Kerala High Court
Joseph @ Jossy vs State Of Kerala on 18 October, 2012
Author: N.K.Balakrishnan
Bench: N.K.Balakrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN
THURSDAY, THE 18TH DAY OF OCTOBER 2012/26TH ASWINA 1934
Crl.Rev.Pet.No. 1641 of 2004 ( )
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CRA.937/2003 of ADDITIONAL SESSIONS JUDGE (ADHOC-1), ERNAKULAM
CC.425/2000 of JUDICIAL FIRST CLASS MAGISTRATE COURT-I,KOCHI
REVISION PETITIONER(S)/APPELLANTS/ACCUSED 1 TO 3.:
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1. JOSEPH @ JOSSY, S/O.MAICHEL,
KUNDATHARA VEEDU, NEAR LOORTHUPALLI
MOOLAMKUZHI DESOM, RAMESWARAM.
2. VIJAYAN PILLAI @ VIJU, S/O.HARIHARAN
PILLAI, MAVELIPPARAMBIL VEEDU, NEAR
PERUVARAM TEMPLE, KIZHAKKEPPURAM KARA, KOTTUVALLI.
3. BABU S/O.KRISHNAN, THEKKUMSSERI VEEDU,
EAST VAZHAPPILLI DESOM, MULAVOOR VILLAGE
MOOVATTUPUZHA.
BY ADVS.SRI.R.BINDU (SASTHAMANGALAM)
SRI.PRASANTH M.P
RESPONDENT/COMPLAINANT.:
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STATE OF KERALA,REPRESENTED BY THE
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. SHEEBA.M.T.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 18-10-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
dlk
N.K.BALAKRISHNAN, J.
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Crl.R.P. No.1641 of 2004
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Dated this the 18th day of October, 2012
O R D E R
~ ~ ~ ~ ~ ~ Petitioners 1 to 3 were concurrently held guilty and convicted of the offence under Section 392 read with Section 34 IPC. Charge sheet was laid against four accused persons. The other accused absconded and so case against him was split up. The petitioners were sentenced to undergo rigorous imprisonment for two years each. Their appeal was dismissed by the appellate court confirming the conviction and sentence.
2. The case of the prosecution is that, on 01-06-2000, at about 9.30 p.m., the autorickshaw which was then driven by PW1 was obstructed by the petitioners and the absconding accused. PW1 was stated to have been pulled out of the autorickshaw and was beaten by the accused and thereafter his autorickshaw was stated to have Crl.RP. No.1641/2004 : 2 : been forcibly taken away and thus the petitioners committed robbery. It is contended that, on the same night, almost at midnight, PW5, the Sub Inspector of Police, received a reliable information that a few persons were apprehended by the local people with an autorickshaw, on the suspicion that they were thieves and accordingly, PW5 proceeded to that spot. He saw four persons having been tied to a coconut tree. One of them had sustained injuries. The autorickshaw bearing registration No.KL-7T-1173, which was found there, and also the four persons, who were tied and detained in the manner stated earlier, were taken into custody by PW5. Crime was registered against the four persons. On the allegation made by the first accused that he was beaten by some persons, a crime was registered against some persons under Sections 143, 147, 148, 342, 323 and 324 read with Section 149 IPC. It is further contended that, when PW5 questioned A1, he gave a disclosure statement that the autorickshaw robbed away Crl.RP. No.1641/2004 : 3 : from the possession of PW1 was kept in a shed and if he is taken to that place, he will show the autorickshaw and accordingly, PW5 went to that place along with A1 and recovered that autorickshaw bearing registration No.KL-7A- 7135.
3. PWs 1 to 6 were examined before the trial court and Exts.P1 to P6 were marked. The learned Magistrate placed reliance on the evidence given by PW5, the Sub Inspector of Police, who apprehended the accused and seized the autorickshaw bearing registration No.KL-7A-7135 to hold that the petitioners had robbed away that autorickshaw belonging to PW2 and it was in the possession of PW1 and thus they were convicted and sentenced.
4. The learned Additional Sessions Judge confirmed the conviction and sentence passed against the petitioners.
5. Sri.Bindu Sasthamangalam, the learned counsel appearing for the petitioners, submits that the court below Crl.RP. No.1641/2004 : 4 : should not have accepted the sole testimony of PW5 to hold all the petitioners guilty of the offence under Section 392 read with Section 34 IPC. PW1 lodged the complaint and other witnesses did not support the prosecution. The case of the prosecution was that, the accused persons reached the place, where PW1 was with the autorickshaw bearing registration No.KL-7A-7135, in another autorickshaw bearing registration No.KL-7T-1173. Though PW1 has stated that he was beaten by some persons and though his autorickshaw was forcibly taken by some persons, it was stated by him that there was a financial liability in respect of that vehicle and so the vehicle was stated to have been taken away by the persons deputed by the financier. The complicity of the petitioners was not spoken by PW1.
6. PW2 is the owner of the autorickshaw. He has only stated that the autorickshaw was entrusted to PW1 for driving. PW4 and PW6 were only previous owners of the autorickshaw. They had no connection with the Crl.RP. No.1641/2004 : 5 : autorickshaw at the relevant time.
7. The remaining evidence is that of the Doctor, PW3 and of PW5, the investigating officer. PW1 had alleged to the doctor that he had been beaten with an iron rod. The Doctor noticed some injuries. The names of the assailants were not given to PW3. Therefore, though PW1 had sustained injuries, there is no evidence to convict the accused. PW5, the investigating officer, says that he received the information at midnight, ie., about 3 hours after the incident, that about four people were apprehended and tied to a tree, suspecting that they are the thieves. When PW5 reached there, the accused persons were seen tied to a tree. That was a place about 3 Km away from the original place of occurrence, where from the autorickshaw of PW1 was stated to have been robbed away. The autorickshaw in which the accused persons were stated to have reached there, viz., autorickshaw bearing registration No.KL-7T-1173 was also there. The only circumstance used by the Crl.RP. No.1641/2004 : 6 : prosecution against the accused is that A1 was stated to have told PW5 that the autorickshaw involved in this crime was kept by him in a shed at a particular place. But, it cannot be admitted in evidence under Section 27 of the Evidence Act since according to the learned counsel, PW5 had already got an information that the accused persons were there with an autorickshaw. Of course, that autorickshaw was a different one. But, still, in the nature of the evidence and circumstances, it cannot be believed that the accused persons had robbed away the autorickshaw belonging to PW1. The learned counsel submits that the people of that locality had some suspicion against the accused. It may be due to some other reasons also. The accused persons were apprehended and tied to a tree and were beaten up. Pursuant to the statement given by A1, a crime was registered against some persons. Therefore, the possibility of registering the crime against the petitioners as a counter blast cannot be ruled out, it is argued. Even if Crl.RP. No.1641/2004 : 7 : recovery under Section 27 of the Evidence Act can be admitted it can be used only against A1. The recovery of the autorickshaw allegedly made pursuant to the disclosure statement stated to have given by A1 is not sufficient in the circumstances of the case to hold the petitioners guilty of the offence of robbery. Therefore, I find that the conviction and sentence passed against the petitioners are unsustainable.
8. In the result, the conviction and sentence passed against the petitioners are set aside and they are acquitted and set at large. The bail bonds executed by them will stand cancelled.
Crl.R.P. is allowed as above.
Sd/-
(N.K.BALAKRISHNAN, JUDGE) aks/19/10 // True Copy // PA to Judge