IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 Crl.Rev.Pet.No. 519 of 2007(E) ------------------------------ CRA.958/2005 of ADDL. SESSIONS JUDGE (ADHOC-II), ERNAKULAM CC.1660/2000 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S)/APPELLANT/FIRST ACCUSED: --------------------- JALALUDHEEN, S/O.SHEIK ABDUL KHADER, PADINJATTUVILA PUTHENVEEDU, EDAKKA DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.T.A.SHABEERALI RESPONDENT(S)/RESPONDENT/COMPLAINANT: --------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT, ERNAKULAM. PUBLIC PROSECUTOR SHRI C.S.HRITHWIK THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P.No.519 of 2007 -------------------------------------- Dated this the 18th day of June, 2009. ORDER Petitioner along with accused No.2 faced trial for offence punishable under Section 379 read with Section 34 of the Indian Penal Code (for short, “the Code”). Charge is that on 19.1.2000 at about 1.15 p.m. petitioner and accused No.2 in furtherance of their common intention committed theft of a rado watch belonging to PW2 from his office. It is the further case of prosecution that on the same day PW5 arrested the petitioner, questioned him and on the information given by the petitioner seized the rado watch from room No. 123 of Royal Tourist Home. Prosecution examined PWs 1 to 5 and marked Exts.P1 to P6. PW2 stated that he was running Oriental Financiers at the relevant time and that petitioner (and accused No.2) came to his shop to sell foreign articles. He did not purchase any article. Keeping his rado watch on the table of his cabin he went to drink water and when he returned the watch was found missing. PW2 identified the watch as MO1. PW3 is an employee of PW2. He claimed that petitioner and another person came to their shop on the day of incident. PW1 is the manager of Royal Tourist Home and claimed that petitioner and accused No.2 took room No.123 of that tourist home on rent. They were staying in that room for about a week. Police came to their tourist home with certain persons. PW1 attested Ext.P1, mahazar for seizure of MO1 but he does not know from which room the seizure was made. PW5, ASI investigated the case. Crl.R.P.No.519/2007 2 He claimed to have arrested the petitioner and accused No.2 from near Royal Tourist Home on 21.1.2000. On questioning petitioner, the latter told him that the watch is kept in the room where he is staying and if taken there he will produce the same. Accordingly, along with petitioner he reached room No.123 wherefrom petitioner produced MO1 which PW5 seized as per Ext.P1. Ext.P1(a) is the relevant portion of the information given by the petitioner. Learned magistrate relying on the above evidence convicted petitioner for offence punishable under Section 379 read with Section 34 of the Code and sentenced him to undergo rigorous imprisonment for one year. Appellate court confirmed the conviction and sentence. 2. It is contended that there is no reliable evidence to prove the alleged incident. At any rate involvement of the petitioner is proved beyond reasonable doubt. 3. It is in evidence through PWs 2 and 3 that petitioner along with another had gone to the shop of PW2 for selling foreign articles and that at or by about that time the rado watch belonging to PW2 was lost. It is also in evidence that the said rado watch was seized from room No.123 of Royal Tourist Home belonging to PW1 on 21.1.2000 on the information given by the petitioner. But going by the evidence of PW5 and Ext.P1(a), petitioner has not owned up the possession of MO1. From Ext.P1(a) and the evidence of PW5 it is revealed that what petitioner stated is that if he is taken to room No.123 he will produce the rado watch kept on the table in that room. It is not clear who had kept the Crl.R.P.No.519/2007 3 watch there. Even according to the prosecution accused No.2 was with the petitioner when he is said to have gone to the shop of PW2. Investigating Officer has not seized the relevant registers if any with Royal Tourist Home to show that petitioner had taken the room on rent. Therefore it is not possible to say that room No.123 or the watch were in the occupation of petitioner during the relevant time. A further fact revealed from the evidence of PW5 is that at the time he, along with the petitioner reached Royal Tourist Home, room No.123 was locked. It is not clear who had opened the room to facilitate seizure of the watch. It is not possible to say from the evidences that petitioner was in possession of MO1. No doubt, evidence raise a strong suspicion regarding involvement of petitioner. But strong suspicion does not warrant a conviction. Therefore, conviction and sentence imposed on petitioner are liable to be set aside. Resultantly, revision succeeds. Conviction and sentence imposed on the petitioner are set aside. He is acquitted of the charge against him. Bail bond is cancelled. Crl.M.A.No.1518 of 2007 will stand dismissed. THOMAS P.JOSEPH, Judge. cks