IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 684 of 2001()
1. ASHRAF
... Petitioner
Vs
1. STATE,SHO PERINGOME,HIGH COURT,EKM.
... Respondent
For Petitioner :SRI.V.RAJAGOPAL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :17/09/2008
O R D E R
THOMAS P. JOSEPH, J.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Crl.R.P.No. 684 OF 2001
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Dated this the 17th day of September, 2008
O R D E R
The revision petitioner along with two others was charge
sheeted by Peringom police in Crime No.98/92 for the offence
punishable under Section 379 read with Section 34 IPC on the
allegation that on 08.04.92 at about 12 a.m. they, in furtherance of
their common intention committed theft of 38 rubber sheets and
28 Kgs of arecanuts from the property belonging to PW1. Since the
1st accused was not available for trial, the case against him was split
up. Revision Petitioner and the 3rd accused faced trial, were found
guilty, convicted and sentenced to undergo simple imprisonment for
one year each. They preferred appeal to the Sessions Court,
Thalassery. The learned Additional Sessions Judge confirmed the
conviction and sentence. Hence, this revision petition at the instance
of the 3rd accused.
2. Heard the learned counsel for the revision petitioner and
learned Public Prosecutor. Learned counsel submitted that
conscious possession of the alleged stolen articles with the revision
petitioner is not proved. It is also submitted that the courts below
Crl.R.P. No.684/2001
-:2:-
were not correct in ignoring the evidence of DW1 to 3 which is
supported by Ext.D1 series.
3. As against the version of the prosecution which I have stated
above, the revision petitioner claimed that he, along with others was
taken to custody by PW3, Sub Inspector, Payyannoor after about 4
p.m. on 21.04.92. H claimed that on the alleged date of occurrence
himself and others were working in the bus service belonging to
DW1. DWs 2 & 3, employees in the said bus and DW1 were
examined to prove that version. They supported the revision
petitioner.
4. Before going to the evidence rendered by DWs 1 to 3, it is
necessary to say whether going by the version of the prosecution
conscious possession of the alleged stolen articles with the revision
petitioner has been proved. Though PW1 stated at one stage that it
is difficult for him to identify MO1series, rubber sheets on account of
its oldness, he claimed that his rubber sheets carried the mark ‘TB’
since the same were pressed at the mill belonging to PW7. This is
supported by PWs 2 &4 as well. In fact there is no serious challenge
to the version of PWs 2 & 4 that the rubber sheets had the marking
Crl.R.P. No.684/2001
-:3:-
‘TB’. It is seen from Ext.P1, mahazar prepared by PW3 for seizer of
the articles that there also the existence of ‘TB’ mark is mentioned.
The list of properties submitted by the police in the trial court shows
that the rubber sheets carrying ‘TB’ mark were produced in the court.
Therefore there is no reason to disbelieve the identification of MO1
series made by PW1. MO2 series, sacks in which PW1 had kept
arecanuts also had been identified by PW1 regarding which there is
no serious challenge in cross examination.
5. It is submitted by learned counsel that though according to
PW3 he had arrested the revision petitioner and others on 23.04.92,
seized the alleged stolen articles and registered case against them
under Section 4(1) (d) and 102 Cr.P.C as seen from Ext.P2, the FIR
and the case was transferred to Peringom police within whose limits
the incident occurred, the transfer FIR reached the Peringom Police
Station only on 02.06.92 as seen from Ext.P4 and the testimony of
PW5. Learned counsel doubted where exactly the transfer FIR was
from 23.04.92 till 02.06.92?
6. But it is not shown that on 23.04.92 itself, the FIR had been
transferred to Peringom Police Station. The delay in sending the FIR
Crl.R.P. No.684/2001
-:4:-
may have been due to administrative delay or such other reason but
PWs 3 or 5 were not questioned with reference to that. So far as the
alleged conscious possession of the stolen articles with the revision
petitioner is concerned, there appears to be confusion. Going by the
evidence of PW3 and Ext.P1, the arecanuts were carried in plastic
sacks. PW3 stated in cross examination that the revision petitioner
and two others were cited near Perumba bus stop at about 8.45 a.m.
and that “two accused” were carrying plastic sacks while one sack
was kept nearby on the floor. PW3 was not able to say which of the
accused were carrying the sacks. It is not clear from the version of
PW3 or Ext.P1 whether the revision petitioner was one among the
two accused who were carrying the plastic sacks. If the revision
petitioner was not carrying any of the plastic sack, he cannot be said
to have been in conscious possession of the stolen articles kept in
the sacks carried by the other accused unless common intention is
otherwise proved. Assuming that the revision petitioner was standing
nearby the sack containing the stolen article and kept on the floor,
that by itself cannot amount to conscious possession of the said
stolen article with him since concededly the place of arrest and
Crl.R.P. No.684/2001
-:5:-
seizure is a bus stop where revision petitioner could be present for
other reasons as well. Therefore, I am inclined to accept the
contention that conscious possession of the stolen articles with the
revision petitioner has not been proved beyond reasonable doubt. If
that be so, conviction and sentence on him cannot be sustained.
The revision petition therefore succeeds. Conviction and
sentence of the revision petitioner are set aside and he is acquitted
of the charge against him. Bail bond is cancelled.
THOMAS P. JOSEPH, JUDGE
ttb