IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH WEDNESDAY, THE 22ND JULY 2009 / 31ST ASHADHA 1931 Crl.Rev.Pet.No. 2269 of 2009() ----------------------------------------- CRA.213/2009 of ADDL. DISTRICT AND SESSIONS COURT (ADHOC-I), KOZHIKODE CC.793/2007 of JUDL. MAGISTRATE OF FIRST CLASS-IV, KOZHIKODE .................... REVN. PETITIONER/ APPELLANT/2ND ACCUSED: ------------------------------------------------------------------------- SURESHKUMAR @ SURESH,S/O.CHINNAN, CONVICT NO.7007,CENTRAL PRISON,KANNUR. BY ADV. SRI.SANTHARAM.P RESPONDENT/RESPONDENT/COMPLAINANT: --------------------------------------------------------------- STATE OF KERALA,REP.BY PUBLIC PROSECUTOR HIGH COURT OF KERALA. ADV. SRI. C.S. HRITHWIK, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/07/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.Rev.Pet.No. 2269/2009 ORDER ON CRL. M.A. NO.6845/2009 IN Crl. R.P NO.2269/2009 DISMISSED. SD/- 22/07/2009 THOMAS P.JOSEPH, JUDGE /TRUE COPY/ P.A. TO JUDGE Sbna/ THOMAS P JOSEPH, J ---------------------------------------- Crl.R.P.No.2269 of 2009 --------------------------------------- Dated this 22nd day of July 2009 ORDER Accused No.2 has come up in revision against concurrent finding entered by the courts below that he along with another committed lurking house trespass by night into the shop of PW1 and theft of 27 copper lids. The alleged incident occurred on 12-09-07 at about 00.30 hours. 27 copper lids belonging to PW1 who is engaged in running a hiring business are said to have been stolen. Petitioner along with others faced trial in the court of learned Judicial First Class Magistrate, Kozhikode in C.C.No.793 of 2007. He along with accused No.1 was convicted and sentenced to undergo imprisonment. His appeal (criminal appeal No.213 of 2009) failed. It is contended by learned counsel that there is no reliable or sufficient evidence to warrant conviction of petitioner. 2. PW1, owner of the shop stated that he had closed his shop on the night of 11-09-07 and the next day morning, found the shop broke opened. 27 copper lids were stolen. He identified those copper lids as MO1 series. PW2, Circle Inspector claimed to have arrested petitioner and others on 06-10-07 on the information given by them and discovered MO1 series. So far as petitioner is concerned, what is relevant is Ext.P4, mahazar and Ext.P4(a), information which petitioner is said to have given and which led to the alleged discovery of 9 Crl.R.P.No.2269 of 2009 2 copper lids. PW2 stated that he questioned petitioner when the latter gave information (Ext.P4(a)) based on which discovery of 9 copper lids were effected from the shop of one Rafeek as per Ext.P4. PW5 is an attestor in Ext.P4 and supported the prosecution. He claimed to have seen Rafeek producing copper(wire according to him) to the police. He admitted that he attested Ext.P4. 3. Now the question for consideration is whether evidence of PWs.2 and 5 and Ext.P4 and Ext.P4(a) are sufficient to warrant conviction of petitioner. If petitioner is shown to be in recent possession of stolen article it is possible for the court to presume either that he committed theft or is a receiver of stolen article. In this case evidence regarding possession should come from PWs 2 and 5 and Ext.P4 and Ext.P4(a). Rafeeq who is said to have produced the copper lids is not examined. So far as Ext.P4(a) and evidence of PW2 is concerned, it is seen that authorship of sale of the copper lids to Rafeek is not stated by petitioner. Learned counsel for petitioner has placed reliance on a decision of this court in Sankara Narayanan V. State of Kerala (2006(3) KLT 429) where it has been held that in the absence of evidence of authorship of concealment the discovery cannot fall under Sec.27 of the Evidence Act (for short, “the Act”). The decision of the Supreme Court in State of Maharashtra V. Suresh (2000 SCC (Crl) 2630) as to the inferences that can be drawn from Crl.R.P.No.2269 of 2009 3 recovery under Sec.27 of the Act in the absence of evidence of authorship was not followed in view of the decision of the larger bench of the Supreme Court referred to in para 9 of the decision in Sankaranarayanan V. State of Kerala . In this case, Rafeek has not been examined to say that it was petitioner who had sold the copper lids to him. Authorship of its sale to Rafeek is not also disclosed either by the evidence of PW2 or by Ext.P4(a) . Therefore the discovery cannot come under Sec.27 of Evidence Act. 4. Assuming that an interferences could be drawn from the fact of petitioner pointing out Rafeek as the person who had purchased copper lids that petitioner had sold it to the said Rafeek, then the next question is whether based on that presumption it could said that petitioner is either the thief or a receiver of the stolen article. No such presumption in my view can be drawn since a presumption can be based only on facts admitted or proved and not on another presumption. In this case it is by way of a presumption in the absence of evidence authorship of sale that it could be said that petitioner had sold the copper lids to Rafeek. Based on that presumption another presumption that therefore petitioner is thief or a receiver of stolen article cannot be drawn. Result is that the seizure under Ext.P4 cannot be brought without the purview of Sec.27 of the Act. It can only be taken as a conduct admissible under Sec.8 of the Act. In this case Crl.R.P.No.2269 of 2009 4 apart from that conduct there is no other evidence to show that petitioner is involved in the alleged incident. That petitioner pointed out Rafeek who produced the copper lids is not by itself sufficient to warrant conviction of petitioner as either the thief or as a receiver of stolen article. As such his conviction and sentence cannot be sustained. This revision is allowed. Conviction and sentence of petitioner are set aside. Petitioner is acquitted of the charges against him. THOMAS P JOSEPH, JUDGE Sbna/