IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930 Crl.Rev.Pet.No. 38 of 2002() ---------------------------- CRA.302/1999 of I ADDL. SESSIONS COURT, THRISSUR CC.688/1995 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONERS/APPELLANTS/ACCUSED NOS.1 & 2: --------------------------------------------------- 1. BIJU, S/O.KOLADY UKKRU, CHIRAMANANGAD VILLAGE, MARATHAMKODE DESOM, TALAPPILLY TALUK. 2. SALIM, S/O.KULANGARAVALAPPIL MUHAMMEDKUTTY, CHIRAMANANGAD VILLAGE, MARATHAMKODE DESOM, TALAPPILLY TALUK. BY ADV. SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ RESPONDENT/RESPONDENT/COMPLAINANT: --------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.38 of 2002 -------------------------------------- Dated this the 24th day of September, 2008. ORDER Revision petitioners and the third accused faced trial for offences punishable under Section 379 read with Section 34 of the Indian Penal Code, the charge against them being that in furtherance of their common intention they committed theft of a yamaha motor cycle from the possession of PW1 on 26.2.1995 at about 2 a.m. Trial court acquitted the third accused but found the revision petitioners guilty, convicted and sentenced them to undergo imprisonment. The appeal preferred by the revision petitioners ended in dismissal. Hence, this revision. 2. Heard both sides. Counsel for the revision petitioners submitted that there is no legal evidence to bind the revision petitioners. Counsel pleaded for their acquittal. 3. PW1, defacto complainant gave first information (Ext.P1) regarding the alleged incident on 26.2.1995. In Ext.P1 and in his evidence, he claimed that his yamaha motor cycle kept in his portico in the night of 26.2.1995 was stolen. Later, he got back the motor cycle in parts. Crl.R.P.No.38/2002 2 4. PW7, Circle Inspector arrested the revision petitioners on 11.6.1995. According to PW7, on the information given by the revision petitioners he discovered the engine and other parts of the motor cycle as per Exts.P3 and P4. Prosecution examined PWs 3 and 5 to prove the discovery. 5. Evidence of PW7 is to the effect that when he questioned, revision petitioner No.1 stated that the engine of the yamaha motor cycle has been given to PW5 who is running a two wheeler workshop at Kanippayyur and if taken there, he will point out that workshop and PW5. Accordingly PW7, along with revision petitioner No.1 reached the workshop of PW5 where PW5 produced the engine which was seized as per Ext.P4. When PW5 was in box, nothing was asked about revision petitioner No.1 entrusting the engine of the vehicle to him. He only stated that he signed Ext.P4 for seizure of the engine. It is further the evidence of PW7 that when questioned, revision petitioner No.2 told him that he has entrusted the front fork assembly and other parts of the yamaha motor cycle to PW3 and if taken there, he will point out PW3. Accordingly PW7, along with revision petitioner No.2 went to PW3 who produced the parts of the motor cycle which were taken to custody as per Ext.P3. 6. Though the learned counsel submitted that the parts of the motor cycle allegedly discovered by PW7 were not produced before the trial court for identification I find that no serious challenge was made to the version of PW1 regarding the theft and his getting the vehicle parts later. Moreover, PW1 has Crl.R.P.No.38/2002 3 also referred to the registration number and the engine number of the vehicle which also were not disputed. Sitting in revision, there is no reason to interfere with the concurrent finding of fact entered by the courts below that the motor cycle belonging to PW1 was subject to theft on the relevant day. 7. So far as revision petitioner No.1 is concerned, though it is proved by the evidence of PWs 5 and 7 and Ext.P4 that on the information given by the revision petitioner No.1, PW7 seized the engine of the motor cycle from PW5, that evidence is not sufficient to hold that revision petitioner No.1 was in possession of the engine of the motor cycle at any point of time since PW5 had not admitted that revision petitioner No.1 had entrusted it to him. The authorship of the entrustment on the part of revision petitioner No.1 is neither mentioned in Ext.P4 nor spoken by PW7. Therefore, from the conduct of revision petitioner No.1 in pointing out PW5 from whom the engine of the motor cycle was taken to custody, the court may presume that revision petitioner No.1 was in possession of the engine but, a further presumption based on that presumption that therefore, revision petitioner No.1 was either the thief or receiver of the engine knowing it to be a stolen article is not permissible since a presumption can be drawn only on facts admitted or proved and not on another presumption. Therefore, revision petitioner No.1 is entitled to an acquittal. 8. Coming to revision petitioner No.2, though PW3 did not admit that revision petitioner No.2 who had entrusted the parts of the yamaha motor cycle to him, it is clearly stated in Ext.P3, the mahazar for seizure that revision Crl.R.P.No.38/2002 4 petitioner No.2 had stated so to PW7. That statement in Ext.P3 which is proved in evidence is admissible in evidence. Thus, there is evidence to show that revision petitioner No.2 was in possession of the vehicle parts which PW7 seized from PW3 as per Ext.P3. Based on that possession, the courts below were justified in presuming that revision petitioner No.2 committed theft of the motor cycle. Hence, the conviction and sentence imposed on revision petitioner No.2 does not require interference. This Revision Petition therefore, is allowed in part in the following lines:- (1) The conviction and sentence imposed on revision petitioner No.1 (A1) are set aside and he is acquitted of the charges against him. (2) The conviction and sentence imposed on revision petitioner No.2 (A2) are confirmed. (3) Bail bonds are cancelled. Crl.M.P.No.264 of 2002 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.38/2002 5 Thomas P.Joseph, J. Crl.R.P.No.38 of 2002 ORDER 24th September, 2008