IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 26TH SEPTEMBER 2008 / 4TH ASWINA 1930 Crl.Rev.Pet.No. 798 of 2008 -------------------------------------- CRL.A.292/2005 OF SESSIONS COURT, KASARAGOD, CC.10/2003 OF JUDL. MAGISTRATE OF FIRST CLASS, KASARAGOD. .................... REVISION PETITIONER/ 2ND APPELLANT IN CRL.A. 292/05 & ACCUSED 3 IN CC NO.10/2003: --------------------------------------------------------------------------------------- ABDUL LATHEEF, AGED 27, S/O.IBRAHIM, MAIMOONA NAGAR, PERAL, KOIPADY VILLAGE, MOGRAL P.O. BY ADV. SRI.VARGHESE C.KURIAKOSE, ADV. SRI.PRAVEEN K. JOY. RESPONDENT/ RESPONDENT/ COMPLAINANT/ STATE: ------------------------------------------------------------------------------ STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING BADIADKA POLICE. BY PUBLIC PROSECUTOR SRI. P. RAVEENDRA BABU. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 26/09/2008, ALONG WITH CRL.RP NO. 1279 OF 2007 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: prv. M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P.NOs.1279/2007 & 798/2008 =========================== Dated this the 26th day of September,2008 ORDER Revision petitioner in Crl.R.P.1279/2007 is the second accused and revision petitioner in Crl.R.P.798/2008 is the third accused in C.C.10/2003 on the file of Judicial First Class Magistrate, Kasaragod. They were convicted and sentenced for the offence under section 380 of IPC. Conviction and sentence were confirmed in Crl.A.292/2005. 2. Prosecution case is that PW4, Addl. Sub Inspector of Police, along with PW2 the Head Constable while on night patrolling duty at about 3 a.m on 29.10.2002 found autorikshaw KL-14B/7541 driven by third accused coming from collectorate side at Vidyanagar, Kasaragod. Accused 1 and 2 were the passengers on the back seat. A sack was kept behind the driver's seat. Getting CRRP 1279/2007 & 798/2008 2 suspicious, PW4 got the autorikshaw stopped and questioned the accused and untied the sack and examined it and found that it contained M01 iron rods, MO2 gas gun, M03 series of 5 spanners, MO4 cutting player and M05 to 7 gas regulators. As accused could not give proper explanation, on suspicion that they are proceeding for house breaking and theft they were arrested and brought to the Police Station, after preparing Ext.P1 seizure mahazar and seizing M0s. 1 to 7. On reaching the Police Station he registered Crime No.931/2002 of Kasaragod Police Station after preparing Ext.P3 FIR. PW6, Additional Sub Inspector of Police took over the investigation. He questioned the accused, finding that theft was committed within the jurisdiction of Badiadka Police Station, he transferred the case records to that Police Station. PW5, the Head Constable of Badiadka Police Station on getting the case records prepared Ext.P4 and registered crime 282/2002 of that Police Station under section 380 of IPC. CRRP 1279/2007 & 798/2008 3 PW7, Sub Inspector of Police , Badiadka Police Station took over investigation on 31.10.2002 and after completing the investigation laid the charge. Prosecution case is that three accused committed theft of the articles from Adhisakthi automobiles Badiadka where PW1 was employed on the night of 28.9.2002 and the stolen articles were being carried in the autorikshaw and all the three accused committed the offence. Accused pleaded not guilty. For the prosecution seven witnesses were examined, four exhibits marked and Mos 1 to 7 were identified. Learned Magistrate on the evidence found all the accused guilty. They were convicted and sentenced to simple imprisonment for one year each for the offence under section 380 IPC. Accused 2 and 3 challenged the conviction and sentence before Sessions Court, Kasaragod in Crl.A.292/2005. Learned Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. The revision is filed by accused 2 and 3, challenging CRRP 1279/2007 & 798/2008 4 the conviction and sentence. When the revision was posted on 24.9.2008, there was no representation for petitioners. Today also there was no representation. 3. Learned Public Prosecutor was heard and records were perused. 4. Learned Magistrate and learned Sessions Judge convicted the petitioners based on the evidence of PW1, the employee of the workshop who identified the material objects as the stolen articles and the evidence of Pw2, Head Constable and PW4 , Addl.Sub Inspector of Police. The finding of the Magistrate is that accused were found in possession of the stolen articles immediately after the commission of the theft and therefore accused committed the theft. But it was omitted to take note of the fact that even according to prosecution theft was committed from Adhisakthi Ganesh Automobiles on the night of 28.9.2002 and accused were arrested only on 29.10.2002. Though PW1 identified Mos 1 to 7 as CRRP 1279/2007 & 798/2008 5 the articles which belong to the workshop where he is employed, even PW1 has no case that theft was reported to the police or was even detected before the police reached the workshop, after registration of the case at Badiadka Police Station on 31-10-2002. Case of PW1 is that on 28.9.2002 he had closed the workshop and returned to his house and on the next day morning at about 8-9 a.m when the workshop was opened, he found that the material objects identified by him were stolen on the previous night. Though PW1 identified the material objects he did not give any identifiable marks to enable him to identify them. Though it was deposed that those articles were purchased from Mangalore, no bill was produced. If that be so, any other article could also have been identified as the stolen articles when the theft was not reported earlier. No explanation for not lodging a complaint before the Police was also offered. According to PW1, on 30.10.2002 he had identified the material objects from Kasaragod Police Station. The very CRRP 1279/2007 & 798/2008 6 prosecution case was that it was on 31.10.2002 the articles were identified by PW1. PW5 the Head Constable of Badiadka Police Station deposed that records in the crime originally registered by Kasaragod Police was transferred to Badiadka Police Station through a woman Police Constable on the morning of 31.10.2002 and thereafter Ext.P4 First Information Report was prepared and Crime 282/2002 registered. Evidence of PW7 the Sub Inspector of Badiadka Police Station is that he took over the investigation on the morning of 31.10.2002 and proceeded to the workshop and prepared the scene mahazar and thereafter completed the investigation. It is not known as to how PW7 could find that there was a theft in the workshop, where PW1 was employed, till the case was transferred to Badiadka Police Station, name of the workshop from where the theft was allegedly committed was not disclosed. 5. PW4 the Additional Sub Inspector who found the accused on the night at about 3 a.m on CRRP 1279/2007 & 798/2008 7 29.10.2002 and arrested them had no case that he could find out that theft was committed at Badiadka. PW2 Head Constable who was present along with PW4 at that time also has no such case. If we are to believe the evidence of PW1, even before the case was transferred to Badiadka Police Station, police could find out that theft occurred in the workshop where PW1 was employed. PW1 had reached Kasaragod Police Station on the very next day on 30.10.2002 and identified the stolen articles. Learned Magistrate proceeded as if the accused were arrested by PW4 on the night of 29.9.2002, when in fact the arrest was on 29.10.2002 one month after the alleged theft. It is on that basis accused who were found to be in possession of the stolen articles were convicted for the offence of theft. As fairly pointed out by the learned Public Prosecutor that that finding cannot be accepted. Though PW1 deposed that theft was on the night of 29.9.2002 PW2 and 4 found the accused in the autorikshaw only on the night of CRRP 1279/2007 & 798/2008 8 29.10.2002 and not on 29.9.2002. Therefore it is clear from the judgments of the court below that the evidence was not properly appreciated. The judgment of learned Sessions Judge also shows that the relevant facts were not taken into consideration and the conviction was confirmed. 6. Eventhough the alleged theft was on the night of 28.9.2002 theft was not reported to the Police till accused were arrested by PW4. Evidence of Pws. 4, 2 and PW6 do not disclose that either the factum of theft or the workshop of PW1 was known to the police before PW6 registered the case after the arrest of accused. If that be the case, PW1 could not have identified the articles from Kasaragod Police Station on 30.10.2002 as claimed by him. From the evidence, it is not known how the Police could get information that theft was committed at the work shop of PW1. If the case is to be transferred to Badiadka Police Station, as was done in this case as theft was committed within the jurisdiction of Badiadka CRRP 1279/2007 & 798/2008 9 Police Station, Police must get the information before case was transferred on 31.10.2002. No evidence was adduced to that effect. 7. When the alleged theft was not reported, though PW1 identified M0s 1 to 7 as the articles stolen from the workshop as no reason was shown for the identification. Courts below should have appreciated the evidence with caution. If it is so appreciated reliance cannot be placed on the evidence of PW1 either on the theft or the identity of the stolen articles. When the very theft was not proved beyond doubt and the identification of M0s as the stolen articles cannot be accepted in the absence of proper reasons for its identification, the case of theft cannot be believed. Appreciating the entire evidence in the proper perspective, it can only be found that prosecution has not established beyond reasonable doubt that there was a theft in Adhisakthi workshop on the night of 28.9.2002. There is also no evidence to prove that the theft was committed by CRRP 1279/2007 & 798/2008 10 the petitioners. Petitioners could be connected to the alleged theft only for the reason that they were found in possession of M0s. 1 to 7 being carried in an autorikshaw driven by second petitioner and first petitioner and first accused were the passengers. When the theft itself was not established, from the recovery of M0s 1 to 7, it cannot be found that petitioners committed the theft. In such circumstance, conviction of the petitioners for the offence under section 380 of IPC is not sustainable. Criminal Revision Petitions are therefore allowed. Conviction of the petitioners for the offence under section 380 of Indian Penal Code is set aside. They are found not guilty of the offence. They are acquitted of the offence. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006