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2024 Supreme(Online)(KER) 38035
HIGH COURT OF KERALA
C.S. Sudha, J
ABDUL SHUKOOR – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2368/2006
The burden of proof lies on the claimant, which was not met in this case, affirming the trial court's decision.
Headnote:(A) Code of Criminal Procedure, 1973 - Sections 452 and 454 - Appeal against dismissal of petition for return of gold ingot claimed as stolen property - Petitioner alleged to have handed over gold under threat - Trial court found no merit in the petition, allowing the informant's claim instead - Court affirmed the presumption of regularity in judicial acts. (Paras 5, 8, 9, 10, 12, 13)
(B) Burden of Proof - The burden lies on the party asserting ownership, which was not met by the petitioner in this case. (Paras 9, 12)
Facts of the case:
The petitioner claimed ownership of a gold ingot produced by police, stating it was handed over under coercion, while the informant claimed it as stolen property. The trial court dismissed the petition for the gold ingot, favoring the informant's claim.
Findings of Court:
The trial court’s findings were upheld, with no evidence presented to support the petitioner's claim of ownership over the gold ingot.
Issues: The main issue was whether the trial court's findings were flawed or unjust.
Ratio Decidendi: The court ruled that the presumption of regularity in judicial acts applies, and the petitioner's claims lacked sufficient evidence.
Result: Appeal dismissed.
J U D G M E N T
This appeal under Section 454 Cr.P.C. has been filed against the common order dated 20/09/2006 in Crl.M.P.No.2238/2006 and Crl.M.P.No.3249/2006 in S.C.No.1179/2005 on the file of the Court of Session, Kollam.
2. Crl.M.P.No.2238/2006 under Section 454 Cr.P.C. was filed by the owner of Panthuvila Jewellery, Pallikkal, alleging that the gold ingot produced by the police in S.C.No.1179/2005 belongs to him and that he was forced to handover the same to the police under threat and coercion. He was threatened that if he did not give 176 grams of gold ornaments to the police, he would be made an accused in the case. Hence to avoid such a contingency, he handed over the gold ingot to the police, which has been produced before the court claiming to be the stolen property. As the gold belongs to him, the petition seeking the return of the same.
3. Crl.M.P.No.3249/2006 was filed by the informant in the crime, who was examined as PW1 in S.C.No.1179/2005 from whose house 44 sovereigns of gold ornaments were alleged to have been stolen by the accused persons in the said case. The gold ornaments were alleged to have been sold to the petitioner in Crl.M.P.No.2238/2006, who converted the gold ornaments into gold ingot, which was recovered based on the disclosure statement of the accused persons in the case. The petitioner in Crl.M.P.No.3249/2006 claimed ownership of the gold ornaments and hence interim custody was given to her under Section 452 Cr.P.C.
4. Both the petitions were jointly tried by the trial court.
PWs 1 to 4 were examined and Exts.P1 to P14 were marked on the side of petitioner in Crl.M.P.No.2238/2006. PWs 1 and 2 were examined on the side of petitioner in Crl.M.P.No.3249/2006.
No documentary evidence was produced in Crl.M.P.No.3249/2006.
5. The trial court on a consideration of the oral and documentary evidence and after hearing both sides, dismissed
Crl.M.P.No.2238/2006 and allowed Crl.M.P.No.3249/2006. The gold ingot was directed to be returned to the petitioner in Crl.M.P.No.3249/2006 after the expiry of the appeal period. Aggrieved, the petitioner in Crl.M.P.No.2238/2006 has come up in appeal.
6. In this appeal, the petitioner in Crl.M.P.No.2238/2006 will be referred as the petitioner and the petitioner in
Crl.M.P.No.3249/2006 will be referred to as the respondent.
7. The only point that arises for consideration in this appeal is whether there is any infirmity, illegality or perversity in the findings of the trial court calling for an interference by this Court.
8. Heard both sides.
9. It was submitted by the learned counsel for the petitioner/appellant that the trial court grossly erred in dismissing his petition. The judgment in S.C.No.1179/2005 by which the accused were convicted and sentenced for the offences punishable under Sections 380, 454 and 461 read with Section 34 IPC has been set aside by this Court by judgment dated 20/06/2023 in Crl.Appeal No.99/2007. No evidence has been produced by the respondent to show that the gold ingot belongs to her. Hence relying on the dictum in Soni Chimanlal Jethalal v. State of Gujarat , 1994 1 Crimes (HC) 949 , it was submitted that the impugned order is liable to be set aside.
9.1. Per contra it was submitted by the learned counsel for the respondent that merely because the accused have been acquitted is no ground to reverse the impugned order. The presumption that judicial and official acts have been regularly performed as contemplated under illustration (e) of Section 114 of the Evidence Act, 1872 is attracted in this case. As the gold ingot was recovered from the shop of the petitioner based on the disclosure statement given by the accused in the case, no interference is called for, goes the argument.
10. The specific case of the petitioner pleaded in Crl.M.P.No.2238/2006 is thus – on 08/03/2005 at about 09:00 a.m., the then Sub Inspector (S.I.) of Police, Paravur (examined as PW2 on the side of the respondent), came to the shop of the petitioner and directed the pet
