Faisal Babu and Safeer v State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` MONDAY, THE 11[TH] DAY OF DECEMBER 2023 / 20TH AGRAHAYANA, 1945 CRL.REV.PET NO. 585 OF 2011 ``` ## **`AGAINST THE JUDGMENT CRA 305/2008 OF ADDITIONAL SESSIONS COURT`** ``` (ADHOC) III, MANJERI ``` ``` CC 150/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR ``` ## **`REVISION PETITIONERS/ APPELLANTS/ACCUSED:`** ``` 1FAISAL BABU , S/O SHAMSUDHEEN KOLLARATHODIKA HOUSE, CHERUKULAMBA, ADAKKAKUNDU, KALIKAVU. ``` ``` 2SAFEER, S/O. SAINUDHEEN KOOTHUPARAMBAN HOUSE, KALIKAVU, ADAKKAKUNDU. ``` ``` BY ADVS. SRI.SUNIL KUMAR A.G SRI.R.SUDHEESHKUMAR ``` ## **`RESPONDENT/RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SR PUBLIC PROSECUTOR SMT SEETHA S ``` ``` THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.R.P NO.585 OF 2011 2 ``` ## **Dated this the 11[th] day of December, 2023** ## **ORDER** The revision petition is filed questioning the legality and correctness of the judgment in Crl.A. No.305/2008 of the Court of the Additional Sessions Judge, (Adhoc)-III, Manjeri (Appellate Court), confirming the judgment in C.C. No.150/2007 of the Court of the Judicial First Class Magistrate, Nilambur (Trial Court), finding the revision petitioners guilty, and consequentially convicting and sentencing them for the offence under Section 379 read with Section 34 of the Indian Penal Code (in short, IPC) . ## **2. Brief facts:** The prosecution case is that, on 8.12.2006, at about 9.30 am, while PW1 was proceeding to a school through a public road at Thottakkadu – Thirumundi, the accused in furtherance of their common intention, went on the motorcycle bearing No.KL-10-W-8366, ridden by the first ## **`Crl.R.P NO.585 OF 2011 3`** accused and with the second accused on the pillion, on seeing PW1, the second accused jumped down from the motorcycle and snatched PW1’s gold chain weighing 3½ sovereigns. The accused fled away from the scene of occurrence on the motorcycle. Thus, they have committed the above offence. 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 7 and marked Exts. P1 to P4 in evidence. The accused had denied the incriminating circumstances appearing against them in the questioning under Section 313 of the Code of Criminal Procedure. 4. **:** Trial Court judgment The Trial Court, after analysing the materials placed on record, found the accused guilty and convicted them for the offence under Section 379 read with Section 34 of the IPC and sentenced the first accused to simple imprisonment for a period of five months and to pay a fine ## **`Crl.R.P NO.585 OF 2011 4`** of Rs.2,000/- and in default to undergo simple imprisonment for a further period of one month. The second accused was sentenced to pay a fine of Rs.5,000/and in default to undergo simple imprisonment for a further period of two months. 5. Aggrieved by the said judgment, the accused preferred Criminal Appeal No.305/2008 before the Appellate Court. ## 6. Appellate court judgment: 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. Sunil Kumar A.G, the learned counsel appearing for the revision petitioners and Smt. Seetha S., the learned Senior Public Prosecutor appearing for the respondent/State. ## **`Crl.R.P NO.585 OF 2011 5`** 9. The learned counsel appearing for the revision petitioners vehemently argued that the courts below have erroneously found the revision petitioners guilty by misreading the records. He contended that there is no material on record to connect the accused with the offence alleged against them. It is discernible from the evidence of PW2 – the investigating officer - that PW1 had not filed any complaint before the police regarding the theft of her chain. It is on the basis of the alleged confession made by the first accused that Ext.P1 FIR was registered by the Wandoor Police and the revision petitioners were implicated. However, in the alleged confession statement, there is not a whisper made by the first accused regarding committing theft of gold chain of PW1. The investigating officer has clearly testified that he has not received any complaint from PW1. Therefore, there is no material to link the accused with the above crime. The prosecution has miserably failed to prove the case beyond reasonable doubt. Hence, the accused are ## **`Crl.R.P NO.585 OF 2011 6`** 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 accused have 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? 12. The prosecution case is that, on 8.12.2006, while ## **`Crl.R.P NO.585 OF 2011 7`** PW1 was proceeding though a public road, the accused 1 and 2 went on a motor cycle, and the second accused on seeing PW1 jumped down from the motor cycle and snatched the gold chain of PW1, and then the accused fled away from the scene. 13. Indisputably, there is no material on record to prove that PW1 had given any complaint to the police regarding the incident. Even though PW1 had testified that on the same day she went with her brother-in-law and gave a complaint to the police, PW2 has admitted in his cross-examination that the police have not received any such complaint. Therefore, as matters stand, there is no complaint lodged by PW1. 14. Subsequently, on 1.2.2007, the accused were arrested by the Wandoor Police in crime No.249/2006. Then, the first accused confessed to PW2 that, he had sold a gold chain to PW3 and that he would take PW2 to the shop room of PW3 and identify the gold chain. On the basis of the confession, the first accused along with PW2 ## **`Crl.R.P NO.585 OF 2011 8`** went to Aysha jewellery at Gudalloor on 21.2.2007 and PW3 and the accused identified each other. PW3 had allegedly told PW2 that the first accused had sold a gold chain, which he had melted into a gold ingot. PW3 handed over the ingot to PW2, who took custody of the same as per Ext.P2 mahazar. Immediately, PW2 registered Ext.P1 FIR as Crime No.15/2007 and transferred the same to the Nilambur Police Station, since the scene of occurrence was within the jurisdiction of the said Police Station. The Nilambur Police reregistered Ext.P4 FIR as Crime No.135/2007 on 2.3.2007 and conducted the investigation. Thereafter, they filed the final report, alleging the accused to have committed the above offence. 15. In order to prove the prosecution case, they examined PW1, the owner of the gold chain, PW2- the investigating officer – Sub Inspector of Police of Wandoor Police Station, PW3 the owner of Aysha jewellery, PW4 - the sales man of Aysha jewellery, PW5 the attester to ## **`Crl.R.P NO.585 OF 2011 9`** Ext.P3 scene mahazar, PW6 - the Assistant Sub Inspector of Police, Nilambur Police Station, who received Ext.P1 FIR and re-registered Ext.P4 FIR and PW7 – the Sub Inspector of Police of Nilambur Police Station, who laid the final report. 16. The courts below, after analysing the materials placed on record, concluded that as the police had detected the incident on the basis of the confession made by the first accused, it cannot be said that PW1 was not speaking the truth. The courts below, relying on the decision of this Court in **State of Kerala v. Mohanan** (supra), held that the mere omission to report a matter to the police is not fatal to the prosecution. Accordingly, the courts below concurrently found the accused guilty and convicted them. 17. On an appreciation of the materials on record, I am of the view that the courts below have misread the records. I say this because, firstly, it is undisputed that PW1 had not given any complaint regarding the theft of ## **`Crl.R.P NO.585 OF 2011 10`** her gold chain. Secondly, although the prosecution has alleged that on 1.2.2007 the accused were arrested in connection with the offence in Crime No.249/2006 of Wandoor Police Station and then the first accused confessed to have committed theft of the gold chain, a reading of Ext.P2(a) confession statement reveals that the first accused had not mentioned anything regarding the theft of PW1’s gold chain. Then how, PW2 had identified the theft of the gold chain of PW1 is not properly explained. Thirdly, there is nothing on record to prove that it was with the gold chain of PW1 that the ingot was made. Lastly, after the case was transferred to Nilambur Police, how PWs 6 and 7 identified PW1, who did not give any complaint, is also not discernible from the records. Therefore, there is a complete absence of the connection links to the chain of event of the prosecution case, which establishes the improbability in the prosecution case, which in turn does not inspire confidence in this Court. Thus, I am constrained to hold that the prosecution has ## **`Crl.R.P NO.585 OF 2011 11`** failed to prove the case beyond reasonable doubt. The principle laid down in **State of Kerala v. Mohanan** ( Supra), has no application to the facts of the instant case, because this Court has only held that it is not necessary that the aggrieved person should report the incident to the police. However, there should be some material to connect the incident with the accused, which is conspicuously missing in the case on hand. 18. Unfortunately, the courts below have totally misread the above crucial aspect and have on the basis of conjectures and surmises, convicted and sentenced the accused, which is illegal, improper and irregular, and warrants interference by this Court. Hence, I am inclined to exercise the revisional power of this Court since the prosecution has failed to prove the case beyond reasonable doubt and the revision petitioners/accused are entitled to the benefit of doubt. Therefore, the conviction and sentence passed by the courts below are liable to be set aside. ## **`Crl.R.P NO.585 OF 2011 12`** In the result, (i) The revision petition is allowed. (ii) The judgments in Crl. Appeal No. 305/2008 and C.C.No. 150/2007 of the courts below, convicting and sentencing the revision petitioners/accused are set aside. (iii) The revision petitioners are found not guilty and are set at liberty. (iv) The bail bonds executed by the revision petitioners and their sureties are hereby cancelled. (v) If the revision petitioners have deposited the fine amount, pursuant to the orders of the courts to suspend the sentence, the same shall be refunded to them in accordance with law. **SD/-** **C.S.DIAS, JUDGE** rmm12/12//2023