ARAVINDAKSHAN NAIR ALIAS RAJAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is the accused in C. C. 1049 of 1995 of the Chief Judicial Magistrate's Court, Ernakulam. The challenge is with regard to the conviction entered by the said Court as confirmed by the IVth Additional Sessions Judge, Ernakulam in Cri. A. 268 of 1998. The learned counsel for the revision - petitioner submits that the accused is still suffering the sentence and that the impugned orders had been passed without proper appreciation of the facts and legal position. What is to be decided is the correctness, legality and propriety of the impugned orders as also the propriety of the sentence imposed by the appellate Court namely rigorous imprisonment for two years and fine of Rs. 3,000/- (in default, rigorous imprisonment for six months) for the offence under S.420 of the Indian Penal Code.

(2.) The learned counsel for the petitioner highlighted the fact that the investigation in the case is defective in so far as no attempt was made by the Investigating Officer to verify the records maintained by the complainant with regard to the operation of his vehicle or with regard to the correctness of the version of the complainant that the accused borrowed money as also the gold chain of the complainant for the purpose of booking the air ticket. Yet another argument was that the appellate Court erred in relying on the version given by the accused when questioned about the sentence as a circumstance for finding him guilty of the offence. PW - 1, it is stated, is unbelievable not only because his evidence is full of embellishments but also because the case is not registered based on the complaint allegedly given by him on the day next after the occurrence. It is also argued that the evidence with regard to the recovery of the gold chain is inadmissible under S.27 of the Indian Evidence Act. Delay in registering the case is pointed out to be yet another ground for acquitting the accused. The learned Public Prosecutor, who was heard, submitted that here is a case where the registration of the case itself was based on a confession statement of the accused made while in custody in connection with another case and that the conviction and sentence are based on sufficient material. The submission made by the accused to the Court, when questioned about the sentence, that he might be shown mercy and that he shall not repeat the offence of that nature is also highlighted by the learned Public Prosecutor.

(3.) It is true that PW - 1 stated that he had complained about the occurrence in question to the police on the day after the occurrence and no case is actually seen registered. Whatever be the reasons therefor, the registration of the case which led to the conviction in question was not based on any such complaint, but suo motu based on an alleged confession made by the accused while in custody in connection with Crime No. 454 (sic) of 1994 of the Pala Police Station. It is because of this, that there has not been full - fledged investigation in this case and no attempt was made to seize the goods vehicle record relating to the tax driven by the complainant or with regard to the correctness of the booking of the air ticket for which purpose, the accused allegedly borrowed money and gold chain from the complainant. As regards the embellishments relied on by the learned counsel for the revision - petitioner, it is seen that the case diary statements of the complainant were not put to him during cross - examination. Merely based on a comparison of the case diary statement and the version in the box, PW - 1 cannot be branded as an unbelievable witness. In order that the alleged embellishments deserve consideration, it should have been specifically put to the witness and contradictions / omissions elicited. In the absence of any such attempt, the accused cannot be heard to contend at this revisional stage that his version is unbelievable.