Kerala High Court
Masooma Aboobacker vs State Of Kerala on 10 April, 2019
Equivalent citations: AIRONLINE 2019 KER 60
Author: P.Ubaid
Bench: P.Ubaid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.UBAID
WEDNESDAY, THE 10TH DAY OF APRIL 2019 / 20TH CHAITHRA, 1941
CRL.A.No. 461 of 2019
AGAINST THE ORDER/JUDGMENT IN CRA 189/2013 of THE SESSIONS
COURT, ALAPPUZHA
AGAINST THE ORDER/JUDGMENT IN CC 1227/2010 of JUDICIAL
MAGISTRATE OF FIRST CLASS , RAMANKARI
CRIME NO. 109/2008 OF Alappuzha South Police Station ,
Alappuzha
APPELLANT/DEFACTO COMPLAINANT:
MASOOMA ABOOBACKER, AGED 34 YEARS
W/O.ASEER AHAMMED, MAUSAM, LAJANATH WARD,
ALISSERY ROAD, ALAPPUZHA, NOW RESIDING AT 11 D,
GOLDEN HEAVEN, MOOLEPPADAN ROAD, VAZHAKKALA,
KAKKANAD.
BY ADVS.
SRI.S.SANAL KUMAR
SMT.BHAVANA VELAYUDHAN
SMT.T.J.SEEMA
RESPONDENT/COMPLAINANT/1ST ACCUSED:
1 STATE OF KERALA,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 SHAJI, S/O.MADHAVAN, PUTHENPURACKAL VEEDU,
SOUTH OF BYPASS, KUTHIRAPANTHY WARD,
ALAPPUZHA-688002.
OTHER PRESENT:
SRI SANTHOSH PETER-PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
10.04.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.A.No. 461 of 2019
-2-
J U D G M E N T
The appellant herein is the defacto complainant in C.C. No. 1227 of 2010 of the
Judicial First Class Magistrate Court, Ramankary. The two accused therein faced trial under Sections 380, 461 and 411 IPC, and received a judgment of conviction 15.04.2013. The specific charge against the second accused is under Section 411 IPC. The properties produced in court were identified by the defacto complainant as the stolen articles, and the properties included a gold ingot. On trial, the learned Magistrate found the second accused not guilty, and he was acquitted. But the first accused was found guilty under Sections 380 and 461 IPC by judgment dated 15.04.2013. On conviction, he was sentenced to undergo simple imprisonment for one year each under the two Sections.
CRL.A.No. 461 of 2019-3-
2. Aggrieved by the judgment of conviction, the first accused approached the Court of Session, Alappuzha with Crl.A. No. 189 of 2013. The learned Sessions Judge, Alappuzha, allowed the appeal, and acquitted the first accused. As regards the properties identified during trial, orders were passed by the learned Magistrate under Section 452 Cr.P.C. directing to return the properties to the defacto complainant. But in appeal, while acquitting the first accused, the learned appellate Judge reversed the said order, and ordered sale of the properties in public auction. Aggrieved by the said order of the appellate court, the defacto complainant has brought this appeal under Section 454 Cr.P.C.
3. On hearing both sides, and on a perusal of the appellate judgment, I find that the order under challenge requires hearing in detail on merits, and decision afresh. Paragraphs 15 and 16 CRL.A.No. 461 of 2019 -4- of the appellate judgment shows that the evidence regarding the stolen articles, and the identification made by the complainant in court were not properly gone into by the learned appellate Judge. Four items were identified during trial, and these include only one gold ingot. The learned appellate Judge has referred to two gold ingots. The MO1 and MO2 properties are gold rings identified by the complainant, and MO4 is a mobile phone. In paragraph 16 of the appellate judgment, the appellate Judge has referred to MO1 as a gold bangle, and MO5 as the mobile phone. There are only four items of properties. The mobile phone is MO4, and the appendix to the trial court judgment shows that MO1 is not a bangle. Just because the appellate court acquitted the accused on the benefit of doubt or otherwise, the orders passed by the trial court cannot be mechanically reversed. It appears that the accused does not have any claim CRL.A.No. 461 of 2019 -5- over the items. Anyway, I find that the matter requires consideration afresh by the appellate court.
In the result, this appeal is allowed. The final orders passed by the appellate court under Section 452 Cr.P.C. as regards the material objects identified during the trial in C.C. No. 1227 of 2010 of the Judicial First Class Magistrate Court, Ramankary is set aside, and the matter is remanded to the appellate court (Sessions Court, Alappuzha) for reconsideration afresh as regards the disposal of properties under Section 452 Cr.P.C. Notice of the proceedings shall be given to the parties by the learned Appellate judge.
Sd/-
P.UBAID
Ds 10.04.2019 JUDGE