IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 24TH MARCH 2011 / 3RD CHAITHRA 1933 Crl.Rev.Pet.No. 4010 of 2010() ------------------------------ CC.2414/2003 of JUDL.MAGISTRATE OF FIRST CLASS-I, MUVATTUPUZHA .................... REVN. PETITIONER(S): PETITIONER/COMPLAINANT ------------------------------------------- DEVASIA, S/O.MANI, PARAYIDATHIL VEEDU, KADUMPIDI KARA, ENANELLOOR. BY ADV. SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN SRI.PRASANTH M.P RESPONDENT(S): ACCUSED AND STATE -------------------------------- 1. ANIL, S/O.KUTTAPPAN NAIR, CHERUPURATH, KALAMPOOR KARA P.O. 686664. 2. SANTHOSH, S/O.KUTTAPPAN NAIR, PURAKKATTU VEEDU, ENANELLOOR KARA P.O. 686673. 3. SUBHASH, S/O.KARUNAKARAN, PULICKAL, AYAVANA KARA P.O. 686676. 4. SHIBU, S/O.JOSEPH, KAKKANATTU VEEDU, AYAVANA KARA P.O. ENANALOOR VILLAGE, 686676. 5. SHERIFF, PARMALAYIL, KALAMPOOR, ENANALLOOR P.O. 686664. 6. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. PUBLIC PROSECUTOR SRI. SABU SREEDHARAN THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------- Crl. R.P. No.4010 OF 2010 ----------------------------------------- Dated this the 24th Day of March , 2011 ORDER This revision petition is preferred by the defacto complainant in C.C.No.2414/2003 and the complainant in C.C.No.558/2006 of the court of Judicial Magistrate of First Class , Muvattupuzha, challenging the acquittal of the accused who are respondents 1 to 5 herein. 2. The prosecution case is that the accused in furtherance of their common intention to commit theft, stolen gravel stored by the defacto complainant in the property lying in Survey Nos.545/2 and 545/10 in Eananalloor Village and transported two loads each (4 loads) of gravel in two tempo lorries bearing Nos.KL.7.E.6222 and KL.5.B.8712 and sold the same by which the defacto complainant the petitioner herein sustained loss of Rs.5,000/-. Thus, according to the prosecution the accused are committed the offences punishable under Section 379 r/w 34 of IPC. 3. On the basis of the information furnished by the defacto complainant Crime No.86/2001 was registered in the Kalloorkad Police Station for the offence punishable under Section 379 r/w Crl. R.P. No.4010 OF 2010 2 34 of IPC against five persons. Alleging that the investigation was not proper and all the persons responsible for the theft were not arrayed as accused and not arrested, the petitioner herein preferred a protest complaint against altogether 8 accused including the accused who are shown as accused in the police case. Thus, C.C.No.2414/2003 is instituted on the basis of the Police report, whereas C.C.No.558/2006 is instituted on the basis of the protest complaint preferred by the revision petitioner. In C.C.No.2414/2003 PWs. 1 to 10 were examined and Exts.P1 to P8 were marked. In C.C.No.558/2006 after adopting the procedure contemplated for the warrant case upon a private complaint, PWs.1 and 2 were examined. Finally, the learned Magistrate came into the conclusion that the prosecution has failed to prove that PW1 who is the revision petitioner herein is the owner or person in possession of the gravel allegedly stolen by the accused. So accordingly, the court found that there are no evidence to suggest the accused are guilty of the offences alleged against them. Accordingly, all the accused are found not guilty as per separate findings in the above two cases and accordingly, all of them are acquittal. 4. It is against the above order of acquittal in Crl. R.P. No.4010 OF 2010 3 C.C.No.2414/2003, the defacto complainant preferred this revision petition and the Police did not file any appeal or revision against the acquittal. 5. The learned counsel for the revision petitioner vehemently submitted that the evidence of PWs.1 to 4 has sufficient to hold that the gravel in question is that of the complainant and the same was stolen by the accused from his possession. According to the learned counsel the findings of the courts below that since the owner of the property, as described where the gravel was stored and therefore, the prosecution failed to prove the ownership of the gravel, is absolutely baseless and unwarranted. According to the counsel, the ownership of the gravel which are allegedly stolen are immaterial for the purpose of Section 379 of IPC. The learned counsel also submitted that the procedure adopted by the courts below in the trial of the above two cases are improper and irregular. 6. I am unable to sustain the above contention. The trial court after an elaborate consideration and appreciation of the evidence, as evident from paragraph 19 of which judgment, came to the conclusion that the evident adduced by the prosecution is Crl. R.P. No.4010 OF 2010 4 not sufficient to hold that the accused and guilty of the offence charged against the accused, mainly on the ground that the ownership of the stolen gravels are not established by the prosecution. It is an undisputed fact that the gravel in question which allegedly removed were stored in the property lying in survey numbers 545/02 and 545/10 of Eananalloor Village. According to PW1 he stored the gravel in that property. The property in question belong to one Antony who is not examined. If that be so, according to me any person can claim that they stored the gravel in the property in question. In the absence of any evidence including documentary evidence to the effect that the stolen gravel belong to the defacto complainant, I find no reason to interfere with the findings of the courts below. It is true, in order to prove an offence under Section 379 the ownership of the article removed need not be established. To attract Section 379 of IPC, it is sufficient if it is proved that the article was removed from the possession of a person without his consent and unauthorizedly. But in the present case the owner of the property namely one Antony on whose property the gravel was stored was not examined. If that be so, it cannot be said that the gravel was removed from the possession of the said Crl. R.P. No.4010 OF 2010 5 Antony to whom the property the gravel was allegedly entrusted by the defacto complainant. In the light of the above facts and circumstances, I find that the learned Magistrate has properly appreciated the evidence on record and correctly came into conclusion that the prosecution miserably failed to establish the essential ingredients of Section 379 the ownership or possession over the alleged stolen article. Therefore, there is no merit in the revision petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE pm