IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 9TH JUNE 2009 / 19TH JYAISHTA 1931 Crl.Rev.Pet.No. 335 of 2009() ----------------------------- CRA.197/2007 of ADDL. SESSIONS COURT, VADAKARA CC.496/2006 of JUDL.MAGISTRATE OF FIRST CLASS, VADAKARA .................... REVN. PETITIONER(S): ACCUSED ----------------------------------------------- ASHKAR, S/O. MOIDEEN, AGED 24 YEARS, VANARATH HOUSE, PONMERI AMSOM, KALLERI. BY ADV. SRI.PULIKKOOL ABUBACKER SRI.ZUBAIR PULIKKOOL RESPONDENT(S): COMPLAINANT ----------------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = CRL. R.P. NO.335 of 2009 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 9th day of June, 2009 O R D E R -------------- Accused No.2 in C.C. No.496 of 2006 of the court of Judicial First Class Magistrate is the petitioner before me. He, along with accused No.1 was charge sheeted for offence punishable under Section 398 of the Indian Penal Code alleging that on 6.1.2006 by about 4.30 a.m. himself and accused No.1 attempted to commit robbery and in that process voluntary caused hurt to P.W.1, the victim. Case against accused No.1 was split up since he was not available for trial. Petitioner faced trial was convicted and sentence to undergo rigorous imprisonment for two years and payment of fine of Rs.10,000/-. He preferred appeal but without no success. Hence this revision. 2. Learned counsel for petitioner contends that incident involving petitioner is not proved beyond reasonable doubt. According to the prosecution while P.W.1 was walking through road and reached the place of occurrence petitioner and accused No.1 came from behind and one of them assaulted P.W.1 on the face with a packet containing chilly powder. They snatched the bag P.W.1 was carrying which contained Rs.8,300/- and a mobile phone. In the CRL. R.P. No.335 of 2009 -: 2 :- incident P.W.1 fell down and sustained injuries. P.W.1 gave evidence regarding the alleged incident as stated above. According to him immediately after the incident assailants escaped from the scene carrying his bag containing money and mobile phone. He identified that mobile phone as M.O.1. P.Ws.2 and 3 claimed that hearing hue and cry they came to the place of occurrence and found P.W.1 lying on the road with chilly powder sprinkled on his face. They found a packet containing chilly powder nearby. P.W.1 told them about the incident. Thereon they dialled the mobile phone of P.W1. From a place not far away from the place of occurrence they traced that mobile phone. They took P.W.1 and the mobile phone to P.W.4, relative of P.W.1. Later the mobile phone was produced before the police. Police seized the mobile phone as per Ext.P2, mahazar. P.Ws.2 and 3 identified that mobile phone. P.W.4 stated that P.Ws.2 and 3 brought the mobile phone to him and told him about the incident. They produced the mobile phone to the police which the latter seized as per Ext.P1. First information statement was given by P.W.1 and a case was registered. P.W.6 seized M.O.1 as per Ext.P2, mahazar. P.W.10 prepared Ext.P5, scene mahazar. P.W.8 is an attester in Ext.P5. P.W.5 found chilly powder sprinkled at the place of occurrence. CRL. R.P. No.335 of 2009 -: 3 :- A portion of that was also seized. P.W.11 conducted investigation. Accused No.1 was arrested and produced before the learned magistrate. As petitioner was in custody crime No.186 of 2006 was registered. A report to that effect was produced before the learned magistrate. Courts below relying on the above evidence found the petitioner guilty. Now it is contended that there is no proper identification of petitioner as one of the assailants. 3. I have gone through the evidence of P.W.1 who alone has spoken to the incident proper. According to P.W.1 he heard sound and looked back. Then he got a blow on his left eye with a packet and chilly powder was sprinkled on his face. He could specifically identify one of the assailants (accused No.1) whom he knew earlier. As to the other person with accused No.1 witness said that he had seen a figure. He identified petitioner as that person. 4. Regarding identification of petitioner, what is available is only the evidence of P.W.1. In Ext.P1 he stated that he saw the incident in the light of electrical fittings in the nearby house and by flashing the torch. When examined as P.W.1 he stated that there was street light at the place of occurrence. When he was questioned about the torch he referred to in Ext.P1 (first information statement) CRL. R.P. No.335 of 2009 -: 4 :- he stated that what he meant is the light of mobile phone. In Ext.P1 there is no reference of street light though there is reference to some dwelling houses situated nearby. If really there was street light as claimed by P.W.1, there was no necessity to flash the torch, it is contended by learned counsel. Question is whether P.W.1 identified petitioner as one among the assailants. In chief examination P.W.1 stated (as regards the identification of petitioner) that he saw only the figure. After about six months of the incident he identified the petitioner at police station. Therefore it is possible that identification of P.W.1 made in the box is based on the identification he made at the police station after six months. Identification made in the box need not necessarily be on account of P.W.1 identifying the petitioner at the time of occurrence since according to P.W1 he could see only the figure of a person. Concededly there was no arrest of the petitioner in connection with the case. Nor was there any discovery based on any information given by petitioner. 5. Identification of petitioner made by P.W.1 is very feeble. In my view petitioner is entitled to get the benefit of doubt. This revision succeeds. Conviction and sentence entered on petitioner are set aside and he is acquitted of the charge against him. CRL. R.P. No.335 of 2009 -: 5 :- It is directed that petitioner shall be released from the jail forthwith if not required to be detained otherwise. Issue intimation to the Superintendent of Central Prison, Kannur forthwith. THOMAS P.JOSEPH, JUDGE. vsv