IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 6TH NOVEMBER 2008 / 15TH KARTHIKA 1930 Crl.Rev.Pet.No. 3356 of 2008() ----------------------------------------- CRA.61/2003 OF SESSIONS COURT, TRIVANDRUM CC.708/2001 OF JUDL. MAGISTRATE OF FIRST CLASS COURT-II, NEDUMANGAD .................... REVN. PETITIONER/ APPELLANT/ACCUSED NO.5. ----------------------------------------------------------------------- SURERSH @ JETLY, S/O. SUDHAKARAN, RENJITHOM VEEDU, MULLANCHANI, KODUNGANOOR WARD, VATTIYOORKAVU VILLAGE. BY ADV. SRI.P.A.AHAMMED RESPONDENT/ RESPONDENT/COMPLAINANT ------------------------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 06/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ M.SASIDHARAN NAMBIAR, J. ........................................... CRL.R.P.NO. 3356 OF 2008 ............................................ DATED THIS THE 6th DAY OF NOVEMBER, 2008 ORDER Petitioner is the 5th accused in C.C.708 of 2001 on the file of Judicial First Class Magistrate-II, Nedumangadu. Prosecution case is that petitioner, along with accused 1 to 4, committed the offences under 457, 380 and 461 read with Section 34 IPC. The case was that on the night of 8.5.2001, at about 2.15 am in the early morning, in furtherance of their common intention, all the accused broke open the door of the northern room of the residential house of PW1 and committed theft of gold ornaments worth Rs.30,000/- and committed the offences. PW1 furnished Ext.P1 F.I.Statement, based on which Ext.P4 F.I.R was prepared and crime was registered. Later, all the accused were arrested in Crime No.113 of 2001 and on questioning, getting information that they are also involved in Crime 87 of 2001 of Learned Vattiyoorkavu police station, and they were questioned. On the information furnished by petitioner, MO1 gold bangles belonging to PW2, the wife of PW1 and stolen from their house, were recovered under Ext.P3 recovery mahazar, from the jewellery shop of PW5 at Chala. After completing the investigation, charge sheet was submitted before learned Magistrate. All the accused pleaded not guilty. Prosecution examined six witnesses and marked five exhibits Crrp 3356/2008 2 and identified MO1 series of bangles. Petitioners did not adduce any evidence. 2. Learned Magistrate, on the evidence, found accused 1 to 4 not guilty and acquitted them. Petitioner was found guilty and was convicted and sentenced for the offences under Section 457, 380 and 461 IPC. Petitioner challenged the conviction and sentence before Sessions Court, Thiruvananthapuram in Crl.A.61 of 2003. Learned Sessions Judge, on reappreciation of evidence, confirmed the conviction and sentence and dismissed the appeal. It is challenged in this revision petition. 3. Learned counsel appearing for petitioner and learned Public Prosecutor were heard. 4. The argument of the learned counsel is that courts below did not properly appreciate the evidence. It was argued that petitioner was convicted solely based on the recovery made by PW8 from PW5 under Ext.P3 mahazar and when the theft was on the night of 8.5.2001, MO1 series were recovered under Ext.P3 mahazar only on 5.7.2005 and even if MO1 series are the stolen articles, based on the possession of gold ornaments, presumption provided under Section 114(a) of Evidence Act should not have been drawn, as it was not soon Crrp 3356/2008 3 after the theft. Learned counsel, relying on the decision of Apex Court in Tulsiram Kanu V. The State(AIR 1954 SC Page 1) argued that as there is no evidence to prove that petitioner was in possession of the stolen articles soon after the theft, no presumption could be drawn that petitioner committed theft and if at all, the offence would only be under Section 411 IPC. Learned counsel also argued that there is no evidence with regard to the identity of MO1 series as the stolen article. It was pointed out that as per the F.I.Statement furnished by PW1, immediately after the theft, details of the stolen articles including three gold bangles having a weight of 1 ¼ sovereigns were mentioned but it does not tally with MO1 series of bangles recovered under Ext.P2. Learned counsel also argued that even when PW1 was examined, he did not clarify the difference and evidence of PW1 with regard to the identity was also different from the evidence of PW2 on the identity of MO1 series as the stolen article were not proved and therefore the presumption under Section 114(a) of Indian Evidence Act also cannot be drawn. Learned counsel therefore argued that the conviction is not sustainable. Learned counsel also submitted that petitioner is not involved in any other offence subsequent to this case and therefore leniency may be shown. Crrp 3356/2008 4 5. Learned Public Prosecutor, on instructions submitted that petitioner was not involved in any other case subsequent to the incident in this case and though there were five cases against him, including the present one, he was acquitted in all other cases. 6. Learned Magistrate and learned Sessions Judge relied on the evidence of Pws 1 and 2 and found that there was a theft in their house on the night of 8.5.2001 and gold ornaments including gold bangles of PW2 were stolen and MO1 series are the stolen gold bangles. The evidence of Pws 1 and 2 with regard to the theft was corroborated by Ext.P1 F.I.Statement lodged on the very next day and Ext.P4 F.I.R. Therefore there is no reason to disbelieve the evidence of Pws 1 and 2 with regard to the theft. 7. Evidence of PW6 establishes that all the accused were arrested in Crime No.113 of 2004 and on questioning, it was recorded that they are also involved in this case and later, after obtaining custody of petitioner, when he was questioned, on the information furnished by petitioner, MO1 series were recovered under Ext.P3 mahazar from PW5. PW5 is the owner of the jewellery shop at Chala. He is also an attesting witness to Ext.P3 mahazar. Evidence of PW3 establish that MO1 series were purchased by him from the petitioner Crrp 3356/2008 5 and they were recovered by police under Ext.P3, after reaching the shop along with revision petitioner. There is no reason for PW5 to falsely depose and thereby lose his right over MO1 series of gold ornaments. Therefore there is inherent trustworthiness in the evidence of PW5 with regard to identity of MO1 series as the gold bangles purchased from petitioner. They were recovered by PW6 under Ext.P3 mahazar. Courts below rightly accepted the evidence of PW3 with Ext.P3 to hold that they were recovered by PW6 during the investigation. The evidence of Pws 1 and 2 establish the identity of MO1 series of bangles as the stolen article. Though learned counsel vehemently argued that due to the discrepancy in the weight of gold bangles mentioned in Ext.P1 as well as at the time of evidence, it is to be found that MO1 series are not stolen articles. But on going through the evidence, I cannot agree with the submission. PW2 deposed that she was wearing MO1 series of gold bangles belonging to her and she was acquainted with the ornaments and could identify them. This version of PW2 was not cross examined and being a woman, who was wearing the ornaments earlier, PW2 is the most competent person to identify her stolen bangles. Evidence of PW2 relied upon by courts below establish the identity of MO1 gold ornaments. Though there is Crrp 3356/2008 6 discrepancy in the weight of gold ornaments mentioned by PW1 in Ext.P1 F.I.Statement, as well as at the time of evidence, it is not fatal to the prosecution. PW1 may not have the personal knowledge with regard to the weight and description of the gold ornaments belonging to the wife especially when the ornaments were not purchased by him. Therefore the difference in the weight mentioned by PW1 in Ext.P1 is not a ground to reject the identity of MO1 series made by PW2. From the evidence, courts below rightly found that MO1 series are the stolen gold bangles belonging to PW2. 8. Evidence of PW6 establish that MO1 series could be recovery only on information furnished by the revision petitioner. Evidence of PW5 establish that MO1 series of bangles which are the stolen articles were sold to PW5 by the revision petitioner. The question is whether the said possession, which was proved with revision petitioner before it was purchased by PW5, is sufficient to connect revision petitioner with the offences under Section 457, 420 or 461 of Code of Criminal Procedure. 9. Though PW5 deposed that MO1 series were handed over by him when PW6 along with petitioner came to his shop on the date of Ext.P3 mahazar, in chief examination, he did not depose when Crrp 3356/2008 7 petitioner sold them to him. But in cross examination, PW5 was asked as to when he purchased MO1 series from revision petitioner. In cross examination, the answer was 10 to 15 months prior to the recovery. But in re-examination, it is stated that 10 to 15 months he had spoken, was prior to the date of his examination and not the recovery. Learned counsel argued that there is no scope for re- examination as there was no ambiguity in that examination. But there is an ambiguity to be cleared from PW5 and his evidence establish that MO1 series were purchased by him from the revision petitioner 10 or 15 months prior to the date of his examination. He was examined on 17.12.2002. If that be so, MO1 series could have been purchased by him only 10 or 15 months prior to 17.12.2002, which could be two months after the date of theft. The question is, if that be so, whether a presumption that petitioner committed the theft and that too, after committing house trespass could be drawn. 10. Section 114(a) of Indian Evidence Act provides that the man who is in possession of stolen goods, soon after the theft, is either the thief or in receipt of stolen goods, knowing them to be stolen unless he could account for its possession. The Apex court in Tulsiram Kanu's case (supra) considered the effect of possession of a stolen Crrp 3356/2008 8 article belonging to the deceased and the applicability of Section 114 illustration(a). In that case the alleged murder took place on 28.5.1949 . Recovery was made in October 1949. It was found that the ornaments recovered belonged to the deceased. The question was whether the presumption provided under Section 114(a) could be drawn. Their Lordships held:- “ The important factor which appears to have been overlooked is that five months had elapsed between the date of the alleged murder and the tracing of ornaments. The presumption permitted to be drawn under Section 114 illustration (a) of Evidence Act has to be read along with the important time factor. If the ornaments or things of the deceased are found in the possession of a person, soon after the murder, a presumption of guilt may be permitted. But if several months expired in the interval, the presumption may not be permitted to be drawn having Crrp 3356/2008 9 regard to the circumstances of the case”. 11. In that case, the recovery was about five months after the murder. If the evidence of PW5 is accepted, then he purchased the gold ornaments only within two months from the date of the theft. If that be so, it cannot be said that recovery was soon after the theft. But when the recovery was not soon after the theft, the presumption that petitioner committed the theft cannot be drawn. Illustration (a) of Section 114 of Indian Evidence Act provides for a presumption either that he is the thief or he received the goods knowing them to be stolen unless he could account for its possession. Therefore, on the facts of this case, the only presumption that could be drawn is that petitioner received MO1 series knowing that they are stolen articles. If that be so, conviction of petitioner for the offences under Section 457 or 380 and 461 IPC are not sustainable. He could only be convicted for the offence under Section 411 IPC. 12. The question then is what is the sentence. Section 411 provides for a sentence of imprisonment which may extent to three years or fine or both. The judgment of learned Magistrate shows that petitioner was arrested and was in detention from 7.7.2001 to 30.7.2001, for 23 days. As petitioner is not involved in any other case, Crrp 3356/2008 10 subsequent to this case, interest of justice will be met, if the sentence is modified to imprisonment for a period of 23 days, the period petitioner had undergone and a fine of Rs.4000/- and in default, simple imprisonment for two months. 13. Revision petition is allowed in part. Conviction of petitioner for the offence under Section 457, 380 and 461 IPC and the sentence awarded are set aside. Petitioner is found guilty and is convicted for the offence under Section 411 IPC. Petitioner is sentenced to simple imprisonment for 23 days, the period he was in custody during trial and a fine of Rs.4000/- and in default, simple imprisonment for two months. M.SASIDHARAN NAMBIAR, JUDGE lgk/-