaw and M.O.1, the roll of aluminium wire. He took CRL. R.P. No.950 of 2009 -: 3 :- to custody the autorikshaw and aluminium roll as per Ext.P4. He arrested the petitioner at the spot. Exhibits P5 and P5(a) are the arrest memo and inspection memo, respectively. M.Os.2 series are the photographs of the autorikshaw. P.W.7 questioned the petitioner. Petitioner told P.W.7 that he would point out the place from where aluminium wire was taken and accordingly as led by the petitioner P.W.7 went to the place of occurrence where he prepared Ext.P3, mahazar for scene of occurrence. According to the petitioner he is innocent and he was not aware that accused No.2 had the intention to commit theft. At Kodanchery his autorikshaw developed mechanical defect and he went to fetch a mechanic. By that time people gathered there and he was taken to custody. 6. Even as per the evidence of P.W.6 it is not the petitioner who had taken the aluminium wire from the premises of P.Ws.3 and 6. That role is attributed to accused No.2 who was found guilty and convicted. Question is whether petitioner shared the common intention with accused No.2. Evidence appearing against petitioner is that he had brought accused No.2 in the autorikshaw and in his autorikshaw accused No.2 took M.O.1. There is no evidence to show that petitioner was acquainted with accused No.2, or that he knew CRL. R.P. No.950 of 2009 -: 4 :- about the intention of accused No.2 to commit theft. In the circumstances the mere fact that he had brought accused No.2 to the place of occurrence or accused No.2 travelled in his autorikshaw with the aluminium wire cannot by itself be sufficient to warrant conclusion that petitioner shared the common intention with accused No.2 about the theft. Certainly material on record is sufficient to create serious doubt on the involvement of the petitioner. But with serious doubt, petitioner cannot be convicted for the offence. I am persuaded to think that prosecution was not able to prove beyond reasonable doubt that petitioner shared the common intention with accused No.2. As such his conviction cannot be sustained. Resultantly, revision is allowed. Conviction and sentence imposed on the petitioner are set aside. Petitioner is acquitted of the charge against him. THOMAS P.JOSEPH, JUDGE. vsv