IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 24TH NOVEMBER 2008 / 3RD AGRAHAYANA 1930 Crl.Rev.Pet.No. 4305 of 2007() ------------------------------ CRA.369/1999 of SESSIONS COURT, FAST TRACK ADHOC-II) THIRUVANANTHAPURAM. CC.222/1999 of JUDL. MAGISTRATE OF FIRST CLASS COURT-II, TRIVANDRUM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------------------- MADHU, S/O. APPU NADAR, VADAKKEVARIKKAPLAVU VILA PUTHEN VEEDU, PERUMPAZHUTHOOR VILLAGE. BY ADV. SRI.R.T.PRADEEP SRI.V.VIJULAL RESPONDENT(S): RESPONDENT/COMPLAINANT ---------------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJAD ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/11 /2008 THE COURT ON 24/11/2008 PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO.4305 OF 2007 =========================== Dated this the 24th day of November,2008 ORDER Petitioner is the second accused in C.C.222/1999 on the file of Judicial First Class Magistrate Court-II, Thiruvananthapuram. He was convicted for the offence under section 379 read with section 34 of Indian Penal Code and sentenced to rigorous imprisonment for three years. Though petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.369/1999, the appeal was dismissed confirming the conviction and sentence. It is challenged in the revision. 2. Learned counsel appearing for revision petitioner and learned Public Prosecutor were heard. 3. The argument of the learned counsel appearing for revision petitioner is that revision petitioner was convicted solely based on the CRRP4305/2007 2 recovery of M01 car sterio allegedly based on the information furnished by the revision petitioner and identity of M01 as the stolen car sterio was not established and therefore conviction is not sustainable. Learned Public Prosecutor submitted that there is no reason to interfere with the concurrent conviction. 4. Prosecution case is that on the night of 6.2.1995 fiat car KLU 8766 of PW1 was parked in front of his house in the Car Porch. So also taxi car KLY-1827 belonging to PW3 was also parked near the fiat car. On the morning, PW1 found the car sterios of both the cars were stolen by opening the car. PW1 furnished Ext.P1 First Information Statement on 13.2.1995 based on which Ext.P4 FIR was registered. PW6, the Assistant Sub Inspector after preparing Ext.P4 FIR and registering the case, proceeded to the house of PW1 and prepared Ext.P2 scene mahazar. PW7 the Sub Inspector of Police, Malayinkil found the revision petitioner along with the first accused proceeding in an CRRP4305/2007 3 autorikshaw at Pavankode along with car sterio and tools. Getting suspicious PW7 questioned them and arrested them and registered Crime 45/1995 under section 102 of Code of Criminal Procedure. While questioning, on the information furnished by the revision petitioner, PW7 along with the revision petitioner reached his house. When revision petitioner produced M01 car sterio after preparing Ext.P5 recovery mahazar PW7 was recovered it. On the information furnished by first accused M02 car sterio was recovered under Ext.P4 recovery mahazar. As it was revealed that the theft relate to Poojappura Police Station, FIR along with M0s 1 and 2 were transferred to Poojappura Police Station. PW8, the Sub Inspector of Poojappura Police Station conducted the subsequent investigation and laid the charge. Both the accused pleaded not guilty. Prosecution examined eight witnesses and marked eight exhibits and identified M0s 1 and 2. When the case was posted for argument after questioning the accused, CRRP4305/2007 4 revision petitioner absconded. Therefore learned Magistrate proceeded against the first accused and as per judgment dated 29.7.1999 first accused was convicted and sentenced for the offence under section 379 read with section 34 IPC. The case as against revision petitioner was refiled as C.C.222/1999. Learned Magistrate, after the petitioner was arrested and produced, heard him and the prosecution and as per judgment dated 20.8.1999 convicted revision petitioner. Hearing him on the question of sentence, Magistrate sentenced him. Learned Magistrate convicted the revision petitioner based on the recovery of M01 by PW7 under Ext.P5 recovery mahazar believing the prosecution case that it was on the information furnished by revision petitioner. 5. As rightly argued by the learned counsel appearing for revision petitioner, conviction could be sustained only if the identity of M01 recovered under Ext.P5 is proved to be the stolen article belonging to PW1. If there is discrepancy CRRP4305/2007 5 on the identity of the car sterios stolen and recovered under Ext.P5 and the discrepancy is not explained by prosecution, revision petitioner is entitled to contend that based on the recovery he cannot be convicted. That exactly is the case herein. 6. The evidence of PW1 corroborated by the evidence of PW3 establish that on the night of 6.2.1995 PW1 had parked his fiat car KLU 8766 and PW3 had parked his taxi car KLY 1827 in the Car Porch of the house of PW1. On the morning of 7.2.1995 it was found that car sterios of both the cars were stolen on the previous night. Though Ext.P1 First Information Statement was furnished only on 13.2.1995, PW1 had given proper explanation for the delay and there is no reason to disbelieve the evidence of PW1 corroborated by PW3 with regard to the theft. From the evidence of PW1 and PW3 corroborated by Ext.P1 First Information Statement and Ext.P2 scene mahazar prepared by PW6 subsequent to the registration of the case under Ext.P4 FIR, CRRP4305/2007 6 it is proved that the car sterios of both the fiat car and the ambassador car were stolen on the night of 6.2.1995. First accused was convicted based on the recovery of M02 holding that it was on the information furnished by him. The conviction of the first accused is not a question to be decided in this revision. 7. Though after seven days from the date of theft, when PW1 furnished Ext.P1 First Information Statement, details of the car sterios stolen from his fiat car were unveiled in Ext.P1 as the in dash car sterio. It is not mentioned in Ext.P1 that it was ROAD MASTER indash as stated by him at the time of evidence. Ext.P2 scene mahazar was prepared by PW6 after Ext.P1 First Information Statement was furnished by PW1 and Ext.P4 FIR was registered. In Ext.P2 scene mahazar also after inspecting the fiat car PW6 unambigously stated that the car sterio stolen from the fiat car is indash model. There is no mention in Ext.P2 that it was ROAD MASTER indash. The evidence of PW7, CRRP4305/2007 7 based on which petitioner was convicted, shows that on the information furnished by the revision petitioner PW7 and as lead by revision petitioner he reached the house of the revision petitioner and from there M01 car sterio was recovered. When revision petitioner was questioned under section 313 of Code of Criminal Procedure, revision petitioner stated that M01 car sterio was taken from his house. Therefore there is no reason to disbelieve the evidence of PW7 corroborated by Ext.P5 that M01 was recovered from the house of the petitioner. But the question is whether M01 which was recovered under Ext.P5 is the indash car sterio stolen from the fiat car of PW1. 8. Though PW1 identified M01 as the stolen car sterio Ext.P5 recovery mahazar with evidence of PW7 and Pw1 establish that M01 is not indash model car sterio but ROAD MASTER 12 V - ground made in Japan. Even at the time of examination of PW1 he did not give any explanation for stating in Ext.P1 that the car sterio stolen from his car was indash CRRP4305/2007 8 car sterio if in fact what was stolen was ROAD MASTR car sterio which was recovered under Ext.P5. Pw7 the Sub Inspector of Police who recovered M01 also did not explain that indash car sterio and roadmaster car sterio are one and the same. PW8 the subsequent Investigating Officer has not conducted any investigation on this aspect as it was not spoken to by him. Therefore as the evidence now stand what was stolen from the fiat car of PW1 was indash model car sterio. But what was recovered under Ext.P5 is M01 which is a ROAD MASTER car sterio. Prosecution has failed to establish that M01 car sterio is the one which was stolen from the fiat car of PW1. Though PW1 identified M01 as the car sterio stolen from his car in the absence of proper explanation as to how M01 was identified, no reliance could be placed on the identification made by PW1. Apart from the make of the car sterio, PW1 had not disclosed anything to identify M01 as the stolen article. In such circumstances, petitioner is entitled to at least the benefit of doubt. As CRRP4305/2007 9 prosecution failed to prove that revision petitioner committed the offence, conviction of the petitioner solely based on the recovery of M01 is not sustainable. Revision is allowed. Conviction and sentence passed by the Judicial First Class Magistrate-II, Thiruvananthapuram in C.C.222/1999 as confirmed by Additional Sessions Judge in Crl.A.369/1999 are set aside. Petitioner is found not guilty of the offence. He is acquitted. Bail bond executed by him stands cancelled. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006