Balakrishnan, S/O.Kuttan vs The State Of Kerala on 16 January, 2009

Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.Rev.Pet.No. 389 of 2006()

1. BALAKRISHNAN, S/O.KUTTAN,

... Petitioner

1. THE STATE OF KERALA,

... Respondent

For Petitioner :SRI.GRASHIOUS KURIAKOSE

For Respondent : No Appearance

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR Dated :16/01/2009

O R D E R

M. SASIDHARAN NAMBIAR,J.

------------------------------------------------- CRL.R.P.NO.389 OF 2006

-------------------------------------------------- Dated this the 16th day of January, 2009

O R D E R

Revision petitioner is the accused in C.C.164 of 1998 on the file of Chief Judicial Magistrate, Thalassery. Revision petitioner was convicted and sentenced to rigorous imprisonment for three years for the offence under section 379 of Indian Penal Code. Though revision petitioner challenged the conviction before Sessions Court, Thalassery in Crl. Appeal 348 of 1999, learned Additional Sessions Judge on reappreciation of evidence confirmed the conviction and sentence and dismissed the appeal. It is challenged in the revision.

2. Learned counsel appearing for revision petitioner and the learned Public Prosecutor were heard.

3. Learned counsel appearing for revision petitioner argued that the case is foisted against the revision petitioner and in the light of the evidence Courts below should not have convicted him. It was pointed out that as per the prosecution case, petitioner was apprehended while he was travelling in a bus from Kannur Thazhe Chovva to Thalassery at Thottada bus CRRP 389/2006

stop, while revision petitioner attempted to pickpocket PW1, a passenger. He was apprehended and taken out of the bus and with the assistance of autorickshaw drivers PW1 took him to Edakkad police station from where he was arrested and Ext.P3 FIR was registered under section 41(1)(d) and 102 of Code of Criminal Procedure. He was produced before the Magistrate at 1.15 p.m. on the next day on 26.7.1997. If prosecution case is to be believed, PWs 1 and 6 had given signed statements, PW1 disclosing the attempt to commit theft and PW6 disclosing the factum of theft of cash including the purse from his pocket. But no such statement was produced before the Court by the prosecution. It was argued that as per Ext.P2 seizure mahazar prepared at 10.30 a.m. on 26.7.1997, MO5, the underwear, was produced by PW6 at the police station, which was seized under Ext.P2 mahazar and Ext.P2 shows that the seizure was in Crime 109 of 1997 under section 379 of Indian Penal Code, when Ext.D1 remand report produced before the Magistrate which contains the order of remand by Magistrate at 1.15 p.m. on 26.7.1997 shows that the case even at that time was only under section 41(1)(d) and 102 of Code of Criminal Procedure. It was argued that though Ext.P4 report shows that on 26.7.1997 PW8, CRRP 389/2006

the investigating officer, submitted a report to the effect that on the basis of information the offence is altered to one under section 379 of Indian Penal Code, Ext.P4 report mentions that revision petitioner was produced before the Magistrate and was remanded and therefore Ext.P4 could have been prepared only subsequent to the order of remand under Ext.D1 and if so there could not have been any seizure at 10.30 a.m. on 26.7.1997 for an offence under section 379 of Indian Penal Code and that fact itself establishes that the case is foisted. The learned counsel also argued that though PWs 5 and 6 claim that they had informed the police about the theft of their purse containing cash, while they were travelling in the bus on 25.7.1997, Ext.P3 FIR was registered only under section 41(1)(d) and 102 of Code of Criminal Procedure. If such a statement was given, the statement of one of the witnesses should have been recorded as the First Information Statement and case should have been registered for the offence under section 379 of Indian Penal Code and the fact that no such F.I.S. was recorded falsifies the case. Learned counsel also argued that though it is contended by the prosecution that two blades were recovered from the body of the revision petitioner at the time of his arrest on 25.7.1997 CRRP 389/2006

and that too concealed by him, no such blade was marked or identified at the time of evidence and that is also a circumstance to point out that the case is foisted later on. The learned counsel argued that in such circumstances when the cumulative effect of all these omissions was not appreciated by the Courts below in the proper perspective, conviction of the revision petitioner could only be set aside.

4. Learned Magistrate and the learned Additional Sessions Judge convicted the revision petitioner for the offence under section 379 of Indian Penal Code accepting the evidence of PWs 5 and 6 that Rs.660/-, which was with PW5 and Rs.1,405/-, which was with PW6, were stolen by the revision petitioner while they were travelling in the very same bus in which PW1 and revision petitioner were travelling on 25.7.1997. Learned counsel argued that neither the cleaner who had the opportunity to see the revision petitioner travelling in the back seat of the bus, as spoken to PW1, was not examined and the trip sheet of the bus was also not produced to prove that the revision petitioner was travelling in that bus as claimed by the prosecution. Though the trip sheet was not produced, evidence of PW1, the passenger of the bus and PW4 the conductor of the CRRP 389/2006

bus and PW2, driver of the autorickshaw, who was at Thottada bus stop at the relevant time, when PW1 along with revision petitioner alighted from the bus, establish that revision petitioner was travelling in the bus as stated by PW1 and found by the Courts below. Though PW1 claims that there was an attempt to commit theft of cash from his pocket when revision petitioner was apprehended, no case for attempt to commit theft under section 379 read with section 511 of Indian Penal Code was charged and unless there is evidence to prove theft of cash from the pocket of PWs 5 and 6 was committed, the conviction cannot be upheld.

5. The evidence of PW6, which was accepted by the Courts below, shows that he found out the theft of cash and purse from the pocket of his underwear, when he reached the house and thereafter he went to Edakkad police station and informed the matter and his statement was recorded in writing and he had affixed his signature in the statement. But no such statement was produced. If such a statement was recorded as the case was registered only under section 41(1)(d) and 102 of Code of Criminal Procedure, that statement should have been treated as the First Information Statement. According to PW6 he CRRP 389/2006

produced MO5, the underwear in which the purse where money was kept, which was stolen by cutting the pocket of underwear on the next day on 26.7.1997. Ext.P2 is the seizure mahazar. As per Ext.P2, MO5 was produced by PW6 at 10.30 a.m. on 26.7.1997 and it was seized after preparing Ext.P2. If Ext.P2 is to be accepted, before 10.30 a.m. on 26.7.1997 the case should have been converted to one for an offence under section 379 of Indian Penal Code, as it is specifically stated in Ext.P2 that the article was seized in that said case registered for the offence under section 379 of Indian Penal Code. As rightly pointed out by the learned counsel appearing for revision petitioner, Ext.D1 is the remand report by which, after the arrest of the revision petitioner at 1.15 p.m. on 25.7.1997, revision petitioner was produced before the Magistrate on 26.7.1997 at 1.15 p.m. As per the endorsement of the learned Magistrate in the order of remand, revision petitioner was produced before the Magistrate at 1.15 p.m. on 25.7.1997. At that time the case was registered only under section 41(1)(d) and 102 of Code of Criminal Procedure. If we are to believe the seizure evidenced by Ext.P2, even at 10.30 a.m. on the day the case was converted to one under section 379 of Indian Penal Code and the seizure was CRRP 389/2006

effected at 10.30 a.m. in that case. But Ext.P4 is the report submitted by PW8 to the Court reporting that based on the investigation it is found out that the offence involved is one under section 379 of Indian Penal Code and therefore the case is altered to one for the offence under section 379 of Indian Penal code and is being investigated. Ext.P4 report shows that before that report was prepared, the offence was altered to one under section 379 of Indian Penal Code, and the revision petitioner was produced before the Magistrate and he was remanded till 8.8.1997. If that be so, from the recitals on the order of remand of the revision petitioner made by the learned Magistrate at 1.15 p.m. on 26.7.1997, it is clear that Ext.P4 report could have been prepared only thereafter and if so Ext.P2 report could not have been in existence at 10.30 a.m. as it purported to be in Ext.P2. That casts serious doubt about the genuineness of the prosecution case.

6. Added to it the fact that no First Information Statement of either PW1 or PW6 was recorded by the police casts further doubt about the fact whether they had intimated the police either on 25.7.1997 or on 26.7.1997 about the factum of theft. It is also pertinent to note that though Ext.P3 F.I.R CRRP 389/2006

reached the Court on 26.7.1997, Ext.P4 report altering the charge and continuing the investigation allegedly prepared on 26.7.1997 reached the Court as is clear from the seal of the Court affixed therein with the initial of the Magistrate, only on 6.9.1999. Added to this, if evidence of PW5 with regard to the identity of MO2 (one of the purses marked as MO2) and the factum of theft is believed, at the time when the purse was stolen with the cash, the purse contained details of the salary and other records establishing the ownership of PW5 over the purse. As rightly pointed out by the learned counsel appearing for revision petitioner as per the prosecution case, revision petitioner did not get any opportunity to remove anything from the purse because he was apprehended from the very bus and was immediately taken to the police station in a jeep and was searched by the police immediately and all the articles which were with the revision petitioner was seized under Ext.P5 from the police station before 1.15 p.m. on 25.7.1997. If that be so, the purse of PW5 should have contained all the materials spoken to by PW5 to fix the identity. But it is admitted case that nothing was there in MO2 purse to fix the identity. But it is admitted case that nothing was there in MO2 purse to fix its identity as the purse of CRRP 389/2006

PW5 at the time of its seizure. When all these discrepancies and deficiencies are appreciated in the proper perspective, it is not possible to believe the prosecution case that revision petitioner committed theft of the purses containing cash from the pockets of PWs 5 and 6 while they were travelling in the bus in which revision petitioner was also travelling. In any case on the unsatisfactory evidence revision petitioner is entitled to the benefit of doubt as the very seizure could not have been made at the time alleged by the prosecution and stated in Ext.P2. If the seizure is genuine such mistakes would not have been there. In such circumstances conviction of the revision petitioner is not sustainable.

Revision is allowed. Conviction of the revision petitioner for the offence under section 379 of Indian Penal Code is set aside. Revision petitioner is found not guilty of the offence charged. He is set at liberty. The bail bond executed by him stands cancelled.

M. SASIDHARAN NAMBIAR, JUDGE

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