IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 347 of 2000() ----------------------------- CRA.165/1998 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.117/1997 of JUDL. MAGISTRATE OF FIRST CLASS-II, HARIPAD .................... REVISION PETITIONER//APPELLANT/ACCUSED NO.2: --------------------- RAMACHANDRAN S/O.MADHAVAN, KOLLEPPALLI PADEETTATHIL, KADATHOOR MURI, KULASEKHARA PURAM VILLAGE. BY ADV. SRI.SHABU SREEDHARAN SRI.ALBERT JOSEPH RESPONDENT/RESPONENT/COMPLAINANT: ---------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SHRI C.M.KAMMAPPU THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.347 of 2000 -------------------------------------- Dated this the 22nd day of September, 2008. ORDER The second accused in C.C.No.117 of 1997 of Judicial First Class Magistrate-II, Harippad is the revision petitioner. He, along with first accused faced trial for offences punishable under Sections 457, 461 and 380 read with Section 34 of the Indian Penal Code. He was convicted and sentenced to undergo imprisonment and payment of fine. The appeal preferred by him did not succeed. Hence, this Revision Petition. 2. The revision petitioner and the counsel were not present at the time of hearing. I heard the learned Public Prosecutor. 3. The case is that the revision petitioner and the first accused in furtherance of their common intention entered the house of PW1 on 22.2.1995 at about 12 a.m. by removing the window bars, opened the alamarah and committed theft of gold ornaments, watch, T.V., remote controller, etc. belonging to PW1. PW1 gave first information regarding the alleged incident to PW6 on 23.2.1995. PW6 registered a case. PW1 gave evidence regarding the alleged theft. He identified MOs 1 to 4 as some of the items stolen from his house. Ext.P3, the mahazar prepared by PW7on 23.2.1995 at about 1.30 p.m shows Crl.R.P.No.347/2000 2 that the window bars of the house were seen cut and removed. The alamarah was seen opened and articles were strewn around. Ext.P3 supports the version of PW1 regarding the theft. 4. PW2, the jewellery shop owner claimed that the revision petitioner and first accused sold gold ornaments (identified as MOs 1 to 4) to him. Later, on 10.1.1996 the police came with “the accused” and he produced MOs 1 to 4. PW3, the neighbouring shop owner is an attestor to Ext.P2 , the mahazar for seizure of MOs 1 to 4. PW5, the Sub Inspector stated that he arrested the first accused in connection with another case and, when questioned the first accused stated about the incident on hand. On the information given by the first accused, he seized MOs 1 to 4 produced by PW2 as per Ext.P2 . He transferred the case to the Vallikkunnam Police Station since the incident on hand is within the local limits of that station. 5. Discovery of MOs 1 to 4 and its seizure as per Ext.P2 cannot bind the revision petitioner since it was not on the strength of the information given by him. What then is available against the revision petitioner is only the evidence of PW2 that the accused sold the ornaments to him. 6. It is true that PW2 stated that the accused sold the gold ornaments to him. But, it is not clear from the evidence of PW2 whether the revision petitioner was in possession or even in joint possession of the gold ornaments with the first accused. If the revision petitioner had only gone to PW2 along with Crl.R.P.No.347/2000 3 the first accused or had only assisted the first accused in selling the gold ornaments to PW2, it cannot be said that the revision petitioner was in possession or joint possession of the gold ornaments with the first accused. It will be quite unsafe to find from the testimony of PW2 that the revision petitioner also was in possession of the alleged gold ornaments to raise any presumption against him. As such, his conviction and sentence cannot be sustained. Revision Petition is therefore, allowed. The conviction and sentence imposed on the revision petitioner are set aside and he is acquitted of the charges against him. Bail bond is cancelled. Crl.M.P.No.2046 of 2000 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.347/2000 4 Thomas P.Joseph, J. Crl.R.P.No.347 of 2000 ORDER 22nd September, 2008