IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH MAY 2009 / 8TH JYAISHTA 1931 Crl.Rev.Pet.No. 1109 of 2000() ------------------------------ CRA.16/1996 of SESSIONS COURT, KOTTAYAM CC.366/1991 of CHIEF JUDICIAL MAGISTRATE COURT, KOTTAYAM .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: --------------------- RAJAPPAN, S/O.KUMARAN, KUNNEPARAMBIL HOUSE, SOUTH PAMPAY BHAGAM, PAMPADY, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S)/RESPONENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY SUB INSPECTOR OF POLICE, PAMPADY, KOTTAYAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. PUBLIC PROSECUTOR SHRI RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/05/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.1109 of 2000 -------------------------------------- Dated this the 29th day of May, 2009. ORDER Heard counsel for petitioner and the Public Prosecutor. 2. This revision is in challenge of judgment of learned Sessions Judge, Kottayam in Crl.Appeal No.16 of 1996 confirming conviction and sentence of the petitioner for offences punishable under Sections 457 and 379 of the Indian Penal Code. Case is that on 18.10.1997 at or about 4 a.m. petitioner forcibly opened the door of the house of PW2, entered the work area and committed theft of gold chain she was wearing. First information was given by PW1, owner of the house where PW2 was staying at the relevant time, on 18.10.1997 at 10.30 a.m.. Based on that, police registered case. The portion of gold chain with PW2 was seized as per Ext.P4 and returned to PW2 as per Ext.P2, kaychit. The portion of gold chain allegedly snatched by the petitioner however was not or could not be recovered. MO1 series are the broken pieces of window bar taken from the scene of occurrence by the investigating officer. 3. Version of PW2 is that she was asleep in the house of PW1 at the relevant time. At about 4 a.m. hearing some sound outside she woke up and switched on the light. When she got into the work area petitioner came there and snatched the gold chain. Gold chain was broken and petitioner took to his heels with a portion of it. According to PW1, he heard cry of PW2 at the relevant Crl.R.P.No.1109/2000 2 time, went there and was told by PW2 that petitioner had snatched away a portion of her gold chain. PW3 who was informed about the incident over phone by PW1 reached the place. PW1 told PW3 about the petitioner committing theft. PW3 claimed to have seen the remaining portion of gold chain with PW2. It is contended by learned counsel that the only evidence available is of PW2 and that, if that evidence is not accepted, evidence of PWs 1 and 3 is of no use to the prosecution. Learned counsel contended that the story spoken by PW2 is quite improbable. 4. According to the petitioner, he was employed by PW2 and as he demanded enhanced wage, he has been falsely implicated in the case. PW1 is the owner of the house where PW2 was staying at the relevant time. PW1 has stated that petitioner used to work for them. Going by the evidence of PW2 it would appear that the door was opened even before she switched on the light and came to the work area. It is after hearing the sound that she woke up, switched on the light and came to the work area. In cross examination PW2 would say that it was almost ½ - ¼ hours after she woke up that she came to the work area and even after she came to the work area and switched on the light it took five minutes for the petitioner to come there. The time factor stated by PW2 may not be precise. Even then it is some time after she heard the sound that she woke up, came to the work area and switched on the light. It is difficult to believe that the culprit entered the house even after PW2 switched on the light made an attempt to snatch the gold chain. Particularly as the petitioner is not a stranger to PW2 and there was possibility of PW2 identifying Crl.R.P.No.1109/2000 3 him this version of PW2 appears to be strange. More strange is the version of PW2 that on the next day morning petitioner along with his wife went to the house of PW1 who is none other than his neighbour. It is difficult to believe that petitioner if was really involved and had every reason to think that he was identified by PW2 in the light would along with his wife visit PW1 who is none other than the relative of PW2. In these circumstances I do not think it is safe to place reliance on the evidence of PW2 to hold that petitioner committed the offences above stated. Evidence of PW1 that he was told by PW2 that petitioner is the culprit and the evidence of PW3 that PW1 told him so cannot be made use of by the prosecution as the evidence of PW2 itself is not beyond doubt. In the above circumstances conviction and sentence imposed on the petitioner are liable to be set aside. I do so. Resultantly, this revision succeeds. Conviction and sentence imposed on petitioner are set aside and he is acquitted of the charges against him. Bail bond is cancelled. Crl.M.A.No. 5844 of 2000 will stand dismissed. THOMAS P.JOSEPH, Judge. cks Crl.R.P.No.1109/2000 4 Thomas P.Joseph, J. Crl.R.P.No.1109 of 2000 ORDER 29th May, 2009.