Gireesh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 11TH DAY OF JULY 2012 / 20TH ASHADHA 1934 **Crl.Rev.Pet.No. 2563 of 2011** AGAINST THE JUDGMENT IN CRA 639/2010 of COURT OF ADDL.DISTRICT & SESSIONS JUDGE (AD HOC-III), NORTH PARAVUR DATED 03-08-2011 AGAINST THE JUDGMENT IN CC 221/2004 of J.M.F.C.-I, ALUVA DATED 19-10-2010 ## **REVISION PETITIONER** /APPELLANT GIREESH, S/O. DHARMAPALAN, MANIKYATHU, ELAVALLY ROAD, PERUVALLOOR, MULLASSERY, CHAVAKKAD, TRICHUR - 680 506. BY ADVS SRI.S.P.CHALY SMT.JASMIN BABY.K. SMT.LIJITTA.G.MATHEW ## **RESPONDENT** /RESPONDENT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.BIJU MEENATTOOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 11-07-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **C.T.RAVIKUMAR, J.** ---------------------------Crl.R.P.No.2563 of 2011 ---------------------------Dated 11[th ] July, 2012 ## **ORDER** The revision petitioner was the accused in C.C.No.221 of 2004 on the file of the Judicial First Class Magistrate-I, Aluva. This revision petition has been filed against the judgment in Crl.A.No.639 of 2010 of the Court of Additional District & Sessions Judge (Adhoc-III) , North Paravur dated 3.8.2011. The petitioner was tried for offences punishable under sections 419, 468 & 471 of the Indian Penal Code and also under section 12(1)(b) of the Passport Act, 1967. The trial court found the petitioner guilty under sections 419, 468 and 471 of IPC and found him not guilty under section 12(1)(b) of the Passport Act. Accordingly, the revision petitioner was convicted and sentenced under sections 419, 468 and 471 of IPC. The petitioner took up the matter in appeal as Crl.A.No.639 of 2010. After re-appreciation of the evidence and considering the rival contentions the appellate court set aside the conviction and sentence under sections 468 and 471 of IPC and confirmed the conviction and sentence under section 419 IPC. It is in the said circumstances that this revision petition has been filed. The case of the prosecution, in succinct, is as follows:- Crl.R.P.No.2563/2011 2 With the intention to procure a fake passport with his own genuine photograph describing himself to be another person, the accused submitted an application for passport affixing his own photograph and describing him as one `Dharmapalan Krishnankutty, Kopparavila House, Peruvila, Parasuvaykkal P.O., Parassala, Thiruvananthapuram' together with forged documents in support of his identity as above and managed to obtain passport No.659770 in that name and address from the Regional Passport Office, Thiruvananthapuram and using the said fake passport, personating himself to be the aforesaid Dharmapalan Krishnankutty, he attempted to go abroad by Air India Flight No.917 and during that attempt he was caught at 10 p.m. on 7.3.2002 at the International Airport, Kochi. It was with these allegations that the accusation of commission of offences under sections 419, 468 and 471 of IPC and section 12(1)(b) of Passport Act were made against the revision petitioner. 2. Evidence of the prosecution consisted of oral testimonies of PWs 1 to 14 and Exts.P1 to P16. On the side of the defence there was no documentary evidence and one Parameswaran was examined as DW1. As noticed hereinbefore, though the revision petitioner was tried for offences under sections 419, 468 and 471 of IPC and section 12(1)(b) of the Passport Act the trial court acquitted him of the offence punishable Crl.R.P.No.2563/2011 3 under section 12(1)(b) of the Passport Act for want of previous sanction for a prosecution under section 15 of the Passport Act. Thereafter, in the appeal the appellate court acquitted him of the offences punishable under sections 468 and 471 of IPC in terms of section 386(b)(1)Cr.P.C. but, confirmed the conviction and sentence under section 419 I.P.C. In the said circumstances, in this revision petition this Court is called upon to decide only the correctness, legality and propriety of the conviction recorded concurrently by the courts below against the revision petitioner under section 419 of IPC for the commission of which the courts below concurrently sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs.5,000/- under section 468 IPC and in default of payment of fine to undergo simple imprisonment of three months. 3. I have heard the learned counsel for the petitioner and also the learned public prosecutor. 4. Manifold contentions have been raised to challenge the conviction under section 419 of IPC. Firstly, it is contended that there is total absence of ingredients to attract an offence under section 419 IPC, going by the evidence on record against the revision petitioner. Secondly, it is contended that having acquitted the petitioner under sections 468 and 471 of IPC a conviction under section 419 IPC alone Crl.R.P.No.2563/2011 4 will not lie as the evidence on record, in such circumstances, would be insufficient to attribute criminal liability under section 419 of IPC and to convict him thereunder. To fortify the contentions the learned counsel for the revision petitioner relied on a decision of this Court in **Rarichan and others** v. **State of Kerala** ( **2005 KHC 2078** ) and the decision of the Hon'ble Apex Court in **Ram Jas** v. **State of U.P. (1971 (2) SCR 178)** . Per contra, the learned Public Prosecutor contended that evidence on record are sufficient for entering conviction and consequently for sentencing the revision petitioner under section 419, IPC. It is further contended that solely because the appellate court set aside the conviction and sentence under sections 468 and 471 of IPC the petitioner cannot canvass the position that the conviction and sentence under section 419 will not lie. 5. Before adverting to the rival contentions in detail, I am of the view that it is only apt to refer to the case of the prosecution as also the specific finding by the appellate court pertaining to the commission of offence under section 419 IPC. There is no case for the prosecution that the photograph affixed for the purpose of obtaining passport No.659770 was not that of the revision petitioner. In fact, the specific case against him is that he submitted application for passport affixing his photograph but describing himself therein as Dharmapalan Krishnankutty, Crl.R.P.No.2563/2011 5 Kopparavila House, Peruvila, Parasuvaykkal P.O., Parassala, Thiruvananthapuram, together with forged documents in support of that identity and managed to obtain fake passport in his name. In paragraph 27 of the judgment in Crl.A.No.639 of 2010 the appellate court held as follows:- “Because the original file concerning the issuance of Ext.P2 passport was destroyed due to efflux of time, the application which allegedly the accused has submitted could not be proved; so also is the case of documents which he has allegedly forged and submitted before the Passport issuing authority, as genuine.” ( _emphasis added_ ) The above extracted specific finding of the appellate court assumes relevance in the context of the specific accusation against the revision petitioner. As already noted, the specific allegation was that he had submitted the application for passport describing him as Dharmapalan Krishnankutty together with forged documents to support that identity. The prosecution has not produced the application submitted by the revision petitioner herein where he has allegedly affixed his own photograph and said to have described himself as one Dharmapalan Krishnankutty, Kopparavila House, Peruvila, Parasuvaykkal P.O., Parassala, Thiruvananthapuram. What are the forged documents in support of his identity allegedly produced by the revision petitioner herein along with that passport application ? Admittedly, the said Crl.R.P.No.2563/2011 6 application as also the documents said to have been forged have not been produced and marked. In fact, there was no question of production and marking of such documents in view of the admitted position that original file relating issuance of Ext.P2 passport was destroyed due to efflux of time. The question is, under such circumstances, how can criminal liability could be fixed on the petitioner for the aforesaid accusation ? It is the specific case of the prosecution that the accused is one Gireesh, S/o.Dharmapalan, Manikyathu, Elavally Road, Peruvalloor, Mullassery, Chavakkad, Trichur. The petitioner did not dispute the said fact. However, the specific case of the prosecution is that he had submitted an application describing himself as Dharmapalan Krishnankutty, Kopparavila House, Peruvila, Parasuvaykkal P.O., Parassala, Thiruvananthapuram and affixed his own photograph thereon with a view to obtain fake passport. On the contrary, the defence set up by the petitioner was that he had been residing at the aforesaid address at Parassala more than the then, required period to earn eligibility to apply for a passport in that address. In other words, his specific contention is that it was his own address. To prove that he had not been a resident in the said address for a period sufficient to earn eligibility to apply for a passport under that address, going by the then prevalent position, no investigation was seen to have been conducted. Going by Crl.R.P.No.2563/2011 7 the very case of the prosecution, it is evident that his father is one Dharmapalan. In that context, it is to be noted that DW1 specifically deposed supporting the case of the defence that the petitioner had been residing in the address at Peruvila, Parasuvaykkal P.O., Parassala and he had also deposed to the effect that the revision petitioner was known in the locality by name Krishnankutty while he was living there viz., during the period from 1984 to 1994. The prosecution sought to establish the fact that the petitioner had not been a resident in the locality viz., at the address at Parassala through Exts.P11 and P13. Exts.P11 dated 5.4.2003, though described as a letter in the judgments of the courts below, in fact, is a report by the Village Officer, Parasuvaykal. It is reported thereunder that on enquiry, Krishnankutty, S/o.Dharmapalan, Kopparavila house is not residing within the said village. P13 dated 10.12.2002, though described as a registered letter sent with acknowledgment due in the address allegedly stated in the passport application, in fact, it is a notice issued by the Detective Inspector, CBCID SIG II, Ernakulam under section 160 Cr.P.C. requiring the petitioner to appear before him on 31.12.2002 at 11.30. As noticed earlier, how can it be contended by the prosecution that, it is the address which was mentioned by the petitioner in his application which ultimately led to the passport No.659770, when the very application and the other Crl.R.P.No.2563/2011 8 original files were not available and were admittedly destroyed due to efflux of time. True that, it can be stated that since a passport has been issued in that address the only presumption is that it was issued as the petitioner had shown his address as such. Then the crucial question is whether during the relevant period the petitioner was a resident in the aforesaid address at Peruvila, Parasuvaykkal P.O., Parassala. No enquiry as such was conducted in that regard except the sending of Exts.P11 and P13 which were issued long later to his cessation as a resident of Parassala. True that, the said Ext.P13 letter was returned with the endorsement “the addressee is not known”. At best it would only reveal that no such person confirming with the identity referred to in Ext.P2 passport now, resides within the limits of Parassala. The question is that solely relying on Exts.P11 and P13 is it safe to enter into a conviction against the revision petitioner under section 419 IPC ? At the risk of repetition, I would say that there is absolutely nothing on evidence to show that an investigation was conducted to ascertain whether the petitioner had been a resident as on the date of the application in that address or immediately prior to that in the address which contained in Ext.P2 passport. In the absence of any such materials, after conducting an investigation in that regard, there is absolutely nothing to discredit the version of DW1. The prosecution has Crl.R.P.No.2563/2011 9 not elicited anything to discredit the version of DW1. There is also no case for the prosecution that DW1 is not a resident of Peruvila, Parasuvaykkal P.O., Parassala. The prosecution has also failed to show that he is an interested witness who unscrupulously telling untruth only to support the case of the revision petitioner. In view of the nature of the accusation the question whether the revision petitioner had committed the offence punishable under Section 419, IPC could not be decided independent of the accusation of commission of offences punishable under Sections 461 and 471, IPC. In fact, all those accusations were made against the revision petitioner on the same set of facts. As already found, the alleged forged documents in support of his identity were not produced before the Court. Even the said application was not produced before the Court. Admittedly, the original file relating issuance of Ext.P2 passport was destroyed. The case of the revision petitioner is that in the address shown in the application he stayed in excess of the prescribed period to earn eligibility to apply for a passport in that address. The uncontroverted evidence of DW1 would support his case. He would depose that the revision petitioner was known in the locality as Krishnankutty and there is no dispute regarding his father's name. The Court was having a duty to appreciate the defence evidence as well. In the circumstances and in view of the evidence on record it Crl.R.P.No.2563/2011 10 could only be held that they are sufficient to prove the guilt of the revision petitioner to punish him under Section 419, IPC. I have no doubt that it is only improper and perverse appreciation of the evidence that led to the conclusion of guilt against the revision petitioner under Section 419, IPC. It cannot be sustained with the volume of evidence available in this case. It invites interference. Hence, the impugned judgment of the Additional District & Sessions Court, North Paravur in Crl.A.No.639 of 2010 confirming the judgment in C.C.No.221 of 2004 passed by the Judicial First Class Magistrate Court-I, Aluva and the judgment of conviction of the revision petitioner in C.C.No.221 of 2004 under Section 419, IPC, are set aside. This revision petition is accordingly allowed. The bail bond executed by the revision petitioner shall stand cancelled. Sd/C.T.RAVIKUMAR Judge TKS