Faizal @ Kulanchara Faizal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 12TH DAY OF AUGUST 2015/21ST SRAVANA, 1937** ## **Crl.Rev.Pet.No. 1460 of 2003 ( )** **---------------------------------** ## **AGAINST THE JUDGMENT IN CRL. APPEAL 785/2001 of II ADDL. DISTRICT COURT, ERNAKULAM** ## **AGAINST THE JUDGMENT IN CC 343/1999 of J.M.F.C.-II, KOCHI** **---------------------------** ## **REVISION PETITIONER(S):** **-------------------------------------** **FAIZAL @ KULANCHARA FAIZAL, S/o. ABDUL KADER, CC 5/1357, PALIATHUPARAMBIL, MAHADHARA MOSQUE, NEW ROAD, MATTANCHERRY DESOM.** **BY ADVS.SRI.C.AJITH KUMAR (KALLESSERIL) SRI.C.ANILKUMAR (KALLESSERIL)** ## **RESPONDENT(S):** **-------------------------** **STATE OF KERALA (REPRESENTED BY THE SUB INSPECTOR OF POLICE, MATTANCHERRY IN CRIME NO.41/99, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 1208-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **STK** ## **P.D. RAJAN, J.** ## **------------------------------Crl. R. P. No.1460 of 2003 ---------------------------------------------Dated this the 12[th] day of August, 2015** ## **ORDER** This revision petitioner challenges the judgment of conviction in Crl. Appeal 785/01 of Additional Sessions Judge-II, Ernakulam for offence punishable under Section 457 and 380 IPC. The revision petitioner and 5 others were accused in C.C.343/99 of the Judicial First Class Magistrate-II, Kochi for offence punishable under Section 457 and 380 read with 34 of IPC. The trial court convicted A1 under Section 457 and 380 and acquitted the accused 2 to 6. 2. The facts necessary for indictment were that, on 7.3.99 at 2.00 am, the accused in furtherance of their common intention, committed theft in the godown owned by PW1 bearing No. VII-537 by entering through the back door and with the help of other accused, stolen 26 sacks of pepper weighing 1820 kg worth 3,27,600/- and thereby committed the offence. The Sub Inspector of Police, Mattancherry Police Station registered the crime and ## **Crl. R. P. No.1460 of 2003 2** after investigation laid charge before Judicial First Class Magistrate-II, Kochi. 3. To prove the offence, prosecution examined PW1 to PW14 and admitted documentary evidence Exts.P1 to P15. The material objects MO1 to MO10 were marked in the trial court in support of the prosecution case. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. The trial court convicted A1 and acquitted accused 2 to 6. Against that he preferred an appeal, where the conviction was confirmed. Being aggrieved by that he preferred this revision petition. 4. The learned counsel appearing for the appellant contended that, there was no recovery as alleged by the prosecution. PW13 conducted recovery from an open place which is accessible to public. Therefore, that recovery alone is not sufficient to prove the offence of theft and a presumption under Section 114 of the Evidence Act is not possible to draw in this case. The ## **Crl. R. P. No.1460 of 2003 3** stolen articles were not recovered from the possession of the revision petitioner. There is no independent corroboration to the recovery. From the evidence of PW1 itself shows that there is no deficiency in the stock which create a doubt in the credibility of the prosecution case and revision petitioner is entitled to get the benefit of doubt, which was not considered by the courts below. 5. The revisional jurisdiction is discretionary and it can be used for the purpose of satisfying the correctness, legality or propriety of the finding and sentence of the courts below. For this, I have considered the records of the courts below as to whether they have committed illegality or irregularity while disposing the above case. For satisfying the correctness and legality of the findings of the courts below, I have perused the oral evidence of PW1, who is the occurrence witness. The oral evidence of PW1 shows that between 6.3.99 and 7.3.99 somebody trespassed into the godown and stolen 26 sacks of pepper. As per stock register, 70 sacks were kept in that godown. Each sack contained 7 kg as per the Ext.P1 ## **Crl. R. P. No.1460 of 2003 4** statement given to the Mattancherry Police. MO1 is the lock of the godown. The Sub Inspector or Police recovered 23 sacks of pepper, which was recovered on the basis of information given by the first accused. The recovered stolen articles were marked as MO2, MO3, MO4 and MO5. He identified the accused at the police station. In crossexamination, he admitted that after theft on 8.3.99, the stock register is in his custody. In the stock register the quantity was mentioned as 26 sacks. The police recovered is only 23 sacks of pepper. But what happened to the remaining 3 sacks were not disclosed by him. He admitted that after the incident he verified the stock register, which was maintained intact for getting sales tax concurrence. From 7.3.99 to 9.7.99 there was no transaction. Again, the transaction was reopened on 10.03.99, on that day the opening balance was noticed as 70 sacks. If theft was committed in the shop of PW1, it is the primary responsibility of the PW1 to show the actual shortage in the stock register, which was not found at the time of verification by the police officials. This fact was ## **Crl. R. P. No.1460 of 2003 5** also admitted by PW1. In the circumstance, with regard to the theft of 26 sacks of pepper create a doubt in the credibility of the allegation made by PW1. 6. The stolen articles were recovered by PW13 on the basis of information given by PW1. According to PW13, on 7.3.99 at 1.00 pm he arrived on the place of occurrence and prepared Ext.P7 mahazar. The independent witness present there attested the scene mahazar. MO1 was found at the place of occurrence which was taken into custody after describing in Ext.P7. PW1 produced stock register before him on 8.3.99. He prepared Ext.P3 mahazar and ascertained the stock available in the shop on 7.3.99 which was stated as 70 sacks. Subsequently, he got information that A1 to A5 were standing near Salsabir Mosque, Fort Kochi, he proceeded to that place and arrested the accused. On the basis of information given by A1, he recovered the stolen pepper from Vimalavanam. Accordingly, on the basis of that disclosure, he proceeded to the place of concealment and recovered pepper from there, in the presence of ## **Crl. R. P. No.1460 of 2003 6** independent witnesses. A1 to A5 were also present there at the place of occurrence. They went there in country boats. He recovered the stolen articles after describing in Ext.P4 mahazar. PW13 and independent witness present there attested the mahazar. The disclosure portion made by A1 is marked as Ext.P8. Subsequently the boat used for transporting the pepper was also recovered after describing in Ext.P5 mahazar. Reaching at the Police Station, he weighed the pepper. PW1 identified the stolen articles and the accused. Subsequently, the accused were produced before court with remand application. The boat taken into custody was releasded to the owner as per Ext.P9 ‘kaichit'. The out board engine was recovered from the house of one Haneefa. On the basis of that information the engine was also recovered from the house of Haneefa. He also recovered MO6 to MO10. Even though these witnesses were cross-examined, nothing has been brought out to discredit his evidence. He recovered stolen articles and the outboard engine, but there is no independent corroboration to support the alleged ## **Crl. R. P. No.1460 of 2003 7** recovery. 7. Apex Court in _**Azeez**_ v. _**State of Kerala**_ [2013 (1) KHC 362] held that merely because gold chain was recovered at the instance of the accused, no inference can be drawn that he committed theft, unless there are other materials connecting him to the incident. Even though PW13 deposed he recovered the stolen pepper from an isolated island, there is no independent evidence to support the recovery. PW6 and PW7 accompanied PW13 and PW5 to Vimalavanam in a country boat for recovery of stolen pepper bags. But they did not see the accused. Therefore, when there is no proper recovery and the evidence of PW13 and PW5 is not sufficient to prove the alleged theft. PW5 interrogated the accused and his evidence shows that on 13.3.1999 at 8.30 a.m. he went to the Vimalavanam and recovered 23 sacks of pepper. 8. The stock register was verified by the investigating agency and prepared Ext.P3 mahazar. PW9 is an attestor of Ext.P3. PW10 attested Exts.P4 and P5 at the Police Station. The arrest of the accused by the C.I. was **Crl. R. P. No.1460 of 2003 8** admitted by PW11. According to him, on 13.3.99 at 5.45 a.m., the accused were arrested. PW12 attested Ext.P6 mahazar. Witnesses identified the seized articles. Even though PW1 deposed that there was a missing of 26 sacks of pepper in his godown, no evidence has been adduced by him to prove the shortage. This will create a doubt in the credibility of the alleged theft. There are several decision laid down by the Apex Court, in which it has been held that the information given by the accused person is admissible in evidence, if it leads to the discovery of a relevant fact. If the actual recovery is made by a Police Officer, on the basis of information given by the accused, it is admissible. But, discoveries from open place accessible to the public are not discoveries within the meaning of Section 27 of the Evidence Act. They do not inspire confidence in the mind of the Court for concluding recovery as stated u/s.27 of the Evidence Act and that must be discarded. It is true that exclusive possession cannot be brought home to an accused if properties are discovered in open places equally accessible to members ## **Crl. R. P. No.1460 of 2003 9** of the public as a result of the information given by him. But at the same time if the property is found to be so hidden away that no ordinary member of the public could know of its existence there, the fact that it is on that particular person's information and pointing out unaccompanied by any explanation of innocent knowledge the incriminating article was discovered and recovered would lead to the presumption that he is the person who had concealed at the place of recovery. 9. Here, the evidence shows that it was found kept in an island. The prosecution story highlighted through PW1 and PW13 is unbelievable. I have perused Ext.P2(a) stock register of M/s. Ouseph & Sons Company and also verified the receipt, delivery and balance stock on 6.3.1999. It is found that on 6.3.1999, PW1 received 18 sacks of pepper and no delivery on that date. The total balance on that date was 70 sacks. There was no transaction on 7.3.1999, 8.3.1999 and 9.3.1999. Therefore, as on 10.3.1999, the stock was noted as 70. He received 10 sacks and delivered 41 sacks and the ## **Crl. R. P. No.1460 of 2003 10** balance was 36. On 11.3.99, he received 26 sacks and delivered 24 sacks and the balance is 38. On 15.3.99, the receipt was 23. There was no delivery and the total balance was 61. A close scrutiny of the above stock register shows that there was no shortage of the stock from the shop of PW1. This create a doubt in the alleged incident. 10. When prosecution is unable to account the alleged theory of theft, the revision petitioner is entitled to get the benefit of doubt. Apex Court in _**Ram Swaroop and others**_ v. _**State of Rajasthan AIR 2004 SC 2943**_ held that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. While scanning the oral testimony of PW1, it is found that there was no explanation from his side about the above discrepancy. When there is no connecting link to prove the recovery effected by PW13 and the revision petitioner is entitled to get the benefit of doubt. **Crl. R. P. No.1460 of 2003 11** In the result, the conviction and sentence passed by the trial Curt, which were approved by the appellate Court, is set aside and the accused is set at liberty. The Crl.Revision Petition is allowed as above. Sd/- **P.D. RAJAN, JUDGE** //TRUE COPY// P.A. TO JUDGE STK