IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 2833 of 2008() ------------------------------ CRA.219/2008 of SESSIONS COURT, KOZHIKODE CC.230/2005 of JUDL.MAGISTRATE OF FIRST CLASS-II, THAMARASSERY .................... REVISION PETITIONER/APPELLANT/SECOND ACCUSED:- ------------------------------------------------------------------------------------- GIRISH, SON OF CHEVI, POYILIL VEEDU, THAZHEKODU AMSOM, KOZHIKODE DISTRICT. BY ADV. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH RESPONDENT:RESPONDENT:COMPLAINANT: ---------------------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, MUKKOM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. SHYSON P.MANGUZHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 2833 OF 2008 ............................................ DATED THIS THE 14th DAY OF OCTOBER, 2008 ORDER Petitioner is the second accused in C.C.230 of 2005 on the file of Judicial First Class Magistrate-II, Thamarassery. He was tried along with first accused for the offences under Section 379 read with Section 34 IPC. 2. Prosecution case was that motor cycle KL-11K 1969 was owned by PW1 and was being used by PW2, her husband and on the night of 3.3.2005, it was parked at the courtyard of their house and on the next day morning, it was found stolen and PW1 lodged Ext.P1 F.I.Statement based on which Ext.P7 F.I.R was registered. PW6 investigated the case. On 5.4.2005, while PW6, A.S.I of Police was on patrol duty along with PW3, the police constable, they found the stolen motor bike proceeding through Muthalam-Mutheri road. Finding the police party, the rider and the pillion rider, after stopping the motor bike, tried to run away and was followed by the police party. PW6 arrested the accused and the motor vehicle was seized. After investigation, charge was laid for the offence under Section 379 read with Section 34 of Indian Penal Code, which was taken cognizance by learned Magistrate. Both the accused pleaded not guilty. Prosecution examined six witnesses and marked twelve CRRP 2833/2008 2 exhibits. On the evidence, both the accused were convicted and sentenced to rigorous imprisonment for one year and a fine of Rs.3000/- and in default, simple imprisonment for three months. Petitioner challenged the conviction before Sessions Court, Kozhikode in Crl.A.219 of 2008. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. On hearing the learned counsel and going through the records of the trial court, it is seen that petitioner was not questioned under Section 313 of Code of Criminal Procedure. The proceeding paper shows that PW5 was examined on 22.11.2006 and case was posted for examination of CW12 by issuing summons to him to 18.12.2006. As the Presiding Officer was on leave, the case was adjourned on 18.12.2006 to 20.1.2007 and then was posted to 12.2.2007. On that day, summons on CW12 was not served. Case was therefore posted to 3.3.2007. On that day, as there was no sitting, it was adjourned to 26.3.2007. On that day also, it was adjourned to 16.4.2007. Proceeding paper shows that on that day, only first accused was present and petitioner was absent and CW12, who was CRRP 2833/2008 3 present, was examined as PW6 and non bailable warrant was issued as against the petitioner. Prosecution evidence was closed and case was posted for questioning the accused under Section 313 of Code of Criminal Procedure to 21.4.2007. Records show that first accused was questioned on that day. Proceeding paper shows that case was posted for defence evidence to 28.4.2007. On that day also petitioner was absconding. Proceeding paper shows that petitioner surrendered before the court only on 8.4.2007 and he was granted bail and was not questioned thereafter. On 28.11.2007, PW6 was examined denovo and the case was posted to 29.11.2007 on which day prosecution evidence was closed and case was posted for questioning under Section 313 of Code of Criminal Procedure to 12.12.2007. On 12.12.2007, both the accused were absent. Though case was posted for their appearance to 13.12.2007 and then to 18.12.2007. Both accused were absent and non bailable warrant was issued on 18.12.2007. Proceeding paper shows that petitioner surrendered thereafter on 21.1.2008 and even thereafter he was not questioned under Section 313 of Code of Criminal Procedure and the case was posted for defence evidence and thereafter as no defence evidence was adduced, arguments were heard and both the accused were convicted. CRRP 2833/2008 4 5. Unfortunately, the omission to question petitioner under Section 313 of Code of Criminal Procedure was not taken note of, either by the learned Magistrate or learned Sessions Judge. In such circumstances, conviction of petitioner without questioning him under Section 313 of Code of Criminal Procedure is illegal and is to be set aside. 6. Though learned counsel appearing for petitioner argued that petitioner was only the pillion rider of the motor cycle as proved by the evidence of PW3 and the presumption provided under Section 114 of Indian Evidence Act cannot be drawn against the petitioner, on the materials now available, it is not possible to acquit the petitioner on that ground. As learned Magistrate and learned Sessions Judge did not consider the failure to question petitioner under Section 313 of Code of Criminal Procedure, that question is left open to be decided by the learned Magistrate. 7. Revision petition is allowed. Conviction and sentence passed by learned Magistrate as confirmed by learned Sessions Judge as against the petitioner is set aside. Case is remanded to Judicial First Class Magistrate-II, Thamarassery for fresh disposal as against the petitioner in accordance with law. Learned Magistrate shall question the petitioner as provided under Section 313 of Code of Criminal CRRP 2833/2008 5 Procedure and thereafter post the case for defence evidence and then consider whether there is any evidence as against the petitioner. Petitioner is directed to appear before learned Magistrate on 19.11.2008. Send back the records immediately. M.SASIDHARAN NAMBIAR, JUDGE lgk/-