IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 Crl.Rev.Pet.No. 488 of 2003 -------------------------------------------- CRA.36/1999 of ADDL.SESSIONS COURT, KOTTAYAM CC.25/1996 of JUDL.MAGISTRATE OF FIRST CLASS, PALA .................... REVN. PETITIONER/APPELLANT/ACCUSED: BIJU, S/O. GOPALAKRISHNAN, KUZHIKATTU HOUSE, MEVADA, MEENACHIL, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT/RESPONDENT/COMPLAINANT: THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTORSRI.P.A.SALIM THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON CRL.M.P.NO.1710/2003 IN CRRP 488/2003 DISMISSED 23.6.2010 SD/-M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.488 of 2003 -------------------------- ORDER Petitioner was convicted and sentenced for the offence under Section 379 of Indian Penal Code by Judicial First Class Magistrate, Pala in C.C.No. 25/1996. Petitioner challenged the conviction and sentence before Sessions Court, Kottayam in Crl.A. No.36/1999. Learned Additional Sessions Judge, on re-appreciation of evidence, confirmed the conviction, but modified the sentence to simple imprisonment for six months. This revision is filed challenging the conviction and sentence. 2. Prosecution case is that between 10 p.m. on 14.11.1995 and 1 a.m. on 15.11.1995, petitioner committed theft of autorickshaw KL-5/B 2638, which has been in the possession of PW1 and thereby committed the offence under Section 379 of Indian Penal Code. PW1 lodged Exhibit P1 F.I. Statement on 15.11.1995 at 12.15 p.m. where under it is stated CRRP 488/03 2 that autorickashaw KL-5/B 2638 belongs to him and he used to drive the vehicle and on that day he and his friend Sabu had parked the autorickshaw near old municipal private bus stand, Pala and had gone to Pala Universal Theatre for second show and by about 1 a.m., when they returned, the autorickshaw was found missing and in spite of enquiry, the vehicle could not be traced out. Based on Exhibit P1 F.I. Statement, Crime No.456/1995 of Pala Police Station was registered for the offence under Section 379 of Indian Penal Code. PW3, the Investigating Officer, though investigated the case, could not trace out the vehicle. On 27.11.1995 at about 5.20 p.m., PW3, who was investigating Crime No.440/1995, found petitioner driving autorickshaw bearing Reg.No.KL-5/4592. When it was stopped and petitioner was questioned, PW3 got satisfied that it was the stolen autorickshaw and petitioner was driving the autorickshaw after showing false Registration Number KL-5/4592. Petitioner was arrested and the autorickshaw was CRRP 488/03 3 seized under Exhibit P4 mahazar and Exhibit P5 report was submitted incorporating the name of the petitioner as the accused. It is, after completing the investigation, charge was laid. Petitioner pleaded not guilty. 3. Prosecution examined PWs 1 to 3 and marked Exhibits P1 to P5. Though the witnesses to Exhibit P4 mahazar were summoned and steps were taken to procure their presence, as one is at Delhi and the other is at Gulf, their presence could not be procured. 4. Learned Magistrate, on the evidence, found that petitioner committed theft and convicted him. Learned Additional Sessions Judge also, on re- appreciation of evidence, confirmed that finding. 5. Argument of the learned counsel is that courts below should not have believed the evidence of PW3. It is argued that when PW3 has no previous acquaintance with the petitioner, it cannot be believed that he stopped the autorickshaw and arrested the petitioner and seized the CRRP 488/03 4 authorickshaw or a confession was made by the petitioner and therefore, the prosecution case is to be disbelieved. Learned counsel would also argue that in any case when theft was on 15.11.1995 and recovery was only on 27.11.1995 and as the recovery was not soon after the theft, a presumption should not have been drawn that petitioner committed the theft. Argument is that there is no prohibition in driving an autorickshaw and petitioner could have been in possession of the vehicle under several circumstances and in such circumstances, conviction is bad. Lastly, it was argued that petitioner had been in remand for four months and as petitioner was not involved in any other case previously, sentence be modified to the period he had already undergone. 6. Evidence of PW1 that he furnished Exhibit P1 F.I. Statement after finding the autorickshaw bearing Reg.No.KL-5/B 2638, which was parked near old municipal private bus stand, Pala, missing when he returned after seeing the second show from CRRP 488/03 5 Universal Theatre, Pala was not challenged in cross-examination. Evidence of PW1, therefore, establishes that autorickshaw KL-5/B 2638, belonging to PW1, was stolen on the night of 14.11.1995 before 1 a.m. on 15.11.1995. 7. Evidence of PW3 with Exhibit P4 recovery mahazar establish that the stolen autorickshaw was recovered by PW3 under Exhibit P4 mahazar. Evidence of PW3 is to the effect that on questioning the accused in Crime No.440/1995, PW3 got information that petitioner is involved in this case and though PW3 was checking the autorickshaw previously, he could not find out the vehicle and on 27.11.1995 at about 5.20 p.m. petitioner was found driving autorickshaw bearing Reg.No.KL-5/4592. PW3 stopped it and questioned the petitioner and it was revealed that it was the stolen autorickshaw KL-5/B 2638. Petitioner was arrested and the autorickshaw was seized. Though learned counsel argued that for the failure to examine the independent witnesses to Exhibit P4 mahazar, evidence of PW3 should not have CRRP 488/03 6 been accepted, especially when PW3 had no previous acquaintance with the petitioner, the proceeding paper of the courts below shows that though summons was taken and thereafter coercive steps were taken to procure the presence of the witnesses to Exhibit P4 recovery mahazar, their presence could be procured. In such circumstances, failure to examine the witnesses to Exhibit P4 mahazar is not a ground to disbelieve the evidence of PW3. On going through the evidence of PW3, I find no reason to disbelieve the evidence of PW3 that petitioner was driving the autorickshaw with a false number on 27.11.1995 at about 5.20 p.m. It is proved that petitioner was in possession of the stolen autorickshaw on 27.11.1995. 8. True, there is no witness to prove the commission of theft. The only available evidence is that theft was committed after 9.30 p.m. on 14.11.1995 and before 1 a.m. on 15.11.1995. The stolen autorickshaw was recovered from the possession of the petitioner at about 5.20 p.m. on CRRP 488/03 7 27.11.1995. Argument of the learned counsel is that if at all the presumption under Section 114 of Indian Evidence Act is to be drawn, it can only be that petitioner is the receiver of stolen articles and not the thief. Section 114 of Indian Evidence Act provides that court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural report, human conduct and public and private events, in their relation to the facts of the particular case. Illustration (a) to Section 114 shows that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. Therefore, the presumption under Section 114(a) of Indian Evidence Act could be drawn when a person who was found in possession of the stolen goods soon after the theft that he is either the thief or has received the goods knowing that it is the stolen article. CRRP 488/03 8 9. Argument of the learned counsel is that when the recovery was twelve days after the theft, possession of the petitioner cannot be said to be soon after the theft and therefore, presumption under Section 114 of Indian Evidence Act cannot be drawn. Soon after has to be understood depending on the facts and circumstances of each case. The stolen article in this case is an autorickshaw. Petitioner who was found in possession of the autorickshaw could have obtained possession either from the lawful owner with permission to drive it or could have purchased it. Petitioner has no case that he had either purchased the autorickshaw or obtained the autorickshaw from its rightful owner to drive the same. Argument of the learned counsel is that there is no burden on the petitioner to establish that fact. True, petitioner has no burden, but, when he is found in possession of a stolen autorickshaw, that too with a changed registration number, he has definitely to account for his possession. When he has no explanation CRRP 488/03 9 whatsoever for his possession, the only inference that could be drawn is that he committed theft. In such circumstances, I find no reason to interfere with the conviction of the petitioner for the offence under Section 379 of Indian Penal Code. 10. Learned Magistrate awarded a sentence of simple imprisonment for one year. Learned Additional Sessions Judge, in appeal, found that petitioner was aged only 23 years and he is not a habitual offender and was not convicted in any other offence and therefore, leniency is to be shown and reduced the sentence to simple imprisonment for six months. Learned counsel would submit that considering the fact that petitioner had already undergone imprisonment for considerable period, while he was facing trial, the sentence be reduced. 11. Considering the fact that petitioner was not involved in any other case, interest of justice will be met if the sentence is reduced to simple imprisonment for four months. CRRP 488/03 10 Revision is allowed in part. Conviction of the petitioner for the offence under Section 379 of Indian Penal Code is confirmed. Sentence is modified to simple imprisonment for four months. Petitioner is entitled to get set off as provided under Section 428 of Code of Criminal Procedure. Judicial First Class Magistrate, Pala is directed to execute the sentence, if petitioner has not already undergone the period of sentence, after set off. 23rd June, 2010 (M.Sasidharan Nambiar, Judge) tkv CRRP 488/03 11 M.Sasidharan Nambiar, J. -------------------------- Crl.R.P.No.488 of 2003 -------------------------- ORDER 23rd June, 2010