High Court Kerala High Court

N.Shivadasan vs Haseena Bhanu on 20 June, 2008

Kerala High Court
N.Shivadasan vs Haseena Bhanu on 20 June, 2008
       

  

  

 
 
  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.
          ----------------------------------------------
                  CRL.M.C. No.2708 of 2004
          ----------------------------------------------
                   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

CRL.M.C.2708/04
-:2:-

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

CRL.M.C.2708/04
-:3:-

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

CRL.M.C.2708/04
-:4:-

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

CRL.M.C.2708/04
-:5:-

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

CRL.M.C.2708/04
-:6:-

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

CRL.M.C.2708/04
-:7:-

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.

CRL.M.C.2708/04
-:8:-

In the result, the Crl.M.C. is dismissed as devoid of any

merit.

V.K.MOHANAN, JUDGE

kvm/-

CRL.M.C.2708/04
-:9:-

V.K.MOHANAN, J.

No….

Judgment/Order

Dated: