IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
MONDAY, THE 17TH DAY OF NOVEMBER 2014/26TH KARTHIKA, 1936
CRL.A.No. 865 of 2003 ( )
--------------------------
AGAINST THE JUDGMENT IN C.C.NO. 43/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOCHI DATED 30.06.2001
APPELLANT(S)/COMPLAINANT:
------------------------
SADANANDAN, S/O.ITTYATHI, THOPPIL, CHELLANAM MURI AND VILLAGE, KOCHI TALUK.
BY ADVS.SRI.S.RAJEEV SRI.P.R.RAJAN
RESPONDENT(S)/STATE AND ACCUSED:
----------------------------
1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. GANGADHARAN, S/O.GOPALAN, KANDAKKATTU PARAMBIL, THEKKECHELLANAM, CHELANAM VILLAGE, KOCHI.
3. SADHIDANANDHAN, S/O.KUMARAN, KANDATHIL, THEKKECHELLANAM MURI, CHELLANAM VILLAGE, KOCHI.
4. PAVITHRAN, S/O.NARAYANAN, GOULIPARAMBIL, THEKKECHELLANAM, CHELLANAM VILLAGE.
R1 BY PUBLIC PROSECUTOR SMT.MADHU BEN R2 TO R4 BY ADV. SRI.ASHIK K.MOHAMED ALI
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
## **A.HARIPRASAD, J.**
## **-------------------------------------Crl.Appeal No.865 of 2003**
**-------------------------------------Dated this the 17[th] day of November, 2014.**
## **JUDGMENT**
Appeal against acquittal under Section 378 of the Code of Criminal Procedure (in short, “Cr.P.C.”) filed by the complainant, whose complaint alleging an offence under Section 392 of the Indian Penal Code (in short, “IPC”) was tried by the trial court and convicted the accused for an offence under Section 427 IPC. Feeling aggrieved by that conviction, the accused persons approached the learned Sessions Judge, Ernakulam in Crl.Appeal No.528 of 2001. Learned Sessions Judge allowed the appeal finding that the charge in the case and the offence for which the accused persons were convicted cannot be treated as major and minor offences. It is settled by a Division Bench decision of this Court in **Thomachan v. State of Kerala (1978 KHC 91)** that where two offences involve different elements and different questions of facts, one offence cannot be said to be minor to the other. By no stretch of reasoning, it can be said that the offence under Section 427 IPC is either cognate of or a minor offence of the one under Section 392 IPC. Therefore, the learned Additional Sessions Judge rightly acquitted the accused for the said offence.
2. Some dates are relevant in this case. The complaint was filed
2
Crl.Appeal No.865/2003
by PW1 on 20.01.1997. Thereafter, the learned Magistrate took cognizance. The trial judgment was on 30.06.2001. The accused persons filed an appeal before the learned Sessions Judge, Ernakulam on 28.07.2001. Feeling aggrieved by the acquittal of the accused for the offence under Section 392 IPC, the complainant approached this Court with a leave petition on 02.11.2001. Leave was granted on 20.02.2003. Pending this appeal, the learned Sessions Judge disposed of the criminal appeal on 29.07.2004. From the above facts, it is evident that the complaint with an allegation of offence under Section 392 IPC after trial ended in conviction for an offence under Section 427 IPC. Both the parties were aggrieved by the above approach of the trial court. Now what is surviving for consideration in this appeal is whether the acquittal of the accused for the offence under Section 392 IPC is legal and proper.
3. Facts, in brief, borne out from the complaint are as follows: The complainant (PW1) was the President of SNDP Sakha No.2508, Chellanam. Marriage of the daughter of a member was fixed on 09.09.1996. The complainant was carrying the marriage register to get the signature of the concerned persons and he was proceeding to the house where the marriage was arranged. He was travelling in a bus. At about 9.40 a.m., the accused persons, who were also travelling in the same bus,
3
Crl.Appeal No.865/2003
in furtherance of their common intention voluntarily caused hurt to him and committed theft of the marriage register and also cash to a tune of `5,800/kept inside a bag.
4. At the time of trial, four witnesses were examined and four documents were marked on the side of the prosecution. There was no defence evidence.
5. Heard the learned counsel for the appellant/complainant and the learned counsel for the accused persons. Learned Public Prosecutor is also heard.
6. Learned counsel for the appellant submitted that the court below wrongly acquitted the accused persons in spite of having sufficient evidence to convict them for an offence under Section 392 IPC. Per contra, learned counsel for the accused persons submitted that the evidence of the prosecution, if taken in its entirety, would not show that the alleged offence was revealed. It is also contended by the learned counsel for the accused that grave illegalities have been committed by the trial court causing extreme prejudice to the accused persons.
7. PW1 is the complainant. In chief-examination, he deposed almost in tune with the averments in the complaint. He was extensively cross-examined. PW1 admitted in cross-examination that the marriage
4
Crl.Appeal No.865/2003
register should have been in the custody of the Secretary. Admittedly, he was not the Secretary of the SNDP Sakha No.2508 at the material time. PW1 stated that even though a new Secretary was elected, unless and until the Central Committee ratified his election, he could not take charge as Secretary. It is the case of PW1 that in connection with this incident, he filed a complaint on 10.09.1996. But the Police, after investigation, referred the case as false. Ext.P2 is the refer report and other material papers. It is interesting to note that no witness was examined to prove the contents in Ext.P2. Learned counsel for the accused pointed out the illegality in the procedure adopted by the trial court in marking the documents. From the calender, it can be seen that the case was posted for judgment on 19.05.2001. On that day, it is seen from the proceedings paper that the case was suo motu reopened under Section 311 Cr.P.C.. But the learned counsel for the accused contended that the complainant filed an application and on the basis of that application, without even giving an opportunity to the accused to file a counter statement, the case was reopened under Section 311 Cr.P.C. Thereafter, it is seen that PW1 was recalled and examined and Exts.P1 to P4 marked. Then the case was posted for questioning the accused under Section 313 Cr.P.C. On 20.06.2001, the accused persons were questioned under Section 313
5
Crl.Appeal No.865/2003
Cr.P.C.. Even without affording an opportunity to adduce defence evidence, the case was straight away posted to 25.06.2001 for hearing.
8. In addition to this illegality, another important aspect relied on by the learned counsel for the accused is the evidence tendered by Xavier (PW2), who was not cited as a witness in the complaint. In the evidence of PW1, there is no whisper that PW2 was a witness to the alleged incident of snatching away the marriage register and bag containing cash from the possession of PW1. PW2 had not identified any of the assailants. Therefore, the quality of oral evidence adduced by him before the court below is not credit worthy.
9. PW3 is an eye witness to the incident. He also did not identify the accused persons. His only statement is that he saw some persons attacking PW1. PW4 entrusted the marriage register to PW1. He has not seen the incident. Totality of evidence adduced in this case would show that the defence case that there was some dispute regarding the administration of the SNDP Sakha and on that score, there was some fight between the members is probable. It is the contention of the accused persons that they are falsely implicated in the case. Considering the illegality mentioned above and the lack of convincing evidence, I find that the acquittal of accused persons for an offence under Section 392 IPC is
6
Crl.Appeal No.865/2003
proper. However, the other illegality in the trial court judgment had been cured by the lower appellate court in a separate proceedings. I find no reason to interfere with the acquittal of the accused.
In the result, the appeal is dismissed.
All pending interlocutory applications will stand dismissed.
## **A. HARIPRASAD, JUDGE.**
**cks**
7
Crl.Appeal No.865/2003
## **A.HARIPRASAD, J.**
**Crl.Appeal No.865 of 2003**
## **JUDGMENT**
**18[th] November, 2014**
