IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 Crl.Rev.Pet.No. 1754 of 2009() ------------------------------------------ CC.1044/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, KOTTARAKKARA .................... PETITIONER/ACCUSED NO.4 ------------------------------------------ PUSHPANGATHAN, PUTHUPARAMBIL HOUSE, KURUCHY VILLAGE, KURUCHY KARA, KOTTAYAM. BY ADV. MR.M.P.MADHAVANKUTTY RESPONDENT/COMPLAINANT ------------------------------------------- SUB-INSPECTOR OF POLICE, KOTTARAKKARA POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR.P.R. JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/06/2009,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ THOMAS P. JOSEPH, J. ------------------------------------ CCrl.R.P.NO.1754 OF 2009 ---------------------------------------- Dated this thee 8th day of June, 2009 ORDER Public Prosecutor takes notice for respondent. Heard both sides. 2. This revision is filed by accused No.4 in challenge of the order in C.C.No.1044/2006 of the Court of learned Judicial I class magistrate, Kottarakkara. Petitioner, along with three others is chargesheeted for offences punishable under Sections 457, 511 of Section 380, 120(b) and 109 read with Section 34 of the Indian Penal Code (for short, “the Code”) on the allegation that pursuant to a criminal conspiracy entered between him and other accused, they trespassed into a temple at Kottarakkara on 26.12.2003 at about 1 a.m. and attempted to commit theft. Petitioner preferred a petition in the court below requesting that he be discharged under Section 239 of the Code of Criminal Procedure (for short, ”the Cr.PC”). That petition did not find favour with the learned magistrate. Hence this revision. 3. Learned counsel contends that the materials relied n by the prosecution against the petitioner is a confession said to Crl.R.P.No.1754/09 2 have been given by accused No.1 implicating the petitioner also and that such confession is hit by Sections 25 and 26 of the Indian Evidence Act (for short, “the Act”). It is also contended by learned counsel that the solitary witness cited by the prosecution to prove the alleged incident is CW2 but his statement to the investigation officer under Section 162 of the Cr.PC would show that he had not properly identified the offender. 4. Even as per the statement of CW2 as read before me by learned counsel, he had witnessed the incident. The question whether he would be able to identify the offenders is a different matter. That is to be decided only in the course of the trial. Merely because CW2 has stated when questioned under Section 162 of the Cr.PC that he was not able to clearly see the face of the offenders it cannot mean that he cannot identify the offenders in the course of the trial. It is not possible to pre-judge at this stage that CW2 will not be able to give evidence or identify the offenders. 5. The question whether the statement allegedly given by accused No.1 is admissible in evidence against any of the co-accused facing trial along with accused No.1 is also a Crl.R.P.No.1754/09 3 matter to be decided by the trial court at the appropriate stage in view of Sections 10 and 30 of the Act. As such learned magistrate is justified in rejecting the prayer of the petitioner. No interference is called for. Revision Petition is dismissed. THOMAS P. JOSEPH, JUDGE Acd