High Court Kerala High Court

K.D.Narayanan Nair vs State Of Kerala Represented By The on 25 June, 2008

Kerala High Court
K.D.Narayanan Nair vs State Of Kerala Represented By The on 25 June, 2008
       

  

  

 
 
  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.

Crl.R.P.No.550 OF 2002
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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

Crl.R.P.No.550 OF 2002
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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

Crl.R.P.No.550 OF 2002
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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