IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 22ND OCTOBER 2010 / 30TH ASWINA 1932 Crl.Rev.Pet.No. 1196 of 2009() -------------------------------------------- CRA.866/2007 of SESSIONS COURT, THRISSUR CC.133/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, VADAKKANCHERY .................... REVN. PETITIONER(S): ----------------------------------- PRADEP @ KANNAN , S/O. SASI, KARUMATHIL HOUSE, VADAKKUMMURI DESOM, MUNDATHIKODE VILLAGE, CONVICT NO. 6267, CENTRAL PRISON, VIYYUR THISSUR. BY STATE BRIEF SRI.KRISHNAKUMAR.R. RESPONDENT(S): ------------------------ STATE OF KERALA, S.I. OF POLICE, WADAKKANCHERY POLICE STATION. BY PUBLIC PROSECUTOR SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl. R.P.No.1196 of 2009 ------------------------------- Dated this the 22nd day of October, 2010. O R D E R This revision petition is preferred by the sole accused in Crime No.29/07 of Wadakkanchery Police Station for the offence punishable u/s.379 of IPC. 2. The prosecution allegation is that, on 21.1.2007 at 5.45 a.m., when CW1 reached the temple namely Mundathikkode Pathirakkotukavu Bhagavathi temple, he found the offering box (bhandaram) in front of the temple as broke open and the money inside it stolen. Accordingly, CW1 who was examined as PW1 informed the matter to PW2, who is the one of the officer of the Devaswom and as directed by him, PW1 lodged Ext.P1 FI statement, in the Wadakkanchery Police Station based upon which, PW1, the Sub Inspector of Police registered Ext.P1(a) FIR. According to the prosecution, during the investigation the accused was arrested on 22.1.2007, while he was riding in a stolen motor bike and on arrest and on questioning him, he 2 Crl. R.P.No.1196 of 2009 revealed the theft of the coins from the offering box of the above temple. Consequently, the investigation was completed and a report was filed before the Judicial First Class Magistrate Court- Wadakkanchery and the said court took cognizance upon the above report and instituted C.C.No.133/07 and thus according to the prosecution the accused/revision petitioner has committed the offence of theft. 3. During the trial of the above case, Pws.1 to 5 were examined and Exts.P1 to P4 were marked and M.O.1 and 2 series of materials marked as material objects. Finally, the trial court found that the accused is guilty of the offence punishable u/s.379 of IPC and accordingly, he is sentenced to undergo rigorous imprisonment for a period of 2 years. 4. Aggrieved by the above judgment of the trial court and order of conviction, the accused preferred an appeal and by judgment dated 17.3.2008 in Crl.A.No.866/07 the Court of Sessions Judge-Thrissur, dismissed the appeal confirming the conviction and sentence of the accused. It is the above order of 3 Crl. R.P.No.1196 of 2009 conviction and sentence and the judgments of the courts below are challenged in this revision petition. 5. In pursuance to the above judgments and the conviction and sentence, the revision petitioner was removed to the Central Prison, Viyyur and while he is undergoing imprisonment, he preferred the present revision petition from the jail. On receipt of this petition, this court admitted the above revision petition and appointed Adv.Sri.R.Krishnakumar as State Brief to prosecute the petition for and on behalf of the accused/revision petitioner. 6. Thus I have heard Adv.Sri.R.Krishnakumar, the learned counsel for the revision petitioner and also the learned Public Prosecutor. I have perused the judgments of the courts below and the depositions of the witnesses and the materials also. 7. In order to establish the allegation against the accused, the prosecution has mainly relied upon the oral testimony of Pws.1 to 5 and the documents such as Exts.P1 to P4. Regarding the removal of coins from the offering box of the temple, the prosecution has established the same with the 4 Crl. R.P.No.1196 of 2009 support of the evidence of Pws.1, 2 and 3 and the documentary evidence as Ext.P2 scene mahazar and Ext.P3 seizure mahazar. It is also relevant to note that, immediately after the removal of the coins from the offering box, the matter was reported to the police as per Ext.P1 FI statement based upon which, the crime was registered. So regarding the unauthorised removal of coins from the offering box of the temple, there is no doubt and the prosecution has established the same with ample materials and evidence. 8. But as far as the revision petitioner is concerned, the crucial question is, whether the prosecution has succeeded in connecting the revision petitioner with the alleged offence of theft. In order to establish the allegation against the revision petitioner, the only evidence relied on by the prosecution is the deposition of PW5, the Sub Inspector of police and Ext.P3, the seizure mahazar. In this juncture it is relevant to note that, the revision petitioner was arrested on 22.1.2007 at about 8.15 p.m. and the offence was done on an early morning of 21.1.2007. So 5 Crl. R.P.No.1196 of 2009 it can not be said that, any time is nexus between the theft and the arrest. According to PW5, the revision petitioner was arrested when he was found riding a motor bike stolen by him. The further case of PW5 is that, on such arrest and questioning, the revision petitioner has confessed regarding the theft of coins that involved in the present case. It is pertinent to note that the police has not produced the confession statement and such documentary evidence is not marked during the trial of the case. Therefore the sole link evidence to connect the accused with the alleged offence has not been produced by the police, which according to me is fatal, to the prosecution case and to connect the revision petitioner with the offence. Even if the confession statement is produced, the same has to withstand the test of judicial scrutiny, then only such piece of evidence can be used against the accused and convict him. It is also relevant to note that during the trial, the police has produced only the coins allegedly recovered from the possession of the accused but the other material objects which seized were not produced in the 6 Crl. R.P.No.1196 of 2009 court and thus thereby suppressed the material facts from the consideration of the court. Probably it may be true that, the revision petitioner has involved in several similar cases but that is not a ground to convict him for similar offence in the present case, in the absence of cogent and satisfactory evidence to establish his link and involvement in the crime. 9. In the light of the materials and evidence referred above and the discussions, I am of the view that the prosecution has miserably failed to establish the case against the revision petitioner beyond reasonable doubt and certainly the benefit of doubt will go in favour of the revision petitioner. Therefore, I am unable to approve the findings recorded by the courts below and I extend the benefit of doubt in favour of the accused/revision petitioner. In the result, this revision petition is allowed setting aside the judgment dated 5.11.2007 in C.C.No.133/07 of the Court of Judicial First Class Magistrate-Wadakkanchery and judgment dated 17.3.2008 in Crl.A.No.866/07 of the Court of Sessions 7 Crl. R.P.No.1196 of 2009 Judge-Thrissur and acquitting the revision petitioner/accused of all the charges levelled against him and set him at liberty. In the light of the above order of acquittal, the revision petitioner is entitled to get released from the jail forthwith, if he is not required in any other case. Accordingly, the Registry is directed to forward a copy of the Gist of this order to the Superintendent, Central Prison, Viyyur, for further action in the matter. This Crl.R.P. is allowed accordingly. V.K.MOHANAN, Judge. ami/