IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH SEPTEMBER 2008 / 26TH BHADRA 1930 Crl.Rev.Pet.No. 684 of 2001() ----------------------------- CRA.82/1997 of ADDL.SESSIONS COURT, THALASSERY CC.331/1992 of JUDL.MAGISTRATE OF FIRST CLASS COURT, PAYYANNUR .................... REVISION PETITIONER:2ND APPELLANT/3RD ACCUSED: ------------------------------------------------------------------------------------ ASHRAF, S/O.ABDUL SALAM, AGED 29 YEARS, RESIDING AT PERINGOME. BY ADV. SRI.V.RAJAGOPAL SRI.K.N.CHATHUKUTTY RESPONDENT: ----------------------- STATE: SHO PERINGOME, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.3284/2001 IN CRL.R.P.NO.684/2001 DISMISSED 17/09/2008 SD/- THOMAS P.JOSEPH,JUDGE /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No. 684 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of September, 2008 O R D E R The revision petitioner along with two others was charge sheeted by Peringom police in Crime No.98/92 for the offence punishable under Section 379 read with Section 34 IPC on the allegation that on 08.04.92 at about 12 a.m. they, in furtherance of their common intention committed theft of 38 rubber sheets and 28 Kgs of arecanuts from the property belonging to PW1. Since the 1st accused was not available for trial, the case against him was split up. Revision Petitioner and the 3rd accused faced trial, were found guilty, convicted and sentenced to undergo simple imprisonment for one year each. They preferred appeal to the Sessions Court, Thalassery. The learned Additional Sessions Judge confirmed the conviction and sentence. Hence, this revision petition at the instance of the 3rd accused. 2. Heard the learned counsel for the revision petitioner and learned Public Prosecutor. Learned counsel submitted that conscious possession of the alleged stolen articles with the revision petitioner is not proved. It is also submitted that the courts below Crl.R.P. No.684/2001 -:2:- were not correct in ignoring the evidence of DW1 to 3 which is supported by Ext.D1 series. 3. As against the version of the prosecution which I have stated above, the revision petitioner claimed that he, along with others was taken to custody by PW3, Sub Inspector, Payyannoor after about 4 p.m. on 21.04.92. H claimed that on the alleged date of occurrence himself and others were working in the bus service belonging to DW1. DWs 2 & 3, employees in the said bus and DW1 were examined to prove that version. They supported the revision petitioner. 4. Before going to the evidence rendered by DWs 1 to 3, it is necessary to say whether going by the version of the prosecution conscious possession of the alleged stolen articles with the revision petitioner has been proved. Though PW1 stated at one stage that it is difficult for him to identify MO1series, rubber sheets on account of its oldness, he claimed that his rubber sheets carried the mark 'TB' since the same were pressed at the mill belonging to PW7. This is supported by PWs 2 &4 as well. In fact there is no serious challenge to the version of PWs 2 & 4 that the rubber sheets had the marking Crl.R.P. No.684/2001 -:3:- 'TB'. It is seen from Ext.P1, mahazar prepared by PW3 for seizer of the articles that there also the existence of 'TB' mark is mentioned. The list of properties submitted by the police in the trial court shows that the rubber sheets carrying 'TB' mark were produced in the court. Therefore there is no reason to disbelieve the identification of MO1 series made by PW1. MO2 series, sacks in which PW1 had kept arecanuts also had been identified by PW1 regarding which there is no serious challenge in cross examination. 5. It is submitted by learned counsel that though according to PW3 he had arrested the revision petitioner and others on 23.04.92, seized the alleged stolen articles and registered case against them under Section 4(1) (d) and 102 Cr.P.C as seen from Ext.P2, the FIR and the case was transferred to Peringom police within whose limits the incident occurred, the transfer FIR reached the Peringom Police Station only on 02.06.92 as seen from Ext.P4 and the testimony of PW5. Learned counsel doubted where exactly the transfer FIR was from 23.04.92 till 02.06.92? 6. But it is not shown that on 23.04.92 itself, the FIR had been transferred to Peringom Police Station. The delay in sending the FIR Crl.R.P. No.684/2001 -:4:- may have been due to administrative delay or such other reason but PWs 3 or 5 were not questioned with reference to that. So far as the alleged conscious possession of the stolen articles with the revision petitioner is concerned, there appears to be confusion. Going by the evidence of PW3 and Ext.P1, the arecanuts were carried in plastic sacks. PW3 stated in cross examination that the revision petitioner and two others were cited near Perumba bus stop at about 8.45 a.m. and that “two accused” were carrying plastic sacks while one sack was kept nearby on the floor. PW3 was not able to say which of the accused were carrying the sacks. It is not clear from the version of PW3 or Ext.P1 whether the revision petitioner was one among the two accused who were carrying the plastic sacks. If the revision petitioner was not carrying any of the plastic sack, he cannot be said to have been in conscious possession of the stolen articles kept in the sacks carried by the other accused unless common intention is otherwise proved. Assuming that the revision petitioner was standing nearby the sack containing the stolen article and kept on the floor, that by itself cannot amount to conscious possession of the said stolen article with him since concededly the place of arrest and Crl.R.P. No.684/2001 -:5:- seizure is a bus stop where revision petitioner could be present for other reasons as well. Therefore, I am inclined to accept the contention that conscious possession of the stolen articles with the revision petitioner has not been proved beyond reasonable doubt. If that be so, conviction and sentence on him cannot be sustained. The revision petition therefore succeeds. Conviction and sentence of the revision petitioner are set aside and he is acquitted of the charge against him. Bail bond is cancelled. THOMAS P. JOSEPH, JUDGE ttb