State of Kerala v. Muhammed Rafi and Ibrahim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942** ## **CRL.A.No.1301 OF 2005** **AGAINST THE JUDGMENT DATED 18.10.2004 IN CC 415/2001 ON THE FILE OF THE JUDICIAL MAGISTRATE OF FIRST CLASS -II,THAMARASSERY** ## **APPELLANT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SRI.K.B.UDAYAKUMAR, SR.GP.** ## **RESPONDENTS/ACCUSED 1 AND 5:** **1 MUHAMMED RAFI S/O.SHAFI, CHALA HOUSE, P.O. VIDHYA NAGAR, KASARGODE. 2 IBRAHIM, S/O.C.A.ABDULLA HAJI CHALA HOUSE, P.O.VIDHYA NAGAR,, KASARGODE. R1 BY ADV. SRI.NIRMAL. S R1 BY ADV. SRI.K.RAMACHANDRAN** ## **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-10-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.1301 OF 2005 2** ## **JUDGMENT** **Dated this the 14th day of October 2020** … **The State of Kerala filed this appeal challenging the acquittal order passed by the Judicial First Class Magistrate Court-II, Thamarassery in C.C.No.415 of 2001 dated 18.10.2004. Only 1[st] and 5[th] accused faced trial before the lower court and they were acquitted. It was a prosecution alleging offence punishable under Sections 27(1)(d) of the Kerala Forest Act and Rule 3(iii) r/w. Section 23 of the Forest Preservation of Trees Rules against 5 persons.** **2. The prosecution case is that, the accused persons were found to be possession of sandal wood oil worth Rs.4,00,000/- illegally on 5.7.1998 at 10 p.m. According to the prosecution, they were found to have been transporting sandal wood oil in six zinc tins concealed in a lorry bearing No.KL** **CRL.APPEAL NO.1301 OF 2005 3** **9A/1422 and a Maruthi car bearing No.KA 13/M/1355 which was detected by the police patrol party led by the Assistant Commissioner of Police (North) Kozhikode City. The vehicles were moving one by one in a suspicious manner and the police party stopped the lorry near Kallai High School and on search of the vehicle sandal wood oil contained in three zinc tins were seized from a vault behind the seat of the driver. Hence, it is alleged that, the accused committed the said offence.** **3. According to the prosecution, accused 1 and 5 were transporting this contraband article for and on behalf of accused Nos.2,3 and 4. According to the prosecution, the other accused escaped from the vehicle.** **4. Heard the learned public prosecutor and the learned counsel for the respondents/accused.** **5. The learned counsel for the public prosecutor submitted that, the prosecution is able to prove the conscious possession of the sandal wood oil as far as accused Nos.1 and 5 are concerned. The** **CRL.APPEAL NO.1301 OF 2005 4** **learned public prosecutor submitted that, the sandal wood oil was seized from the vehicle in a concealed zinc tins. Therefore, the learned public prosecutor says that, these items were in conscious possession of the appellants.** **6. The learned counsel for the respondents/accused submitted that, the trial court after considering the entire oral and documentary evidence concluded that, accused Nos.1 and 5 who are respondents in this case are not guilty and they were acquitted. The counsel submitted that, there is nothing to interfere with the well considered judgment of the trial court.** **7. The point for consideration in this case is whether accused committed the offence as alleged ?** **8. The prosecution was originally initiated against five accused. Only accused Nos.1 and 5 faced trial. When this appeal came up for final hearing, this Court directed the Registry to get a report from the Judicial First Class Magistrate Court-II, Thamarassery regarding the present stage of the** **CRL.APPEAL NO.1301 OF 2005 5** **trial against accused Nos. 2 to 4. The learned Magistrate informed that, they were discharged. The learned Magistrate forwarded a report along with the order by which accused Nos.2 to 4 were discharged by the trial court. A perusal of the order dated 8.8.2005 in C.C.No.427 of 2004 of the Judicial First Class Magistrate Court-II, Thamarassery, it is clear that, accused Nos.2 to 4 were discharged by the learned Magistrate because the prosecution was not able to get the presence of accused Nos.2 to 4 even after giving several chances. The learned Magistrate observed that, the prosecution was not able to produce the correct address of these accused. The above order became final. It is not reported that the above order is challenged.** **9. The trial court after considering the entire oral and documentary evidence found as per the impugned judgment in this case that, there is absolutely no evidence to show that, accused Nos.1 and 5 who faced trial were in conscious possession of the sandal wood oil. The trial court considered** **CRL.APPEAL NO.1301 OF 2005 6** **this point in detail in the impugned judgment. The relevant paragraph of the impugned judgment is extracted hereunder:** _“_ _**In the case on hand, there is no evidence on record which would go to show that the sandalwood oil allegedly seized from the possession of the accused persons was that which was extracted or manufactured by committing any offence in the area falling within the territorial limits of Thamarassery Forest Range authority; indeed, there is evidence, which would go to show that, it was allegedly being transported from Kasarkod, a place far distant from the territorial limits of Thamarassery Forest Range. Moreover, the two accused persons were only the drivers of the two vehicles, which were reportedly carrying sandal wood oil admittedly in a concealed manner, and there is no evidence on record, which would go to show that the accused persons knew the fact that the alleged contraband article was concealed with their knowledge in the vehicle or that it was one liable to be seized either by police or Forest authorities as a contraband. Except, the all-dominating oral testimony of PW1, Asst.Commissioner**_ **CRL.APPEAL NO.1301 OF 2005 7** _**of Police, there is not a shred of evidence, which would go to prove the fact the two accused persons were involved in transporting the sandal wood oil illegally, knowing the fact of it being allegedly a contraband; indeed, the real culprits, if there are any, must certainly be laughing up their sleeves as to where the police and the Forest Department authorities have taken the case, which in fact ought to have been registered and investigated against them with a purpose to bring them to book. Be that as it may, there is no evidence on record, which would go to show that the accused persons are guilty of having committed the offences alleged; so, the accused persons are found not guilty accordingly. Point No.1 is found as cited above.”**_ **10. I see no reason to interfere with the above finding of fact by the trial court. It is now well settled that if an accused is acquitted by a court of law, the presumption of innocence is strengthened. The Apex Court considered this point in several judgments. The Apex Court observed like** **CRL.APPEAL NO.1301 OF 2005 8** **that in Sampat Babso Kale and Anr. State of Maharashtra [AIR 2019 SC 1852]. The relevant paragraph of the said judgment is extracted** **hereunder:** _**“Para:7 With regard to the powers of an appellate court in an appeal against acquittal, the law is well established that the presumption of innocence which is attached to every accused person gets strengthened when such an accused is acquitted by the trial court and the High Court should not lightly interfere with the decision of the trial court which has recorded the evidence and observed the demeanour of witnesses. This Court in the case of Chandrappa and Ors. v. State of Karnataka, laid down the following principles.**_ _**“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:**_ _**(1) An Appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.**_ _**(2) The Code of Criminal Procedure, 1973**_ **CRL.APPEAL NO.1301 OF 2005 9** _**puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.**_ _**(3). Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.**_ _**(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.**_ **CRL.APPEAL NO.1301 OF 2005 10** _**(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court”.**_ **Similarly, the Apex Court in Chandrappa and Others v. State of Karnataka [(2007) 4 SCC 415], which is relied in Sambat Babso case (supra) considered this point in detail. The relevant paragraphs of the said judgment is extracted hereunder:** _**“40. In Ramanand Yadav v. Prabhu Nath Jha this Court observed: (SCC pp.614-15, para 21)**_ **“21. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is** **CRL.APPEAL NO.1301 OF 2005 11** **favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilt is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. 41. Recently, in Kallu v. State of M.P. this Court stated : (SCC pp.317-18, para 8) “8. While deciding an appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court** **CRL.APPEAL NO.1301 OF 2005 12** **merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial court” (emphasis supplied).”** **11. This Court has to consider this appeal against acquittal in the light of the above dictum laid down by the Apex Court. The trial court after considering the entire facts and circumstances of this case, found that, respondents 1 & 2 in this appeal who are the 1[st] and 5[th] accused were not in conscious possession of sandal wood oil. The other accused already discharged by the trial court. In such circumstances, I see no reason to interfere with the impugned judgment of acquittal in this case.** **Hence, this Criminal Appeal is dismissed confirming the acquittal order passed by the** **CRL.APPEAL NO.1301 OF 2005 13** **Judicial First Class Magistrate Court-II,** **Thamarassery in C.C.No.415 of 2001 dated 18.10.2004.** **Sd/-** **P.V.KUNHIKRISHNAN** ## **pkk** **JUDGE**