Ayoob vs State Of Kerala

This Criminal Revision Petition has been preferred by the appellant in Crl. Appeal No.268 of 2015 on the file of the Additional Sessions Court-II, Manjeri against the judgment dated 9.12.2016 confirming the conviction rendered by the Chief Judicial Magistrate, Manjeri in C.C No.125 of 2014 under Section 392 r/w 34 IPC and reducing the sentence to Rigorous imprisonment for two years and to pay a fine of Rs.20,000/-.

The prosecution case is that on 26.5.2011, at about 7.30 p.m. when the defacto complainant was walking along the Manjeri-Nilamboor Highway towards his quarters, accused persons 1 and 2 in furtherance of their common intention to rob him, pushed him to the side of the road to a depth of about 8 meters, tied his hands and legs using a piece of cloth, robbed his purse kept in his pocket, containing Rs.4,100/-, ATM card and identity card, after putting him in fear of death.

The evidence in the case consists of the oral testimonies of PWs 1 to 6 and Exhibits P1 to P10. MOs1 and 2 were identified. No evidence was adduced by the accused persons. After evaluating the evidence on record, the trial court convicted both the accused persons and sentenced them to undergo rigorous imprisonment for five years and to pay a fine of Rs.20,000/- each.

The 1st accused preferred Crl.A.268 of 2015 and 2nd accused preferred Crl.A.28 of 2016 before the Additional Sessions Court Manjeri. The appellate Court while sustaining the conviction, reduced the punishment to rigorous imprisonment for two years and to pay a fine of Rs.20,000/- each as per the common judgment dated 9.12.2016. Dissatisfied with the above judgment of the Appellate Court, the 1st accused preferred this revision raising various grounds.

Now, the point that arise for consideration is the following:

Whether the judgment of conviction and sentence passed by the trial court against the revision petitioner, as modified by the Appellate Court is liable to be interfered with, in the light of the grounds raised in the revision petition?

Heard Adv. Sri. C Dinesh, who appeared on behalf of the revision petitioner and Smt. Maya M.N., the learned Public Prosecutor.

It was argued by the learned counsel for the revision petitioner that in the FI statement, there was no case for the defecto complainant that he has lost the identity card. However, the revision petitioner was ultimately found guilty mainly on the basis of the recovery of the identity card of defacto complainant from the residence of the revision petitioner. It was argued that recovery of MO2 identity card and MO1 purse relied upon by the prosecution are fake and liable to be rejected. Further according to him, there was no proper identification of the revision petitioner by the defacto complainant before the court. Absence of medical evidence was also relied upon by the learned counsel for the revision petitioner. In the light of the above grounds, he prayed for acquittal of the revision petitioner. On the other hand, the learned Public Prosecutor would argue that in this case, there is sufficient evidence to prove the charge against the revision petitioner. Therefore, she prayed for dismissing the revision petition.

As argued by the learned counsel for the revision petitioner, in Exhibit P1 FI Statement, the defacto complainant, namely PW1 had no case that the assailants stolen his identity card also, along with his purse containing money. The FI statement given to the police on 26.5.2011, is to the effect that while he was working as Cashier in KSEB, Manjeri North Office, his purse containing Rs.4,100/-, ATM card of SBT and a receipt in respect of pledging of gold, was robbed by two identifiable persons. According to him, the assailants torn the dhoti worn by him, tied his hands and mouth and exhorted to kill him. On hearing the noise, some persons who came at the roadside asked about what is going on there. On hearing the same, the assailants flew towards the forest. Some persons came there and untied his hands. Because of the fall to a depth of about 15 feet, he sustained injuries and hence he first went to the District Hospital and thereafter went to the police station and given Exhibit P1 FI statement.

On a perusal of the FI statement itself, it can be seen that as per the above first information given to the police, in the purse robbed by the assailants, there was only cash, an ATM card of SBT and receipt for pledge of gold. The prosecution could not recover the above cash, ATM card or receipt in respect of pledge of gold ornaments. What are recovered are only MO1 purse and MO2, ID Card.

When the defacto complainant was examined as PW1, he deposed that he along with the assailants alighted from the same bus and thereafter walked along the road in the same direction. At first they told him that their vehicle got punctured and asked him whether there is any workshop known to him. Thereafter, they were moving towards his quarters and on the way, the assailants pushed him down and robbed him.

According to PW1, at Manjery Police Station, the police showed him some photographs, in which photographs of accused persons were not there. Thereafter at Nilamboor Police Station, some more photographs were shown in which he identified the photographs of the accused persons. However, PW6, the investigating officer would swear that no such statement was given by PW1 to the effect that he has seen the photographs of accused persons at Nilamboor Police Station. Though PW1 claimed that he had given statement to the effect that he lost his ID card in the incident, no such statement was given. According to PW1, in the incident, he sustained injury to his leg, as his leg came into contact with a broken glass and in that respect, he obtained treatment from the District Hospital. Those records were not handed over to the investigating officer. The investigating Officer also has not seized those records and produced before the Court.

When PW6, the investigating officer was examined, he deposed that on the basis of the information furnished by the 1st accused, he recovered MOs1 and 2 from the residence of the accused. The alleged recovery was on 12.1.2014, while the alleged incident was on 26.5.2011. On seeing MO1 purse PW1 himself admitted that the said purse is in a damaged condition. As argued by the learned counsel for the revision petitioner, recovery of the stolen purse from the residence of the accused after about 21/2 years is a suspicious one. In order to prove the recovery, the prosecution has not examined any witness. The confession statement allegedly given by the revision petitioner was not narrated or disclosed by the investigating officer, when he was examined before the court. Therefore, in the deposition of PW6, the alleged disclosure statement does not find a place.

Exhibit P7 is the seizure mahazar, as per which MOs 1 and 2 were recovered from the residence of the revision petitioner. During the cross examination, PW6 admitted that the disclosure statement give by the revision petitioner was recorded only in Exhibit P7 and not recorded anywhere else. If so, the disclosure statement of the revision petitioner was recorded while preparing Exhibit P7, at the residence of the revision petitioner, which is quite unbelievable. Absence about loss of ID Card in Exhibit P1 FI Statement as well as in the previous statement of PW1 and its subsequent recovery after 21/2 years as per Exhibit P7 Mahazar creates more suspicion in the genuineness of the recovery effected by PW6.

With respect to the identity of the accused persons the evidence given by PW1 is to the following effect:

“പ ത കളഅറ യ  . അത ള  ര ള ഇന  ഹ ജര ള.”

In this context, it is to be noted that even according to PW1, the police has shown to him the photograph of only the 1st accused and there was no occasion for him to identify the 2nd accused before the trial court. From the above evidence given by PW1 before the court, it is not clear as to whether he identified A1 or A2. Though during the cross examination, at one stage, he deposed as above, at another stage he stated that he had seen the photographs of both the accused persons at the police station. PW1 has no case that revision petitioner was previously known to him. In this case, no TI parade was also conducted. PW6 has no case that the photographs of the revision petitioner was shown to PW1 before 12.1.2014. Therefore, the contradictory versions of PW1 that he had seen the photograph of 1st accused alone at the police station and the other version that he had seen the photographs of both the accused at the police station, could not be believed. In the above circumstances, from the available evidence, it is to be held that PW1 has not properly identified the revision petitioner before the court.

As I have already noted above, the recovery of MO1 and 2 is highly suspicious. There was no proper identification of the revision petitioner before the court. Non-production of the available medical evidence also casts suspicion on the veracity of the prosecution case. In the light of the above circumstances, I am constrained to hold that the prosecution has not succeeded in proving the charge against the revision petitioner, beyond reasonable doubt and as such he is entitled to get an order of acquittal. Point answered accordingly.

In the result, this revision petition is allowed. The impugned judgment of the learned Chief Judicial Magistrate, Manjeri in C.C No.125 of 2014 as modified by the Sessions Judge in Crl. Appeal No.268 of 2015 as against the revision petitioner is set aside. The revision petitioner is found not guilty and he is acquitted under Section 386 (b)(i) Cr.P.C. He is set at liberty cancelling his bail bond.