IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 159 of 2008()
1. CHOTTANTAKATH MUHAMMAD, S/O.UMMER,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.SUNIL NAIR PALAKKAT
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :03/12/2008
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
CRL.R.P.NO. 159 OF 2008
............................................
DATED THIS THE 3rd DAY OF DECEMBER, 2008
ORDER
Revision petitioner is the second accused in C.C.102 of 2000 on
the file of Judicial First Class Magistrate, Payyannur. Petitioner, along
with the first accused were charged for the offence under Section 457
and 318 read with Section 34 IPC. Prosecution case was that on the
evening of 10.11.1999, PW1, the owner of Al-Ameen Agencies,
Payyannur closed his shop room, locked it and returned to his house.
On the morning of 11.11.1999, at about 8 am, he reached the shop.
PW1 found the lock opened. On entering the room PW1 found two
gunny bags of pepper containing one quintal and 10 kg of pepper
stolen. PW1 went to Payyannur police station and furnished Ext.P1
F.I.Statement, based on which Ext.P4 F.I.R was prepared and Crime
388 of 1999 was registered. Police prepared Ext.P2 scene mahazar
on the same day and PW6, Sub Inspector conducted the investigation.
Meanwhile, PW5, S.I of Taliparamba police station found both the
accused under suspicious circumstances at Taliparamba. They were
arrested and a Crime was registered under Section 41 of Code of
Criminal Procedure. PW5, on questioning the accused and getting
information that they are involved in the offence registered by
Payyannur police station, intimated the matter to S.I of Police,
CRRP 159/2008 2
Payyannur. PW6, Sub Inspector submitted a petition before Judicial
First Class Magistrate, Taliparamba and obtained custody of the
accused. On the information furnished by first accused and as led by
him, MO1 series of two gunny bags of pepper were recovered from
the shop of PW7, in the presence of his son, PW8 under Ext.P6
recovery mahazar from Mangalore . Prosecution case is that the said
gunny bags of pepper were stolen from the shop of PW1. On the
information furnished by revision petitioner under Ext.P3 seizure
mahazar, MO2 crow bar was recovered. It is after investigation,
charge was laid before Judicial First Class Magistrate, Payyannur for
the offence under Section 457 and 380 read with Section 34 IPC. Both
the accused pleaded not guilty. Prosecution examined eight witnesses
and marked seven exhibits and identified Mos 1 and 2.
2. Learned Magistrate, on the evidence, convicted both the
accused and sentenced them to rigorous imprisonment for two years
for the offence under Section 457 and rigorous imprisonment for two
years for the offence under Section 380 IPC. Petitioner challenged the
conviction before Sessions Court, Thalassery in Crl.A.370 of 2001.
First accused challenged the conviction in Crl.A.447 of 2001. Learned
Additional Sessions Judge, on reappreciation of evidence, confirmed
the conviction and sentence and dismissed both the appeals. Revision
petitioner is challenging his conviction and sentence in this revision
CRRP 159/2008 3
petition.
3. Learned counsel appearing for revision petitioner and
learned Public Prosecutor were heard.
4. The argument of learned counsel appearing for revision
petitioner is that there is absolutely no evidence to connect revision
petitioner with the offences alleged. It was pointed out that revision
petitioner was convicted solely based on the extra judicial confession
allegedly made by him and recovery of MO2, crow bar under Ext.P3
recovery mahazar and as there is no evidence to prove that the MO2
was used for the offence committed, his conviction is not sustainable.
5. On going through the judgments of courts below, it is clear
that evidence was not properly appreciated with regard to the case
against revision petitioner. Evidence of PW1 corroborated by Ext.P1
F.I.Statement establishes that his shop room was broke open on the
night of 10.11.1999 and two gunny bags containing pepper were
stolen. There is no direct evidence as to how the theft was committed
or how the culprits entered the shop room. Though first accused could
be connected to the theft based on the recovery of MO1 series of
gunny bags of pepper, identified as the stolen articles, there is
absolutely no evidence as against the revision petitioner. The alleged
extra judicial confession made by revision petitioner or first accused
that revision petitioner is involved in the offences, cannot be used
CRRP 159/2008 4
against revision petitioner to convict him. MO2 crow bar was
recovered by PW6, based on the information furnished by the revision
petitioner. Even if it is accepted, unless there is evidence to prove
that it is making use of MO2 crow bar, the theft was committed from
the shop of PW1, revision petitioner cannot be connected to the theft.
There is absolutely no evidence to prove that MO2 was either used
or was with the culprits on that night. Therefore based on the
recovery of MO2 or the alleged extra judicial confession alone,
revision petitioner cannot be convicted. Except this, there is no
evidence to connect the revision petitioner with the theft.
Unfortunately, this was omitted to be taken note of by courts below.
Hence conviction of revision petitioner is not sustainable.
Revision is allowed. Conviction of revision petitioner for the
offence under Section 457 and 380 read with 34 IPC in C.C.102 of
2000 on the file of Judicial First Class Magistrate, Payyannur is set
aside. He is found not guilty and is acquitted. Bail bond executed by
him stands cancelled.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-