HIGH COURT OF KERALA
STATE OF KERALA
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(1.)THE petitioner along with three others were tried by the Munsiff-Magistrate of Ettumannur for an offence under S. 380 IPC. , for having committed theft of a cow belonging to the complainant who was examined as pw. 1. Eight witnesses were examined for the prosecution, out of which pws. 2 to 5 gave evidence as to the actual removal of the cow by the accused from the possession of pw. 1. THE learned Magistrate disbelieved and rightly too, the evidence of these witnesses and found that the case against accused 2 to 4 were not proved and ordered their acquittal. As far as the petitioner was concerned the learned Magistrate held that no proof of removal was necessary, as removal was admitted by the petitioner and therefore found him guilty of the offence charged. On appeal the learned Sessions Judge of Kottayam confirmed the conviction and sentence. It is the legality of this conviction that is challenged in this revision.
(2.)A reading of the trial court's judgment would show that it was only on the basis of the admission made by the accused under S. 342 cr. P. C. , that the conviction is founded. It is not open to a criminal court to rely upon the so called admission of the accused made in his statement to base a conviction when the prosecution evidence is entirely untrustworthy and unreliable. If the court wants to rely on the statement as an admission it must be read as a whole and it is not permissible to dissect the statement containing both inculpatory and self exculpatory statements and to reject the self-exculpatory portion and base the conviction solely upon the self inculpatory portion. In this case the court has accepted the inculpatory part of the statement and rejected the exculpatory part. As observed by their lordships of the Supreme Court in Palvinder Kaur v. The State of Punjab (AIR. 1952 SC. 354): "in doing so it contravened the well accepted rule regarding the use of confession and admission that this must either be accepted as a whole or rejected as a whole and that the court is not competent to accept only the inculpatory part while rejecting the exculpatory part as inherently incredible". The so called admission made by the petitioner in his s. 342 statement is wholly of an exculpatory nature and does not admit the commission of any crime whatsoever. That being so, the learned Magistrate has erred in accepting the inculpatory portion of the statement, namely, the factum of removal to find the accused guilty. The courts below have overlooked this aspect of the question. The conviction is therefore unsustainable and has to be set aside. In the view that I take it is unnecessary to consider the defence evidence.
The revision petition is allowed. The conviction and sentence are set aside. Fine, if paid, will be refunded. Allowed.
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