IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 Crl.Rev.Pet.No. 644 of 2009() ----------------------------- CRA.594/2007 of SESSIONS COURT, TRIVANDRUM CC.54/2002 of JUDL. MAGISTRATE OF FIRST CLASS COURT-III, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED ------------------------------ ASHOKAN @ SILPA ASHOKAN, RAODARIKATHU VEEDU, POTTENKAVU, ANTHIYOORKONAM, FROM T.C 26/1155, CHENKAL CHOOLA COLONY, SECRETARIAT WARD, THYCAUD VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.SUDHEER RESPONDENT(S): RESPONDENT/COMPLAINANT ------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SHRI JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.644 of 2009 -------------------------------------- Dated this the 27th day of May, 2009. ORDER Heard counsel for petitioner and the Public prosecutor. 2. This revision is in challenge of the concurrent finding entered by the courts below that petitioner snatched the gold chain (MO1) worn by PW2 on the relevant day, time and place and thereby committing offence punishable under Section 379 of the Indian Penal Code (for short, “the Code”). He was sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.500/- with default clause which also the appellate court confirmed. Learned counsel for petitioner contends that there is no legal or acceptable evidence against the petitioner. 3. Case is that on 12.3.1993 at about 11 p.m. while PW2 was returning home, a person came near him and snatched the gold chain (MO1) worn by him which PW2 later identified at the Police Station. PW2 was not able to identify the offender. PW5, the then Sub Inspector of Museum Police Station claimed to have arrested the petitioner on 21.6.1993 in connection with another case. On questioning he gave information about the case on hand. On that information PW5 registered a case. Ext.P4 is the FIR. It is the further case that on the information given by petitioner, PW5, along with petitioner went to Peyad and found one Madhu who was in possession of the gold chain and recovered Crl.R.P.No.644/2009 2 the same as per Ext.P1, seizure mahazar. PW1 is an attestor in Ext.P1 and he testified that he had attested the seizure mahazar and supported the prosecution. Later, since the place of occurrence is within the limits of Thampanoor Police Station case was transferred to that station where PW4 re- registered the case. FIR is marked as Ext.P3. Ext.P2 is the mahazar for scene of occurrence, proved through PW3, attestor. 4. So far as evidence of PW1 is concerned even in chief examination he merely stated that he attested Ext.P1, mahazar prepared by the Police. He did not say anything further either in the chief examination or in the cross examination. So far as evidence of PW5 is concerned, going by his evidence I find that sale/entrustment of MO1 to Madhu is not admitted by the petitioner. Therefore, seizure of MO1 as per Ext.P1 cannot be brought within the mischief of Section 27 of the Evidence Act. At best it is only a conduct admissible in evidence under Section 8 of the Evidence Act. But in this case that conduct alone is not sufficient to warrant conviction of the petitioner. PW2 did not identify petitioner as the offender. It is also pertinent to note that Madhu who is said to have produced MO1 before PW5 is not even cited as a witness. In these circumstances learned counsel is correct in submitting that there is no legally acceptable evidence against the petitioner warranting his conviction. Conviction and sentence are liable to be set aside. Crl.R.P.No.644/2009 3 Resultantly, revision petition succeeds. Conviction and sentence imposed on the petitioner are set aside and he is acquitted of the charge against him. Bail bond is cancelled. Crl.M.A.No.1929 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks