IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 Crl.Rev.Pet.No. 1215 of 2009() ------------------------------ CRA.764/2004 of ADDL.SESSIONS COURT, PARAVUR CC.374/1999 of JUDL.MAGISTRATE OF FIRST CLASS - I, PARAVUR .................... REVN. PETITIONER/2ND APPELLANT/2ND ACCUSED: ----------------------------------------------- MANIKANDAN, S/O.NATARAJAN, AGED 28 YEARS, RESIDING AT THE RESIDENCE OF THOMMIKUNJU, VADEKKAL, KUTTIKKATTU CHURCH, PATHALAMKARA, ELOOR VILLAGE. BY ADV. SRI.P.T.SEBASTIAN TOMY RESPONDENT/RESPONDENT/ COMPLAINANT: ------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, THROUGH SUB INSPECTOR OF POLICE, BINANIPURAM. PUBLIC PROSECUTOR: SRI C S HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 25/08/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.1215 of 2009 --------------------------------------- Dated this 25th day of August 2009 ORDER This revision is in challenge of judgment of learned Additional Sessions Judge, North Paravur in criminal appeal No.764 of 2004 confirming conviction and sentence of petitioner in C.C.No.374 of 1999 of the court of learned Judicial Magistrate of First Class, North Paravur. Petitioner along with accused No.1 faced trial for offences punishable under sections 457 and 380 of the Penal Code. Case is that on 25-04-1999 at about 9.30p.m petitioner and accused No.1 in furtherance of their common intention trespassed into the treatment yard of KSEB office at Kadungallur and committed theft of MOs.1 to 8. Learned magistrate found petitioner and accused No.1 guilty, convicted and sentenced them to undergo imprisonment for various periods. Their appeal was dismissed by learned Sessions Judge, North Paravur. It is contended by learned counsel for petitioner that there is no evidence to show that petitioner is involved in the alleged incident. 2. PW1, engineer of State Electricity Board has given evidence regarding the theft and identified MOs.1 to 8 as the stolen articles. PW2 did not support the prosecution. PW3 claimed that he saw petitioner and accused No.1 being arrested by Sub Inspector with a sack bundle which contained articles belonging to the electricity Crl.R.P.No.1215 of 2009 2 board. PWs.4 to 6 are police officials. According to the prosecution CW10, the Sub Inspector while on patrol duty with PWs.4 to 6 found petitioner and accused No.1 with the sack bundle and on seeing the police party, petitioner and accused No.1 left the sack bundle and took to their heels. They were chased and arrested. PWs.4 to 6 gave evidence in that line. CW10, detecting officer was not available for examination. 3. Though it is stated that mahazar was prepared for seizure of MOs.1 to 8 from the scene of occurrence, that mahazar is not exhibited in evidence. What is marked through PW2 is the mahazar for seizure of certain items from the shop of one Ahammed allegedly on the information given by accused No.1. Though, in the statement of accused No.1 which led to the alleged discovery there is reference to the involvement of petitioner also, that by itself is not sufficient to warrant conviction of petitioner. On going through the evidence of PWs.4 to 6 it is not clear which of the accused, whether it was petitioner or accused No.1 who was carrying sack bundle. In otherwords there is no reliable evidence to show that petitioner was carrying the sack bundle to hold that he was in possession of stolen articles. As against the version of PWs.4 to 6 that petitioner and accused No.1 ran away leaving the sack bundle, and they were chased and arrested, what PW2 stated is that petitioner and accused No.1 with Crl.R.P.No.1215 of 2009 3 the sack bundle were arrested which is found to be not correct also. In the circumstances conviction and sentence of petitioner cannot be sustained and he is entitled to an acquittal. Resultantly this revision petition succeeds. Conviction and sentence of petitioner are set aside and he is acquitted of the charges found against him. THOMAS P JOSEPH, JUDGE Sbna/