Abdul Shukoor v. State of Kerala and Ushakumari Upasana

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA** **TUESDAY, THE 30[TH] DAY OF JULY 2024 / 8TH SRAVANA, 1946** **CRL.A NO. 2368 OF 2006** **COMMON ORDER IN CRL.M.P.NO.2238/2006 AND CRL.M.P.NO.3249/2006 IN S.C.NO.1179/2005 IN THE FILE OF ADDL.DISTRICT AND SESSIONS JUDGE (ADHOC-III), KOLLAM DATED 20/09/2006.** ## **APPELLANT/PETITIONER:** **ABDUL SHUKOOR, S/O ABUSHAHAM, MUSLIM, AGED 53, PANTHUVILA, PALLICKAL,, KILIMANOOR, THIRUVANANTHAPURAM DIST. BY ADV M.T.SURESHKUMAR** ## **RESPONDENTS/COUNTER PETITIONERS:** |**1**|**STATE OF KERALA**| |---|---| ||**PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2**|**USHAKUMARI UPASANA**| ||**KURUMANDAL WARD,**| ||**PARAVUR, KOLLAM.**| ||**BY ADV V.VENUGOPALAN NAIR**| ||**SRI.SANAL P.RAJ – PUBLIC PROSECUTOR**| **THIS CRIMINAL APPEAL HAVING COME UP FOR FINAL HEARING ON 26.07.2024, THE COURT ON 30.07.2024 DELIVERED THE FOLLOWING:** 2 Crl.Appeal No.2368 of 2006 ## **C.S.SUDHA, J.** **--------------------------------------------Crl.Appeal No.2368 of 2006 --------------------------------------------Dated this the 30[th] day of July 2024** ## **J U D G M E N T** This appeal under Section 454 Cr.P.C. has been filed against the common order dated 20/09/2006 in Crl.M.P.No.2238/2006 and Crl.M.P.No.3249/2006 in S.C.No.1179/2005 on the file of the Court of Session, Kollam. 2. Crl.M.P.No.2238/2006 under Section 454 Cr.P.C. was filed by the owner of Panthuvila Jewellery, Pallikkal, alleging that the gold ingot produced by the police in S.C.No.1179/2005 belongs to him and that he was forced to handover the same to the police under threat and coercion. He was threatened that if he did not give 176 grams of gold ornaments to the police, he would be made an accused in the case. Hence to avoid such a contingency, he handed over the gold ingot to the police, which has been 3 Crl.Appeal No.2368 of 2006 produced before the court claiming to be the stolen property. As the gold belongs to him, the petition seeking the return of the same. 3. Crl.M.P.No.3249/2006 was filed by the informant in the crime, who was examined as PW1 in S.C.No.1179/2005 from whose house 44 sovereigns of gold ornaments were alleged to have been stolen by the accused persons in the said case. The gold ornaments were alleged to have been sold to the petitioner in Crl.M.P.No.2238/2006, who converted the gold ornaments into gold ingot, which was recovered based on the disclosure statement of the accused persons in the case. The petitioner in Crl.M.P.No.3249/2006 claimed ownership of the gold ornaments and hence interim custody was given to her under Section 452 Cr.P.C. 4. Both the petitions were jointly tried by the trial court. PWs 1 to 4 were examined and Exts.P1 to P14 were marked on the side of petitioner in Crl.M.P.No.2238/2006. PWs 1 and 2 4 Crl.Appeal No.2368 of 2006 were examined on the side of petitioner in Crl.M.P.No.3249/2006. No evidence was in documentary produced Crl.M.P.No.3249/2006. 5. The trial court on a consideration of the oral and documentary evidence and after hearing both sides, dismissed Crl.M.P.No.2238/2006 and allowed Crl.M.P.No.3249/2006. The gold ingot was directed to be returned to the petitioner in Crl.M.P.No.3249/2006 after the expiry of the appeal period. Aggrieved, the petitioner in Crl.M.P.No.2238/2006 has come up in appeal. 6. In this appeal, the petitioner in Crl.M.P.No.2238/2006 will be referred as the petitioner and the petitioner in Crl.M.P.No.3249/2006 will be referred to as the respondent. 7. The only point that arises for consideration in this appeal is whether there is any infirmity, illegality or perversity in the findings of the trial court calling for an interference by this Court. 5 Crl.Appeal No.2368 of 2006 8. Heard both sides. 9. It was submitted by the learned counsel for the petitioner/appellant that the trial court grossly erred in dismissing his petition. The judgment in S.C.No.1179/2005 by which the accused were convicted and sentenced for the offences punishable under Sections 380, 454 and 461 read with Section 34 IPC has been set aside by this Court by judgment dated 20/06/2023 in Crl.Appeal No.99/2007. No evidence has been produced by the respondent to show that the gold ingot belongs to her. Hence relying on the dictum in **Soni Chimanlal Jethalal v. State of Gujarat, 1994 1 Crimes (HC) 949** , it was submitted that the impugned order is liable to be set aside. 9.1. _Per contra_ it was submitted by the learned counsel for the respondent that merely because the accused have been acquitted is no ground to reverse the impugned order. The presumption that judicial and official acts have been regularly performed as contemplated under illustration (e) of Section 114 of 6 Crl.Appeal No.2368 of 2006 the Evidence Act, 1872 is attracted in this case. As the gold ingot was recovered from the shop of the petitioner based on the disclosure statement given by the accused in the case, no interference is called for, goes the argument. 10. The specific case of the petitioner pleaded in Crl.M.P.No.2238/2006 is thus – on 08/03/2005 at about 09:00 a.m., the then Sub Inspector (S.I.) of Police, Paravur (examined as PW2 on the side of the respondent), came to the shop of the petitioner and directed the petitioner to accompany him to the office of the Circle Inspector (C.I), Paravur. The petitioner accompanied by his brother's son, namely, PW2, reached the police station at about 10:10 a.m. The C.I. directed the petitioner to handover 176 grams of gold in the from of ingot for the purpose of producing it as evidence in a theft case. The petitioner declined the demand made by the police. He was then harassed and was threatened that he would be arrayed as an accused in the theft case. He was detained in a cell in the police station. The petitioner is a blood pressure patient, but he was denied 7 Crl.Appeal No.2368 of 2006 medicines and food. By 05:00 p.m, the petitioner yielded to the demand of the police and directed PW3, his nephew, who was waiting outside the police station to meet the demands of the police to do the needful. Accordingly, PW3 went to the shop of the petitioner, took two chains, eight bangles, ten studs and a bracelet, got them melted into an ingot and produced the same before the police by about 09:30 p.m. The police on weighing the same, found the weight to be short by 4.8 gms. The petitioner promised to make good the shortage by the next day morning. On this assurance, the petitioner was let off by the police by around 10:00 p.m. on 08/03/2005. The next day morning, the shortage in gold ingot was supplemented by the petitioner and thus 176.300 grams of gold was handed over by the petitioner to the police under threat and coercion and hence the petition. 11. To substantiate the case of the petitioner, he examined himself as PW1 and his nephews as PWs 2 and 3 respectively. He also examined the person who is supposed to have melted his gold ornaments into ingot as PW4. On the other hand, the 8 Crl.Appeal No.2368 of 2006 respondent also examined herself as PW1 and the then S.I. of police Paravur, who is alleged to have effected the recovery on the basis of the disclosure statement of the accused was examined as PW2. 12. PWs 2 and 3 more or less support the case of PW1, the petitioner in Crl.M.P.No.2238/2006. However, the testimony of PW4 will prove the case of the petitioner wrong/false. According to PW1, he was detained by the police on 08/03/2005 till 10:00 p.m. and that it was PW3 who had gone to the shop of PW4 to get his gold ornaments melted. It was only when PW3 returned with the gold ingot, the police is alleged to have released the petitioner from custody. However, PW4 has a different case. According to PW4, a goldsmith, his shop is situated 200 mtr away from the shop of the petitioner, the owner of Panthuvila Jewellery. To a leading question as to whether PW3 from Panthuvila Jewellery had come to his shop with the gold ornaments and requested for melting the same, he answered in the affirmative. This incident according to him took place on 08/03/2005 and that it was 172 9 Crl.Appeal No.2368 of 2006 gms of gold ornaments that had been melted. Another leading question was put in the chief examination that apart from the aforesaid ornaments whether more ornaments had been melted, to which also PW4 answered in the affirmative. Yet another leading question was put whether the melting was done during night to which also he answered in the affirmative. MO1 gold ingot marked through the petitioner was shown to PW4 and he was asked whether the said gold ingot was the one he had melted, to which he again answered in the affirmative. In the crossexamination PW4 deposed that initially 172 grams of gold ornaments and the second time, 4 and odd grams of gold ornaments had been melted. The second time melting was done at 09:30 p.m. He further deposed that it was the petitioner himself and PW3 who had come to his shop. He reiterated that it was the petitioner who had come to his shop with the ornaments and requested for melting. Thereafter, he deposed that it was PW3 who had come to his shop first (കടയ�ല�ക� ആദ�� മന�ഷ�യ�� (PW3) മ�ത��ള�യ�� (petitioner) വന� . ഷ�ക�ർ മ�ത��ള�യ�ണ� (petitioner) വനത� . 10 Crl.Appeal No.2368 of 2006 ആദ�� ഉര�ക�നത�ന� ഷ�ക�ർ മ�ത��ള� വനത� . മന�ഷയ�ണ� ആദ�� ഉര�ക�ൻ വനത� . അന� തനനയ�ണ� രണ�മത� സ"ർണ�ഭരണങൾ ഉര�ക�യത� . ആദ�� ഉര�ക�യത� ര�തത� 07:30 മണ�ക�ണ�.........See page no.3 of his deposition). 13. Leading questions cannot be asked in the chief examination or in the re-examination. It is well settled that answers elicited by asking leading questions in chief examination are liable to be eschewed. The testimony of PW4 would clearly prove the case of the petitioner to be false. If the petitioner is to be believed, he was detained in the police station till about 10:00 p.m. on 08/03/2005 and it was only when PW3 returned with the gold ingot, he was released by the Police, on the promise that the deficiency of 4 grams would be made good the next day. However, if PW4 is to be believed, it is the petitioner himself who had approached him for melting the gold ornaments. No reexamination was done to clarify these aspects deposed by PW4 in the cross-examination. Therefore, I find no reasons to disbelieve PW4, a loyal witness of the petitioner in Crl.M.P.No.2238/2006. 11 Crl.Appeal No.2368 of 2006 If PW4 is believed, then the case of the petitioner that he had been detained by the police and that it was only when the gold ingot had been handed over to the police, the latter had released him, will have to be disbelieved. In these circumstances, I do not find any infirmity in the impugned order calling for an interference by this Court. In the result, the appeal is dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms