IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER FRIDAY, THE 14TH MARCH 2008 / 24TH PHALGUNA 1929 Crl.Rev.Pet.No. 985 of 2000() ----------------------------- Crl.A.159/97 of the SESSIONS COURT KOZHIKKODE DIVISION (C.C.No.43/96 OF THE JUDICIAL MAGISTRATE OF FIRST CLASS-I, THAMARASSERY) ----------------- REVN. PETITIONER- APPELLANT-2ND ACCUSED: -------------------------------------------------------- JAMES FERDINENT, S/o. HENTRY MILTON, MAVEETTIL HOUSE, PERUVAYAL AMSOM DESOM, KUTTIKKATTUR. BY ADV. SRI.V.G.ARUN RESPONDENTS- RESPONDENT-COMPLAINANT: ------------------------------------------------------ STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. AMJETH ALI THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER,J ========================= Crl.R.P.No.985 of 2000 ========================== Dated this the 14th day of March, 2008 ORDER Petitioner was tried for the offence under Section 411 I.P.C. along with the prime accused who was tried for the offences under Sections 457, 380, and 461 I.P.C. 2. The prosecution case was that accused No.1 had committed theft of 130 wrist watches of various brands apart from 50 old wrist watches and currency notes amounting to Rs.1,25,000/- from the shop of PW2 at about 11.30 p.m. on July 24, 1995. The trial court found accused No.1 guilty of the offences alleged against him under the three counts mentioned above and he was accordingly convicted and sentenced. 3. The case against the petitioner (accused No.2) was that he had received 111 stolen watches from accused No.1 dishonestly with the knowledge that they were stolen property. The trial court found the petitioner guilty under Section 411 and convicted and sentenced him to undergo rigorous imprisonment for one year. The said order was confirmed in appeal by the sessions court. Hence this revision petition. C.R.R.P.No.985/2000 2 4. PW6, the Investigating Officer, deposed before the court that on interrogating accused No.1 after his apprehension, it was disclosed that, some of the stolen watches had been given by him to the petitioner. Pursuant to the said disclosure, PW6 had apprehended the petitioner and on the basis of the information furnished by the petitioner, 111 watches were recovered from PW3. PW3 in turn deposed before the court that he knew the petitioner from his student days. Petitioner had told him that one of his friends had wound up the business of watches and thus the unsold stock of watches was available with him. It was thus that PW3 had purchased 111 watches from the petitioner after making payment of Rs.16,000/-. PW3 further stated that he was a foot path hawker of watches and several other items. He had believed the words of the petitioner and purchased the watches from him. The above version given by PW3 was accepted by the trial court and the petitioner was found guilty on the basis of the said evidence. 5. It is contended on behalf of the petitioner that he had been falsely implicated in the case without any justifiable C.R.R.P.No.985/2000 3 reasons. The prosecution had totally failed to establish that petitioner had received the stolen property dishonestly or that he had retained the said property knowing or having reason to believe the same to be stolen property. According to the learned counsel for the petitioner, he could have been convicted only if the above vital ingredients of Section 411 had been established, and that not having been done the courts below were not justified in holding the petitioner guilty. It is further contended by the learned counsel that, PW3 ought to have been arraigned as an accused. If the petitioner could be implicated, there was no reason why PW3 also could not have been implicated as an accused. 6. Though the above contention may not come to the rescue of the petitioner, I have no hesitation to hold that the prosecution had not succeeded in proving that the petitioner had received the stolen property with dishonest intention or that he had retained them with the knowledge or belief that they were stolen properties. 7. I have carefully perused the evidence of PWs.3 and 6. C.R.R.P.No.985/2000 4 In my view, petitioner was entitled to get the benefit of doubt. The testimonies of these witnesses do not inspire any confidence. No reliance ought to have been placed on this evidence. In my view the concurrent findings entered by the courts below suffer from serious illegality and irregularity on the face of the evidence adduced by Pws.3 and 6. Therefore, the order of conviction and sentence passed against the petitioner is set aside. The revision petition is allowed. A.K.BASHEER,JUDGE dvs