IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH SEPTEMBER 2008 / 27TH BHADRA 1930 Crl.Rev.Pet.No. 480 of 2001() ----------------------------- CRA NO.90/1995 OF SESSIONS JUDGE, KOTTAYAM CC NO.183/1994 OF JUDCIAL FIRST CLASS MAGISTRATE, REVISION PETITIONER/APPELLANT/2ND ACCUSED: ------------------ RAMACHANDRAN, S/O.NARAYANAN, PADINJAREPPARAMBIL HOUSE, KADAMCHIRA BHAGAM, THRIKKODITHANAM KARA AND VILLAGE. BY ADV. SRI.P.K.BALAKRISHNAN NAIR RESPONDENT/RESPONDENT: ------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA M.K. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: 'C.R.' THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.480 OF 2001 -------------------------------------- Dated this the 18th day of September, 2008. ORDER The permissibility of drawing 'double presumption' under law arises for consideration in this case. 2. The courts below concurrently found that the revision petitioner committed theft as alleged by the prosecution. The trial court sentenced him to undergo R.I. for two years. The appellate court did not grant him any relief even in that regard. He has come up in revision. As the revision petitioner and counsel remained absent at the time of hearing, I did not have the occasion to hear them. Hearing the parties/counsel in revision is also optional under Section 403 of the Code of Criminal Procedure. I heard the learned Public Prosecutor. 3. I have perused the records. 4. The case was registered on the first information given by PW1 to the effect that on 25.10.1993 at about 6 a.m. while she was going for work, two persons came across her and snatched away her gold chains. She chased them but that was in vain. She reported the matter in the nearby house. PW11, the Sub Inspector arrested the first accused in connection with Crime Crl.R.P.No.480/2001 2 No.723 of 1993 of his station on 1.12.1993 and when questioned the first accused is said to have disclosed the involvement of himself and the revision petitioner in the incident on hand. The revision petitioner was arrested and questioned by PW11. It is claimed that on the information given by the first accused and the revision petitioner, the stolen gold chains were discovered purportedly under Section 27 of the Evidence Act, as per Exts.P2 and P1 mahazars, respectively on 2.12.1993. 5. PWs 1 to 3 did not identify the revision petitioner as one among the culprits. PW1 identified MO1 as one of the gold chains taken away from her. What then is available against the revision petitioner is only the evidence regarding the alleged discovery. According to the prosecution, the revision petitioner had told the Investigating Officer (PW11) that the gold chain is sold to PW7, a jewellery shop owner and if taken there, he will point out the shop and PW7 and accordingly, as lead by and along with the revision petitioner, the Investigating Officer came to PW7 who produced the gold chain which was seized as per Ext.P1. PW7 denied that he had purchased the gold chain from the revision petitioner. Instead, he claimed that he was summoned to the police station and was directed to produce one gold chain which he obliged. PW9, the Constable who accompanied PW11 for the alleged discovery gave evidence in tune with what is stated in Ext.P1. PW11, the Sub Inspector asserted that on the strength of the information given by the revision petitioner, he went to the shop of PW7 with the revision petitioner, the revision petitioner pointed out PW7 Crl.R.P.No.480/2001 3 who, on questioning produced the gold chain (PW11 was not asked to identify the gold chain in court) which he seized as per Ext.P1. There is no reason to interfere with the concurrent finding in this regard. 6. That, the information given by the revision petitioner only lead the Investigating Officer to PW7 (who in turn produced the gold chain) made no difference so far as the application of Section 27 of the Indian Evidence Act is concerned. “Fact” as defined in the Indian Evidence Act means - “(1) any thing, state of things, or relation of things, capable of being perceived by the senses; (2) any mental condition of which any person is conscious.” (see Section 3) “Fact” as understood in the Indian Evidence Act includes physical fact as well as psychological fact or mental condition. The basic principle of Section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The information which lead to the discovery of a witness to whom the accused had given the stolen article is also a discovery of fact. (see Raveendran & others v. State (1989 (2) KLJ 534). Crl.R.P.No.480/2001 4 7. Records of the case show that the Investigating Officer had not separately extracted in black and white the information given by the revision petitioner and which ultimately lead to the discovery of the gold chain. It would have been appropriate if he had done so and the extracted statement was separately marked in evidence. But that need not be taken as an infirmity as the relevant information is contained in Ext.P1 (though not separately marked in evidence) and spoken by the Investigating Officer (PW11) in his evidence which would suffice the purpose ( see State v. Ammini and others - 1987 (1) KLT 928) 8. What then, is the effect of the evidence of the Investigating Officer (PW11) regarding the 'discovery' of the gold chain?. Could a presumption be drawn as provided under Section 114(a) of the Indian Evidence Act that the revision petitioner is either the thief or that he received the gold chain knowing it to be stolen?. To draw such a presumption, the prosecution has to show that the revision petitioner was in possession of the (stolen) gold chain soon after the theft. This Court is immediately concerned with the question whether the revision petitioner was “in possession” of the gold chain. 9. The information given by the revision petitioner and which lead the Investigating Officer to PW7 who, in turn produced the gold chain as stated in Ext.P1 and in the evidence of the Investigating Officer does not refer Crl.R.P.No.480/2001 5 to the authorship of the sale of the gold chain to PW7. To be explicit, the Investigating Officer has not stated in Ext.P1 or his evidence that the revision petitioner had told him in the course of the questioning that the revision petitioner had sold the gold chain to PW7. PW7 also did not admit that. There is no evidence that the revision petitioner had sold the gold chain to PW7. There is thus no direct evidence that the revision petitioner was in possession of the gold chain. 10. What then is the nature of presumption, if any that could be drawn?. The word “presume” is defined in Black's Law Dictionary as “to believe or accept upon probate evidence”. In Shorter Oxford English Dictionary it is stated that in law, “presume” means “to take as proved until evidence to the contrary is forthcoming” . A 'presumption' is a probable consequence drawn from facts as to the truth of a fact alleged. 'Presumption of fact' is an inference as to existence of one fact drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged. From the conduct of the revision petitioner pointing out PW7 who produced the gold chain (in the absence of evidence that the revision petitioner had sold the gold chain to PW7) the court may presume that the revision petitioner was in possession of the gold chain. But then, a further presumption based on that presumption that therefore, the revision petitioner is either the thief or receiver of the gold chain knowing it to be stolen good, cannot be drawn the reason being that it would amount to 'double presumption', ie., a presumption being based on another Crl.R.P.No.480/2001 6 presumption which is not permissible under law. Presumption cannot, unless the Statute otherwise provides be based on another presumption. Therefore, even if it is presumed from the conduct of the revision petitioner that he was in possession of the stolen gold chain, it is not possible to draw a further presumption as contained in Section 114(a) of the Indian Evidence Act (see also Suresh Budharmal Kalani v. State of Maharashtra - AIR 1998 SC 3258). In the facts of this case the conduct of the revision petitioner pointing out PW7 who produced the gold chain is admissible under Section 8 of the Indian Evidence Act, but a conviction cannot, in the absence of any other evidence regarding his culpability be based on that conduct alone. The conviction and sentence on the revision petitioner are therefore, liable to be set aside, and I do so. 11. It is often seen that appropriate evidence regarding the discovery under Section 27 of the Indian Evidence Act is not being brought in. The mahazar for the seizure of the material object, the extracted portion of the statement of the accused which lead to the discovery or even the evidence given by the Investigating Officer regarding that, may not mention the authorship of the sale/concealment of the material object. This often happens either because of ignorance of the relevancy and importance of evidence regarding the authorship of concealment/sale of the material object or inadvertence in recording the statement of the accused. The information leading to the discovery of the fact may be available in the statement of the accused recorded by the Investigating Officer. That statement is being recorded in the first person Crl.R.P.No.480/2001 7 where, the accused starts by saying what he did in the particular case (which of course is not admissible in evidence) and in the course of that statement, he refers to the concealment/sale, etc. of the material object. At that particular portion of the statement, the accused may not have referred to his concealing/selling the material object. In such situation, it is the responsibility of the Investigating Officer to state in the evidence about the authorship of the concealment/sale of the material object if done by the accused and as the accused told him, in case it is so. If the Investigating Officer does not say that, then, certainly the Law Officer who conducts the prosecution for the complainant/State has to elicit that matter from the witness. And, if for any reason the Law Officer also does not do that, then it is the duty of the trial court to do that. Section 165 of the Indian Evidence Act enables the court to put any question to any witness in order to discover or obtain proper proof of relevant facts. The courts while conducting the trial of cases must bear in mind that they are not silent spectators of the proceedings in the courts. The courts must be alert and alive and make use of, wherever necessary the power under Section 165 of course, maintaining the fairness of the trial or other proceedings. To avoid embarrassment if any, to the parties to the proceedings, the questions put by the court to the witnesses can be recorded as 'question by court' or indicated in any other manner permitted under law. The courts must also consider whether, in the facts and circumstances of the case it is necessary to grant leave to the parties or their agents to cross examine the witness upon the answer given in reply to such questions. Crl.R.P.No.480/2001 8 In the light of what I have concluded in paragraph 8 above, the revision petitioner gets an acquittal. His conviction and sentence are set aside and he is acquitted of the charges against him. His bail bond is also cancelled. Let not the courts be silent spectators of the proceedings before them. Crl.M.P.No.2236 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.480/2001 9 Thomas P.Joseph, J. Crl.R.P.No.480 of 1998 ORDER 16th September, 2008