STATE OF KERALA v. UNNITHAN — 1988 DIGILAW 473 (KER)

Judgment :- 1. Acquittal of the respondent by the Judicial Second Class Magistrate I, Trivandrum in C. C. No. 324 of 1984 of offences punishable under S.461 and 379 IPC. is challenged by the State. 2. Pw. 1, a Psychiatrist working as Assistant Surgeon in the General Hospital, Trivandrum, went with family on 25-2-1982 for second show film in the M. P. Theatre. Trivandrum keeping his locked car outside. When he came out after the film, the car was found opened and his Philips car stereo radio fitted is the dash missing. Next morning, he went to the Fort Police Station and gave first information statement. Pw. 5, who was then Sub Inspector there, registered a case as Crime No. 60 of 1982, It was later referred as undetected. He was then transferred as Sub Inspector. Poonthura, While so, on 3-5-1983 when be was on patrol duty it about 2 P.M. he saw the accused near the Bheemapally Junction attempting to sell a stereo under suspicious circumstances. On getting suspicion when questioned he was arrested and the stereo seized. A case was registered. On further questioning, the stereo was found to be the one involved in the above Crime No. 60 of 1982. It is MO.1 and was identified by Pw.1 as the one found missing from his car. The case was transferred to Fort Police Station. Crime No. 60 of 1982 was got revived. Investigation conducted by Pw. 5 in Crime No. 53 of 1983 of the Poonthura Police Station was completed by Pw. 6, the Sub Inspector of Fort Police Station. He laid the charge. 3. On 26-2-1982 itself, the car was sent to finger print bureau and photos of the finger impressions in the car were taken and developed. They were compared with the available impressions but did not tally. It is seen from the evidence of Pw. 5 that after Crime No. 60 of 1982 was revived, the specimen finger print of the accused was taken and sent to the bureau and on comparison, it was found to tally with the impression traced from the car. But from the evidence of Pws. 5 and 6. it is not possible to decipher as to who took the specimen impression of the accused and forwarded it for comparison even though reference is made to a report of the expert stating that the two tallied. But from the evidence of Pws. 5 and 6. it is not possible to decipher as to who took the specimen impression of the accused and forwarded it for comparison even though reference is made to a report of the expert stating that the two tallied. The finger print expert was examined as Pw 7. From the evidence of Pw. 5, it is seen that the accused is involved in some other crimes registered by various police stations. The evidence of Pw. 7 shows that from Crime No. 51 of 1982 of the Vanchiyoor Police Station, he received the finger impression of one G.G. Unnithan, S/o. N.G. Unnithan the description of the accused is the same) and on comparison it was found to tally with the impression traced from the car. His opinion in Ext. P9 and the enlarged photos were produced as Ext. P9 (a) and (b). Ext. P10 is copy of the covering letter sent by him along with the opinion to the Vanchiyoor Police Station. 4. It appears that Pws. 5 and 6 did not care to take the specimen thumb impression or finger print of the accused in this case and sent it for comparison. They also did not attempt to collect the relevant materials from Crime No. 51 of 1982 of the Vanchiyoor Police Station in order to prove the impression taken in that case. The specimen impression was not made available and the police officer who took impression was not cited or examined. In fact no earnest step was taken to prove the identity of the thumb impression found in the car even though that is a very valuable piece of evidence for the case which depends upon circumstantial evidence alone. The reason is unknown. Even Pw. 7 was cited and examined only at a very late stage after Pw. 6 was examined in part. Even then the specimen thumb impression of the accused taken from the Vanchiyoor Police Station was not sought to be produced in the case and the person who took it was not examined to prove its identity and the further fact that it was the impression sent to the expert and got compared by him. The Assistant Public Prosecutor who conducted the case also did not divert his attention to any of these matters in the examination of the witnesses or the conduct of the case. The Assistant Public Prosecutor who conducted the case also did not divert his attention to any of these matters in the examination of the witnesses or the conduct of the case. The omissions could be doe to ignorance, inexperience, indifference or even collusion. The accused is said to be the son of a retired Class I Officer who is conducting a big hotel at Trivandrum. 5. Seven witnesses were examined and 10 documents were proved. MO 1 is the stereo. MO.1 was identified by Pw.1 during investigation and in court also. He said that it was purchased by him in 1975 when he was studying in U.K. Though the bill or other papers were not produced, be has given cogent reasons in support of his emphatic identification of MO.1 as the stereo radio purchased by him and found missing from his car. He particularly remembered the mounting frame specially purchased and fitted by him. He also said that the two speakers of it are even now with him. His evidence shows that there is not even the scope for suspecting an honest mistake committed by him in the identification of MO.1 as his. This is quite so especially when the contention of the accused is only a flat denial of the recovery from him and he has no case that it belonged to somebody else or himself or that it came to him in some other manner. Pw.1 appears to be a very respectable and honest witness who was speaking truth and truth alone. In my opinion, his identification of MO.1 is beyond doubt and it was not doubted by the Magistrate also. 6. The two other items of relevant circumstantial evidence to connect the accused with the crime are the evidence regarding his possession coupled with attempts to sell it and the thumb impression in the car. Possession of the accused and recovery from him proved in the case are more than one year and three months from the date of occurrence. How far that by itself is a circumstance capable of creating a presumption under Illustration (a) to S.114 of the Evidence Act is a matter to be considered. Possession of the accused and recovery from him proved in the case are more than one year and three months from the date of occurrence. How far that by itself is a circumstance capable of creating a presumption under Illustration (a) to S.114 of the Evidence Act is a matter to be considered. Even if possession and attempts to sell at such a distance of time by themselves may not be capable of creating an undoubted presumption of theft under Illustration (a) to S.114, coupled with proof of identity of the thumb impression found in the car on the date of incident it will definitely go a long way in establishing the guilt beyond even a shadow of doubt. 7. Our attempt should always be to find the truth and bring anti social elements to justice rather than standing on technicalities, Pw. 2, a taxi driver, said that he had occasion to come to 'Kanya Hotel' of the accused with his car. The accused offered to sell MO.1 to him. But he had no time for a talk since bis passengers came. Then on 3-5-1983 the accused went to his taxi stand with MO.1 and when they were bargaining, Pw. 5 came and arrested the accused with MO. 1. The reasons given by the Magistrate for rejecting his evidence are perverse and I shall advert to them briefly later. He is an attestor to Ext. P2 seizure mahazar prepared by pw. 5. pw. 3 who is another witness to it turned hostile in his anxiety to help the accused and uttered all sorts of falsehood even though be admitted his signature in Ext. P2 pw. 5 has spoken in detail to the circumstances under which the seizure was made. 8. The Magistrate rejected the evidence for the following reasons: (I) In the box pw.1 omitted to mention the number of the car as KRT 5678. (2) pw. 2 admitted in cross that be cannot say from whom MO.1 was seized by pw. S. (3) After mentioning about bis conversation with the accused in detail, pw 2 said in cross examination that there was no specific conversation. (4) While seizure was on 3-5-83 pw. 2 said it was on 4-5-1983. (5) Ext. P9 opinion of pw. 7 did not specify the portion of the car where the thumb impression of the accused was seen. (6) pws. (4) While seizure was on 3-5-83 pw. 2 said it was on 4-5-1983. (5) Ext. P9 opinion of pw. 7 did not specify the portion of the car where the thumb impression of the accused was seen. (6) pws. 2 to 4 are not reliable and the chain of circumstantial evidence is not complete. (7) Without corroboration tee evidence of pws. 5 and 6 cannot be accepted, and (8) pw. 7 the expert was cited and examined only at a late stage. Even the counsel for the accused was not able to support these reasons though he attempted to support the conclusion on other grounds. 9. The number of the car is not in dispute at all. It is mentioned in the first information statement, first information report, Ext. P3 mahazar as well as by pw 7. But the Magistrate says that the omission of pw 1 is fatal and the defect cannot be filled up by the evidence of pw 7. This is a very strange reasoning. pw 2 has given a natural and detailed version of his two meetings with the accused. First was in the Kanya Hotel when the accused offered to sell MO.1 to him but be had no time to respond since the passengers came and be bad to take them back. Second time accused came to bis taxi stand and had a bargain with him for the sale of MO.1 when pw 5 came and arrested him and seized MO 1. He is a rustic witness who was not able to withstand a tough cross examination and only answered in the affirmative when a suggestive question was asked that there were several persons and he could not say from whom MO 1 was seized by pw 5. All other answers in chief and cross indicate a natural and truthful version of an innocent and honest witness who has no axe to grind against the accused. The stray answer to a specific question in cross examination that there was no specific talk is not capable of erasing or falsifying the details stated by him earlier. If the prosecution version is correct the accused must have been eager to dispose of an unsaleable stereo radio unnoticed by anybody including bis father. The stray answer to a specific question in cross examination that there was no specific talk is not capable of erasing or falsifying the details stated by him earlier. If the prosecution version is correct the accused must have been eager to dispose of an unsaleable stereo radio unnoticed by anybody including bis father. There is nothing improbable in the accused taking it to pw 2 in the taxi stand and pw 2 making the show of a bargain even though be did not want to purchase it. His evidence is corroborated by pw.5. The mistake in date was not very crucial especially when pw.2 was examined after a lapse of time and he himself admitted that he is not sure of the date. In fact he corrected the date also. 10. The absence of clear evidence regarding the exact portion of the car from where the disputed thumb impression of the accused was taken is not having that consequence as assigned by the Magistrate in the light of the seizure provided there is acceptable proof that the impression is that of the accused. In that event, it will be a clinching piece of evidence conclusively pointing out as to how he came by MO.1 especially in the absence of any explanation as to ownership or possession. The Magistrate seems to have gone under the impression that in a case 'depending on circumstantial evidence there must be hundreds of circumstances to make the chain complete. It is not the number of circumstances but their conclusive effect on the guilt that counts. The assumption that pws. 5 and 6 cannot be believed without corroboration is a wrong understanding of the law. Corroboration is not a rule of law but only one of prudence and caution. Nothing prevents acceptance of their evidence without corroboration if the Court thinks so. In fact there is nothing to disbelieve them and the Magistrate has also not assigned any reasons. The delay in citing and examining pw 7 ought not have been considered by the Magistrate as a ground after having allowed his examination on the conviction that it is necessary. 11. The specific reason assigned by the accused in his 313 statement for false implication is that pw. 5 along with his friend Sub-Inspector Sreenivasan used to frequent bis hotel and on one occasion when they wanted a room for some immoral purpose, be refused. 11. The specific reason assigned by the accused in his 313 statement for false implication is that pw. 5 along with his friend Sub-Inspector Sreenivasan used to frequent bis hotel and on one occasion when they wanted a room for some immoral purpose, be refused. There is absolutely nothing to probabilise this wild suggestion. The fact that even the accused did not mean it seriously is clear from the question asked to pw. 5 in cross examination. At that time, the suggestion was only this, "Did you not foist a false case against the accused at the instance of your friend Sub-Inspector Sreenivasan who had a quarrel with the accused". pw. 5 or the immoral purpose or the request for room were not there at that time and the question itself was very vague as to the date or nature of quarrel. It is clear that the accused was interested only in assigning some mala fide reason for discrediting pw.5. The Magistrate did not consider any of these aspects. Instead, on some faulty, perverse and imaginary reasons, he discredited the prosecution case and evidence. The facts that MO.1 was in the possession of the accused and it was offered to pw. 2 twice and seized from him by pw. 5 are clear beyond doubt. The identity of MO.1 as the stereo radio belonging to pw.1 and found missing from bis car is also clear beyond doubt. 12. Presumptions of existence offsets under S.114 of the Evidence Act are on account of their likelihood, regard being had to the common course of natural events, human conduct and private business, in relation to the facts of the particular case. On the basis of these factors the presumption is a legitimate inference as to the existence of one or more facts from the existence some other fact or facts. Presumptions of law derive their force or effect from law, but presumptions of facts are logical influences without the aid of any rule of law based on likelihood having regard to certain probable factors. The illustrations mentioned in the section are taken from different spheres of human activity based on human experience and have to be applied to the context of the facts of each case. They are not exhaustive but only illustrative. Illustrations are only examples of circumstances in which certain presumptions could be legitimately made. The illustrations mentioned in the section are taken from different spheres of human activity based on human experience and have to be applied to the context of the facts of each case. They are not exhaustive but only illustrative. Illustrations are only examples of circumstances in which certain presumptions could be legitimately made. Courts could extend those presumptions to other areas also. The availability of the presumption depends upon the facts of each case. No bard and fast guideline could be given. Human behaviour cannot be confined within straight jackets. Regard must be had to all material circumstances before determining what presumption should justifiably be drawn (Kali Ram v. State of Himachal Pradesh AIR. 1973 Supreme Court 2773). 13. Under Illustration (a) to S.114 of the Evidence Act, in the absence of a cogent explanation for his possession, the person in possession of stolen goods could be presumed to be either the thief or a receiver of stolen property. But such possession must be "soon after the theft". So far as movables are concerned, possession is proof of title. But when ownership and prior possession of a movable are established and it is proved to be missing under circumstances that it amounts to theft and found in the possession of another and properly identified, the position is different. Then the possessor will be burdened with the liability of explaining how he came into possession. If he is not able to explain or if he gives a false explanation, the presumption comes in. The presumption whether be is the thief or only a receiver of known stolen property are matters of inference on the facts of each case. The words "soon after the theft" are introduced in the section in order to avoid an innocent person being implicated because by long lapse of time movables may change several bands and a plausible explanation may also become sometimes impossible. In a particular case whether the possession was "soon after the theft" depends upon various factors. No specific time limit is prescribed. It may depend upon the free or rare availability or transferability, the marketing facility available, the demand for it, the possibility of being hidden for a long time on account of the incriminating effect, the non-availability of the possessor and various other factors. No specific time limit is prescribed. It may depend upon the free or rare availability or transferability, the marketing facility available, the demand for it, the possibility of being hidden for a long time on account of the incriminating effect, the non-availability of the possessor and various other factors. In short, the judicial mind of the court applied to the facts and circumstances of the case must give an answer. 14. Tulsiram Kanu v. The State (AIR. 1954 Supreme Court I) said that the presumption has to be read along with the important time factor. Possession of ornaments or things of the deceased found after the expiry of several months after the murder was held not capable of raising the presumption. In Ravindran and others v. State (1972 KLT. 608), the law laid down was that no hard and fast rule can be applied as to the interval during which such presumption will survive; but the position can very well be stated that if several months expire the presumption may not be available. But it was also said that it will vary with the article and its transferability. In Alisher v. State of Uttar Pradesh (AIR. 1974 SC. 1830), the Supreme Court said that the question as to how much period should elapse after the theft in order to rule out the presumption would depend upon the nature of the stolen article and the facts of each case. For goods of easy availability and transferability, the period of presumption may be shorter, but it may be greater if the goods are not capable of easy change of hand. In the case of rare or valuable items which are normally difficult of being transferred, the lapse of one or two years itself may not sometimes affect availability of the presumption. In Eerabhadrappa v. State of Karnataka (AIR 1983 SC. 446), involving murder and robbery the accused was absconding and lapse of one year was held not to take away the presumption. 15. In this case, even though MO.1 is a stereo radio which could be said to be easily transferable, it was not in a usuable condition. Something more was necessary to put it to use. It was in such a condition as is capable of creating some doubt and as such an incriminating material. 15. In this case, even though MO.1 is a stereo radio which could be said to be easily transferable, it was not in a usuable condition. Something more was necessary to put it to use. It was in such a condition as is capable of creating some doubt and as such an incriminating material. The position of the accused and bis desire to dispose it of secretly also will have to be taken into account. Still the time lag is more than one year and three months. Even though there is every possibility of the accused being the thief, on account of the time lag alone, I feel that there is reason for a genuine doubt whether such possession by itself could be taken as legal evidence for raising the presumption under Illustration (a) to S.114 of the Evidence Act in view of the time lag. The benefit of such a doubt must always go to the accused. But if the evidence of pws. 2 and 5 is supported by some other accepted material the position may be different. If the finger print or thumb impression found in the car on the date of incident is established to be that of the accused, that will be valuable piece of evidence supporting the possession and recovery and unmistakably pointing out to the culpability. 16. The evidence of pws. 5, 6 and 7 show that such a valuable item of evidence is there but was not properly brought in due to the lapses of pws.5 and 6 and the Assistant Public Prosecutor. It is highly necessary in the interest of justice that these items of evidence are also properly brought in. The specimen impressions taken in Crime No. 51 of 1982 of the Vanchiyoor Police Station will have to be brought in and the person who took the same and sent them to the expert will have to be examined to Drove them and their identity. The photographs and the enlargements and tracings as well as the correspondence from the expert also will have to be brought in and if necessary, the photographer and the expert also will have to be examined again after bringing all the necessary records in that connection. With these items of evidence, the accused will have to be questioned again on those additional materials and an opportunity for evidence will have to be given to him. With these items of evidence, the accused will have to be questioned again on those additional materials and an opportunity for evidence will have to be given to him. If the prosecution is not interested in bringing these items of oral and documentary evidence, they will be examined as court witnesses and the documents brought in and marked as court documents in exercise of the powers of the Magistrate under S.311 of the Code of Criminal Procedure. Then the case will have to be disposed of on the merits according to law subject to what is stated above and the conclusions arrived at in this judgment. Subject to the findings that MO I is the stereo radio of pw.1 found missing from his car on 25-2-1982 and that it was offered for sale to pw. 2 by the accused and seized from him by pw. 5, the acquittal is set aside and the case is remanded to the trial court for further trial and disposal on the merits according to law subject to what is stated above. The office will transmit the records to the trial court forthwith and the parties will appear there on 21-11-1988.