IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 18TH FEBRUARY 2008 / 29TH MAGHA 1929 Crl.Rev.Pet.No. 53 of 2000() ---------------------------- CRA.87/1996 of II ADDL. SESSIONS COURT, PALAKKAD CC.63/1993 of JUDL.MAGISTRATE OF FIRST CLASS COURT, CHITTUR .................... REVN. PETITIONER: ------------------ MARY, D/O. JOSEPH, CHITTUR, PALAKKAD DISTRICT. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENTS: ------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI C.M.KAMMAPPU. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRL.M.P.NO.199/2000 IN CRL.R.P. 53 OF 2000 DISMISSED. 18-2-2008. SD/- V.K.MOHANAN, JUDGE. //TRUE COPY// V.K.MOHANAN, J. ---------------------------------------------- Crl.R.P.No.53 of 2000 ---------------------------------------------- Dated, 18th February, 2008. The revision petitioner herein is the 2nd appellant in Crl.A.No.No.87/96 of the 2nd Addl. Sessions Court, Palghat, who is the 2nd accused in C.C.No.63/93 of the JFCM, Chittur. In the above appeal, Ist appellant therein is the Ist accused who is the husband of the revision petitioner/2nd accused. In the said appeal, both of them challenged the conviction and sentence passed by the Judicial First class Magistrate Court, Chittur as per its judgment dated 30-12-1995 in C.C.No.63/93. Along with Crl.A.No.87/96, the 3rd accused in the above C.C. also filed appeal, i.e., Crl.A.No.81/96. During the course of hearing of the above appeals, the lower appellate court heard the appeals together and disposed of the same by a common judgment confirming the judgment of the trial court by which all the accused were convicted and imposed sentences against them. As per the trial court judgment, the Ist accused was sentenced to undergo simple imprisonment for a period of one year for the offence under section 454 of IPC; simple imprisonment for two CRRP 53/2000 -:2:- years for the offence under section 380 of IPC and also to undergo simple imprisonment for a period of one year for the offence under section 461 of IPC. Accused Nos. 2 and 3 were sentenced to undergo simple imprisonment for one year for the offence under section 411 of IPC. They are also sentenced to undergo simple imprisonment for one year for the offence under section 414 of IPC. While allowing the benefit of Section 428 of Cr.P.C., it was ordered that the sentences under various heads shall run concurrently. It is the above conviction and sentence challenged by both the accused before the lower appellate court. By the impugned judgment, the lower appellate court dismissed the appeals preferred by the accused and confirmed the convicrion and sentence imposed on them by the trial court. Now, the Crl.R.P. is filed by the 2nd accused challenging the conviction and sentence awarded by the trial court as well as the lower appellate court 2. The prosecution case is that on 20-11-1992 at 1.00 p.m., the Ist accused with the common intention to commit theft entered into the house of PW-1 at Telunk Theruve in CRRP 53/2000 -:3:- Chittur, after broke opened the front door and doors of the other rooms and opened the steel Almirah with keys and Ist accused took 15 ¼ sovereigns of gold ornaments worth Rs.37,500/- which was kept in a tiffin box in the almirah. After taking the gold ornaments from the house of PW1, Ist accused handed over four sovereigns of gold chain to A2 for selling the same and accordingly, A2 sold out the above articles. Similarly, A1 handed over the stud and Jimiki to A3 for selling the same. Thus according to the prosecution, A2, the revision petitioner herein, received four sovereigns of gold chain from A1, knowingly that it was stolen property, and sold the chain at Pollachi to a gold business man. The other two gold chain kept in her house. A3 received the gold ornaments from A1, knowingly that it was a stolen property, and kept the same in his house. Thus according to the prosecution, the accused have committed offences punishable under sections 454, 380, 461, 411 of 414 read with section 34 of I.P.C. 3. On the basis of the information given by PW-1 as CRRP 53/2000 -:4:- per F.I.Statement which marked as Ext.P1, and F.I.R. was registered in the Chittur Police Station as crime No.270/92 which marked as Ext.P1(a). On the basis of the registration of the crime, investigation was conducted and final report was filed before the trial court and the court took cognizance and instituted C.C.No.63/93. During the course of the trial, from the side of the prosecution, P.Ws 1 to 15 were examined as prosecution witnesses and marked Exts.P1 to P13 as documentary evidence. No evidence was adduced either as oral or documentary from the side of the defence. M.Os 1 to 7 material objects marked. After appreciating the materials and evidence or record, the trial court found that the accused are guilty and accordingly they were convicted and sentenced to undergo imprisonment in the aforesaid manner. Challenging the above conviction and sentence, the accused filed two appeals i.e., Crl.A.No.81/96 and 87/96 and by a common judgment dated 12-8-1999, both the appeals were dismissed by the lower appellate court. Crl.A.No.81/96 is preferred by A3 and Crl.A.87/96 was preferred by A1 and A2. CRRP 53/2000 -:5:- Now the 2nd accused approached this Court by filing the above Crl.Revision Petition challenging the conviction and sentence passed against her. No proceedings is initiated by the other accused, viz., A1 and A3 challenging their conviction and sentence and nothing brought to my notice to that effect. 4. Heard the learned counsel appearing for the revision petitioner and also the learned Public Prosecutor. 5. Counsel for the revision petitioner submitted that absolutely there is no materials connecting the petitioner herein with the offence alleged against her under section 411 and 414 of IPC and therefore, the conviction and sentence awarded against her, who is the 2nd accused, is liable to be set aside. Counsel further submitted that the entire prosecution case against A1 and according to the prosecution the main offence is committed by A1 and he is the prime accused. The counsel pointed out that according to the prosecution, A1 is the person who committed the theft of the gold ornaments from the house of PW-1. But there is no evidence, either oral or documentary, to connect the petitioner herein with the CRRP 53/2000 -:6:- alleged offence under sections 411 and 414. The counsel for the petitioner submitted that though the prosecution very much relied upon the evidence and materials under section 27 of the Evidence Act with respect to A1, no such statement is produced during the trial of the case. In support of his plea for acquittal of the petitioner, it is pointed out that even though the police had claimed a confession statement of A2, nothing was recovered pursuant to such confession statement and even the confession statement itself is not produced during the trial. Therefore, the counsel submitted that there is no materials to substantiate the allegation against the petitioner, the 2nd accused. 6. Per contra, the learned Public Prosecutor submitted that the recovery was effected from the house of both A1 and A2, the petitioner herein, both A1 and A2 are husband and wife and they are residing together. According to the Prosecution, the recovery is proved as per Ext.P12 search memo, Ext.P3 search list and Ext.P4 seizure mahazar. Therefore, according to the learned Public Prosecutor, the CRRP 53/2000 -:7:- conviction and sentence awarded by the court below against the petitioner is absolutely legal and correct and no interference of this Court is warranted in exercise of the revisional power of this Court. 7. I have gone through the judgments of the courts below and the materials on record. It is a case of theft and there is no eye witness to the incident alleged by the prosecution and therefore, the prosecution placed reliance upon the circumstantial evidence to support its allegation. PW-15, the investigating officer who conduct the investigation, especially, the major portion of the investigation. According to PW-15, he investigated the place of occurrence and prepared Ext.P5 scene mahazar and during his examination, he found out certain finger prints and on further examination based upon the finger prints, he got suspicion about the involvement of A1 with the commission of the offence. So it is the definite case of PW-15 that on 20-11-92 when he went along with the ASI and police party, they saw A1 at Vennamada and on seeing the police party, A1 escaped which generated doubt in his mind and CRRP 53/2000 -:8:- thus he had conducted search in the house of A1 and A2. The search was conducted on the basis of search memo send to the court and the search list. During such search, certain gold ornaments were recovered from the house of the petitioner(A2) as well as A1 who is her husband. Ext.P4 is the mahazar for the seizure of the gold ornaments from the house of the petitioner. According to PW-15, at the time of seizure, PW-5 was present and his signature was obtained in Ext.P4 seizure mahazar. It is on the basis of the above seizure mahazar from the house of petitioner, the petitioner is implicated as A2 in the above crime. After the seizure, A2 was arrested and Ext.P13 report was sent to the court arraying the petitioner as A2 in the above crime. It is also the case of PW- 15 that after the arrest of A2 on her questioning she gave confession statement that she sold the gold necklace to a person namely Senthilkumar at Pollachi who is said to be a gold business man. According to PW-15, though they went to Pollachi as led by A2 for effecting the seizure, they could not find out the said person and no recovery was effected. CRRP 53/2000 -:9:- 8. Considering the particular fact and circumstances involved in the case, it can be seen that in fact, A2 is arrayed as one of the accused and arrested on the basis of the so called search and seizure of the ornaments from the house of the both A2 and A1. The prosecution has no case that the search and seizure of gold ornaments were effected from the house of A2 and A1 on the basis of confession statement of A1. But the prosecution is of the opinion that on seeing the patrol party, A1 ran away which generate doubt in the mind of PW-15 and so they conducted search in the house of A1 and seized the article. So on an examination of that part of the prosecution case, it can be seen that till that time, A2 was not connected with the incident. The prosecution allegation is that on the arrest of A1 he had deposed before the police that certain gold ornaments were given to A2 and A3. Of course the recovery was effected from A3 on the basis of the so called statement given by A1. But in the case of A2, no recovery was effected even though the police had attempted to trace out the ornaments which alleged to have sold by the petitioner/A2 to Senthilkumar at CRRP 53/2000 -:10:- Pollachi. Therefore, it is crystal clear that there is no material or evidence to connect A2 with the allegations under section 411 or 414. Even going by the prosecution allegation, it can be seen that the search in the house of A2 and A1 were conducted by the police merely on the basis of suspicion and there is no further evidence to show that the articles sold were concealed in the house of the petitioner/A2 with her knowledge or consent or she was aware of the factum of concealment of the stolen article. In the absence of any materials to connect A2 with the alleged concealment of stolen gold ornaments or any other evidence to prove that A2/the revision petitioner had tried to dispose of the gold ornaments as alleged by the prosecution, no offence will lie against the petitioner. 9. In this juncture, it is relevant to note that the date of occurrence was on 20-11-92. Though there are three accused, only the petitioner who is a lady challenged her conviction and sentence in this Crl.R.P. In the light of the discussion regarding the evidence , I have already come into a CRRP 53/2000 -:11:- conclusion that there is no material to connect the petitioner with the alleged offence under section 411 and 414 and therefore the finding arrived on by the courts below appears to be incorrect and hence, the order of conviction and sentence imposed by the court below against the petitioner is liable to be set aside. 10. In the result, this Crl.R.P. is allowed. The judgments of the courts below, against the revision petitioner herein, are set aside and the revision petitioner who is 2nd accused is acquitted of the offences alleged against her and the bail bond, if any, executed by her stand cancelled. V.K.MOHANAN, JUDGE kvm/- CRRP 53/2000 -:12:- V.K.MOHANAN, J. CRL.R.P.No.53 OF 2000 Order Dated 18-2-2008.: