Kerala High Court
Thankachan vs State Of Kerala Represented By on 21 June, 2003
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938
Crl.Rev.Pet.No. 1857 of 2003 ( )
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AGAINST THE JUDGMENT IN Crl.Appeal No. 10/2002 of ADITIONAL SESSIONS
COURT,THODUPUZHA DATED 21-06-2003
AGAINST THE JUDGMENT IN CC 73/1999 of JUDICIAL FIRST CLASS MAGISTRATE
COURT, IDUKKI DATED 18-12-2001
REVISION PETITIONER(S)/APPELLANT/ACCUSED:
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THANKACHAN, S/O. DEVASSIA,
PUTHUPARAMBIL HOUSE,
KULAMAVU KARA, IDUKKI VILLAGE
BY ADVS.SRI.JOICE GEORGE
SRI.LIJI.J.VADAKEDOM
SRI.RAJEEV JYOTHISH GEORGE
RESPONDENT(S)/RESPONDENT/COMPLAINANT:
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STATE OF KERALA REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA
ERNAKULAM.
BY PUBLIC PROSECUTOR SMT. V.P. SATHI.
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 08-07-2016, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
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P.D. RAJAN, J.
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Crl.R.P.No.1857 of 2003
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Dated this the 8th day of July, 2016
ORDER
This revision petition is preferred against the judgment in Crl.Appeal No.10/2002 of Additional Sessions Judge, Thodupuzha. He was the accused in C.C.No.73/1999 of Judicial First Class Magistrate Court, Idukki for offence punishable u/s.457 & 380 IPC. The learned Magistrate convicted the accused and sentenced to simple imprisonment for 1 year and fine of 1,000/- u/s.457 IPC and simple imprisonment for one year and fine of 1,000/- u/s. 380 IPC with a default sentence. Against that, he preferred the above Crl.Appeal before Additional Sessions Judge, Thodupuzha, where the learned Sessions Judge modified the Crl.R.P. No.1857/2003 2 sentence to simple imprisonment for six months each u/s.380 and 457 IPC. Being aggrieved by that, the accused preferred this revision petition.
2. The charge against the accused is that on 23.11.1998 at 11 p.m., the accused with the intention of committing house breaking entered into the quarters No.D19 occupied by PW1 at Vazhathope Panchayath and committed theft of a gas cylinder, pressure cooker, stove and the mould used to make idiyappam, thereby committed the offence u/s.457 & 380 IPC. Idukki Police registered a crime and after completing investigation, Sub Inspector of Police laid charge before Judicial First Class Magistrate Court, Idukki. During trial, prosecution examined PW1 to PW8 and marked Exts.P1 to P6. The material objects MO1 to MO7 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the Crl.R.P. No.1857/2003 3 accused while questioning him. He did not adduce any defence evidence.
3. The main contention advanced by the learned counsel for the revision petitioner was that the possession of stolen article was not proved. For that, I have examined the oral evidence of detecting officer, PW8 Sub Inspector of Police, Idukki. His evidence shows that on 1.12.1998 at 5.30 p.m., while he was conducting vehicle inspection at Cheruthoni, the revision petitioner was found travelling in an autorickshaw keeping a big shopper with a pressure cooker, a gas cylinder and a gas stove. Upon suspicion, the Sub Inspector interrogated the accused, during interrogation, he stated that he was shifting the articles to his friend's house, but he was found frightened during interrogation, on further questioning, he admitted that he had stolen those articles from the house of PW1. PW8 Crl.R.P. No.1857/2003 4 seized MO1 to MO4, after preparing Ex.P4 seizure mahazar. The accused was arrested and produced at the Police Station. Ext.P3 is also another recovery mahazar.
4. The evidence of PW1 shows that while he was working as Assistant Engineer, KSEB, Vazhathope, on 21.11.1998 he went to his family house and returned to the quarters on 27.11.1998, at that time MO1 to MO4 were found stolen, for that he gave Ext.P1 statement to the Police. After arresting the accused, the Police had shown the stolen articles to him and he identified MO1 to MO4. Even though this witness was cross examined by the defence counsel, nothing has been brought out to discredit his evidence. An independent witness PW3 attested Ext.P2 mahazar. PW4 deposed that while he was working as Police Constable at Idukki Police Station, on 2.12.1998 PW2 produced a handsaw before the Sub Inspector, for that he Crl.R.P. No.1857/2003 5 prepared Ext.P3 mahazar. PW5 and PW6 admitted their signature in Ext.P4 recovery mahazar of MO1 to MO4. PW7 also identified the revision petitioner. Analysing the evidence of PW1, PW4 and PW8, it is true that PW8 recovered stolen articles from the possession of the accused. When a person is found in possession of stolen articles soon after theft, he is either a thief or has received stolen articles unless he can account for his possession. Unexplained possession of the stolen property by the revision petitioner itself makes it clear that he had either stolen or received the stolen articles. There is no case that he received the stolen articles.
5. According to S.114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public Crl.R.P. No.1857/2003 6 and private business, in their relation to the facts of the particular case. The court may presume 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. This position was explained by the Apex Court in Aydodhya Singh v. State of Rajasthan [AIR 1972 SC 2501], wherein it was held as follows:
"According to illustration(a) of Section 114 of the Indian Evidence Act, 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. It would in our opinion, depend upon the facts and circumstances of each case whether the court should draw the presumption that a person found in possession of stolen goods soon after the theft and who has not been able to account for his possession is the thief or whether he is the receiver of the goods knowing them to be stolen. We may state at this stage that the appellant has not been able to account for his possession of the stolen articles and the explanation furnished by him is not at all worthy of credence. Looking to the facts and circumstances of the case, we are of the view that the courts below were justified n drawing the presumption that the appellant was guilt of the offence under Sections 457 and 380 Indian Penal Code. The fact that the culprit Crl.R.P. No.1857/2003 7 entered the room on the third floor by opening the window and thereafter broke open a large number of boxes and almirahs and removed huge quantity of gold and silver ware shows that it was not the work of a single individual. The fact that the appellant was found soon after the theft in possession of a very large umber of stolen articles shows that he was himself the thief and not the of stolen goods. The present is not a case wherein one or two or a very few of the stolen articles were found in the possession of the appellant soon after the theft. On the contrary, the bulk of stolen articles were recovered from him. The number and the nature of the stolen articles recovered from the appellant soon after the theft coupled with the other circumstances of the case, in our opinion, warrant the presumption that the appellant himself committed the theft after entering the room on the third storey of Kistoor Chand's house through the window.
Therefore, anlaysing the evidence in this case, a presumption under Section 114(a) of the evidence Act can be drawn against the revision petitioner. Learned Judicial First Class Magistrate, Idukki analysed this aspect and convicted the accused u/s.457 & 380 IPC, which was confirmed by the appellate court. I find no illegality in the above finding and it is only to be confirmed.
6. The District Probation Officer, Thodupuzha, Crl.R.P. No.1857/2003 8 reported that the present character of the revision petitioner is positive and he is concerned about his family. He is not involved in any criminal activities and previous conviction is not reported against him. Considering the nature of offence and the circumstances under which it was committed and character of the offender, instead of sentencing the revision petitioner to any punishment, I direct that he shall be released on probation for good conduct under Section 4 of the Probation of Offender's Act, 1958 subject to the following conditions:-
a) He shall execute a bond for Rs.10,000/- (Rupees Ten thousand only) with two solvent sureties of the like sum for a period of one year to the satisfaction of the Judicial First Class Magistrate Court, Idukki.
b) He shall report his permanent place of abode to the learned Magistrate.Crl.R.P. No.1857/2003 9
c) He shall be under the supervision of the District Probation Officer for a period of one year from today.
d) He shall not commit similar offence of which he is accused of during this period.
e) He shall maintain peace during this period, abstain from intoxicants; and if he violates any of the conditions, he has to undergo the sentence imposed by the trial court.
f)The District Probation Officer shall furnish quarterly report to the trial Magistrate.
Petitioner is directed to surrender in the Judicial First Class Magistrate Court, Idukki forthwith.
The revision petition is disposed of as above.
P.D. RAJAN, JUDGE.
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