{"id":162071,"date":"2005-03-15T00:00:00","date_gmt":"2005-03-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hashim-vs-state-of-kerala-on-15-march-2005"},"modified":"2015-08-19T00:19:21","modified_gmt":"2015-08-18T18:49:21","slug":"hashim-vs-state-of-kerala-on-15-march-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hashim-vs-state-of-kerala-on-15-march-2005","title":{"rendered":"Hashim vs State Of Kerala on 15 March, 2005"},"content":{"rendered":"
Kerala High Court<\/div>\n
Hashim vs State Of Kerala on 15 March, 2005<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCrl Rev Pet No. 608 of 1996()\n\n\n\n1. HASHIM\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.K.S.MADHUSOODANAN\n\n                For Respondent  :PUBLIC PROSECUTOR\n\nThe Hon'ble MRS. Justice K.HEMA\n\n Dated :15\/03\/2005\n\n O R D E R\n                                           K. HEMA, J.\n\n                          ---------------------------------------\n\n                                  CRL.R.P.No.608 OF 1996\n\n                           ----------------------------------------\n\n                     Dated this the 15th  day of March, 2005\n\n\n\n                                            O R D E R\n<\/pre>\n
        The revision petitioner is the first  accused  in C.C.No.347  of 1991 on<\/p>\n
the  file   of   the   Judicial  Ist   Class   Magistrate’s   Court-I,   Ernakulam.     He     was<\/p>\n
convicted   and sentenced   to   undergo  rigorous  imprisonment for  one year<\/p>\n
for the offence under Section 379 IPC.  The  second  accused  was acquitted<\/p>\n
of  the  alleged offence.  The petitioner moved an appeal as Crl.A.No.257 of<\/p>\n
1993  before  the  Session’s Court  and,  it  was heard and disposed of as per<\/p>\n
judgment   dated   25.6.1994   by   the   Fifth   Additional   Session’s     Judge,<\/p>\n
Ernakulam.       The    conviction     and  sentence  passed  against  the    petitioner<\/p>\n
were  confirmed  and  the   appeal   was dismissed.  Hence this revision.<\/p>\n
        2.      According     to   prosecution,   petitioner     along   with     second<\/p>\n
accused,  who  was acquitted by the trial court, committed theft of  a  motor<\/p>\n
bike   bearing No.KBF 1976 while it was parked by the side of the road near<\/p>\n
the Medical Trust   Hospital,   Ernakulam. The   bike   belonged to PW2, and it<\/p>\n
was used by PW1 who had parked the vehicle by the side of the road.  PW1<\/p>\n
lodged a complaint, after exhausting all   the   attempts   to   trace   out   the<\/p>\n
vehicle,  before the police on 9.2.1991. The incident occurred on 8.2.2001 at<\/p>\n
about 8.45 p.m.    A crime  was  registered  as Crime No.46 of 1991 before<\/p>\n
the Town South Police Station, Ernakulam.\n<\/p>\n
        3.      In   the   course   of   investigation,     first   accused   was   allegedly<\/p>\n
arrested on 23.4.1991 by the Circle Inspector  of  Police,   Ernakulam  Town<\/p>\n
Police   Station,   in   connection   with     Crime     No.128     of     1991.             When<\/p>\n
petitioner   was   questioned, he gave information that   number of the motor<\/p>\n
bike was changed to KED 1796 from KBF 9876 and that petitioner along with<\/p>\n
co-accused   were proceeding   on   the   bike, while AMVI apprehended them<\/p>\n
and   that   the   vehicle   was   kept   in   the   A.R.Camp.     The   AMVI,   PW3     was<\/p>\n
         CRL.R.P.608\/96                        2<\/span><\/p>\n
questioned  by  the  Circle Inspector of Police, PW10. Thereafter, the accused<\/p>\n
was got identified by  PW3.    The vehicle was  seized  from  the  A.R.Camp<\/p>\n
by   PW10.     After   completion   of   investigation,   a   charge   was   laid   against<\/p>\n
petitioner and second   accused   before   the   Judicial First Class Magistrate’s<\/p>\n
Court, Ernakulam.\n<\/p>\n
        4.       On going  through  the  judgment  of   trial  court  as  well  as<\/p>\n
revisional court it can be seen  that  both  courts  have  relied  upon  mainly<\/p>\n
the  evidence    of   PW1   to  find   the   petitioner   guilty   of  offence   under   Section<\/p>\n
379 IPC.   On going through narration of the   prosecution   case,   it   is seen<\/p>\n
that   there are several circumstances   which can   be   proved in this case to<\/p>\n
bring  home   the   guilt  of the  petitioner.    Those   are:    (1)  the    riding of    the<\/p>\n
motor   bike   No.KED   1796   by   petitioner   and   seizure   of   the   same   by   PW3,<\/p>\n
AMVI; (2) the  identification of  petitioner  by  PW3  on 6.3.1991, at the time<\/p>\n
of seizure; (3)  the check report and the documents    prepared by   PW3   in<\/p>\n
respect  of the seizure of KED 1796 from petitioner; (4) the production of the<\/p>\n
vehicle KED 1796 by PW3,  AMVI  before  the  City  Traffic  Police;  (5)  the<\/p>\n
documents available in the City Traffic Police in respect of  custody  of  motor<\/p>\n
bike KED 1796 at Traffic Police Station and the evidence of its custodian   at<\/p>\n
the Traffic  Police;  (6)  the  change  of  the number of the vehicle  from  KED<\/p>\n
1796  to  KBF  9876  (as  per   the prosecution case, a painter has changed<\/p>\n
the number of the vehicle  at  the request of the accused); (7) the evidence<\/p>\n
to connect KEB 1796 which is seen to have been driven   by petitioner   and<\/p>\n
the  other  vehicle which is stolen which bears number  KBF  9876;  (8)  the<\/p>\n
evidence  from  the officials of A.R.Camp with respect to the manner in which<\/p>\n
the     vehicle   reached     A.R.Camp;   (9)   the   seizure   of   the   vehicle   from   the<\/p>\n
A.R.Camp   and   related   documents;   and   lastly,   (10)   the   confession   of<\/p>\n
petitioner which  has  led  to  the discovery of a relevant fact.<\/p>\n
        5.       The   above   are   the several links in the chain of circumstantial<\/p>\n
evidence.   It  is  well  settled that  in  a case where circumstantial evidence,<\/p>\n
each  link has to be independently established and   the   prosecution has  to<\/p>\n
         CRL.R.P.608\/96                          3<\/span><\/p>\n
establish the case without a missing link. In this case, many of the links of<\/p>\n
the circumstantial evidence were not attempted to be established.  Some  of<\/p>\n
the     circumstances   which   were   attempted     to   be   proved   were   not   proved<\/p>\n
also. The courts below have   not   considered   the   evidence   in accordance<\/p>\n
with     the     well-settled   principles     and     rules     governing   appreciation   of<\/p>\n
evidence     and     especially,     a   prosecution   case,   based   on   circumstantial<\/p>\n
evidence.\n<\/p>\n
        6.       Both courts  proceeded  on   the   basis that PW3   identified first<\/p>\n
accused correctly.   On a close perusal of his evidence, it can be seen   that<\/p>\n
PW3 allegedly   saw   first  accused  on  6.3.1991  and identified him for the<\/p>\n
first   time   in     court   on   8.3.1993,   years   later.   The   appellate   court   held   that<\/p>\n
there was identification  in  between the said  period  before the Police.  But,<\/p>\n
court below has  not   looked  into  the  evidence  on   this    aspect.   Firstly,<\/p>\n
there is total inconsistency with respect to the evidence  on  identification of<\/p>\n
petitioner by PW3 before the Police.  PW3 would state in the evidence that it<\/p>\n
was   in   the   first   week   of   March,   1991   that   he   had   seen   the   petitioner   and<\/p>\n
immediately after one week,   Police   had brought   petitioner to him and he<\/p>\n
had identified him. Curiously,   prosecution does not have such a case.       As<\/p>\n
per   the  prosecution  case, it is more  than one-and-a-half months  after the<\/p>\n
incident that the accused was  arrested, i.e., on  23.4.1991.<\/p>\n
          7.   PW10   has   given   a   go-by   to   this   case,   at   the   time   of   evidence.<\/p>\n
According   to     PW10,     the     arrest   was     made   on   24.3.1991   and   the<\/p>\n
identification by PW3 also appears to be made on the same day.  But,  PW1<\/p>\n
had   not   recorded   the   statement   of   PW3   with   respect   to   the   factum   of<\/p>\n
identification.       Even   if   any   statement is recorded,   such statement   was<\/p>\n
admittedly  not given  to   accused.   In  the  above  circumstances, no value<\/p>\n
can be attached to the evidence given by  PW10,  who  has  given evidence<\/p>\n
in respect of arrest which is a crucial event. His evidence is not   consistent<\/p>\n
with  the  prosecution case in respect of the date of arrest and also the date<\/p>\n
of identification, as revealed from records.   This inconsistency  cuts the route<\/p>\n
         CRL.R.P.608\/96                          4<\/span><\/p>\n
of the prosecution case and it is also inconsistent with the evidence given by<\/p>\n
PW3. The   very   edifice of   the   evidence,   in   relation to the identification,<\/p>\n
therefore,   falls   to   the     ground     and       court   below   failed   to   assess   the<\/p>\n
inconsistency in the evidence   of PW3, PW10 and also the prosecution case<\/p>\n
with respect to arrest and identification.\n<\/p>\n
        8.       It can  also be    seen    that   even    if   the  prosecution    case    is<\/p>\n
admitted,     prosecution has not established sufficient materials   to   connect<\/p>\n
the   motor  bike   which   was    allegedly driven by petitioner with the stolen<\/p>\n
bike.     There   is   lack   of   evidence   in   this   case.   PW3   gave   evidence   that   the<\/p>\n
petitioner was  found  driving motor  bike  KEB  1796 and that it was handed<\/p>\n
over  to   Traffic Police.    But  according  to    PW10’s    evidence,     petitioner  has<\/p>\n
given a statement to him that the bike was given to   the   A.R.Camp.     The<\/p>\n
alleged   statement   given   by   the   accused   to   PW10   in  respect   of     the     place<\/p>\n
where  the bike was   handed   over   is  also  inconsistent.    The prosecution<\/p>\n
has   also   failed   to   establish     that     the     bike   was   seized       from       the<\/p>\n
A.R.Camp.       It   has   not   been established by cogent evidence as to   how<\/p>\n
and  under  what circumstances  the  bike  happened to be in the A.R.Camp.<\/p>\n
The   bike   bearing   registration     No.KED     1796     is     the     one   driven     by<\/p>\n
petitioner, and as per evidence of PW3 it was given to the City  Traffic  Police<\/p>\n
Station.       No recovery   is   made   from the City Traffic Police Station. The<\/p>\n
petitioner has no case that the bike  driven  by  him was given  to  the  City<\/p>\n
Traffic Police  Station.   PW10 is mysteriously silent of  the  place  from  where<\/p>\n
from the bike is seized.    The evidence is shabby on this aspect.<\/p>\n
        9.       The prosecution has to connect each  link and  form  a chain of<\/p>\n
circumstantial evidence, but it has failed to do so.  Te most  crucial  evidence<\/p>\n
is  with  respect to the change in the number of the bike and the  deliberate<\/p>\n
attempt  to  erase  the  number  and substitute it  by  a  new  number.    The<\/p>\n
bike stolen is bearing registration No.KBF 9876, but as per the evidence on<\/p>\n
record the bike driven by petitioner is KED   1796. The   prosecution   has   a<\/p>\n
duty to establish that the number of the stolen bike was changed. The person<\/p>\n
         CRL.R.P.608\/96                             5<\/span><\/p>\n
who   was   cited   to   prove   that   petitioner   has   instructed   him   to   change   the<\/p>\n
number did not support prosecution while examined as PW5. He has totally<\/p>\n
deviated   prosecution   case   and   denied   petitioner’s   involvement     in   any<\/p>\n
manner.  He  has  not  given  any incriminating evidence against  petitioner.<\/p>\n
But   curiously,   PW5       was   not   treated     or     declared   as   hostile.     Therefore,<\/p>\n
there   is   no   reason   to   reject   the   evidence   of   PW5,   which   will   go     against<\/p>\n
prosecution case.       The   prosecution   has   thus not only failed to establish<\/p>\n
the connection of the stolen  article with    petitioner, but the witness cited to<\/p>\n
prove   the   aspect,   namely,   PW5   has   given   evidence   inconsistent     with   the<\/p>\n
prosecution  case.    In the above circumstances,  conviction entered against<\/p>\n
petitioner     based     on     the   evidence     of     PW3     that     he   has   identified<\/p>\n
petitioner   correctly   is     totally     unsustainable.         The     presumption   drawn<\/p>\n
based   on   such   shabby   evidence   that   the   petitioner   committed     theft     of<\/p>\n
alleged   bike,   especially   in   the absence    of   any material to connect him<\/p>\n
with the stolen bike is also illegal.  Both the courts below committed serious<\/p>\n
illegality  in  appreciating  the evidence.\n<\/p>\n
        10.      A   perusal   of   the  records  and  the judgments of the  courts<\/p>\n
below  will  clearly  show  non application of  mind.   The value of evidence of<\/p>\n
PW3 has not  been  properly  assessed.    The individual  testimony  of  the<\/p>\n
witnesses     has     not     been   discussed   to   assess   the   reliability     of     the<\/p>\n
prosecution   case.         The       courts     below     have     not     considered     each<\/p>\n
circumstance   independently   and   find   out   whether    the prosecution has<\/p>\n
established   each   link   in   the   chain   of   the   circumstances.         The       entire<\/p>\n
evidence  is  full  of inconsistencies, but the courts below  ignored  the  same<\/p>\n
and   failed   to   consider  that  how such inconsistencies discredited not only<\/p>\n
the     individual     evidence,     but     the   prosecution   case     as   a   whole.     The<\/p>\n
judgment   is   brought   with   faulty   reasoning   and   lack   of   judicial   approach.<\/p>\n
Accepted canons for appreciation of evidence have been thrown to  the wind<\/p>\n
by   lower courts and   this   has   resulted   in   serious miscarriage of justice<\/p>\n
and     hence     this     Court     will     be     justified     in   interfering,   in   view   of   the<\/p>\n
         CRL.R.P.608\/96                            6<\/span><\/p>\n
illegalities mentioned.\n<\/p>\n
        In   the   result,   the   order   of   the     court     below     is   set   aside.         The<\/p>\n
conviction and sentence passed against the petitioner under Section 379 IPC<\/p>\n
are  set  aside  and the petitioner is set at liberty forthwith.<\/p>\n
        This revision is allowed.\n<\/p>\n<\/p>\n
                                                                  K.HEMA, JUDGE<\/p>\n
vgs.\n<\/p>\n<\/p>\n
         CRL.R.P.608\/96        7\n\n\n\n\n\n                                         K.HEMA, J.\n\n                           ----------------------------------\n\n                                    CRL.R.P.NO.608 OF 1996\n\n                           ----------------------------------\n\n\n\n\n\n                                          O R D E R\n\n\n\n\n\n                                          15.03.2005\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Hashim vs State Of Kerala on 15 March, 2005 IN THE HIGH COURT OF KERALA AT ERNAKULAM Crl Rev Pet No. 608 of 1996() 1. HASHIM … Petitioner Vs 1. STATE OF KERALA … Respondent For Petitioner :SRI.K.S.MADHUSOODANAN For Respondent :PUBLIC PROSECUTOR The Hon’ble MRS. Justice K.HEMA Dated :15\/03\/2005 O R D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-162071","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nHashim vs State Of Kerala on 15 March, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hashim-vs-state-of-kerala-on-15-march-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hashim vs State Of Kerala on 15 March, 2005 - 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