Joseph Thomas and Jacob Thomas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR** **FRIDAY, THE 19TH DAY OF JUNE 2020 / 29TH JYAISHTA, 1942** ## **Crl.Rev.Pet.No.201 OF 2005(A)** **CRA 214/2000 DATED 21-10-2004 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT-II, PATHANAMTHITTA** **CC 262/1995 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT, THIRUVALLA** ## **REVISION PETITIONERS/APPELLANTS/ACCUSED 1 AND 2:** |**1**|**JOSEPH THOMAS**| |---|---| ||**KANDACHALIL HOUSE, MUKKALIKARA, EDANKUNNAM**| ||**VILLAGE, KANJIRAPPALLY TALUK.**| |**2**|**JACOB THOMAS @ SUNNY**| ||**KANDACHALIL HOUSE, MUKKALIKARA, EDANKUNNAM**| ||**VILLAGE, KANJIRAPPALLY TALUK.**| ||**BY ADV. SRI.P.HARIDAS**| ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SRI.E.C.BINEESH -P.P** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16-06-2020, THE COURT ON 19-06-2020 PASSED THE FOLLOWING:** ## **Crl.R.P.No.201 of 2005** ## **:-2-:** ## **Dated this the 19[th] day of June, 2020** ## **O R D E R** The revision petitioners are A1 and A2 in C.C.No.262/1995 on the file of JFCM, Thiruvalla, charge sheeted by S.I. of Police, Keezhvaipur, for commission of offences punishable under Sections 120B, 407, 468, 204 read with Section 34 IPC. 2. The petitioners were tried along with the co-accused A3 to A5 and by judgment dated 28.10.2000, the co-accused were acquitted of all the charges. Petitioners were also acquitted of some of the charges, except offence punishable under Section 407 read with Section 34 IPC. They were convicted of offence punishable under Section 407 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.5,000/- with default sentence for another rigorous imprisonment for six months. ## **Crl.R.P.No.201 of 2005** ## **:-3-:** Though Crl.A.No.214 of 2000 was filed by them before Additional District & Sessions Judge (Ad hoc) Fast Track Court-II, Pathanamthitta, the conviction and sentence were only confirmed. 3. Being aggrieved by the concurrent judgments of conviction and sentence, this revision is filed. 4. PW3 is the Managing partner of P.V.Mathew and Company, who is a dealer in raw rubber conducting business in Aanikadu, Pathanamthitta. Economic Transport Organisation, Kottayam Branch, is a transport company which used to transport the rubber sheets supplied by PW3 to various parts of the country under his orders, for quite a long period of time. 5. The prosecution allegation is that on 26.7.1993, PW3 placed orders with the transport agency for transport and delivery of 9 tons of rubber sheets worth Rs.3 lakhs to Sathara and Poona in Maharashtra. PW4, the Manager of the Economic ## **Crl.R.P.No.201 of 2005** **:-4-:** Transport Organisation, Kottayam Branch, following the usual practice, arranged the vehicle through JR Roadways, Kottayam. The lorry arranged by PW5, the Managing partner of JR Roadways, Kottayam, was bearing registration No.MH-04/C-7589 and the driver and cleaner of the vehicle are A1 and A2 respectively. PW6, a clerical staff attached to the office of PW4, accompanied the driver and cleaner in the vehicle to the business premises of PW3 and ensured that 9 tons of rubber sheets were loaded in the vehicle on 26.7.1993. Pws.1 and 2 are the two headload workers under the employment of PW3, who loaded the goods. The vehicle left for the destination at night on 26.7.1993. 6. When the payment for consignment was delayed by the customers, PW3 contacted the dealers in Sathara and Poona and got information that the rubber sheets did not reach the destination. Similar inquiries were made by PW4 and PW5 also. In ## **Crl.R.P.No.201 of 2005** ## **:-5-:** the meantime, Ext.P9 series copies of consignment notes returned undelivered. In the light of suspicious circumstances, the matter was reported by PW3 to the police at Keezhvaipur on 21.8.1993 and Ext.P13 crime was registered by the S.I. of Police. It came out that the original number of the lorry was changed from MH-04/C-3626 to MH-04/C-7589 and further RC book of MH-04/C-1589 was stolen and misused for making a false RC book. Accused 1 and 2 were arrested on 7.11.1993. The lorry bearing No.MH-04/C-3626 was seized from the limits of Thana Police Station in Bombay and later brought to Keezhvaipur Police station. Likewise, lorry No.MH04/C-1589 was also seized and subjected to verification. After questioning the revision petitioners and upon their alleged confession, 71 bundles of rubber sheets each having 50 kgs. were recovered from their house bearing Door No.IX/356 as per Ext.P12 mahazar dated 9.11.1993 along with a ## **Crl.R.P.No.201 of 2005** ## **:-6-:** jeep bearing registration No.KRT/2493 purchased by them with the money allegedly realised by sale of a portion of the rubber sheets taken in the lorry for delivery. After completing investigation, PW11, the Sub Inspector of Police laid final report before the trial court. 7. Prosecution examined Pws.1 to 11 and marked Exts.P1 to P20. No defence evidence was adduced by any of the accused and their common defence is that this is a drama played by PW3, the Transporting company and others, only to make wrongful gain out of the amount insured for the goods. 8. The trial court on a consideration of entire evidence found that the prosecution failed to prove charges of criminal conspiracy and forgery and also involvement of the accused in the alleged criminal activities. The State has not filed any appeal challenging the order of acquittal of the co-accused or of the revision petitioners. However, ## **Crl.R.P.No.201 of 2005** ## **:-7-:** it found that there was sufficient evidence to prove entrustment of goods in the lorry arranged by PW4, with the revision petitioners who were the driver and cleaner of the vehicle deputed for transport of load from the business premises of PW3 on the date of occurrence. Evidence given by Pws.4, 5 and 6 in this respect was believed. Even though the consignees stationed at the destination places were not summoned and examined to prove that the goods did not reach them, both the courts below relied on Ext.P12 recovery mahazar to accept the prosecution case that, part of the rubber sheets consigned in the lorry was recovered from the house of the revision petitioners. Based on Ext.P12 recovery mahazar and seizure of lorry from the limits of Thana Police Station in Maharashtra, the courts below found that the goods entrusted with A1 and A2 for transportation in lorry were misappropriated and converted for their use. ## **Crl.R.P.No.201 of 2005** ## **:-8-:** 9. The concurrent finding of guilty entered into by the courts below is challenged in this revision on the ground that it is perverse, irregular and illegal. 10. On reappreciation of evidence, I am also of the opinion that there is convincing evidence to prove that 9 tons of rubber sheets were entrusted on 26.7.1993 with Economic Transport Organisation, Kottayam Branch, for consignment to different places in Maharashtra. PW4, the Manager of the Transport agency clearly acknowledged the entrustment of goods with it as bailee. PW6, the clerical staff attached to the Transport agency also proved that it was right in his presence, the rubber sheets were loaded in the lorry from the shop of PW3. PW5, the Managing partner of JR Roadways, Kottayam, also spoke that it is he who arranged the lorry for PW4, for the transport of goods from the business place of PW3 to ## **Crl.R.P.No.201 of 2005** ## **:-9-:** Maharashtra. PW6 who prepared Ext.P7 series consignment notes, Ext.P10 lorry chalan and other records proved that they were addressed to the concerned consignees to whom the lorry loads were to reach. PW3 proved Ext.P6 stock register and said that 9 tons of rubber sheets were loaded in the lorry with the assistance of Pws.1 and 2, the headload workers employed by him. The headload workers also testified that the rubber sheets were loaded by them on 26.7.1993. All this evidence together proves the entrustment of goods with PW4, the Manager of Economic Transport Organisation, Kottayam Branch. That means, first part of Section 407 IPC is proved. 11. As to the question whether the consignments reached the customers in Maharashtra, there is no direct evidence brought forth, by examining any of the consignees. The prosecution relies on Ext.P9 series copies of consignment notes which returned ## **Crl.R.P.No.201 of 2005** ## **:-10-:** undelivered. In addition to this, prosecution relies on Ext.P12 recovery mahazar dated 9.11.1993 proved by PW11, the Investigating Officer, S.I. of police. After the arrest of revision petitioners on 7.11.1993, 71 bundles of rubber sheets were recovered from their house on 9.11.1993. A jeep bearing registration No.KRT/2493 was also recovered which, according to prosecution, was purchased by the revision petitioners with the money realised by sale of rubber sheets. When the evidence of recovery is taken along with seizure of MH-04/C- 7589 lorry from the limits of Thana police station, the conclusion of the courts below that the consignment did not reach the customers cannot be assiled as wrong. In short, on reconsideration of evidence on record, I am satisfied that misappropriation of goods consigned and conversion of the same for wrongful gain has been proved by prosecution satisfying the remainder ingredient of ## **Crl.R.P.No.201 of 2005** **:-11-:** Section 407 IPC. 12. The sole legal question raised by the learned counsel for the revision petitioners is that there is no evidence to prove that the revision petitioners were the driver and cleaner of MH-04/C-7589 lorry which started its trip from the business premises of PW3 on 26.7.1993. It was argued that the courts below erred in finding that the revision petitioners were the driver and cleaner, and evidence tendered by the witnesses in this respect was completely misread. In short, the contention is that misreading of evidence has resulted in a wrong finding of conviction being entered into. 13. The witnesses cited by prosecution to prove the revision petitioners as driver and cleaner of lorry are Pws.1 to 6 among whom Pws.1 and 2 conceded that they could not identify the driver and cleaner. The courts below also accepted this ## **Crl.R.P.No.201 of 2005** ## **:-12-:** evidence. 14. Though PW3 said that he could identify the driver and cleaner, there was no dock identification of A1 and A2. There was only a general statement in his testimony that A1 and A2 were the driver and cleaner respectively. So far as PW4 is concerned, he had no opportunity to associate with the driver and cleaner and according to him, he only arranged their service through PW5, the Managing partner of JR Roadways, Kottayam. PW5 testified that he had previous acquaintance with the 1[st] accused and therefore could identify him. It is, however, curious enough to note that there was no dock identification of the accused by this witness also. Moreover, as to previous acquaintance, there is contradiction with his previous statement given before police. Therefore, the evidence of PW4 as to the identity is not convincing. ## **Crl.R.P.No.201 of 2005** ## **:-13-:** 15. The most material witness relied on by the prosecution is PW6. There is no dock identification of accused in his case also. He made a general statement that A1 and A2 were driver and cleaner respectively and he had enough opportunity to associate while he travelled in the lorry along with them to the business place of PW3. He continued to say that he travelled upto a place called Karukachal along with the driver and cleaner after the lorry started for destination. But the material aspect is that PW6 was not asked to identify the accused in the dock during his examination. I cannot understand as to what contributed to this lapse. Generally one would expect the Assistant Public Prosecutor in charge of the case to ask the witness to identify the accused present in the dock. Such an identification of accused in the dock is essential in criminal trials when the offendor is not previously known to the ## **Crl.R.P.No.201 of 2005** ## **:-14-:** witness. Such a procedure was not resorted to in this case. Revision petitioners were tried along with three other co-accused and therefore itself, the need for precise identification of revision petitioners in court cannot be brushed aside. 16. In two decisions of this Court reported in **Mohammed v. State of Kerala (2002 KHC 969)** and **Vayalali Girishan and ors. v. State of Kerala (2016** **KHC 204)** , it has been emphasised that in order to fix complicity of the accused with the crime in clear terms, identification of the offendor in court is most cardinal and the courts recording the evidence of the witness should specify in the deposition sheet that the witness identified the offendor. Any failure in this respect will only result in prosecution case being over thrown for want of adequate proof regarding identity of the offendor. 17. Looking at the testimonies of Pws.3 to 6, I ## **Crl.R.P.No.201 of 2005** ## **:-15-:** am satisfied that no earnest attempt was made by the prosecution to have dock identification and prove that revision petitioners were the driver and cleaner of MH-04/C-7589 lorry. The courts below failed to note this material fact on account of misreading of the evidence. This error committed by the courts below has vitiated the impugned judgments of conviction and sentence. The concurrent finding of guilty therefore is illegal and is not consistent with the evidence given by witnesses as to identification. The impugned judgments in C.C.No.262/1995 and Crl.A.No.214/2000 are therefore liable to be set aside. Since the prosecution failed to prove the involvement of revision petitioners by their proper identification through prosecution witnesses, they are entitled to the benefit of reasonable doubt. Accordingly, I find the revision petitioners to be not guilty of offence punishable under Sections 407 read with ## **Crl.R.P.No.201 of 2005** **:-16-:** Section 34 IPC. In the result, revision petition is allowed setting aside the judgments of conviction and sentence and they are acquitted of offence punishable under Sections 407 read with Section 34 IPC. They are set at liberty forthwith and the bail bond executed by them shall stand cancelled. All pending interlocutory applications are closed. **==> picture [51 x 12] intentionally omitted <==** **T.V.ANILKUMAR JUDGE** ami/