IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 4305 of 2007()
1. MADHU, S/O. APPU NADAR,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.R.T.PRADEEP
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :24/11/2008
O R D E R
M.SASIDHARAN NAMBIAR,J.
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Crl.R.P. NO.4305 OF 2007
===========================
Dated this the 24th day of November,2008
ORDER
Petitioner is the second accused in
C.C.222/1999 on the file of Judicial First Class
Magistrate Court-II, Thiruvananthapuram. He was
convicted for the offence under section 379 read
with section 34 of Indian Penal Code and sentenced
to rigorous imprisonment for three years. Though
petitioner challenged the conviction and sentence
before Sessions Court, Thiruvananthapuram in
Crl.A.369/1999, the appeal was dismissed confirming
the conviction and sentence. It is challenged in
the revision.
2. Learned counsel appearing for revision
petitioner and learned Public Prosecutor were
heard.
3. The argument of the learned counsel
appearing for revision petitioner is that revision
petitioner was convicted solely based on the
CRRP4305/2007 2
recovery of M01 car sterio allegedly based on the
information furnished by the revision petitioner
and identity of M01 as the stolen car sterio was
not established and therefore conviction is not
sustainable. Learned Public Prosecutor submitted
that there is no reason to interfere with the
concurrent conviction.
4. Prosecution case is that on the night of
6.2.1995 fiat car KLU 8766 of PW1 was parked in
front of his house in the Car Porch. So also taxi
car KLY-1827 belonging to PW3 was also parked near
the fiat car. On the morning, PW1 found the car
sterios of both the cars were stolen by opening
the car. PW1 furnished Ext.P1 First Information
Statement on 13.2.1995 based on which Ext.P4 FIR
was registered. PW6, the Assistant Sub Inspector
after preparing Ext.P4 FIR and registering the
case, proceeded to the house of PW1 and prepared
Ext.P2 scene mahazar. PW7 the Sub Inspector of
Police, Malayinkil found the revision petitioner
along with the first accused proceeding in an
CRRP4305/2007 3
autorikshaw at Pavankode along with car sterio and
tools. Getting suspicious PW7 questioned them and
arrested them and registered Crime 45/1995 under
section 102 of Code of Criminal Procedure. While
questioning, on the information furnished by the
revision petitioner, PW7 along with the revision
petitioner reached his house. When revision
petitioner produced M01 car sterio after preparing
Ext.P5 recovery mahazar PW7 was recovered it. On
the information furnished by first accused M02 car
sterio was recovered under Ext.P4 recovery mahazar.
As it was revealed that the theft relate to
Poojappura Police Station, FIR along with M0s 1
and 2 were transferred to Poojappura Police
Station. PW8, the Sub Inspector of Poojappura
Police Station conducted the subsequent
investigation and laid the charge. Both the
accused pleaded not guilty. Prosecution examined
eight witnesses and marked eight exhibits and
identified M0s 1 and 2. When the case was posted
for argument after questioning the accused,
CRRP4305/2007 4
revision petitioner absconded. Therefore learned
Magistrate proceeded against the first accused and
as per judgment dated 29.7.1999 first accused was
convicted and sentenced for the offence under
section 379 read with section 34 IPC. The case as
against revision petitioner was refiled as
C.C.222/1999. Learned Magistrate, after the
petitioner was arrested and produced, heard him and
the prosecution and as per judgment dated 20.8.1999
convicted revision petitioner. Hearing him on the
question of sentence, Magistrate sentenced him.
Learned Magistrate convicted the revision
petitioner based on the recovery of M01 by PW7
under Ext.P5 recovery mahazar believing the
prosecution case that it was on the information
furnished by revision petitioner.
5. As rightly argued by the learned counsel
appearing for revision petitioner, conviction
could be sustained only if the identity of M01
recovered under Ext.P5 is proved to be the stolen
article belonging to PW1. If there is discrepancy
CRRP4305/2007 5
on the identity of the car sterios stolen and
recovered under Ext.P5 and the discrepancy is not
explained by prosecution, revision petitioner is
entitled to contend that based on the recovery he
cannot be convicted. That exactly is the case
herein.
6. The evidence of PW1 corroborated by the
evidence of PW3 establish that on the night of
6.2.1995 PW1 had parked his fiat car KLU 8766 and
PW3 had parked his taxi car KLY 1827 in the Car
Porch of the house of PW1. On the morning of
7.2.1995 it was found that car sterios of both the
cars were stolen on the previous night. Though
Ext.P1 First Information Statement was furnished
only on 13.2.1995, PW1 had given proper explanation
for the delay and there is no reason to disbelieve
the evidence of PW1 corroborated by PW3 with regard
to the theft. From the evidence of PW1 and PW3
corroborated by Ext.P1 First Information Statement
and Ext.P2 scene mahazar prepared by PW6 subsequent
to the registration of the case under Ext.P4 FIR,
CRRP4305/2007 6
it is proved that the car sterios of both the
fiat car and the ambassador car were stolen on the
night of 6.2.1995. First accused was convicted
based on the recovery of M02 holding that it was on
the information furnished by him. The conviction
of the first accused is not a question to be
decided in this revision.
7. Though after seven days from the date of
theft, when PW1 furnished Ext.P1 First Information
Statement, details of the car sterios stolen from
his fiat car were unveiled in Ext.P1 as the in dash
car sterio. It is not mentioned in Ext.P1 that it
was ROAD MASTER indash as stated by him at the
time of evidence. Ext.P2 scene mahazar was
prepared by PW6 after Ext.P1 First Information
Statement was furnished by PW1 and Ext.P4 FIR was
registered. In Ext.P2 scene mahazar also after
inspecting the fiat car PW6 unambigously stated
that the car sterio stolen from the fiat car is
indash model. There is no mention in Ext.P2 that
it was ROAD MASTER indash. The evidence of PW7,
CRRP4305/2007 7
based on which petitioner was convicted, shows that
on the information furnished by the revision
petitioner PW7 and as lead by revision petitioner
he reached the house of the revision petitioner and
from there M01 car sterio was recovered. When
revision petitioner was questioned under section
313 of Code of Criminal Procedure, revision
petitioner stated that M01 car sterio was taken
from his house. Therefore there is no reason to
disbelieve the evidence of PW7 corroborated by
Ext.P5 that M01 was recovered from the house of the
petitioner. But the question is whether M01 which
was recovered under Ext.P5 is the indash car sterio
stolen from the fiat car of PW1.
8. Though PW1 identified M01 as the stolen car
sterio Ext.P5 recovery mahazar with evidence of
PW7 and Pw1 establish that M01 is not indash model
car sterio but ROAD MASTER 12 V – ground made in
Japan. Even at the time of examination of PW1 he
did not give any explanation for stating in Ext.P1
that the car sterio stolen from his car was indash
CRRP4305/2007 8
car sterio if in fact what was stolen was ROAD
MASTR car sterio which was recovered under Ext.P5.
Pw7 the Sub Inspector of Police who recovered M01
also did not explain that indash car sterio and
roadmaster car sterio are one and the same. PW8 the
subsequent Investigating Officer has not conducted
any investigation on this aspect as it was not
spoken to by him. Therefore as the evidence now
stand what was stolen from the fiat car of PW1 was
indash model car sterio. But what was recovered
under Ext.P5 is M01 which is a ROAD MASTER car
sterio. Prosecution has failed to establish that
M01 car sterio is the one which was stolen from the
fiat car of PW1. Though PW1 identified M01 as the
car sterio stolen from his car in the absence of
proper explanation as to how M01 was identified, no
reliance could be placed on the identification made
by PW1. Apart from the make of the car sterio, PW1
had not disclosed anything to identify M01 as the
stolen article. In such circumstances, petitioner
is entitled to at least the benefit of doubt. As
CRRP4305/2007 9
prosecution failed to prove that revision
petitioner committed the offence, conviction of
the petitioner solely based on the recovery of M01
is not sustainable.
Revision is allowed. Conviction and sentence
passed by the Judicial First Class Magistrate-II,
Thiruvananthapuram in C.C.222/1999 as confirmed by
Additional Sessions Judge in Crl.A.369/1999 are set
aside. Petitioner is found not guilty of the
offence. He is acquitted. Bail bond executed by
him stands cancelled.
M.SASIDHARAN NAMBIAR
JUDGE
tpl/-
M.SASIDHARAN NAMBIAR, J.
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W.P.(C).NO. /06
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JUDGMENT
SEPTEMBER,2006