Santhosh vs State Of Kerala
2021 Latest Caselaw 4 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

         THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

                 Crl.Rev.Pet.No.631 OF 2013

   CRA 50/2012 OF ADDITIONAL DISTRICT COURT (ADHOC)-I,
                        KALPETTA

  CC 240/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I,
                      MANANTHAVADY


REVISION PETITIONER/S:

           SANTHOSH, AGED 27 YEARS
           S/O.RAMACHANDRAN, THANDARAKANDIL HOUSE,
           BAIRAKUPPA, BEECHANAHALLI, KARNATAKA.

           BY ADVS.
           SHRI.JOHN VARGHESE
           SRI.P.M.JOSEPH

RESPONDENT/S:

           STATE OF KERALA
           REPRESENTED BY THE SUB INSPECTOR OF POLICE,
           MANANTHAVADY, THROUGH THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.


OTHER PRESENT:

           SR.PP.M.S.BREEZ

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 04.01.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 Crl.Rev.Pet.No.631 OF 2013

                               ..2..




                             O R D E R

The revision petitioner is the 1st accused in

CC No. 240 of 2008 on the file of the Judicial

First Class Magistrate Court-I, Mananthavady

and the appellant in Crl.Appeal No. 50 of 2012

on the file of the Additional Sessions Court

(Adhoc)-I, Kalpetta. The offence alleged

against the accused in punishable under

Section 379 r/w Section 34 of the Indian Penal

Code.

2. The prosecution case, in brief, is as

hereunder;

A motorcycle, bearing Reg.No.18 A-5159,

belonging to PW1 was parked in front of a shop

at Chettappalam on 23.03.2007 between 8 pm and

9 pm. PW2, the then Sub Inspector of Police,

Ambalavayal, while conducting routine patrol

duty at 1.50 pm within his jurisdiction, found Crl.Rev.Pet.No.631 OF 2013

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the 1st accused riding the aforesaid motorcycle

along with the 2nd accused on pillion from

Vaduvanchal Bhagom. After giving signal, the

vehicle was stopped at Menonmukku and PW2 made

a request to the accused to furnish the

documents to prove the ownership of the

motorcycle. However, the accused could not

produce any document to prove the ownership of

the motorcycle. Since the accused could not

explain their possession of the vehicle, the

vehicle was seized as per Ext.P2 seizure

mahazar and the accused 1 and 2 were arrested.

Accordingly, PW2 registered Ext.P3 First

Information Report under Sections 41(1)(d) and

102 of the Code of Criminal Procedure

(hereinafter referred to as, "the Cr.P.C.").

On investigation, it was disclosed that the

motorcycle was involved in Crime No. 154 of

2007 of Mananthavady Police Station. In the

meanwhile, PW1 appeared before PW5, the then Crl.Rev.Pet.No.631 OF 2013

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Head Constable, Mananthavady Police Station,

on 27.03.2007 and submitted Ext.P1 statement.

On the strength of Ext.P1, PW5 filed Ext.P6

First Information Report before the court.

3. On the appearance of the accused 1 and 2,

after having heard both sides, the trial court

framed charge against the accused for the

offence punishable under Section 379 r/w

Section 34 of the IPC. The charge was read

over, to which the accused pleaded not guilty.

4. During the trial, PWs 1 to 7 were examined and

marked Exts.P1 to P9 on prosecution side. On

closing the evidence of the prosecution, the

accused were questioned under Section 313(1)

(b) of the Cr.P.C. They denied all the

incriminating circumstances appearing in the

evidence against them. When they were called

upon to enter on their defence, no evidence

was adduced.

5. After hearing both sides, by its judgment Crl.Rev.Pet.No.631 OF 2013

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dated 27.02.2012, the trial court convicted

the accused under Section 379 of the IPC and

accordingly, they were sentenced to undergo

simple imprisonment for six months and to pay

a fine of Rs.2,000/- each for the offence

under Section 379 r/w Section 34 of the IPC

and in default of payment fine to undergo

simple imprisonment for one month each more.

6. Challenging the conviction and sentence

imposed by the trial court, the accused

preferred Crl. Appeal No. 50 of 2012 and the

appellate court, by its judgment dated

28.09.2012, allowed the appeal in part. The 2nd

accused was found not guilty of the offence

punishable under Section 379 r/w Section 34 of

the IPC and accordingly, he was acquitted.

However, the conviction and sentence rendered

against the 1st accused were upheld. Feeling

aggrieved, the 1st accused is before this Court

in revision.

Crl.Rev.Pet.No.631 OF 2013

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7. Heard Sri.John Varghese, the learned counsel

for the revision petitioner; and

Sri.M.S.Breez, the learned Senior Public

Prosecutor for the respondent-State.

8. The learned counsel for the revision

petitioner submitted that there is nothing on

record to show that PW1 was in possession of

the vehicle as testified by him. According to

him, both the trial court and the appellate

court went wrong in holding that the 1 st

accused committed theft without establishing

the legal possession as contemplated under

law. Elaborating on the submission, the

learned counsel submitted that the vehicle was

found missing since 23.03.2007. However, PW1

lodged Ext.P1 statement before the police on

27.03.2007. It was argued that the delay in

lodging Ext.P1 First Information Statement has

not been explained by PW1. Added to this, the

learned counsel for the revision petitioner Crl.Rev.Pet.No.631 OF 2013

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submitted that necessary ingredients under

Section 379 of the Indian Penal Code to

sustain the conviction under Section 379 of

the IPC have not been brought out in evidence.

9. On the other hand, the learned Senior Public

Prosecutor submitted that the accused 1 and 2

were found in possession of the motorcycle

involved in this case and they could not

satisfactorily account for their possession

when PW2 seized the motorcycle from them. The

learned Senior Public Prosecutor further

submitted that both the trial court and the

appellate court concurrently held that the 1st

accused was not able to account for his

possession of the vehicle and the presumption

under Section 114(a) of the Evidence Act is

applicable. It is submitted that when

concurrent findings of fact are sought to be

assailed in revision, unless the finding is

perverse in nature, the revisional court is Crl.Rev.Pet.No.631 OF 2013

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not justified in upsetting the findings in

exercise of powers under Section 401 of the

Cr.P.C.

10.It is a fact that PW2 and party seized the

motorcycle bearing Reg. No. 18 A-5159 while

they were on vehicle checking duty at

Ambalavayal area precisely at Thomattuchal

Village from the possession of accused 1 and

2. At the time of seizing the vehicle, the 1st

accused was the rider and the 2nd accused was

thereon as a pillion rider. It is the case of

PW2 that when the motorcycle was stopped and

the accused were interrogated, they could not

properly account for their possession of the

motorcycle and the documents pertaining to the

motorcycle were not available with them.

Accordingly, the vehicle was seized and Ext.P3

First Information Report was registered for

the offences under Sections 41(1)(d) and 102

of the Cr.P.C. by PW2. Surprisingly, in the Crl.Rev.Pet.No.631 OF 2013

..9..

meanwhile, on 27.03.2007, PW1 appeared at

Mananthavady Police Station and tendered

Ext.P1 statement before PW5 and accordingly,

PW5 registered Ext.P6 First Information

Report.

11.When PW1 was examined before the trial court,

he was not able to produce the documents to

prove that he was the owner of the motorcycle

allegedly seized from the accused 1 and 2.

12.Section 378 of the IPC defines the term

"theft". In order to prove "theft" as defined

under Section 378 of the IPC, it is essential

on the part of the prosecution to prove that

the accused intended to take dishonestly any

movable property out of the possession of any

person without that person's consent and moved

that property in order to such taking. Thus,

it is clear that it is essential to prove that

the motorcycle involved in this case was moved

out of the possession of any person without Crl.Rev.Pet.No.631 OF 2013

..10..

that person's consent. PW1 stated before the

court that he had no documents to prove the

legal possession of the vehicle in question.

According to him, somebody had entrusted the

vehicle to him for a ride. He was not sure as

to whether the vehicle was under hypothecation

agreement with a financier. He had not

witnessed the occurrence. No other evidence

was adduced to show that the accused 1 and 2

took the motorcycle involved in this case out

of the possession of PW1 dishonestly with an

intention to cause wrongful gain to the 1 st

accused or wrongful loss to PW1. There is also

no evidence to show that the 1st accused took

the motorcycle or moved it from the place,

where it was parked, without the consent of

PW1. Going by the evidence in this case, PW1

failed to adduce evidence to prove that he was

in legal possession of the motorcycle involved

in this case. When there was no evidence to Crl.Rev.Pet.No.631 OF 2013

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substantiate the fact that PW1 was in legal

possession of the motorcycle in question, the

presumption contemplated under Section 114(a)

of the Evidence Act is not applicable. Merely

because the accused was not able to give

satisfactory answers to PW2 when they were

interrogated by him on the date of seizure of

the vehicle, the same itself is not sufficient

to hold that the 1st accused was in possession

of the stolen good soon after the theft. The

presumption will come into play only after PW1

adducing evidence to prove that he was in

legal possession of the motorcycle in

question.

13.Further, according to PW1, the motorcycle was

found missing since 23.03.2007. He had no case

that he had produced any document before PW2

to prove the legal possession of the vehicle

involved in the case. Ext.P1 was lodged only

on 27.03.2007. It is clear from Ext.P6 First Crl.Rev.Pet.No.631 OF 2013

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Information Report that PW1 straight away went

to the police station and lodged Ext.P1

statement before PW5. The delay in lodging

Ext.P1 First Information Statement has also

not been explained.

14.It is, therefore, clear that the presumption

under Section 114(a) of the Evidence Act is

not applicable in this case. The offence of

"theft", as defined under Section 378 of the

IPC, is not proved in evidence. Both the trial

court and the appellate court analyzed the

evidence without considering the above legal

aspects involved in this case. Thus, the

conviction and sentence concurrently rendered

against the 1st accused are liable to be set

aside.

In the result, the criminal revision petition

is allowed. The revision petitioner/1st accused

is found not guilty of the offence punishable

under Section 379 r/w Section 34 of the IPC Crl.Rev.Pet.No.631 OF 2013

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and he is acquitted thereunder. Cancelling his

bail bond, this Court directs that he be set

at liberty. If any amount is deposited

pursuant to an interim order passed by this

Court, the same shall be released to the

revision petitioner/accused in accordance with

law. Pending applications, if any, stand

disposed of.

Sd/-

N.ANIL KUMAR

JUDGE Bka/04.01.2021