Kerala High Court
Asokan vs State Of Kerala on 5 November, 2024
Crl.R.P.125 of 2017
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
TUESDAY, THE 5TH DAY OF NOVEMBER 2024 / 14TH KARTHIKA, 1946
CRL.REV.PET NO. 125 OF 2017
CRA NO.480 OF 2010 OF I ADDITIONAL SESSIONS COURT,
THIRUVANANTHAPURAM
[CC NO.397 OF 2004 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -III,NEYYATTINKARA]
REVISION PETITIONER/APPELLANT/ACCUSED (A1)
ASOKAN,AGED 56, S/O.CHELLAPPAN PANICKER,MEKKE
PONGUVILA VEEDU,MANGALATHUKONAM, VENGANOOR VILLAGE.
BY ADV SRI.R.T.PRADEEP
RESPONDENT/RESPONDENT/STATE
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM 682031.
SMT.MAYA M.N., PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 1.11.2024, THE COURT ON 05.11.2024 DELIVERED THE
FOLLOWING:
Crl.R.P.125 of 2017
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ORDER
[Crl.Revision Petition No.125 of 2017]
Dated : 5th November, 2024
This Revision Petition has been filed by the 1st accused in Crl.Appeal
No.480/2010 on the file of the Additional Sessions Judge-I,
Thiruvananthapuram, against the judgment confirming the judgment of the
Judicial First Class Magistrate-III, Neyyattinkara in C.C.No.397/2004,
convicting and sentencing him under Section 379 r/w 34 IPC.
2. The prosecution case is that on 23.10.1997 at around 1.30 p.m, the
accused persons 1 and 2 came in a motor cycle and snatched away a gold chain
worn by the de facto complainant at Churuli and thereafter they sped away in
the motor cycle.
3. The evidence in the case consists of the oral testimonies of PWs 1
to 3 and Exts.P1 to P3 and P3(a). MO1 was identified. No evidence was
adduced by the accused. After appreciating the available evidence, the trial
court found the 1st accused guilty of the offence under Section 379 r/w 34 IPC,
while the case against the absconding 2nd accused was re-filed. In appeal, the
Sessions Court confirmed the finding of the trial court. Dissatisfied with the
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judgment of the Sessions Court, the 1st accused preferred this Revision raising
various grounds.
4. Now the point that arise for consideration is the following :-
Whether the conviction of the revision petitioner under Section 379
r/w 34 IPC by the trial court, as confirmed by the Sessions Judge, is
liable to be interfered with, in the light of the grounds raised in the
revision petition?
5. Heard Sri.R.T.Pradeep, the learned counsel for the revision
petitioner and Smt.Maya M.N., the learned Public Prosecutor.
6. The point :- It was argued by the learned counsel for the revision
petitioner that the de facto complainant has not approached the police in
connection with the theft of her gold chain and that finally, a crime was
registered only on the basis of the alleged confession given by the 1 st accused,
when he was arrested by the Balaramapuram police, in connection with
another case. Further, according to him, in this case there is no proper
recovery. He would also argue that there was no proper identification of the 1 st
accused before the court. In the light of the above grounds, he prayed for
acquitting the accused by allowing the revision petition. On the other hand, the
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learned Public Prosecutor would argue that the prosecution has succeeded in
proving the charge against the 1st accused and therefore, she prayed for
dismissing the revision petition.
7. It is true that after the theft of the gold chain of the de facto
complainant by two persons, who came in a motor cycle on 23.10.1997, no
crime was seen registered on the basis of her information. It appears that she
had not reported the matter to the police. As per the evidence of PW3, the
Circle Inspector, Balaramapuram police station, when the 1st accused was
arrested in connection with crime No.105/1998 and questioned, he confessed
the guilt involved in this case and accordingly, on the basis of the above
confession, he has registered crime No.108/1998 under Section 379 r/w 34
IPC. Since the place of occurrence was within the limits of Vellarada police
station, the file was sent to Vellarada police station and crime was re-registered
there as 115/1998. Thereafter, he obtained the police custody of the 1st accused.
On questioning, the 1st accused gave information to the effect that the gold
chain was sold by him in a jewellery at Marthandam. Therefore, as directed by
the 1st accused, he was taken to the jewellery of CW5 at Marthandam, they
identified each other and MO1 gold chain was handed over by CW5. He
prepared Ext.P3 seizure mahazar in that respect and Ext.P3(a) is the relevant
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portion of the disclosure statement given by the 1 st accused, which lead to the
above recovery. According to PW3, thereafter he had handed over the accused
as well as the recovered gold chain to CW8, the Sub Inspector of Vellarada
police station.
8. It was argued by the learned counsel for the revision petitioner
that there were several complaints against PW3 to the effect that he has
threatened several jewellers at Marthandam and made false recoveries on the
basis of bogus complaints. During the cross-examination, PW3 admitted that
once when he, along with the police party went for effecting recovery at
Marthandam, the jewellery shop owner and his men confined him and his
team. He also admitted that during a similar occasion, his service revolver was
lost. However, he denied the suggestion that in this case, he had effected
recovery of MO1 by threatening CW5.
9. The prosecution has not examined CW5 in this case to prove that
it was the 1st accused who had sold MO1 to him. Similarly when PW3 was
examined, MO1 was neither shown to him, nor got it identified by him. In the
above circumstances, it is to be held that, in this case there is no evidence to
connect the 1st accused with the recovery of MO1 from CW5.
10. When the de facto complainant was examined as PW1 on
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25.11.2008, she deposed that when she was going to the milk society towards
Anappara Chulli, two persons came in a scooter from behind, snatched away
her gold chain and fled away. According to her, thereafter the police party
brought the accused persons to her residence and shown them. She also
identified MO1 as the above gold chain. However, she had not identified the
accused before the court.
11. Failure of PW1 to identify the revision petitioner before the court
and non-examination of CW5 are fatal to the prosecution case. Similarly,
failure of PW3 to identify MO1 before the court is also fatal to the prosecution
case. In this case there is no reliable evidence to connect the revision petitioner
with the offence alleged against him and as such, he is entitled to get an order
of acquittal. Point answered accordingly.
12. In the result, this Revision Petition is allowed. The impugned
judgment of the trial court in C.C.No.397/2004 as confirmed by the Sessions
Judge in Crl.Appeal No.480/2010 is set aside. The revision petitioner is
acquitted under Section 386(b)(i) of Cr.P.C. He is set at liberty cancelling his
bail bond.
Sd/- C.Pratheep Kumar, Judge
Mrcs/1.11
