The accused is entitled to acquittal due to insufficient evidence and contradictions in the prosecution case concerning conviction under IPC sections.

ORDER

The petitioner is convicted for the offences under Sections

457 and 380 of IPC by the Judicial First Class magistrate, Alathur, in C.C.No.361 of 2007 and was sentenced to undergo simple imprisonment for a period of six months and to pay fine of Rs.1,000/- for each of the offences and in default of payment of fine to undergo simple imprisonment for one month. By the judgment dated 13.12.2013 in Crl.Appeal No.270 of 2012, the Sessions Court, Palakkad, confirmed the conviction and sentence. Being aggrieved, the petitioner is now before this Court with this revision petition filed under Section 397 r/w 401 Cr.P.C.

2. The prosecution case is that on 27.01.2007 at 12.30 hours, accused Nos.1 to 5, in furtherance of their common intention of committing theft, trespassed into the storeroom of the Building No.C-13/405 of Vadakkanchery Panchayat and committed theft of 63 rubber sheets worth Rs.5,000/- owned by PW2, after break opening the lock of the room. The crime was registered by the police on the confession of the petitioner- accused No.1, when he was arrested in another crime. On completion of the investigation, PW7, the Sub Inspector of Vadakkanchery Police Station, filed the Final Report before the jurisdictional court, and it was taken cognizance. On appearance of the accused, all of them were served with copies of the prosecution records as provided under Section 207 Cr.P.C. After hearing both sides, charge was framed for the offences under Sections 457 and 380 r/w 34 of IPC against the accused, and they pleaded not guilty.

3. From the side of the prosecution, PW1 to PW7 were examined and Exts.P1 to P3 and MO1 series were marked. During the trial, accused Nos.3 and 4 absconded and hence the trial was completed against accused Nos.1, 2 and 5 alone. On questioning those accused under Section 313(1)(b) Cr.P.C., they denied all the incriminating circumstances brought out against them. The petitioner-accused No.1 further stated before the learned Magistrate that he did not give a confession statement to the police. He denied the recovery also. After hearing both sides and on appreciation of evidence on record, the learned Magistrate, by the impugned judgment dated 15.06.2012, convicted and sentenced accused No.1 as stated above and acquitted the remaining accused who faced the trial. The conviction and sentence were confirmed in the appeal also.

4. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

5. The learned counsel for the petitioner addressed extensive arguments, pointing out various contradictions and discrepancies in the evidence of the prosecution witnesses. The learned counsel pointed out that in the evidence of PW2, initially, the mark on the rubber sheets seized from the shop of PW4 was stated as ‘VAS’, which was later corrected as ‘VAN’. However, during evidence, PW4 stated that there was no such mark on the rubber sheets. It was also argued by the learned counsel that the recovery allegedly effected in this case is not believable for the reason that, as per the evidence of PW4, the accused was brought to the shop for recovery after three months of the sale of rubber sheets. But, according to PW2, she lost the rubber sheets about one year prior to the apprehension of the accused. It is also the argument of the learned counsel that in his evidence, PW4 stated that he usually keeps the rubber sheets in his shop after purchase for about one month alone. There is no explanation as to why the rubber sheets, that claimed as sold by the accused was kept in a shop for more than three months. The identification of the accused by PW4 from the dock is also not of much importance in this case, for the reason that, according