Raveendran @APPELLANT@Hash State Of Kerala

The revision petitioner herein challenges the conviction and sentence against him under Sections 457, 380 and 461 IPC in C.C.No.564 of 2002 of the Judicial First Class Magistrate's Court-I, Kanjirappally.

The prosecution case is that at about 10.00 p.m.on 18.06.2002, the accused committed house breaking to the house of one Viswanathan Nair at Kanjirappally, and committed theft of a silver anklet, a silver chain, and also 16.5 Kgs of dried pepper. The accused was arrested by the Sub Inspector of Police, Kottayam East in suspicious circumstance on 22.06.2002, and two silver ornaments were seized by the Sub Inspector as per a mahazar. On the basis of the arrest, the Sub Inspector registered a crime under Section 41 Cr.P.C. When interrogated by the police, the accused gave statement regarding the theft committed by him. Accordingly, as led by him, the dried pepper was recovered from a shop at Erattupetta. Thereafter, the crime was transferred to the Kanjirappally Police Station where it was re-registered under Sections 457, 380 and 461 IPC. The Sub Inspector of Police, Kanjirappally investigated the case, and submitted final report against the revision petitioner.

The accused appeared before the learned Magistrate, and pleaded not guilty to the charge framed against him. The prosecution examined 10 witnesses, and proved Exts.P1 to P5 documents in the trial court. MO1 to MO5 properties were also identified during trial. The accused did not adduce any evidence in defence. He denied the incriminating circumstances, when examined under Section 313 Cr.P.C. On an appreciation of the evidence, the trial court found the accused guilty. On conviction, he was sentenced to undergo rigorous imprisonment for one year each, and to pay a fine of Rs.1,000/- each under Sections 457 and 380 IPC, and to undergo rigorous imprisonment for one year under Section 461 IPC.

Aggrieved by the judgment of conviction dated 06.05.2004, the accused approached the Court of Session, Kottayam with Crl.Appeal.267 of 2004. In appeal, the learned Additional Sessions Judge, Adhoc-I, confirmed the conviction and sentence, and accordingly dismissed the appeal.

On hearing both sides, and on a perusal of the materials in this case, I find that there is something suspicious. The prosecution case is that the accused was arrested by the Sub Inspector of Police, Kottayam East at 1.00 p.m. on 22.06.2002, and the MO1 and MO2 ornaments were seized from him as per a mahazar. The said seizure mahazar stands not properly proved by examining any of the attestors. The body of the FIR, and also the seizure mahazar shows the time of detection as 1 p.m. whereas the relevant column in the FIR shows the time of detection as 1.00 a.m. There is no explanation for this. The prosecution would allege that the accused was arrested by the Sub Inspector of Police, Kottayam East on 22.06.2002. But the column 13 of the final report shows the date of arrest as 18.06.2002. When asked about this in cross-examination, the Sub Inspector who submitted final report could not give any explanation. However, he stated that the final report was prepared after verifying and examining all the prosecution records. It is not known what records were verified by him to record the date of arrest as 18.06.2002. There is nothing to show that the pepper produced in this case was stolen from the house of PW1. Ofcourse, PW1 identified the MO1 and MO2 ornaments. He has no explanation why he did not make any complaint alleging theft of ornaments from his house. Just because he identified the ornaments the accused cannot be found guilty. To find him guilty on the basis of seizure or recovery the alleged seizure from his hands or the recovery at his instance under Section 27 of the Evidence Act must be properly and legally proved. The prosecution has no explanation why nobody is examined to prove the Ext.P4 seizure mahazar. The mahazar shows the name of two witnesses. One is the gold smith who weighed the ornaments. He has no case that he had seen the police arresting the accused, or seizing any ornament from his possession. In view of the disparity and doubt regarding the date of arrest and the time of arrest, the Court cannot find the accused guilty only on the basis of the evidence given by the Sub Inspector who detected the offence. Thus, I find that there is something suspicious somewhere. It is not known correctly whether the time of arrest is 1.00 a.m. or 1.00 p.m. It is not known whether the accused was actually arrested on 22.06.2002 or 18.06.2002. The benefit of all these doubts must go to the accused.

In the result, this revision petition is allowed. The revision petitioner herein is found not guilty of the offences under Sections 457, 380 and 461 IPC, and he is acquitted of those offences in revision. Accordingly, the conviction and the sentence against him in C.C.No.564 of 2002 of the Judicial First Class Magistrate's Court-I, Kanjirappally, confirmed in appeal by the Court of Session, Kottayam in Crl.Appeal No.267 of 2004, will stand set aside, and the revision petitioner will stand released from prosecution.