Kerala High Court
Nisamudheen vs State Of Kerala on 19 June, 2025
Crl. R.P. No. 308 of 2016
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE P. V. BALAKRISHNAN
THURSDAY, THE 19TH DAY OF JUNE 2025 / 29TH JYAISHTA, 1947
CRL.REV.PET NO. 308 OF 2016
CRIME NO.750/2006 OF Perinthalmanna Police Station, Malappuram
AGAINST THE ORDER/JUDGMENT DATED 15.12.2015 IN Crl.A NO.140 OF
2011 OF SPECIAL COURT (ATROCITIES AGAINST SC/ST), MANJERI ARISING
OUT OF THE ORDER/JUDGMENT DATED 26.04.2011 IN CC NO.470 OF 2008
OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA
REVISION PETITIONERS:
1 NISAMUDHEEN
S/O.MUHAMMEDKUTTY, POOTHOTTATHIL HOUSE, CHETTIYAMPARA,
KADANNAMANNA AMSOM, MALAPPURAM DISTRICT.
2 NISAMUDHEEN
S/O.ABDULLA, KOLLITHODI HOUSE, PARAPPURAM,
KADANNAMANNA AMSOM, MALAPPURAM DISTRICT.
BY ADV SRI.U.K.DEVIDAS
RESPONDENTS:
STATE OF KERALA
REP. BY THE SUB INSPECTOR OF POLICE, PERINTHALMANNA,
THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
MAYA.M.N (PP)
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR
ADMISSION ON 19.06.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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P.V. BALAKRISHNAN., J.
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Crl. R.P. No. 308 of 2016
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Dated this the 19th day of June, 2025
JUDGMENT
Aggrieved by the concurrent findings of conviction
and sentence, rendered under Section 379 r/w 34 IPC by the
Trial Court and the Appellant Court, accused Nos. 1 and 2
have preferred this Criminal Revision Petition.
2. The prosecution case is that, on 16.11.2006, at
about 10.45 p.m., the accused 3 in number, in furtherance of
their common intention, committed theft of an autorikshaw
bearing registration No. KL-10B-8627, owned and possessed
by CW5. It is alleged that, the police party led by PW1
intercepted the autorikshaw while being taken away by the
accused at a place near Perinthalmanna Nursing Home and
arrested the accused and registered the crime.
3. In the trial court, from the side of the prosecution
PW’s 1 to 5 were examined and Exts. P1 to P8 documents
were marked. When examined under Section 313 of Cr.P.C,
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the 1st accused did not answer and the 2 nd accused denied all
the incriminating circumstances appearing against him in
evidence and contended that he is innocent. From the side
of the accused, DW1 was examined and Exts. D1 and D2
documents were marked. During the course of trial, the 3 rd
accused passed away. The trial court, on an appreciation of
the evidence on record, found accused Nos.1 and 2 guilty of
committing an offence punishable under Section 379 r/w 34
IPC and sentenced them to undergo simple imprisonment for
a period of one year each thereunder. Accused Nos. 1 and 2
challenged their conviction and sentence by filing Crl. Appeal
No.140/2011 before the Sessions Court, Manjeri. The Special
Court For SC/ST (POA) Act Cases, Manjeri / Additional
Sessions Court, by judgment dated 15.12.2015 dismissed the
appeal.
4. Heard, Sri.U.K.Devidas, the learned counsel for
the revision petitioner, and Smt. Maya M. N., the learned
public prosecutor.
5. The learned counsel for the revision petitioner
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submitted that, both the trial court as well as the appellate
court had failed to appreciate the evidence in a proper
perspective and has arrived at a wrong conclusion of guilt
against the accused. He submitted that, even though the
prosecution version is that the accused have committed theft
of an autorikshaw, no evidence has been adduced to prove
that the autorikshaw was possessed by the accused without
the consent of the owner or the person entitled to possess it.
He also submitted that merely because the autorikshaw has
been released as per Ext.P8 Kychit, it cannot be presumed
that the same belongs to CW5 or that it is an object of theft
and that too, by relying on the presumption under Section
114 of the Evidence Act.
6. Per contra, the learned Public Prosecutor
supported the impugned judgments and contended that
there are no grounds to interfere with it. She submitted that,
the evidence of PW1 to PW3 would prove the detection and
seizure of the autorikshaw from the possession of the
accused, and the release of the vehicle to its owner (CW5) as
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per Ext.P8 Kychit establishes the fact that it belongs to him.
She further submitted that the non examination of the owner
of the autorikshaw is not fatal to the prosecution case, since
the accused failed to establish as to in what manner or right,
they came into possession of the vehicle.
7. On an appreciation of the materials on record, it
could be seen that both the trial court and the appellate
court, have relied upon the evidence of PW1 to PW3, to prove
the detection of the crime and the arrest of the accused. It is
true that the evidence of PW1 to PW3 would show that, while
they were conducting night patrol duty, near Arukizhaya
Temple in Manjeri, the accused who were coming in an
autorikshaw bearing registration No. KL-10B-8627, was
intercepted and taken into custody. It also discernible from
the evidence that, since the accused were giving inconsistent
answers to the questions put by them, the crime came to be
registered under Section 41(1)(d) and 102 of the Cr.P.C and
thereafter, during investigation, after getting satisfied that
the autorikshaw was an object of theft, the offence under
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Section 379 r/w 34 was incorporated. It is further to be taken
note that, both the trial court as well as the appellate court
have relied upon the factum of the release of the
autorikshaw to CW5 as per Ext.P8 Kychit, and the fact that
the accused could not produce the documents of the vehicle
to reach a finding that the autorikshaw has been stolen by
them from CW5.
8. In order to attract Section 378 of IPC, the basic
ingredient which is required to be proved by the prosecution
is that the accused has taken a movable property out of the
possession of any person without that person’s consent and
has moved it. In the present case, it is the prosecution
version that the autorikshaw has been taken away by the
accused, without the consent of CW5, its alleged owner. But
it is very pertinent to note that the prosecution has not
examined CW5 or produced any documents to prove either
the fact that CW5 is the owner of the autorikshaw or that it
has been taken out from his possession, without his consent .
It is also pertinent to note that, no complaint has been given
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by CW5, the alleged owner, at any point of time, to any
authority regarding the alleged theft of his autorikshaw. In
such circumstances, merely by relying upon Ext.P8 Kychit, it
cannot be inferred that the autorikshaw allegedly found in
possession of the accused belongs to CW5 or that it has been
moved or taken away without the consent of its owner. In
the absence of credible evidence to prove this factum, the
only irresistible conclusion which can be reached is that the
conviction of the accused under Section 379 rendered by the
trial court and as confirmed by the appellate court cannot be
sustained.
In the result, this criminal revision petition is
allowed as follows;
The conviction and sentence passed against the
revision petitioners/accused Nos 1 and 2 under Section 379
r/w 34 IPC in CC No.470/2008 by the Judicial First Class
Magistrate Court-II, Perinthalmanna and as upheld in Criminal
Appeal No.140/2011 by the Additional Sessions Court (The
Special Court for SC/ST (POA) Act Cases), Manjeri are set
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aside, and the revision petitioners/accused Nos.1 and 2 are
set at liberty.
Sd/-
P.V. BALAKRISHNAN
JUDGE
sjb/19.06.2025