IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 628 of 2001()
1. A.P. JAMES
... Petitioner
Vs
1. STATE
... Respondent
For Petitioner :SMT.P.M.INDU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :15/10/2008
O R D E R
THOMAS P. JOSEPH, J.
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Crl.R.P. No.628 of 2001
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Dated this the 15th day of October, 2008.
ORDER
Heard both sides.
2. Third accused faced trial along with three others for offences
punishable under Section 457 and 380 read with Section 34 of the Indian Penal
Code (for short, ‘the Code’) the allegation being that on 27.7.1988 at about 2
a.m. they, in furtherance of common intention trespassed into vettekkorumakan
temple, breaking open the lock of outer door and committed theft of idol, lamps,
etc. A4 was acquitted by the trial court. A1 to A3 were convicted. They took up
the matter in appeal. A1 to A3 were acquitted. This Court initiated suo motu
revision, set aside the acquittal and remitted the case to the appellate court for
fresh disposal. While so, first accused died. Appellate court convicted A3 and
acquitted A2. A3 has come up in revision challenging his conviction and
sentence.
3. Counsel for revision petitioner submitted that there is no
sufficient evidence to convict the revision petitioner. According to learned
counsel, the alleged discoveries at the instance of the revision petitioner are not
properly proved and at any rate, there is no evidence of concealment. It is also
submitted that there is no proper identification of the material objects alleged to
be discovered at the instance of revision petitioner.
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4. PW2 who gave first information regarding the alleged
incident claimed that the temple belonged to his family. On getting information
about the incident, he came to the temple and learned about the theft. He
identified MO1 series and MO2 series as the stolen idols, lamps, etc. PW1, the
temporary priest of the temple claimed that he was in charge of the temple in the
absence of his uncle, from 25.7.1988 onwards. He claimed that he had closed
the temple on 27.7.1988 after pooja. Next day, the lock of the outer door of the
temple and sreekovil were seen broken. Idols and lamps kept in the temple
were seen missing. PW 4 is the owner of the jeep. He was examined to say
that revision petitioner and other accused had travelled in that jeep but he did not
support the prosecution. PW5 is the registered owner of the jeep and claimed
that he had sold the jeep to PW4. PW6 stated that his brother-in-law donated
one of the stolen lamps to the temple. PW7 was examined to prove arrest of
first accused and seizure of MO1 series but he did not support the prosecution.
He admitted signature on Ext.P4, mahazar. PW8 claimed that as per direction
of the Circle Inspector, he had taken out one lamp from an unused well in the
presence of Circle Inspector and revision petitioner. He identified that lamp as
MO2. He is an attestor in Ext.P6. PW9 is another attestor in Ext.P5, mahazar
for seizure of the materials at the instance of revision petitioner but he did not
support the prosecution. PW10 is a director of a bank. He claimed that in
connection with theft in that bank, he had been to the Circle Inspector and
accompanied him to the place wherefrom discovery as per Ext.P5 was made.
He stated that on 26.1.1989 at about 5 p.m. he saw revision petitioner showing
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a lamp in a well and one Narayanan (PW8) taking that lamp. He also claimed to
have seen revision petitioner digging out an idol and lamp from the property
behind the house of revision petitioner on 26.1.1989 at about 7 p.m. PW16, the
Circle Inspector, Payyannur arrested revision petitioner and A2 on 23.1.1989 and
recorded their statement. Allegedly on the information given by the revision
petitioner and A2, recoveries as per Exts.P4 to P7 were made.
5. The only item of evidence pertaining to the revision petitioner
is the alleged discovery of lamps as per Exts.P5 and P6. Going by Ext.P6,
revision petitioner had told PW16 that he had kept the lamp in the unused well.
Ext.P6 (a) is the relevant portion of the statement of revision petitioner. Ext.P5
(a) is the relevant portion of the statement of revision petitioner which led to the
discovery as per Ext.P5. In Ext.P5(a), there is no mention of authorship of
concealment.
6. MO2 series are three lamps. Exts.P5 and P6 refer only two
lamps. One lamp in MO2 series was not discovered at the instance of revision
petitioner. PW1 did not identify any of the material objects. PW2 stated that the
stolen lamps (which include the one not discovered at the instance of revision
petitioner) are the lamps stolen from the temple but PW6 was not made to
identify any of those materials. PW10 also did not identify the lamp discovered
on the information given by the revision petitioners as per Ext.P6(a). It is seen
from evidence that PW10 only stated that said lamp is seen in court. He was not
made to identify which of the lamp among MO2 series is the lamp covered by
Ext.P6(a). The difficulty is that going by Ext.P7, one lamp was discovered on the
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information allegedly given by the second accused. MO1 series do not contain
any lamp. In short, apart from the two lamps discovered as per Exts.P5 and P6,
one lamp also is included in MO2 series and witnesses were not made to
properly identify which of the two lamps among those three lamps are covered
by Exts.P5 and P6. The discovery of one lamp as per Ext.P5 is of no use
since Ext.P5(a) does not contain any authorship of concealment. In the light of
that, it is difficult to apply Ext.P6(a) against revision petitioner to say that he was
in possession of the stolen lamp. If that be so, his conviction and sentence
cannot be sustained.
Resultantly, Revision Petition is allowed. Conviction and sentence
imposed on revision petitioner are set aside and he is acquitted of the charges
made against him giving him the benefit of doubt. Bail bond is cancelled.
Crl.M.P.No. 3032 of 2001 shall stand dismissed.
THOMAS P.JOSEPH,
JUDGE.
cks
Crl.R.P.No.628/2001
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Thomas P.Joseph, J.
Crl.R.P.No.628 of 2001
ORDER
15th October, 2008