IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 7TH DAY OF DECEMBER 2011/16TH AGRAHAYANA 1933 CRRP.No. 2263 of 2011 ( ) {IN CRA.773/2009 OF THE SESSIONS COURT,THRISSUR IN CC.83/2009 OF THE JUDICIAL MAGISTRATE OF THE FIRST CLASS VADAKKANCHERRY} REVN. PETITIONER(S): APPELLANT/ACCUSED NO.2 --------------------------------------------------------------- SATHYAN, S/O.NARAYANAN, THAVALATHIL HOUSE PULAKKODE VILLAGE THRISSUR DISTRICT. BY ADV.SRI.K.B.ARUNKUMAR RESPONDENT(S)/RESPONDENT/STATE : -------------------------------------------------- THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE CHELAKKARA POLICE STATION REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM 682 038. BY PUBLIC PROSECUTOR SRI.T.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-12-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------------------- Crl.R.P.No.2263 of 2011 ----------------------------------------------- Dated this the 7th day of December, 2011 O R D E R Challenge in the revision is by the 2nd accused in C.C.No.83/2009 on the file of the Judicial Magistrate of the First Class, Wadakkancherry against his conviction for offences under Sections 457 and 380 of the Indian Penal Code. He was prosecuted along with another, 1st accused, for the aforesaid offences, on a report filed by the Sub Inspector of Police, Chelakkara. Both the accused had pleaded not guilty. After trial, the learned magistrate finding them guilty of the offences convicted them and sentenced each of the accused to undergo rigorous imprisonment for one year and fine of Rs.5,000/- with default term of rigorous imprisonment for one month more, for the offences under Sections 457 and 380 separately. Sentences imposed were directed to run concurrently. Challenge raised in appeal by the 2nd accused was turned down by the Sessions Judge, who dismissing Crl.R.P.No.2263 of 2011 :: 2 :: his appeal affirmed the conviction and sentence without any modification. Feeling aggrieved, he has preferred this revision. 2. I heard the learned counsel for the petitioner and also the learned Public Prosecutor. 3. Conviction of the petitioner is not supported by any legal evidence, and, both the courts below have gone wrong in appreciating the materials tendered by the prosecution, is the submission of the counsel. Evidence of PW.2, who purchased and sold scrap items and operated a shop carrying out such business, in whose shop the stolen goods are stated to have been sold by the accused, both of them together, according to the counsel, was the sole basis on which the 2nd accused was found guilty of the offences imputed. The evidence of PW2 was hardly sufficient to prove the indictment levelled against the 2nd accused is the further submission of the counsel. Both the Crl.R.P.No.2263 of 2011 :: 3 :: courts relying on the evidence of PW2, and also on the confession purported to have been given by the 1st accused, founded conviction against the 2nd accused, but, such materials, according to the counsel, are not sufficient to bring home the guilt of the accused for the offences alleged. 4. Per contra, the learned Public Prosecutor submitting that the finding of guilt concurrently entered by the court below to found the conviction of both the accused is fully supported by cogent and convincing evidence contended that no interference with the conviction entered against the 2nd accused is called for. 5. I have perused the records of the case. The prosecution case regarding the theft in the house of PW.1 is amply proved by the legal evidence tendered. The prosecution has succeeded in proving that M.Os.1 and 2 recovered from the shop of PW.2 were pilfered after committing house Crl.R.P.No.2263 of 2011 :: 4 :: breaking over the residential building of PW.1. The fact that PW.1 did not file any complaint nor reported the matter before the police immediately after the occurrence or later, has innocuous value where her evidence over the theft and the articles recovered are among the stolen items from her house, is found credible and, it is further corroborated by the evidence of PW.2, the scrap dealer. However, the larger question whether the theft was committed by the accused proceeded against cannot rest upon the evidence of PW.1, but, with respect to other materials, if any, tendered showing their culpability in the offences imputed. The recovery of the stolen articles and registration of the crime in the case, according to the prosecution, was based on the disclosure statement made by the 1st accused while he was in custody. PW.4, police officer, obtained the custody of both the accused through court after their Crl.R.P.No.2263 of 2011 :: 5 :: arrest and detention with respect to another crime. During the custodial interrogation of the 1st accused by PW.4 he gave a statement regarding the theft committed in the house of PW.1, allegedly, with the 2nd accused, and also the disposal of the items at the shop of PW.2, a scrap dealer. Both the accused were taken to the shop of PW.4 pursuant to the disclosure made by the 1st accused and M.Os.1 to 4 stolen articles were recovered from that shop, is the prosecution case. When such recovery was effected, the 2nd accused was present in the company of the 1st accused and, further, the evidence of PW.2 showed as and when the stolen articles were sold, he too was present with the 1st accused. That alone formed the basis of conviction of the petitioner, the 2nd accused, with the 1st accused who gave Ext.P1(a) statement. As rightly contended by the learned counsel for the petitioner from the aforesaid circumstances, that alone, even if they Crl.R.P.No.2263 of 2011 :: 6 :: are conceded to, culpability of the 2nd accused for the offences imputed against him with which he now stands convicted cannot be formed. Disclosure statement of the 1st accused, which has been marked as Ext.P1(a), on the basis of which the crime was registered in the case, at best, would indicate that the stolen articles were disposed of by him, he alone, at the shop of PW.2. That confession statement could be used only against him if that had led to discovery of a relevant fact connected with the crime, as covered by Section 27 of the Evidence Act. Even if a joint trial of 2nd accused proceeded with the 1st accused, when no part of the confession given by the 1st accused inculpated the 2nd accused, on the basis of the confession of the co-accused (1st accused), the other accused (2nd accused) cannot be held culpable. So far as the confession relating to the sale of stolen articles at the shop of PW.2 where the prosecution has no Crl.R.P.No.2263 of 2011 :: 7 :: case against the 2nd accused for offences either under Section 411 or 414 of the Indian Penal Code, his culpability thereof also does not arise for consideration in the case. Presence of 2nd accused with 1st accused at the time of sale of stolen goods spoken to by PW2 and recovery made in the presence of both accused, even if accepted would only cast strong suspicion but not constitute proof sufficient enough to show the culpability of the 2nd accused for the offences charged against him. There is no legal evidence on the materials placed by the prosecution to inculpate the 2nd accused, the revision petitioner for the offences indicted. So much so, conviction entered against the petitioner/2nd accused is liable to be set aside. Conviction and sentence imposed against the petitioner/2nd accused are set aside, and, he is acquitted of the offences charged. Crl.R.P.No.2263 of 2011 :: 8 :: Revision is allowed. The 2nd accused is directed to be released, if his custody is not required in connection with any other case. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy// P.S. to Judge.