Afsal v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 12[TH] DAY OF DECEMBER 2023 / 21ST AGRAHAYANA, 1945 CRL.REV.PET NO. 19 OF 2011** **AGAINST THE ORDER/JUDGMENT CC 251/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,THRISSUR** **CRA 596/2008 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR REVISION PETITIONER/S:** AFSAL, S/O SULAIMAN, PANDIKASALAYIL HOUSE, PALAPETTY,, VELIYANKODE P.O., PONNANI, MALAPPURAM DISTRICT. BY ADVS. SRI.K.V.SOHAN SMT.SREEJA SOHAN.K. ## **RESPONDENT/S:** STATE ,SUB INSPECTOR OF POLICE THRISSUR TOWN WEST POLICE STATION,, (CRIME NO.308/2003), REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM-31. ## **OTHER PRESENT:** SR PP SMT SEETHA S THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08.12.2023, THE COURT ON 12.12.2023 DELIVERED THE FOLLOWING: CRL.REV.PET NO. 19 OF 2011 2 ## **ORDER** The revision petitioner is directed against the judgment in Crl.A No.596/2008 of the Court of the Additional Sessions Judge (Fast Track – I), Thrissur, (Appellate Court) confirming the judgment in CC No.251/2004 of the Court of the Judicial First Class Magistrate-II, Thrissur, (Trial Court) finding the revision petitioner guilty and convicting him for the offences under Secs.393 and 394 of the Indian Penal Code (for short 'IPC') and sentencing him to undergo rigorous imprisonment for a period of two years for both the offences and to pay a fine of Rs.1,000/- and in default to undergo imprisonment for a period of one month. The revision petitioner was the sole accused in the case. ## Prosecution case in brief: 2. The prosecution case is that, on 11.09.2003, at about 8.30 p.m, while PW1 was walking along the overbridge at Punkunnam, the accused came from behind and fisted on her chest and attempted to snatch her gold chain weighing 4.5 sovereigns, and thus the accused CRL.REV.PET NO. 19 OF 2011 3 committed the above offences. The accused entered appearance before the Trial Court and denied the substance of accusation read over to him. In the trial, the prosecution examined PWs 1 to 9 and marked Exts.P1 to P3 in evidence. The accused denied the incriminating circumstances appearing against him in the questioning under Sec.313 of the Code of Criminal Procedure (in short 'Code'). The accused did not let in any defence evidence. ## Trial Court judgment 3. The Trial Court, after analysing the materials on record, found the accused guilty and convicted him for the above offences and sentenced him to undergo imprisonment as stated above. 4. Aggrieved by the said judgment, the accused filed Crl.A No.596/2008 before the Appellate Court. ## Appellate Court Judgment 5. The Appellate Court, after re-appreciating the materials placed on record, by the impugned judgment, dismissed the appeal and confirmed the judgment of the CRL.REV.PET NO. 19 OF 2011 4 Trial Court. 6. Assailing the concurrent judgments of the courts below; the revision petition is filed. 7. Heard; Sri.K.V.Sohan, the learned counsel appearing for the revision petitioner and Smt.Seetha.S, the learned Public Prosecutor appearing for the respondent-State. 8. Sri.K.V.Sohan, strenuously argued that the prosecution has failed to prove the identity of the accused. Allegedly, the incident occurred on 11.09.2003 at about 8.30 p.m. The accused was arrested only on 16.09.2003. Admittedly, no test identification parade was conducted, as laid down under Section 54A of the Code. Moreover, the contradictions and omissions in the oral testimonies of PWs 1 to 3 establish the falsity in prosecution case. Furthermore, PW1 has clearly deposed that she has seen the accused on the next day, when he was arrested, which is contradictory to the materials on record. All the above discrepancies warrant the interference of this Court and the accused be given CRL.REV.PET NO. 19 OF 2011 5 the benefit of doubt. Hence, the revision petition may be allowed. 9. The learned Public Prosecutor, vehemently opposed the above submissions and relied on the decision of the Honourable Supreme Court in **Mohd. Naushad vs. State (Govt. of NCT of Delhi)** [2003 (5) KLT SN 28 (Case No.16)], to canvass the position that the accused has no legal right to demand for an identification parade. She further argued that the incident happened in the year 2003 and Section 54 A was inserted to the Code only with effect from 23.06.2006. Therefore, there was no necessity to conduct the test identification parade. She also drew the attention of this Court to the oral testimonies of PWs 1 to 3, corroborated with the evidence of the other witnesses and the materials placed on record. She further submitted that this Court may not interfere with the concurrent findings of the facts rendered by the courts below in a revision filed under Section 397 of the Code. She prayed that the revision petition may be CRL.REV.PET NO. 19 OF 2011 6 dismissed. 10. Is there any legality, impropriety or irregularity in the impugned order. 11. The prosecution case is that, on 11.09.2003, while PW1 along with their sister (PW2) and their children were returning from the Swaraj Round, Thrissur, after watching the 'pulikali' performance, when they reached Punkunnam, the accused came from behind and attempted to snatch the chain of PW1. He fisted PW1 and forcefully attempted to break the chain but did not succeed in his attempt. 12. Both PWs1 and 2 identified the accused. Similarly PW3 – an independent eye witness - also witnessed the accused attempting to snatch the chain of PW1. 13. Immediately, after the incident, PW1 lodged a complaint with the Police and Ext.P3 FIR was registered. It was after four days, the accused was arrested and PWs 1 to 3 identified the accused. In addition to the oral testimonies of PWs 1 to 3, the prosecution also examined CRL.REV.PET NO. 19 OF 2011 7 PWs 5 and 6 to prove Ext.P2 scene mahazer, PW7 the Head Constable who registered Ext.P3 FIR and PW8 the investigating officer who filed the final report. 14. The courts below, after analysing the materials on record, have concurrently concluded that the accused has committed the above offence. 15. The revisional power of this Court under Secs.397 to 401 of the Cr.P.C is well settled in a catena of precedents holding that the power is to be sparingly exercised and in cases of exceptional rarity. The power is more in the nature of a supervisory jurisdiction, to correct patent errors, manifest illegality and when there is misreading of records. 16. In Sanjaysinh Ramrao Chavan vs Dattatray Gulabrao Phalke & Anr [(2015) 3 SCC 123], the Hon’ble Supreme Court has succinctly laid down the scope and purport of the powers under Secs.397 to 401 of the Cr.P.C. It is apposite to extract the revisional declaration of law, which reads as follows: “14. In the case before us, the learned Magistrate went CRL.REV.PET NO. 19 OF 2011 8 through the entire records of the case, not limiting to the report filed by the police and has passed a reasoned order holding that it is not a fit case to take cognizance for the purpose of issuing process to the appellant. Unless the order passed by the Magistrate is perverse or the view taken by the court is wholly unreasonable or there is nonconsideration of any relevant material or there is palpable misreading of records, the Revisional Court is not justified in setting aside the order, merely because another view is possible. The Revisional Court is not meant to act as an appellate court. The whole purpose of the revisional jurisdiction is to preserve the power in the court to do justice in accordance with the principles of criminal jurisprudence. The revisional power of the court under Sections 397 to 401 CrPC is not to be equated with that of an appeal. Unless the finding of the court, whose decision is sought to be revised, is shown to be perverse or untenable in law or is grossly erroneous or glaringly unreasonable or where the decision is based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, the courts may not interfere with decision in exercise of their revisional jurisdiction.” 17. After bestowing my anxious consideration to the pleadings and materials on record and the limited scope of interference by this Court while exercising revisional powers, I find a ring of truth in the oral testimonies of CRL.REV.PET NO. 19 OF 2011 9 PW1 to PW3. I am convinced that the prosecution has proved the case beyond reasonable doubt. I do not find or in the any illegality, impropriety irregularity impugned judgment warranting interference by this Court. The revision petition is meritless and is only to be dismissed. Accordingly, I confirm the concurrent convictions and sentences passed by the courts below. In the result; - (i) The revision petition is dismissed. - (ii) The conviction and sentence passed by the courts below are confirmed. - (iii) The revision petitioner is directed to appear before the Trial Court on or before 15.01.2024 to undergo the sentence and pay the fine amount imposed by the Trial Court and in default to undergo the default sentence. - (iv) If the revision petitioner fails to appear before the Trial Court to undergo the sentence and pay fine amount, the Trial Court shall execute the sentence in accordance with law. CRL.REV.PET NO. 19 OF 2011 **==> picture [13 x 9] intentionally omitted <==** - (v) The execution of the sentence as against the revision petitioner shall stand deferred till - 14.01.2024. - (vi) The Registry is directed to forthwith forward a of this order to the Trial Court for - copy compliance. Sd/- **C.S.DIAS, JUDGE** rkc/12.12.23