IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2708 of 2004()
1. N.SHIVADASAN, S/O.BALAN,
... Petitioner
Vs
1. HASEENA BHANU, D/O.MUSHRATH BHANU,
... Respondent
2. ISHRATH BHANU,
3. FATHIMA SABIYA BHEEGAM,
4. THE STATE OF KERALA,
For Petitioner :SRI.C.K.SUDHEER
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.K.MOHANAN
Dated :20/06/2008
O R D E R
V.K.MOHANAN, J.
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CRL.M.C. No.2708 of 2004
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Dated, 20th June, 2008.
ORDER
This Crl.M.C. is filed by the de facto complainant in
C.C.No.172/2001 on the file of the Judicial First Class
Magistrate’s Court-I, Kannur challenging the concurrent
finding of the trial court as well as the lower revisional
court by which the respondents 1 to 3 were acquitted off
the offence punishable under sections 380 of IPC.
2. The allegation against respondents 1 to 3/accused
is that on 26-2-2001 at about 11 a.m., they entered into
the shop viz., M/s. Ambika Jewelleries at Kannur under the
pretext of purchasing gold ornaments and stolen away
four bangles weighing about 94.6 grams. Only in the
evening when the stocks were verified, the theft came to
light and immediately a complaint was filed before the
Town police Station, Kannur suspecting the respondents
having committed the crime. Annexure-I is the copy of the
complaint. Based upon Annexure-1 complaint, Crime
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No.125/2001 was registered in the Kannur police station for
the offence punishable under Section 380 read with S.34 of
IPC. The police, after investigation, filed final report based
upon which the trial court took cognizance and instituted
C.C.No.172/2001. During the course of trial, PWs 1 to 7 were
examined as prosecution witnesses and marked Exts.P1 to P5
on the side of the prosecution. M.O-1 bag identified as
material object. No evidence either oral or documentary
adduced from the side of defence.
3. The trial court by its judgment dated 4-2-2004 found
that the evidence adduced by the prosecution is really
inadequate and insufficient to believe that the accused
persons had actually committed theft and also found that
the prosecution has failed to establish its case beyond all
reasonable doubt. Aggrieved by the order of acquittal passed
by the trial court, the petitioner herein preferred
Crl.R.P.No.32/2004 before the Sessions Court, Thalassery. By
judgment dated 21-7-2004, the Sessions Court found that the
trial court has considered the evidence let in by the
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prosecution, appreciated the same and found that the version
of the prosecution is improbable and the benefit of doubt to
the accused was granted and acquitted them. Thus refusing to
exercise the revisional power of the court below, the Sessions
Judge dismissed the Crl.revision petition. It is the above
concurrent judgments of the court below are under challenge
in this proceedings under section 482 of Cr.P.C.
4. The main contention in this petition is that the court
below failed to appreciate the evidence of PWs 1 to 3 in
proper sense and the minor variations occurred in the
evidence of PWs 1 to 3 ought not have been considered as
relevant and minor variation in the weight of ornaments need
not have been considered after giving much importance.
According to the petitioner, the finding of the trial court that
the incident was at about 11 a.m. is not correct but it was at
about noon. It is also challenged the finding of the court
below that the prosecution has not seized the stock register
to prove that actually the bangles were stolen. It is averred
that it is a wrong ground for acquittal because no one had
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put forth a plea that ornaments were not actually stolen from
the shop. It is also further case of the petitioner that the
minor variation regarding the weight of the ornaments is not at
all a ground for acquittal. It is submitted by the petitioner
that in the complaint it is shown that only 94 grams were
stolen but in the deposition it is stated as 94 grams and 6oo
ml. So according to the petitioner/complainant, he has stated
about the weight only approximately as 94 grams. Therefore,
according to the petitioner, the trial court ought not have held
that the complainant has not mentioned the correct weight
but, during examination, the correct weight was given in the
deposition. So, though correct weight was given through the
deposition, the variation regarding the weight , i.e. 0.6 grams
cannot be treated as a valid ground for acquittal. The
petitioner also attacked the grounds on which the accused
were acquitted on the basis of identity. The failure on the part
of PW-2 to identify the accused was not a ground to acquit
the accused since the accused have no case that they never
visited the shop. According to the petitioner, the court below
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held that PW-2 could identify only Accused 1 and 3 and not
Accused No.2. So, the acquittal of the accused on the ground
that the witnesses could not identify the accused is incorrect.
Another ground is that the accused had miserably failed to
explain under what circumstances they were in possession of
Rs.19110/-, especially, in the background that they had no
case that they had not visited the shop. According to the
petitioner, it is brought out in evidence that the accused were
arrested when they attempted to commit similar offence in a
shop at Thalassery. The trial court had not only failed to note
the above aspect but also acquitted the accused due to the
minor variations in the deposition of the witnesses. It is also
the case of the petitioner that the Sessions Court went wrong
in taking decision in the revision petition against the order of
acquittal.
5. I have gone through the materials available on
record and the judgments of the trial court as well as the
revisional court. Going by the judgment of the trial court, it
appears that all the contentions and legal questions involved
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in the case have been elaborately considered by the trial
court and came into its conclusion after appreciating the
evidence. After a close analysis of the entire materials , the
trial court found that there was delay in lodging the complaint
and there is no explanation what so ever. It is also held by
the trial court that there is no consistent version regarding the
time of occurrence. After analyzing the evidence of PW-1, the
trial court found that PW-1 has got incongruous version about
the transaction that took place in the shop especially that
three purdahnishant ladies had taken possession of gold
bangles. Regarding the quantity of gold ornaments and its
weight, there is no uniform version and there is glaring
variation regarding the weight of the ornaments alleged to
have been stolen. So, after an elaborate appreciation of the
evidence of P.Ws 1 to 3, and other evidence, the trial court
came into a conclusion that the evidence adduced by the
prosecution is inadequate and insufficient to believe that the
accused persons had actually committed theft as claimed by
the prosecution. Thus, the trial court found that the
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prosecution failed to establish the case beyond reasonable
doubt. After the appreciation of the evidence on record, the
lower revisional court also found that the learned Magistrate
found loopholes in the prosecution evidence and after
considering the evidence gave the benefit of doubt to the
accused and accordingly they were acquitted. Hence, the
revisional court was also declined to interfere with the order
of acquittal.
6. From the above discussion, it appears to me that
both the trial court as well as the lower revisional court have
appreciated the evidence in its correct perspective and after
having found that the prosecution has miserably failed to
establish its case beyond doubt, acquitted the
accused/respondents 1 to 3. No case is made out to take a
different view apart from the view taken by the trial court as
well as the revisional court. In the absence of strong case so
as to warrant interference of this Court with the concurrent
findings of the courts below, this petition is only to be
dismissed and I do so.
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In the result, the Crl.M.C. is dismissed as devoid of any
merit.
V.K.MOHANAN, JUDGE
kvm/-
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V.K.MOHANAN, J.
No….
Judgment/Order
Dated: