IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2833 of 2008()
1. GIRISH, SON OF CHEVI, POYILIL VEEDU,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.JACOB ABRAHAM
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :14/10/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 2833 OF 2008
............................................
DATED THIS THE 14th DAY OF OCTOBER, 2008
ORDER
Petitioner is the second accused in C.C.230 of 2005 on the file
of Judicial First Class Magistrate-II, Thamarassery. He was tried
along with first accused for the offences under Section 379 read with
Section 34 IPC.
2. Prosecution case was that motor cycle KL-11K 1969 was
owned by PW1 and was being used by PW2, her husband and on the
night of 3.3.2005, it was parked at the courtyard of their house and on
the next day morning, it was found stolen and PW1 lodged Ext.P1
F.I.Statement based on which Ext.P7 F.I.R was registered. PW6
investigated the case. On 5.4.2005, while PW6, A.S.I of Police was on
patrol duty along with PW3, the police constable, they found the
stolen motor bike proceeding through Muthalam-Mutheri road.
Finding the police party, the rider and the pillion rider, after stopping
the motor bike, tried to run away and was followed by the police
party. PW6 arrested the accused and the motor vehicle was seized.
After investigation, charge was laid for the offence under Section 379
read with Section 34 of Indian Penal Code, which was taken
cognizance by learned Magistrate. Both the accused pleaded not
guilty. Prosecution examined six witnesses and marked twelve
CRRP 2833/2008 2
exhibits. On the evidence, both the accused were convicted and
sentenced to rigorous imprisonment for one year and a fine of
Rs.3000/- and in default, simple imprisonment for three months.
Petitioner challenged the conviction before Sessions Court, Kozhikode
in Crl.A.219 of 2008. Learned Sessions Judge, on reappreciation of
evidence, confirmed the conviction and sentence and dismissed the
appeal. It is challenged in this revision petition.
3. Learned counsel appearing for petitioner and learned Public
Prosecutor were heard.
4. On hearing the learned counsel and going through the
records of the trial court, it is seen that petitioner was not questioned
under Section 313 of Code of Criminal Procedure. The proceeding
paper shows that PW5 was examined on 22.11.2006 and case was
posted for examination of CW12 by issuing summons to him to
18.12.2006. As the Presiding Officer was on leave, the case was
adjourned on 18.12.2006 to 20.1.2007 and then was posted to
12.2.2007. On that day, summons on CW12 was not served. Case was
therefore posted to 3.3.2007. On that day, as there was no sitting, it
was adjourned to 26.3.2007. On that day also, it was adjourned to
16.4.2007. Proceeding paper shows that on that day, only first
accused was present and petitioner was absent and CW12, who was
CRRP 2833/2008 3
present, was examined as PW6 and non bailable warrant was issued
as against the petitioner. Prosecution evidence was closed and case
was posted for questioning the accused under Section 313 of Code of
Criminal Procedure to 21.4.2007. Records show that first accused was
questioned on that day. Proceeding paper shows that case was posted
for defence evidence to 28.4.2007. On that day also petitioner was
absconding. Proceeding paper shows that petitioner surrendered
before the court only on 8.4.2007 and he was granted bail and was
not questioned thereafter. On 28.11.2007, PW6 was examined denovo
and the case was posted to 29.11.2007 on which day prosecution
evidence was closed and case was posted for questioning under
Section 313 of Code of Criminal Procedure to 12.12.2007. On
12.12.2007, both the accused were absent. Though case was posted
for their appearance to 13.12.2007 and then to 18.12.2007. Both
accused were absent and non bailable warrant was issued on
18.12.2007. Proceeding paper shows that petitioner surrendered
thereafter on 21.1.2008 and even thereafter he was not questioned
under Section 313 of Code of Criminal Procedure and the case was
posted for defence evidence and thereafter as no defence evidence
was adduced, arguments were heard and both the accused were
convicted.
CRRP 2833/2008 4
5. Unfortunately, the omission to question petitioner under
Section 313 of Code of Criminal Procedure was not taken note of,
either by the learned Magistrate or learned Sessions Judge. In such
circumstances, conviction of petitioner without questioning him under
Section 313 of Code of Criminal Procedure is illegal and is to be set
aside.
6. Though learned counsel appearing for petitioner argued that
petitioner was only the pillion rider of the motor cycle as proved by
the evidence of PW3 and the presumption provided under Section 114
of Indian Evidence Act cannot be drawn against the petitioner, on the
materials now available, it is not possible to acquit the petitioner on
that ground. As learned Magistrate and learned Sessions Judge did
not consider the failure to question petitioner under Section 313 of
Code of Criminal Procedure, that question is left open to be decided
by the learned Magistrate.
7. Revision petition is allowed. Conviction and sentence passed
by learned Magistrate as confirmed by learned Sessions Judge as
against the petitioner is set aside. Case is remanded to Judicial First
Class Magistrate-II, Thamarassery for fresh disposal as against the
petitioner in accordance with law. Learned Magistrate shall question
the petitioner as provided under Section 313 of Code of Criminal
CRRP 2833/2008 5
Procedure and thereafter post the case for defence evidence and then
consider whether there is any evidence as against the petitioner.
Petitioner is directed to appear before learned Magistrate on
19.11.2008.
Send back the records immediately.
M.SASIDHARAN NAMBIAR, JUDGE
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