Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 15TH DAY OF DECEMBER 2023 / 24TH AGRAHAYANA, 1945 CRL.REV.PET NO. 1601 OF 2011 AGAINST THE JUDGMENT DATED 07.02.2011 IN CRA 61/2010 OF ADDITIONAL DISTRICT COURT (ADHOC), KOTTAYAM AGAINST THE JUDGMENT DATED 27.01.2010 IN CC 159/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHANGANACHERRY REVISION PETITIONER/APPELLANT/ 2ND ACCUSED: ANIL KUMAR, S/O. THULUKKAL KUNJUMON, KUNNEL PUTHUVAL VEEDU, PANACHIKADU VILLAGE, KOTTAYAM. BY ADV SRI.M.J.THOMAS
RESPONDENT/RESPONDENT/COMPLAINANT & STATE: STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. OTHER PRESENT: SR PP SMT SEETHA S AMICUS CURIAE SRI ANEER M S THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 15.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: -:2:- Dated this the 15th day of December,2023
ORDER
The revision petition is filed questioning the legality and correctness of the judgment in Crl.A. No.61/2010 of the Court of the Additional Sessions Judge, (Adhoc-I), Kottayam (Appellate Court), confirming the judgment in C.C. No.159/2004 of the Court of the Judicial First Class Magistrate-I, Changanacherry (Trial Court), finding the revision petitioner guilty, and consequentially, convicting and sentencing him for the offence under Sections 457 & 380 read with Section 34 of the Indian Penal Code,1860(‘IPC’, for the sake of brevity). The revision petitioner was the second accused in Crime No.22/2002 of Chingavanam Police Station. Brief facts:
2. The prosecution case is that, the accused Nos. 1& 2 in furtherance of their common intention to -:3:-
commit theft, on 27.09.2001, at midnight, broke open the eastern door of the residential house of PW2 in Ward No.VIII of Kurichy Panchayat and trespassed into the house and committed theft of a T.V. and an oil lamp. Hence, they have committed the above offences.
3. On receipt of summons, the accused entered
appearance and denied the substance of accusation read over to them. In the trial, the prosecution had examined PWs 1 to 4 and marked Exts P1 to P3(a) and MOs 1 & 2 in evidence. The accused had denied the incriminating circumstances appearing against them in the questioning under Section 313 of the Code of Criminal Procedure,1973.
Trial Court judgment:
4. The Trial Court, after analysing the materials placed on record, found the first accused not guilty and consequentially, acquitted him. However, the Trial Court found the second accused/revision petitioner -:4:-
guilty and convicted him for the offences under Sections 457 & 380 of the IPC and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,000/- in both the above offences, and in default to undergo simple imprisonment for a further period of 15 days.
5. Aggrieved by the said judgment, the accused preferred Crl.A.No.61/2010 before the Appellate Court. Appellate court judgment:
6. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, dismissed the appeal, by confirming the conviction and sentence passed by the Trial Court.
7. It is assailing the concurrent judgments of the courts below; the revision petition is filed.
8. Heard; Sri. Aneer M.S., the learned Amicus Curiae appointed by this Court and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the -:5:- respondent/State.
9. The learned Amicus Curiae vehemently
argued that the courts below have erroneously found the revision petitioner guilty by totally mis-appreciating and misreading the records. He contended that there is no material to connect the revision petitioner with the offence alleged against him. Furthermore, PW1 - the person to whom the revision petitioner had sold the stolen property - had
turned hostile to the prosecution. Similarly, PW2, from whose house MOs 1 & 2 were allegedly stolen, had not given any complaint to the Police. Likewise, PW3 had not witnessed the incident. Therefore, it is solely on the basis of the confession made by the first accused, that PW 4 registered Ext P1 First Information Report (FIR) and, subsequently, arrested the second accused/revision petitioner. Thereafter, it was on the basis of the alleged confession of the second accused,
-:6:- that PW4 recovered MOs 1 & 2. There is no record to prove that MOs 1 & 2 actually belong to PW2. The prosecution has miserably failed to prove the case beyond reasonable doubt, that the revision petitioner has committed the offences. Hence, the revision petitioner is entitled to benefit of doubt. Therefore, the revision petition may be allowed.
10. The learned Public Prosecutor countered the
above submission and defended the concurrent judgments of the courts below. She placed reliance on the decision of this Court in State of Kerala vs. Mohanan [1987(2) KLT 64], to canvass the position that the omission on the part of the de-facto complainant to report the offence to the police is not fatal to the prosecution. She contended that the chain of events leading to the arrest of the accused and the confession made by the first accused are more than sufficient to establish and prove that the second -:7:- accused has committed the offence. Moreover, this Court may not interfere with the finding of facts by the courts below in a revision petition. The revision petition is meritless and may be dismissed.
11. Is there any illegality, impropriety or irregularity in the impugned judgments? Prosecution case:
12. The prosecution case is that, on 18.01.2002,
PW4 had arrested the first accused at Velluthuruthi. During the course of questioning of the first accused, he allegedly confessed that, he and the second accused had committed theft of certain articles. Immediately, PW4 suo-motu registered Ext P1 FIR, for the offences under Sections 457 & 380 read with Section 34 of the
IPC, and arrested the second accused. The second accused immediately confessed to PW4 to have committed theft of MOs 1 & 2 and had sold the articles to PW1. Accordingly, the Police seized MOs 1 & 2 and -:8:- after investigation found that MOs 1 & 2 belonged to PW2. Accordingly, PW4 filed the final report alleging the revision petitioner to have committed the above offences.
13. The Trial Court, after analysing the materials placed on record, found that there was nothing on record to hold that the first accused had committed the above offences. Consequentially, the Trial Court
acquitted the first accused. Nevertheless, the Trial Court, drawing the presumption under illustration (a) of Section 114 of the Indian Evidence Act, 1872 (in short, ‘Act’), concluded that, as the second accused was found in possession of MOs 1 & 2, the onus of proof had shifted to his shoulders and since he did not give a plausible explanation, he had committed the above
offences. Accordingly, the Trial Court convicted and sentenced the second respondent for the above offences. The said conviction and sentence was
-:9:- affirmed by the Appellate Court.
14. On an appreciation of the materials on record, I find that the courts below have totally misread the
materials on record. I say this because, PW2 - the owner of MOs 1 & 2 - had not given any complaint regarding the theft of her properties. It is solely on the allegation that, the first accused had confessed to PW4 that he and the second respondent had committed the theft of MOs 1 & 2, Ext P1 FIR was registered and the
second accused was arrested. Again the second accused allegedly confessed to have committed theft of MOs 1 & 2 and sold the articles to PW1.
15. Admittedly, PW1 had turned hostile to the prosecution. He bluntly denied to have received MOs 1
& 2 from the second accused. There is nothing on record to prove as to how PW4 came to learn that MOs 1 & 2 belonged to PW2 because he had not produced any receipt or proof to claim the ownership over MOs -:10:- 1 & 2.
16. Even more significant is the fact that, the courts below found the first accused not guilty of
committing the offences. It is to be remembered, it was solely on the basis of the confession of the first accused, that the second accused was arrested and implicated as an accused in the present case.
17. Similarly, it is pertinent to note, PWs 1 to 4 have not witnessed the accused committing the theft. It is only on the basis of the second accused’s confession, that the courts below have found him guilty and convicted him.
18. Illustration (a) of Section 114 of the Act
comes into play only when a person is found in possession of stolen properties soon after the theft or when the accused has received the goods knowing them to be stolen.
19. Indisputably, MOs 1 & 2 were not recovered -:11:- from the second accused. The person from whom it was allegedly recovered had turned hostile to the
prosecution. Moreover, MOs 1 & 2 were recovered, much later from the date they were stolen. Actually, the prosecution has not given any specific date the articles were stolen. Therefore, I am of the definite view that the presumption under Illustration (a) of Section 114 of the Act, cannot be drawn to the facts of the case. Hence, there is no shifting of the burden of proof to the second accused.
20. On an over-all appreciation of the materials
placed on record, especially the fact that PW 2 had not lodged any complaint with the Police regarding the theft of his articles, that PW2 has not proved that MOs 1 & 2 belong to him, that none of the witnesses have witnessed the alleged incident, that the the revision petitioner stands convicted solely on the basis of his alleged confession, this Court is of the view that the
-:12:- prosecution has miserably failed to prove that case beyond reasonable doubt, entitling the revision petitioner to the benefit of doubt, I am convinced that the courts below have misread the materials on record, and arrived at a wrong conclusion.
21. In the light of the above conclusion, I hold that the concurrent findings of the courts below are
illegal, improper and irregular, and warrant interference by this Court. Hence, I am inclined to exercise the revisional power of this Court and set aside the conviction and sentence passed by the courts below.
22. In the result,
(i) The revision petition is allowed.
(ii) The judgments of the courts below, convicting and sentencing the revision petitioner/second accused, are set aside.
(iii) The revision petitioner is found not guilty and is set at liberty. -:13:-
(iv) The bail bond executed by the revision petitioner and his sureties are hereby cancelled.
(v) If the revision petitioner has deposited any amount towards the fine, pursuant to the orders passed by this Court, the same shall be refunded to him in accordance with law.
(vi) This Court places on record its appreciation for the learned Amicus Curiae for the valuable assistance rendered to this Court. Sd/- C.S.DIAS,JUDGE DST/15.12.23 //True copy// P.A. To Judge