Kunjheedu s/o Moideen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 28TH DAY OF FEBRUARY 2013/9TH PHALGUNA 1934** **Crl.Rev.Pet.No. 2827 of 2003 ( )** **--------------------------------CRL.A. 111/1999 OF ADDITIONAL SESSIONS COURT, FAST TRACK-II, PALAKKAD. CC. NO.197/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PATTAMBI.** **................** ## **REVISION PETITIONER/APPELLANT/ACCUSED NO.2:** **-----------------------------------------------------------------------------** **KUNJHEEDU, S/O.MOIDEEN, THONIKADAVATHU VEEDU, NJHANGATTIRI, PATTAMBI.** **BY ADVS.SRI.P.VIJAYA BHANU, SMT.P.MAYA.** ## **RESPONDENT/RESPONDENT/COMPLAINANT:** **-------------------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR MR.BIJU MEENATTOOR.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **rs.** ## **P.D. RAJAN, JUDGE.** ------------------------------------------- ## Crl. R.P.No.2827of 2003 ---------------------------------------------Dated this the 28[th] day of February, 2013 ## **ORDER** The revision petitioner (2[nd] accused) and another accused were convicted by the trial court U/Ss. 379, 411 r/w. 34 IPC and sentenced to undergo rigorous imprisonment for different periods under the above Sections. set off was allowed U/S.428 Cr.P.C. for the period they had undergone during investigation and trial. An appeal preferred was dismissed by the Sessions Court confirming the conviction passed by the trial court. Challenging the said judgments, the 2[nd] accused preferred this petition. 2. The prosecution case is that on 8.9.1998, the Sub Inspector of Police, Pattambi and his party were conducting patrol duty within their jurisdiction. When they reached infront of Sreekrishna Jewellery, the 1[st] accused was found under suspicious circumstance. The police party questioned him and he was unable to answer his presence there, hence, they arrested him at 4.15 a.m. and reaching at the Police Station, registered Crl. R.P.No.2827/03 2 Crime No.360/1998 U/s. 41(1) (a) Cr.P.C. During interrogation, he disclosed an offence committed in this case and on the basis of the information given by him, the Police party recovered the stolen articles from the 2[nd] accused. After completing the investigation, the Sub Inspector laid charge in the trial court.) 3. In the trial court, the prosecution examined PWs1 to PW8 and marked Exts.P1 to P4 and MOs1 to 3 in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning under Section 313 Cr.P.C. The trial court convicted the 1[st] accused under Section 379 IPC and convicted the 2[nd] accused under Section 411 IPC and appellate court confirmed the finding. 4. The learned counsel appearing for the revision petitioner contended that the finding of the lower appellate court is perverse. The recovery of MOs 1 to 3 was not properly proved. As per Ext.P1, the recovery was at 8.45 a.m. but PW2 and 3 saw the recovery at two different times. This inconsistent evidence was not considered by the court below. Therefore, the recovery of MOs1 to MO3 is not properly proved. If Ext.P1 is admitted in evidence a presumption under Crl. R.P.No.2827/03 3 Section 114 of the Evidence Act cannot be attracted in this case. 5. The learned Public Prosecutor submitted that the police officers recovered the stolen articles on the basis of the information given by the accused. The time factor disclosed by the witnesses can be considered as a clerical mistake. There is no illegality in the finding recorded by the court below. 6. Now the question that arises for cnsideration is whether there is any illegality or irregularity in the finding recorded by the courts below? In this context, I have considered the recovery evidence in this case. PW1 is the owner of the stolen articles. His evidence shows that on 7.9.1998 he was traveling from Pattambi to Pallipuram in a bus at 1 p.m. When the bus passed Kodumunda railway gate, he realised that the gold ornaments, which, kept in his custody were lost. Immediately, he informed the matter to the conductor and even after earnest effort, he failed to find out. On the third day, he informed the matter to his wife and decided to inform the matter to the Police. On that day, the Police came in his house and showed him his address and 4 Crl. R.P.No.2827/03 receipt of medicine. Immediately, he went to the Police station and identified the gold articles which were marked as MOs 1 to 3 in this case. In cross examination, he admitted that MOs 1 to 3 were brought in his house and identified. The accused were identified on 9.9.1998. Analysing the evidence of PW1, it is clear that he is not an eye witness to the recovery. 7. The recovery was effected by the Sub Inspector of Police, Pattambi. PW2 saw the recovery. According to him, he attested Ext.P1 mahazar in the railway platform, Pattambi, at that time, 1[st] and 2[nd] accused were present. The Police conducted a search and recovered MOs 1 to 3 from the 2[nd] accused. He reached at the railway platform at 12 'O' clock in the Noon, at about 12.30, the Police party came there and conducted search and recovered the gold articles. PW1 and his wife are his relatives. PW3 is also an attester of Ext.P1. MOs 1 to 3 were recovered from the 2[nd] accused as per Ext.P1. According to PW2, he arrived at the railway station between 10 and 10.30 a.m. PW3 also admitted that the Police party recovered the stolen articles at 10.30 p.m. PW5 weighed the gold ornaments. PW6 admitted that he signed in Ext.P2 mahazar. PW7 accompanied the Sub Inspector for patrol duty. 5 Crl. R.P.No.2827/03 8. The recovery was effected by PW8. According to him, on 9.9.1998, at 4.30 a.m. he registered Ext.P3 FIR. On the basis of information given by the 1[st] accused, he recovered MOs 1 to 3 from the 2[nd] accused. He seized Mos 1 to 3 after preparing a mahazar at 8.45 a.m. The defacto complainant identified MO1. After completing the investigation, he laid charge before the court. Ext.P4 is the Section altering report. Analysing the above evidence, it is found that the recovery of stolen articles was not properly proved by the prosecution. The evidence of PWs 1 and 2 shows that the Police recovered the stolen articles at 12.30 and 10.30 a.m., but the Investigating Officer deposed that he effected recovery at 8.30 a.m. In this circumstances I am of the opinion that there is no consistent case with regard to the recovery of stolen articles. 9. According to Section 114(a) of the Evidence Act a person who is in possession of stolen articles soon after the theft is either the thief or has received the goods knowing them to be stolen unless account for his possession. This would depend up on facts and circumstance of each case. When stolen articles were recovered from A2, it is proper for Crl. R.P.No.2827/03 6 the prosecution to prove the recovery with independent witness. When recovery of MO1 to MO3 was at three different times that evidence is not believable according to the facts of the case. Analysing their evidence I am of the opinion that the fact of discovery cannot be considered as a conclusive proof to the guilt of accused in the absence of corroborating evidence. The apex court in _**Asst. Collector of Central Excise**_ v. _**V.P. Sayed**_ ## _**Mohammed**_ [AIR 1983 SC 168] held that;(para 3) “.............. It is true that the onus of proving the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused. An accused cannot be convicted of an offence on the basis of conjectures or suspicions. If a reasonable doubt arises in the mind of the Court after taking into consideration the entire material before it regarding the complicity of the accused the benefit of such doubt should he given to the accused but the reasonable doubt should be a real and substantial one and a 'well founded actual doubt arising out of the evidence existing after consideration of all the evidence'. "Hence a mere whim or a surmise or suspicion furnishes an insufficient foundation upon which to raise a reasonable doubt, and so a vague conjecture, whimsical or vague doubt, a capricious and speculative doubt, an arbitrary, imaginary, fanciful, uncertain chimerical, trivial, indefinite or a mere possible doubt is not a reasonable doubt. Neither is a desire for more evidence of guilt, a capricious doubt or misgiving suggested by an ingenious counsel or arising from a merciful disposition or kindly feeling towards a prisoner, or from sympathy for him or his family". From the above discussion, I am of opinion that the recovery Crl. R.P.No.2827/03 7 evidence is not believable and the revision petitioner is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the lower court under Section 411 IPC is set aside. The accused is set at liberty and this revision petition is allowed. **P.D. RAJAN, JUDGE.** acd Crl. R.P.No.2827/03 8