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2025 DIGILAW 2431 (KER)

Vipin, S/o. Karappan v. State Of Kerala

2025-09-11

M.B.SNEHALATHA

body2025
ORDER : M.B. SNEHALATHA, J. By this judgment, Crl.R.P.No.81/2018 filed by the 1 st accused and Crl.R.P.No.80/2018 filed by the 2 nd accused in C.C.No.455/2011 of Judicial First Class Magistrate Court I, Manjeri from the judgment of conviction and order of sentence passed against them for the offence under Section 379 r/w Section 34 of the Indian Penal Code (for short ‘IPC’) are being jointly disposed of. 2. The prosecution case is that on 16.8.2009 at around 3 pm. accused 1 and 2 snatched the gold chain weighing 7.2 grams worn by the defacto complainant’s child while the child was standing in the sit out of the house at Cherumannu and thereby committed the offence punishable under Section 379 r/w Section 34 of IPC. 3. Accused pleaded not guilty to the charge and claimed to be tried. 4. To substantiate the charges levelled against the accused, prosecution examined PWs 1 to 4 and marked Exts.P1 to P8. When the accused were examined as envisaged under Section 313 (1)(b) Cr.P.C, they denied all incriminating circumstances brought against them in the prosecution evidence and maintained that they are innocent and they were falsely implicated. No defence evidence was adduced by the accused. 5. After analysing the evidence, the learned Magistrate convicted both the accused for the offence punishable under Section 379 r/w Section 34 of IPC and they were sentenced to undergo simple imprisonment for six months each. Challenging the conviction and sentence, 1 st accused preferred Crl.A. No.407/2014 and 2 nd accused preferred Crl.A No.408/2014 before the Sessions Court, Manjeri. Both the appeals were dismissed by the judgments impugned in these two revision petitions. 6. It was contended by the accused that the trial court and the appellate court went wrong in appreciating the evidence in its correct perspective and failed to take note of the inconsistencies and discrepancies in the prosecution case. Further, it was contended that the recovery allegedly made pursuant to the alleged disclosure statement of the accused is inadmissible and unreliable; that the 1 st accused has not given any such disclosure statement and no recovery was effected pursuant to any disclosure statement allegedly made by the 1 st accused. It was contended that the non-examination of the owner or any employees of the finance institution from where the recovery was allegedly effected, is fatal to the prosecution in proving the alleged recovery. It was contended that the non-examination of the owner or any employees of the finance institution from where the recovery was allegedly effected, is fatal to the prosecution in proving the alleged recovery. Further, it was contended that the non- examination of the investigating officer has caused prejudice to the accused and therefore, according to the learned counsel for the revision petitioners, the trial court and the appellate court went wrong in convicting and sentencing the accused and therefore, the conviction and sentence are liable to be set aside by allowing these revision petitions. 7. Per contra, the learned Public Prosecutor supported the findings of the trial court and the appellate court and contended that there are no material contradictions in the testimony of PW1 to PW4; that the prosecution has established the guilt of both the accused beyond any reasonable doubt and there are no grounds to interfere with the impugned judgment of conviction and sentence. 8. As stated above, the prosecution case is that on 16.8.2009 at 3 pm, while the defacto complainant’s daughter, aged 2½ years was standing in the sit out of his house at Cherumannu, accused 1 and 2 came on a motorcycle cycle and the 1st accused snatched the gold chain weighing 7.2 grams worn by the said child and thereafter the accused sped away on the motorcycle. 9. It is the prosecution case that on 26.8.2009 at 3 am, while PW1, the Sub Inspector of Police, Manjeri, along with his team were on patrolling duty, accused 1 and 2 were found hiding near the shutter of Picnic Bar, Manjeri, Malappuram. Since their presence there at the odd hours was found suspicious, the police party interrogated them and upon interrogation, accused could not furnish a satisfactory explanation for their presence at the wee hours. Accordingly, PW4 arrested them and a case was registered as Crime No.508/2009 under Section 41 Cr.P.C. His further version is that upon interrogation, 1 st accused made a revelation that he had snatched a gold chain worn by a child who was standing in a house at Edavanna and stated that if he is taken to Edavanna, Cherumannu, he would show the said house. 1 st accused also made a disclosure statement that he pledged the gold chain at 'Muthoot Fincorp, Edakkara Branch'. 1 st accused also made a disclosure statement that he pledged the gold chain at 'Muthoot Fincorp, Edakkara Branch'. PW4 has further testified that pursuant to the said disclosure statement, 1 st accused was taken to the house of PW1 at Edavanna, Cherumannu and also to the 'Muthoot Fincorp Edakkara branch' wherein the stolen gold chain was pledged. According to PW4, the Manager of the Muthoot Fincorp identified the accused and produced the gold chain pledged by the accused. PW4 seized the said gold chain along with certain other stolen articles involved in other crimes, which were pledged by the accused in the said finance institution. According to PW4, Ext.P6 is the seizure mahazar prepared by him for the recovery effected; that item No.4 in Ext.P6 seizure mahazar is the gold chain recovered from the 'Muthoot Fincorp, Edakkara branch' and it was produced before the court as per Ext.P7 property list. PW4 has further testified that Ext.P8 is the relevant portion of the disclosure statement made by the 1 st accused . Further version of PW4 is that since the place of occurrence was within the limits of Edavanna Police Station, he transferred the case records to Edavanna Police Station. 10. PW3, the Civil Police Officer of Manjeri Police Station has testified that on 26.8.2009 he had accompanied PW4 for the patrolling duty; that on that day at about 3 am, when they reached near the 'Picnic Bar Manjeri', accused 1 and 2 were found hiding near the shutter of the said bar in suspicious circumstances and accordingly PW4 arrested them; that upon interrogation, they made a revelation that they snatched the gold chain worn by a child from a house at Edavanna. 11. PW1 is the defacto complainant. According to him, on 16.8.2009 at 3 pm, while his child was playing in the sit out of his house at Edavanna, Cherumannu, two persons who came on a motorcycle snatched the gold chain worn by his child. According to him, upon hearing the cry of the child when he rushed to the sit out, he could see the thieves escaping on a motorcycle. His further version is that he could identify the assailants while they were fleeing away on the motorcycle. He has further testified that the police had subsequently brought the thieves to his house for identification. His further version is that he could identify the assailants while they were fleeing away on the motorcycle. He has further testified that the police had subsequently brought the thieves to his house for identification. He has also testified that when the stolen property was produced before the court by the police, he got interim custody of the same by executing a bond. 12. There is no reason for this Court to disbelieve the version of PW1 that on 16.8.2009 at 3 pm. while his child was playing in the sit out of his house at Edavanna, Cherumannu, two persons came on a motorcycle and snatched the gold chain worn by his child. Now, let us see whether the prosecution has succeeded in establishing the culpability of the accused in the commission of the crime. 13. Though PW4 would say that he arrested the accused on 26.08.2009 in Crime No.508/2009 of Manjeri Police Station, as they were found in suspicious circumstances, prosecution has not produced the said FIR or a copy of the same. According to PW4, at the time when the accused 1 and 2 were arrested in Crime No.508/2009, 1 st accused made a revelation regarding the incident in this crime, which took place on 16.08.2009 and accordingly, he registered Ext.P4 FIR. Further case of PW4 is that pursuant to Ext.P8 disclosure statement made by the 1 st accused, both the accused were taken to ‘Muthoot Fincorp, Edakkara Branch’; that the Manager of the said finance institution identified the accused and the Manager produced the gold chain pledged by the 1 st accused in the said institution and PW4 seized it as per Ext.P6 seizure mahazar and item No.4 in Ext.P6 seizure mahazar is the gold chain involved in this crime. Though the prosecution would contend that the accused made Ext.P8 disclosure statement while he was in custody in Crime No.508/2009 of Manjeri Police Station, prosecution has not adduced any evidence to show that Ext.P8 disclosure statement was made by the 1 st accused while he was in custody in another crime. Though the prosecution would contend that the accused made Ext.P8 disclosure statement while he was in custody in Crime No.508/2009 of Manjeri Police Station, prosecution has not adduced any evidence to show that Ext.P8 disclosure statement was made by the 1 st accused while he was in custody in another crime. In this context, it is also to be borne in mind that though the case of the prosecution is that pursuant to the disclosure statement made by the 1 st accused, accused were taken to ‘Muthoot Fincorp, Edakkara Branch’ and recovery was effected in the presence of the Manager of the said institution and the Manager of the said institution identified the accused as the persons who pledged the gold ornaments, prosecution failed to examine the manager of the said finance institution or any employee of the said institution, so as to substantiate the case of the prosecution that the accused had pledged the gold ornament in the said institution as alleged by the prosecution. No register or any other document was also seized from the said institution to show that the said gold was pledged there by the accused. If the accused had pledged the gold chain in Muthoot Fincorp, Edakkara Branch, as alleged by the prosecution, naturally, there would be documents evidencing the pledging of gold ornaments. The non- examination of the Manager of the Muthoot Fincorp or any other employee of the said institution, so as to speak about the pledging of gold ornaments in the said institution by the accused and the non-seizure and non-production of any documents for proving such a transaction coupled with the non-production of any documents to show that accused were arrested in Crime No.508/2009 of Manjeri Police Station speaks volumes in the facts and circumstances of the case and it casts serious doubt in the prosecution case. There is no acceptable evidence to show that 1 st accused gave Ext.P8 disclosure statement. The finding of the trial court and the appellate court that Ext.P8 is admissible under Section 27 of the Indian Evidence Act is a wrong finding and the trial court and the appellate court went wrong in convicting the accused by acting upon Ext.P8 disclosure statement allegedly given by the 1 st accused. Ext.P8 is not admissible in evidence. The link evidence to connect the accused with the crime is missing. Ext.P8 is not admissible in evidence. The link evidence to connect the accused with the crime is missing. On an analysis of the evidence led by the prosecution, I find that prosecution has not succeeded in establishing the guilt of the accused beyond any reasonable doubt and therefore the accused 1 and 2 are entitled to get the benefit of doubt. The finding of facts by the learned Magistrate and the Sessions Court are against the weight of evidence. In the result, Crl.R.P.Nos.80/2018 and 81/2018 filed by the accused are allowed. The impugned judgment of conviction and sentence of the trial court and the appellate court stand set aside. The accused are found not guilty of the offence under Section 379 r/w Section 34 of IPC and they are acquitted. Their bail bond stands discharged and they are set at liberty.