IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 20TH JUNE 2008 / 30TH JYAISHTA 1930 Crl.MC.No. 2708 of 2004() ------------------------- CRRP.32/2004 of SESSIONS COURT, THALASSERY C.C.172/2001 OF JFCM-1, KANNUR. .................... PETITIONER: ------------ N.SHIVADASAN, S/O.BALAN, AGED 40 YRS., M/S.AMBIKA JEWELLARIES, BANK ROAD, KANNUR-1. BY ADV. SRI.C.K.SUDHEER RESPONDENTS: ------------- 1. HASEENA BHANU, D/O.MUSHRATH BHANU, SELECTOR HOUSE ROAD, DOOR NO.7, SHIVAJI NAGAR, BANGALORE. 2. ISHRATH BHANU, SELECTOR HOUSE ROAD, DOOR NO.7, SHIVAJI NAGAR, BANGALORE. 3. FATHIMA SABIYA BHEEGAM, SELECTOR HOUSE ROAD, DOOR NO.7, SHIVAJI NAGAR, BANGALORE. 4. THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R4 BY PUBLIC PROSECUTOR SRI C.K.SURESH THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.M.C. No.2708 of 2004 ---------------------------------------------- Dated, 20th June, 2008. ORDER This Crl.M.C. is filed by the de facto complainant in C.C.No.172/2001 on the file of the Judicial First Class Magistrate's Court-I, Kannur challenging the concurrent finding of the trial court as well as the lower revisional court by which the respondents 1 to 3 were acquitted off the offence punishable under sections 380 of IPC. 2. The allegation against respondents 1 to 3/accused is that on 26-2-2001 at about 11 a.m., they entered into the shop viz., M/s. Ambika Jewelleries at Kannur under the pretext of purchasing gold ornaments and stolen away four bangles weighing about 94.6 grams. Only in the evening when the stocks were verified, the theft came to light and immediately a complaint was filed before the Town police Station, Kannur suspecting the respondents having committed the crime. Annexure-I is the copy of the complaint. Based upon Annexure-1 complaint, Crime CRL.M.C.2708/04 -:2:- No.125/2001 was registered in the Kannur police station for the offence punishable under Section 380 read with S.34 of IPC. The police, after investigation, filed final report based upon which the trial court took cognizance and instituted C.C.No.172/2001. During the course of trial, PWs 1 to 7 were examined as prosecution witnesses and marked Exts.P1 to P5 on the side of the prosecution. M.O-1 bag identified as material object. No evidence either oral or documentary adduced from the side of defence. 3. The trial court by its judgment dated 4-2-2004 found that the evidence adduced by the prosecution is really inadequate and insufficient to believe that the accused persons had actually committed theft and also found that the prosecution has failed to establish its case beyond all reasonable doubt. Aggrieved by the order of acquittal passed by the trial court, the petitioner herein preferred Crl.R.P.No.32/2004 before the Sessions Court, Thalassery. By judgment dated 21-7-2004, the Sessions Court found that the trial court has considered the evidence let in by the CRL.M.C.2708/04 -:3:- prosecution, appreciated the same and found that the version of the prosecution is improbable and the benefit of doubt to the accused was granted and acquitted them. Thus refusing to exercise the revisional power of the court below, the Sessions Judge dismissed the Crl.revision petition. It is the above concurrent judgments of the court below are under challenge in this proceedings under section 482 of Cr.P.C. 4. The main contention in this petition is that the court below failed to appreciate the evidence of PWs 1 to 3 in proper sense and the minor variations occurred in the evidence of PWs 1 to 3 ought not have been considered as relevant and minor variation in the weight of ornaments need not have been considered after giving much importance. According to the petitioner, the finding of the trial court that the incident was at about 11 a.m. is not correct but it was at about noon. It is also challenged the finding of the court below that the prosecution has not seized the stock register to prove that actually the bangles were stolen. It is averred that it is a wrong ground for acquittal because no one had CRL.M.C.2708/04 -:4:- put forth a plea that ornaments were not actually stolen from the shop. It is also further case of the petitioner that the minor variation regarding the weight of the ornaments is not at all a ground for acquittal. It is submitted by the petitioner that in the complaint it is shown that only 94 grams were stolen but in the deposition it is stated as 94 grams and 6oo ml. So according to the petitioner/complainant, he has stated about the weight only approximately as 94 grams. Therefore, according to the petitioner, the trial court ought not have held that the complainant has not mentioned the correct weight but, during examination, the correct weight was given in the deposition. So, though correct weight was given through the deposition, the variation regarding the weight , i.e. 0.6 grams cannot be treated as a valid ground for acquittal. The petitioner also attacked the grounds on which the accused were acquitted on the basis of identity. The failure on the part of PW-2 to identify the accused was not a ground to acquit the accused since the accused have no case that they never visited the shop. According to the petitioner, the court below CRL.M.C.2708/04 -:5:- held that PW-2 could identify only Accused 1 and 3 and not Accused No.2. So, the acquittal of the accused on the ground that the witnesses could not identify the accused is incorrect. Another ground is that the accused had miserably failed to explain under what circumstances they were in possession of Rs.19110/-, especially, in the background that they had no case that they had not visited the shop. According to the petitioner, it is brought out in evidence that the accused were arrested when they attempted to commit similar offence in a shop at Thalassery. The trial court had not only failed to note the above aspect but also acquitted the accused due to the minor variations in the deposition of the witnesses. It is also the case of the petitioner that the Sessions Court went wrong in taking decision in the revision petition against the order of acquittal. 5. I have gone through the materials available on record and the judgments of the trial court as well as the revisional court. Going by the judgment of the trial court, it appears that all the contentions and legal questions involved CRL.M.C.2708/04 -:6:- in the case have been elaborately considered by the trial court and came into its conclusion after appreciating the evidence. After a close analysis of the entire materials , the trial court found that there was delay in lodging the complaint and there is no explanation what so ever. It is also held by the trial court that there is no consistent version regarding the time of occurrence. After analyzing the evidence of PW-1, the trial court found that PW-1 has got incongruous version about the transaction that took place in the shop especially that three purdahnishant ladies had taken possession of gold bangles. Regarding the quantity of gold ornaments and its weight, there is no uniform version and there is glaring variation regarding the weight of the ornaments alleged to have been stolen. So, after an elaborate appreciation of the evidence of P.Ws 1 to 3, and other evidence, the trial court came into a conclusion that the evidence adduced by the prosecution is inadequate and insufficient to believe that the accused persons had actually committed theft as claimed by the prosecution. Thus, the trial court found that the CRL.M.C.2708/04 -:7:- prosecution failed to establish the case beyond reasonable doubt. After the appreciation of the evidence on record, the lower revisional court also found that the learned Magistrate found loopholes in the prosecution evidence and after considering the evidence gave the benefit of doubt to the accused and accordingly they were acquitted. Hence, the revisional court was also declined to interfere with the order of acquittal. 6. From the above discussion, it appears to me that both the trial court as well as the lower revisional court have appreciated the evidence in its correct perspective and after having found that the prosecution has miserably failed to establish its case beyond doubt, acquitted the accused/respondents 1 to 3. No case is made out to take a different view apart from the view taken by the trial court as well as the revisional court. In the absence of strong case so as to warrant interference of this Court with the concurrent findings of the courts below, this petition is only to be dismissed and I do so. CRL.M.C.2708/04 -:8:- In the result, the Crl.M.C. is dismissed as devoid of any merit. V.K.MOHANAN, JUDGE kvm/- CRL.M.C.2708/04 -:9:- V.K.MOHANAN, J. No.... Judgment/Order Dated: