IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE V.K.MOHANAN
FRIDAY, THE 1ST JULY 2011 / 10TH ASHADHA 1933
Crl.Rev.Pet.No. 2991 of 2009
------------------------------------(CRA.364/2007 of ADDL.SESSIONS COURT (ADHOC)III, MANJERI CC.503/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT-II, PERINTHALMANNA)
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REVN. PETITIONER(S): APPELLANT/2ND ACCUSED:
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ABDUL SALAM, S/O.MOIDEEN, KODAKKATTIL HOUSE, ANANTHAVUR AMSOM, KUNDUKULAM, MALAPPURAM DISTRICT.
BY ADV. SRI.P.SAMSUDIN
RESPONDENT(S): COMPLAINANT/STATE:
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STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE PERINTHALMANNA THROUGH THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.V.TEK CHAND.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 01/07/2011, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
## **V.K.MOHANAN,J.**
## **-------------------------------------------------Crl.R.P.No. 2991 of 2009 --------------------------------------------------Dated this the 1[st] day of July,2011**
## **O R D E R**
The second accused in a prosecution for the offence under Section 379 read with Section 34 of I.P.C. is the revision petitioner. The prosecution case is that on 15.7.2004 at about 2.30 a.m. accused Nos.1 and 2 in furtherance of their common intention committed theft of motor pumpsets, which are installed near a well of the quarters bearing No.X/12 of Perinthalmanna Municipality.
2. According to the prosecution, the motor pump sets is worth of `.3000/- and as per the case of the prosecution, the accused therein were arrested while PW1 and party were on patrol duty and when the accused were removing the motor pump sets from the scene of occurrence. Thus, on their arrest, they were produced before the court and remanded to the judicial custody. Consequent to the arrest, F.I.R. was registered under Section 41(1)(d) and Section 102 of Cr.P.C. But, subsequently, a final report was filed before the Judicial First
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Class Magistrate Court-II for the offence under Section 379 read with Section 34 I.P.C. and subsequently, the case was made over to the trial court viz., Judicial First Class Magistrate Court-II, Perinthalmanna. During the trial of the case, Pws.1 to 5 were examined and Exts.P1 to P5 were marked. There was no evidence from the part of the defence. In fact, the present revision petitioner/the second accused alone faced the trial and the case against the first accused was split up. While concluding the trial, the learned Magistrate has found that the petitioner is guilty under Section 379 read with Section 34 of I.P.C. and accordingly, he is convicted and sentenced for the said offence and on such conviction, he is sentenced to undergo rigorous imprisonment for four months under Section 379 of I.P.C. Set off was also allowed.
3. Though an appeal was filed, by judgment dated 26.6.2009 in Crl.A.No.364 of 2007, the court of Additional Sessions Judge (Fast Track Court No.III), Manjeri dismissed the appeal confirming the
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conviction and sentence. It is the above judgments of the trial court as well as the appellate court and conviction and sentence challenged in this Crl.R.P.
4. I have heard Sri.P.Shamsudin, learned counsel appearing for the petitioner and Sri.V.Tek Chand, learned Public Prosecutor appearing for the respondent. I have also perused the judgments of the courts below and also the materials on record.
5. Learned counsel for the revision petitioner vehemently argued that the findings of the trial court as well as the appellate court are incorrect since there is no evidence to connect the petitioner with the alleged offence. According to the learned counsel, the prosecution did not file any arrest memo to prove the arrest. It is also the submission of the learned counsel that no intimation was given to the relatives of the petitioner, intimating them the arrest of the petitioner as directed by the Apex Court reported in **D.K.Basu** v. **State of West Bengal** (1997(1) SCC 416). It is also the submission of the learned
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counsel that except the interested version of PW5, there is no independent evidence to corroborate the evidence of the official witnesses. Another contention advanced by the learned counsel is that PW5 could not identify the material object beyond reasonable doubt and he has also failed in his deposition to show that he was in possession of the material object.
6. On the other hand, the learned Public Prosecutor submitted that the petitioner along with other accused were arrested from the spot and Ext.P1 seizure mahazar was prepared and immediately thereafter Ex.P2 F.I.R. was registered by PW2. Therefore, even though there is no arrest memo, it cannot be, according to the learned Public Prosecutor, held that there was no arrest. The learned Public Prosecutor further submitted that Ext.P4 report was filed, while the petitioners were in custody, to alter the section of offences into Section 379 read with Section 34 of I.P.C. It is also the submission of the learned Public Prosecutor that PW5, the occupant of the quarters
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from where MO1 was stolen, identified MO1 properly and when the entire prosecution materials and evidence were taken altogether, it can be seen that the prosecution has succeeded in establishing the case against the accused and therefore, the findings of the trial court as well as the appellate court are not liable to be interfered with.
7. I have carefully considered the arguments advanced by both the learned counsel for the petitioner as well as the learned Public Prosecutor and I have perused the materials and evidence on record and the judgments of the court below.
8. The specific case of the prosecution is that when PW2 the A.S.I. Of Police, Perintalmanna Police Station and party were on patrol duty, found the accused removing MO1 and consequently, they intercepted and after questioning them, registered the crime under Section 41(1)(d) and Section 102 of Cr.P.C. It was thereafter, the section of offence altered into Section 379 and 34 of I.P.C. as per Ext.P4 report. Ext.P4 report is dated 20.7.2004. In fact, the accused
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were allegedly arrested on 15.7.2004. But, neither on 20.7.2004 nor any date prior to that, any complaint was received in the Police Station regarding the alleged theft that had taken place in the Alshifa Hospital. The above fact assumes relevance since the Police has not prepared any arrest memo or no notice was sent to the relatives of the accused intimating them the arrest of the accused. In the absence of any arrest memo or the procedure in terms of the guidelines issued by **D.K.Basu's** the Honourable Apex Court in the decision reported in **case** (cited supra), according to me, it cannot be said that Ext.P1 seizure mahazar is beyond shadow of doubt. The above doubt is intensified by the deposition of PW5 because in his deposition, there is a trend to give exaggerated version and PW5 went to the extent to say that they have already informed the Police regarding the alleged theft of motor pump sets from the quarters. There is also no evidence to show that PW5 has made any report regarding the theft of motor pump sets from the quarters to the hospital authorities. So in fact
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absolutely, there is no evidence to show that the Police was made aware of the alleged theft of motor pump sets from the quarters of Alshifa hospital till they implicated the accused for the offence under Section 379 read with section 34 I.P.C. So also, regarding the arrest of the accused on 15.7.2004, there is no independent witness also. Going by the evidence of PW5, as rightly pointed out by the learned counsel, it can be seen that he had miserably failed to identify MO1 as the one which was stolen from the quarters of Alshifa Hospital. So, in the light of the above facts and circumstances and in view of the evidence referred to above, I am of the view that the prosecution has miserably failed to establish its allegation against the accused beyond reasonable doubt particularly they failed to establish the link between the petitioner and the alleged offence of theft with respect to MO1. If that be so, certainly the petitioner is entitled to get the benefit of doubt and consequently, the conviction recorded by the trial court as well as the appellate court is not sustainable. Hence, the conviction recorded
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by the courts below against the petitioner is set aside.
In the result, this Criminal Revision Petition is allowed, setting aside the judgment dated 31.10.2007 in C.C.No.503 of 2005 of the Judicial First Class Magistrate Court-II, Perinthalmanna and the judgment dated 26.6.2009 in Cr.A.No.364 of 2007 of the Additional Sessions Court (Fast Track Court-III) Adhoc, Manjeri are set aside and the revision petitioner/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him will stand cancelled and he is set at liberty. The amount deposited by the petitioner in the trial court in terms of the order dated 24.9.2009 of this Court is directed to be released to him in favour of the petitioner forthwith on an application moved in this behalf in the trial court.
This Criminal Revision Petition is allowed.
**V.K.MOHANAN** , Judge.
MBS/
