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2024 Supreme(Online)(KER) 7503
HIGH COURT OF KERALA
P. G. Ajithkumar, J
A.T VARGHESE – Appellant
Versus
APPUKUTTAN – Respondent
CRA(V) 1038/2012
SRI.V.PHILIP MATHEWS, SRI.V.V.RAJA, SRI.M.T.SURESHKUMAR, SMT.SHEEBA THOMAS
The court cannot interfere with an order of acquittal by the trial court unless the findings are patently incorrect and against the evidence, resulting in a miscarriage of justice.
Headnote:
Criminal Law - Indian Penal Code, 1860 - Sections 328 and 392 - The court upheld the acquittal of the accused, finding that the prosecution's evidence was not sufficient to establish his guilt beyond reasonable doubt. However, the court ordered the return of the recovered stolen property to the legal heirs of the victim.
Fact of the Case:
This is an appeal against the acquittal of the accused, who was charged under Sections 328 and 392 of the Indian Penal Code, 1860 for robbery and administering stupefying drug. The prosecution alleged that the accused had persuaded the victim to have drinks, administered a narcotic drug, and then stolen the victim's gold chain, rings, watch, and cash. The case was registered only in 2008, several years after the incident, and the stolen property was recovered as a gold ingot.
Finding of the Court:
The court found that the delay in registering the case and the lack of tangible evidence to prove the identity of the stolen property weakened the prosecution's case. The court upheld the acquittal of the accused, as the findings of the trial court were not patently incorrect or against the evidence.
Issues: 1) Whether the acquittal of the accused was incorrect? 2) Whether the order of confiscation of the recovered property was correct?
Ratio Decidendi: The court relied on the principles laid down by the Supreme Court in Chandrappa v. State of Karnataka and Shyam Babu v. State of U.P., which state that an appellate court should not interfere with an order of acquittal unless the findings of the trial court are perverse or unreasonable, resulting in a miscarriage of justice. The court found that the trial court's view was a plausible one based on the evidence.
Final Decision: The court upheld the acquittal of the accused but ordered the return of the recovered stolen property (gold ingot) to the legal heirs of the victim.
This is an appeal against acquittal. The de facto complainant/victim is the appellant. He expired and his legal heirs are the additional appellants. The respondent was charged with an offence under Sections 328 and 392 of the Indian Penal Code, 1860 ( IPC ). After trial, he was acquitted by the Additional Sessions Judge (Adhoc) Fast Track-I, Pathanamthitta as per the judgment dated 14.12.2009. MO1 is a gold ingot. The trial court ordered to confiscate the same. Aggrieved by the orders of acquittal and confiscation this appeal has been filed under Section 372 of the Code of Criminal Procedure, 1973 (Code).
2. Heard the learned counsel for the appellants, the learned counsel for the 1st respondent and the learned Public Prosecutor.
3. Two questions require consideration in this appeal are as follows:
- i) Is the acquittal of the 1st respondent incorrect?ii) Is not the order of confiscation correct?
4. The prosecution evidence consists of oral testimonies of PWs.1 to 9 and Exts.P1 to P10. MO1 was identified. On the defence side, Exts.D1 to D3 were marked. The incident of robbery occurred on 15.01.2004. The allegations were that PW2 was pursuaded and taken to have drinks to a bar by the 1st respondent and after making PW2 drowsily by administering narcotic drugs, the 1st respondent took the gold chain and rings, besides his watch and an amount of Rs.3,000/-. A case in that regard was not soon registered. The 1st respondent was arrested in crime No.345 of 2008 of Konni Police Station. While questioned, he confessed commission of the present offence. Following that, PW1 the then Circle Inspector of Police, Konni Police Station registered a crime. During the investigation effected recovery of MO1 from Apsara Jewellery stating that the stolen ornaments were converted to ingot. That resulted in his prosecution.
5. The case resulting in the prosecution of the 1st respondent was registered only on 28.06.2008. Although PW2 as well as his son, PW3, claimed that following the incident, a complaint was lodged in Pathanamthitta Police Station, there is no tangible evidence in that regard. According to them, PW2 was in hospital for three days following the incident and they did not enquire further about the complaint so lodged. Of course, PW2 identified the 1st respondent in court as the robber. PW2 narrated also how happened the incident, but the 1st respondent was not a person known earlier or familiar to PW2. In such circumstances, the delay tells upon the credibility of PW2, insofar as identification of the 1st respondent before the court is concerned.
6. PW1 deposed before the court that on the basis of Ext.P8(a) statement that the 1st respondent sold the gold ornaments in Apsara Jewellery, he effected the recovery. PWs.4 and 5 are employees in Apsara Jewellery. They testified regarding purchase of gold ornaments from the 1st respondent and in lieu of the ornaments, one ingot was produced before the police officer. Their evidence is not very cogent as to the circumstances in which the gold ornaments were purchased from the 1st respondent and also as to the identity of the ornaments.
Evidence of PW2 also is not available to prove that his stolen articles were the ones sold by the 1st respondent in that jewellery for want of production of the ornaments in kind. However, the fact that the recovery was effected based on the statement of the 1st respondent stands proved. That would connect the 1st respondent with the stolen ornaments, although the same is not enough to draw a presumption that he is either the thief or the person received stolen articles knowing them to be stolen. It is not known at what point of time the gold ornaments were sold by the 1st respondent in the Apsara Jewellery. That also is a reason dissuading to draw such a presumption.
7. In the view of the above factual situation, the findings of the court below leading to the acquittal of the 1st respondent cannot be said to be incorrect. Unless the findings are patently inc
