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Judgment
Bechu Kurian Thomas, J
Revision petitioner was the 1st accused in C.C. No.393/2000 on the files of the Judicial First Class Magistrate Court-I, Sulthan Bathery. He was prosecuted along with another accused for the offence under Sections 457, 380 and 461 r/w Section 34 of the Indian Penal Code, 1860. After trial, the accused was found guilty for the offence under Section 457 of I.P.C, and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, apart from an identical sentence for the offence under Section 380 of I.P.C. In the appeal preferred by both accused, by judgment dated 10.08.2004, the conviction and sentence imposed upon the accused were confirmed and the appeal was dismissed. Challenging the order of conviction and sentence, this revision has been preferred by the first accused.
According to the prosecution, on 12.05.1998, the accused had, in furtherance of their common intention, broke open the shop of PW1 and committed theft of 100 kg. of Pepper, 15 kg. of dried ginger and 15 kg. of coffee seeds and thereby committed the offences alleged.
In order to prove the prosecution case, PWs 1 to 10 were examined and Exts. P1 to P4 were marked. After analysing the evidence adduced, the Trial Court convicted the accused and sentenced them as mentioned above. The appeal preferred by the accused was also dismissed. This revision petition is preferred by the 1st accused.
It must be mentioned at this juncture that, despite repeated attempts to obtain the Trial Court records, the learned Magistrate has informed that, even though proceedings have been initiated against the delinquent staff till date, the records could not be traced out or reconstructed.
Be that as it may, the Trial Court as well as the Appellate Court relied upon the evidence adduced in the case to come to the conclusion that, large quantity of pepper, dried ginger and coffee seeds were stolen by the accused. The contention of the revision petitioner is that, there is no material available to come to the conclusion that he had committed theft of the articles. Unfortunately, in the absence of records of the Trial Court, it is not possible to come to the conclusion regarding the correctness or otherwise of the conclusion arrived at by the Trial Court and the Appellate Court. In the absence of records in the case, the benefit of doubt must certainly yield in favour of the accused.
Since in exercise of the revisional jurisdiction, this Court is handicapped in appreciating the merits of the contention advanced due to absence of documents, the procedure established by law under Article 21 of the Constitution of India would be prejudiced. Hence the accused is entitled for acquittal. Therefore, notwithstanding the contentions raised, I am satisfied that, the revision petition is only to be allowed.
Accordingly, the conviction and sentence imposed upon the revision petitioner in C.C. No.393/2000 on the files of the Judicial First Class Magistrate Court-I, Sulthanbathery, as confirmed in Crl.A.No.88/2001 on the files of the Additional Sessions Court (Adhoc), Kalpatta, are hereby set aside and the accused is acquitted.
This revision petition is allowed.