Criminal revision petition filed by the 2nd accused in C.C No.561/1997 on the file of the Judicial First Class Magistrate Court -I, Attingal. He was convicted by the learned Magistrate under Section 379 I.P.C, though he had been charged under Sections 379 & 201 r/w Section 34 I.P.C. The revision petitioner challenged the conviction and sentence before the learned Sessions Judge, Thiruvananthapuram in Crl.Appeal No.185/1999. Learned Sessions Judge by a cryptic judgment dismissed the appeal confirming the conviction and sentence.
2. Case of the prosecution revealed from the charge is as follows :
The revision petitioner along with other accused had committed theft of an auto rickshaw on 21-12-1996 at about 1 'O' Clock in the night from the house of PW2. This was revealed when he was found in a suspicious circumstance during night on 18-06-1997 while the police was conducting patrol. During that night, the petitioner along with two other persons were travelling in another auto rickshaw. On feeling suspicion, PW7 questioned the occupants of the auto rickshaw and found that the auto rickshaw in which they were travelling was a stolen property. Therefore, the detecting officer registered Crime No.79/97 of Vattiyoorkavu Police station for the offence of theft. It is the prosecution case that during the course of questioning, the petitioner confessed their involvement in a theft of auto rickshaw, involved in this case, which is the subject matter in Crime No.405/96 of Attingal Police Station. Therefore, the detecting officer registered crime No.81/97 before the Vattiyoorkavu Police Station and it was transferred to Attingal Police Station for investigation.
3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor.
4. Learned counsel for the revision petitioner submitted that the impugned conviction cannot be sustained for two reasons. Firstly, the petitioner was convicted with the aid of Section 27 of Evidence Act. For proving a confession of an accused person in custody, his arrest by a Police Officer has to be established. It is his submission that there is no document produced in this case to show that he was ever arrested in crime No.79/97 of Vattiyoorkavu Police Station.
5. Testimony of PW7, the detecting officer does not show any reason for not producing any document relating to the registration of crime No.79/97 of Vattiyoorkavu Police Station, in which the alleged confession was made. Section 27 of the Evidence Act is a proviso to Section 25 of Evidence Act. Section 25 deals with prohibition of proving a confession made to the Police Officer. For clarity, Section 27 of the Evidence Act is excerpted hereunder :
“27. How much of information received from accused may be proved.- Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”
6. On a reading of the above provision, it can be seen that so much of the information discovered from a person accused of any offence, while in custody of a Police Officer, can be proved, if it distinctly related to the fact discovered subsequent to the confession. To attract an offence of theft of an auto rickshaw committed by the petitioner, it is essential that his confession while in custody of a Police Officer should be proved. For that, he was in custody of a Police Officer should be established. Mere statement of PW7 is not sufficient because the prosecution has a definite case that crime No.79/97 was registered by Vattiyoorkavu Police against the accused and during the course of investigation in that crime, the confession of his involvement in stealing an auto rickshaw involved in Crime No.405/96 of Attingal Police Station was revealed. In the absence of any evidence to show that he confessed while in custody, Section 27 of the Evidence Act has no application. Even though the learned Magistrate appreciated this aspect correctly, without any sufficient reason convicted the revision petitioner for an offence under Section 379 I.P.C. Therefore, I find that contention of the revision petitioner on that count is maintainable.
7. Learned counsel for the revision petitioner submitted that though PW's 1 to 3 were examined to prove that PW2 is the owner in possession of the auto rickshaw, no document is produced to substantiate that PW2 was the owner in possession at the material time. On the contrary, the revision petitioner raised a specific contention that he was in lawful possession of the auto rickshaw by virtue of an agreement executed by him with one 'Jayakumar', whose name has been suggested during the cross examination of PW's 1 to 3. It is also submitted that the revision petitioner went to the Regional Transport Officer for changing the ownership and then realized that there was some discrepancy in the records relating to the auto rickshaw. Immediately thereafter, he went to file a complaint before the Police and then he was implicated falsely in the crime. There are probability in the defence case that he is not involved in any theft as alleged by the prosecution. Therefore, I find that the courts below wrongly appreciated the evidence resulting in an illegal finding. Hence, I find that the revision has to be allowed.
In the result, the revision petition is allowed.
Conviction of the revision petitioner in C.C No.561/1997 on the file of the Judicial First Class Magistrate Court - I , Attingal, which was confirmed by the Sessions Judge, Thiruvananthapuram in Criminal Appeal No.185/1999 is hereby set aside. The revision petitioner is acquitted of all charges. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled.
All pending interlocutory applications will stand dismissed.
Sd/- A.HARIPRASAD, JUDGE.
amk //True copy// P.A to Judge