IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 550 of 2002()
1. K.D.NARAYANAN NAIR, S/O.DAMODARAN NAIR,
... Petitioner
Vs
1. STATE OF KERALA REPRESENTED BY THE
... Respondent
For Petitioner :SRI.K.C.PETER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice A.K.BASHEER
Dated :25/06/2008
O R D E R
A.K.BASHEER, J.
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Crl.R.P.No.550 OF 2002
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Dated this the 25th day of June 2008
ORDER
Petitioner was tried for the offence punishable under
Section 380 of the Indian Penal Code on the charge that he had
committed theft of about 2,000 weeklies/magazines/periodicals
from Thodupuzha Head Post Office during the period between
August 1985 to May 29, 1986. The trial court found the
petitioner guilty. He was accordingly convicted and sentenced to
undergo rigorous imprisonment for one year and to pay a fine of
Rs.1,000/- and in default to suffer simple imprisonment for three
months. The above order of conviction and sentence was
confirmed in appeal by the Sessions Court. Hence this revision
petition.
2. As indicated above, the charge against the petitioner
was that he had committed theft of about 2,000
weeklies/magazines from Thodupuzha Head Post Office.
According to the prosecution, these periodicals were addressed
to PWs1, 3 and 4. But the accused had committed theft of these
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postal articles and kept them for sale at the outlet of Sasthra
Sahithya Parishad along with the periodicals and books that were
being published by the said Parishad.
3. Prosecution had examined PWs 1 to 9 and marked
Exts.P1 to P4 and M.O.1 to 17 (series) on its side.
4. PW6 was the prime witness on the side of the
prosecution. He stated that he was working as Complaint
Inspector in the Postal Department between June 2, 1986 and
July 14, 1987 in Idukki Postal Division. He further stated during
the relevant period, he had been officiating as Assistant Postal
Superintendent. According to this witness, PW1 had approached
him on May 29, 1987 and orally complained that several parcels
addressed to him containing weeklies and magazines were found
in the shop of the accused. Therefore, PW6 went to the shop of
the accused along with PWs1 and 3. PW1, was the proprietor of
K.N.G. Book stall and PW3 was running K.V. Baby stores. PW6
deposed before the court that he had seized the
periodicals/magazines addressed to PWs1 and 3 from the shop of
the accused. Ext.P1, seizure mahazar was prepared by him.
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Thereafter, he had filed Ext.P2 complaint before the police,
pursuant to which, the above crime was registered against the
petitioner. Curiously, the First Information Report was not seen
marked in the case. Ext.P2, complaint preferred by PW6 did not
bear any date. The said complaint is seen to have been received
along with the FIR by the court on June 18, 1987. Though a copy
of the FIR is available in the file, it was not marked. FIR was
registered on June 17, 1987 at about 9.30 a.m.
5. As mentioned earlier, PW6 had prepared Ext.P1
inventory or seizure list. Later, police had prepared Ext.P4
seizure mahazar at the Police Station on the basis of the
inventory (Ext.P1) produced by PW6. Police had prepared
Ext.P3, scene mahazar on June 17, 1987. PW6 deposed before
the court that going by the provisions contained in Rule 322 of
volume 8 of P&T Manual, he was empowered to conduct
investigation on receipt of a complaint. But he conceded in cross
examination that he had no authority or power to effect seizure
of any articles. Not only PW6 but PWs1 and 3 also had admitted
that the alleged stolen periodicals/magazines were seized and
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taken into custody after conducting a search at the petitioner’s
premises. They were taken by PW6 to the Police Station. PW6
however admitted before the court that the wrappers of the
magazines containing the address of PWs1 and 3 were not
available in the court when the seized materials were shown to
him while he was being examined in the case.
6. It is significant to note that PW6 and other witnesses had
admitted that Thodupuzha Police Station was about 10m away
from the shop of the petitioner. Surprisingly, PW6 had not
chosen to report the matter to the Police, when PW1 went to him
and lodged an oral complaint. Similarly, PWs1 and 3 had also no
explanation why they did not choose to approach the police.
Stranger still, the police had accepted the alleged stolen articles
from PW6 without any demur or verification. The police had
proceeded as though seizure was effected by PW6 as authorised
under law. Admittedly, the police had not effected any seizure.
PW1, who was in fact the aggrieved person, had not bothered to
give any complaint to the police nor had he given any complaint
in writing to PW6. Ext.P2 complaint was lodged by PW6 before
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the Police. Strangely in Ext.P2 complaint, PW6 had stated that
the accused on his questioning had admitted to have taken
periodicals from Thodupuzha Post Office without the knowledge
of the staff. But curiously in the course of cross examination,
PW6 had admitted that the then Assistant Post Master and
Delivery clerk in the Post Office were also suspected to have
been involved in the crime. The evidence of PW6 undoubtedly
shows that it would not have been possible for an outsider like
the accused to have free access to the section concerned in the
Post Office and walk away with parcels without the aid or
assistance of the employees of the postal department.
I have carefully gone through the deposition of PW6 apart
from that of PWs1 and 3. In my view, the courts below were not
justified in holding the petitioner guilty in the case. The entire
procedure adopted by the investigating agency was thoroughly
irregular. Therefore, the order of conviction and sentence
passed against the petitioner is set aside. Revision Petition is
allowed.
(A.K.BASHEER, JUDGE)
jes
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A.K.BASHEER, J.
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Crl.R.P.No.550 OF 2002
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ORDER
Dated 25thJune 2008