P.A. Moosa v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 5TH DAY OF AUGUST 2016/14TH SRAVANA, 1938** **Crl.Rev.Pet.No. 1871 of 2003 ( )** **--------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.233/1999 of additional SESSIONS COURT (ADHOC-II)KASARAGODE DATED 07-05-2003** **AGAINST THE JUDGMENT IN CC 66/1998 of JUDICIAL MAGISTRATE OF FIRST CLASS,KASARAGOD DATED 12-10-1999** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------P.A.MOOSA, S/O. ABDULLA, PACHAMPALLAM HOUSE, ICHILAMKOD VILLAGE, P.O. ICHILAMKOD, KUMBLA, KASARAGOD TALUK AND DISTRICT.** **BY ADV. SRI.I.V.PRAMOD** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **------------------------------------** **STATE - S.H.O. KASARAGOD, CRIME NO.406/90 REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT. V.P. SATHI.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 05-08-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No. 1871 of 2003 ---------------------------------------------Dated this the 5[th] day of August, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.233/1999 of Additional Sessions Judge (Adhoc) II, Kasaragod. Three persons were charge sheeted by the Judicial First Class Magistrate Court, Kasaragod in C.C. No.66/1996 for offence punishable u/s.379 IPC. The learned Magistrate convicted the accused u/s.379 IPC and sentenced to rigorous imprisonment for three years. Against that, the accused preferred the above criminal appeal before Additional Sessions Judge (Adhoc) II, Kasaragod, where the learned Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. 2. The charge against the accused is that on 26.6.1990 at about 1.30 p.m., the accused committed theft of an auto Crl.R.P.No.1871/2003 2 rickshaw KRC 5906 from the house of PW1 at MP 140, Oliyathaduka in Madhur Village. Kasaragod Police registered a crime and after completing investigation, laid charge in the trial Court. Prosecution examined PW1 to PW8 and marked Exts.P1 to P10 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. 3. Revisional jurisdiction is a supervisory power to correct illegality or irregularity or miscarriage of justice arising from misconception of Law which has resulted in hardship or any injury to any person. Normally the Court exercise this jurisdiction in exceptional cases when it feels that substantial injustice has been done by a Subordinate Court. If miscarriage of justice has been done by violating the fundamental rules of appreciation of evidence, High Court is justified in revising the decision of its lower courts. If a particular point is decided misconstruing the evidence Crl.R.P.No.1871/2003 3 on record or in the absence of evidence it is necessary for the High Court to exercise its revisional power. It is pertinent to note that the possibility of another view on a point is not a ground for interfering with the above power. 4. Heard both sides. For ascertaining that fact, I have gone through the evidence in this case. The occurrence was deposed by PW1. His evidence shows that on 26.6.1990 at 6.30 p.m., his driver parked his vehicle in his compound. On the next day, it was found missing. Immediately he searched the vehicle. Subsequently, it was found in an abandoned stage near Muttam gate in Sheriya village. For that, he gave Ext.P1 statement to the Kasaragod Police, which was recorded by PW6 and registered a crime and Ext.P8 is the FIR. PW7 and PW8 are the investigating officers, who seized the auto rickshaw from Muttom gate. These witnesses deposed that somebody had stolen the vehicle in that night. PW7 prepared Ext.P6 scene mahazar and obtained Ext.P7 RC book from PW1. PW8 Circle Inspector conducted further Crl.R.P.No.1871/2003 4 investigation. PW7 directed PW3 to inspect the vehicle and obtain the finger prints available in the vehicle. As per that direction, he got eight chance finger prints from the vehicle with the help of the department photographer. Those finger impressions were compared with the prints in the Scientific Digit Bureau, Kasaragod. He also developed finger print received from the mirror of the auto rickshaw, which were identical to the right thump impression of the revision petitioner. PW3 deposed that the finger print of the revision petitioner was recorded and maintained in Single Digit Bureau as per DA 98/Kasaragod/89. After specimen examination, he submitted Ext.P2 report. Even though Ext.P2 was marked, the proper study was not found in Ext.P2 report. He has not obtained any evidence in the trial Court to show that PW3 obtained finger print which was maintained in the single digit bureau. In the absence of such evidence, a vague statement made by PW3 is not sufficient to prove the finger print of the revision petitioner. Crl.R.P.No.1871/2003 5 5. The learned counsel appearing for the revision petitioner submitted that the accused was not arrested and no other finger print was obtained. In the absence of any scientific evidence, I am of the opinion that the investigating officer need not take into consideration that the finger prints obtained from the place of occurrence was not compared with the original finger print of the accused, after arrest. The investigating officer has also not furnished any evidence to show that he had arrested the accused earlier and obtained finger prints, compared his finger prints and retained in the finger print bureau. While adverting to the oral and documentary evidence adduced in this case, it appears that both courts below did not consider the evidence properly, which resulted in misreading of evidence and many factors, which ought to have been found in favour of the accused, were not considered and omitted by the trial Court and the appellate Court. 6. Apex Court in _**Ramanathan**_ v. _**The of Tamil Nadu**_ Crl.R.P.No.1871/2003 6 [AIR 1978 SC 1204] held that mere fact that the identity of the accused could not be established on the basis of number of finger prints obtained during the course of investigation and it may well be that the identity of the accused could not be established on that basis, but that could not be said to be enough to justify his acquittal when there was overwhelming evidence against him to establish his guilt. This means that when there is no other connecting evidence to prove the guilt of the accused, the finger print obtained by the investigating officer is the connecting evidence in a case. Here, no scientific evidence has been produced in the trial Court to prove the case against the accused. In the circumstances, the finger print obtained by the investigating officer alone is not sufficient to convict the accused. The Court below failed to appreciate that position and convicted the accused. Therefore, the revision petitioner is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the Crl.R.P.No.1871/2003 7 trial Court u/s.379 IPC are set aside. Accused is acquitted and set at liberty. Crl.R.P. is disposed of as above. **P.D. RAJAN, JUDGE.** acd