Kerala High Court
Anil Kumar vs State Of Kerala on 15 December, 2023
Author: C.S.Dias
Bench: C.S.Dias
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:
Crl.R.P.No.1601/2011
-: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
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
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
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,
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
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
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
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
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
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
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.
(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
