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1999 DIGILAW 416 (KER)

Selvaraj v. State of Kerala

1999-09-14

T.M.HASSAN PILLAI

body1999
ORDER T. M. Hassan Pillai, J. 1. These three Criminal Revision Petitions have been filed by the convictedaccused No. 1 to 3 in C. C. No. 41/97 on the file of the Judicial First ClassMagistrate Court, Kattappana calling in question the legality, propriety andcorrectness of the concurrent findings of guilt recorded by the courts below(learned Judicial First Class Magistrate, Kattappana In C.C. No. 41 of 1997 asaffirmed by the learned Additional Sessions Judge, Thodupuzha in CriminalAppeal Nos. 83, 84 and 86 of 1998). These revisions are heard together andare being disposed of by this common order. 2. The accusation made against the revision petitioners in the challan laid byPW 9 after verifying investigation was that in furtherance of their commonintention to commit theft, the bars of the window of PW 1's house were brokenby them and they gained entry into that house on the intervening nightbetween 18th December 1995 and 19th December 1995 at about 1.15 a. m.and had stolen M. O.5 gold chain worn by PW 2 while she was asleep. It wasalleged that the revision petitioners committed offences punishable underS.380 and 457 read with S.34 I.P.C. 3. With a view to connect the revision petitioners with the crime alleged,prosecution examined as many as 12 witnesses. The documentary evidenceexhibited by prosecution was Exts. P1 to P4. The Material objects producedwere M. Os. 1 to 5. 4. On a consideration of the evidence led by the prosecution in support of itscase, the learned Magistrate came to the conclusion that the prosecutionsucceeded in establishing the guilt of the accused persons and convicted all ofthem for the aforesaid offences. Sentence was imposed on each court andeach of them was ordered to undergo rigorous imprisonment for one yearunder S.380 I. P. G. and to pay a fine of Rs. 1000 with a default clause. Eachof them was also ordered to undergo rigorous imprisonment for one yearunder S.457 I.P.C. and to pay a fine of Rs. 1000 with a default clause. Therevision petitioners unsuccessfully challenged the judgment and order ofconviction passed by the learned Magistrate by preferring criminal appeals83/1993, 84/1998 and 86/1998 before the Additional Sessions Judge,Thodupuzha. 5. The contention urged vehemently by the learned counsel for the revisionpetitioners for interfering with the concurrent findings of guilt recorded againstaccused 2 and 3 who are revision petitioners in Crl. R. P. Nos. Therevision petitioners unsuccessfully challenged the judgment and order ofconviction passed by the learned Magistrate by preferring criminal appeals83/1993, 84/1998 and 86/1998 before the Additional Sessions Judge,Thodupuzha. 5. The contention urged vehemently by the learned counsel for the revisionpetitioners for interfering with the concurrent findings of guilt recorded againstaccused 2 and 3 who are revision petitioners in Crl. R. P. Nos. 398/1999 and399/1999 respectively is that conviction of them is solely based on theconfessional statements said to have been made by them to PW 11 who wasthe Circle Inspector of Police, Nedumkandam Police Station at the relevanttime (they were arrested by him) in utter violation of the fundamental principleof criminal jurisprudence that a confession made by an accused person to apolice officer is inadmissible under S.25 and 26 of the Indian Evidence Act. Hechallenged the conviction of accused No, 1 on the ground that there is nodirect evidence to prove the commission of the offences by him. 6. The question that is to be considered is whether the concurrent findingsrecorded by the courts below regarding the involvement of the revisionpetitioners in the alleged commission of the crime is liable to be interfered withexercising revisional powers of this Court. 7. The fact that theft was committed on the night intervening between 18thDecember 1995 and 19th December 1995 is spoken to by PW 1. PW 2 hasdeposed that while she was asleep M.O. 5 gold chain worn by her wassnatched away. On hearing her cry. PW 1 who is her husband's brotherrushed to the room and it was found that window bars were broken to gainentry into the house and front door was also found opened. There evidence isunassailable and the cross examiner was not able to bring out any material tomake a dent to doubt the credibility of their versions. It is true that the date ofincident according to PW 2 is 10th December 1995 and no significance can beattached to that on the ground that there was prompt lodging of Ext. P1(a) F. I.R. on the morning of 19th December 1995 asserting theft was committed onthe intervening night between 18th December 1995 and 19th December 1995.From their evidence (evidence of PWs 1 and 2) it is clear that they have notattributed any specific role to anyone of the revision petitioners in the allegedcommission of the offences and no one had witnessed committing of theft. Ext.P1, the F.I. statement of PW 1 corroborated his evidence. 8. It transpires from the evidence of PW 10 who was the then Circle Inspectorof Police, Kumali Police Station that accused No. 1. was arrested by him on13th June 1996 and when interrogated A1 made Ext. P3(a) disclosurestatement. Accused No. 1 led PW 10 to the shop of PW 5 and PW 5 producedM. O. 5 gold chain and it was seized by PW 10 under Ext. P3 recoverymahazar. It is clear from the materials produced by the prosecution thatrecovery was made after 5 months of the alleged commission of the offences.PW 5's evidence is to the effect that the accused persons brought to his shopgold chain and in his evidence he has not clearly stated which accused soldthe ornament to him. However, it is clear from the evidence available that Ext.P3(a) disclosure statement was made by the first accused and he led PW 10to the shop of PW 5. PW 2 identified M.O. 5 as the gold chain worn by her onthe intervening night between 18th December 1995 and 19th December 1995which was snatched away while she was asleep. 9. It is not disputed before me by the learned Public Prosecutor and thelearned counsel for revision petitioners that article (M. O. 5) is calculated topass readily from hand to hand and the question, therefore, to be decided iswhether accused No. 1 was in recent possession of the stolen article. Forattracting illustration (a) to S.114 of the Indian Evidence Act, it has to beproved that the accused person was in recent possession of the stolen article.As there is no direct evidence to prove the involvement of accused No. 1 ie.,witnessing the commission of offences by him, the question to be consideredis whether he is the receiver of the stolen property or a their withoutoverlooking the fact that the recovery was made after a period of five months. 10. The evidence of PW 5 is to the effect that the stolen article was sold tohim one month prior to the recovery. Whether a presumption under illustration (a) to S.114 of the Evidence Act should be drawn in a given situation is amatter which depends on the evidence and circumstances of the cases. 10. The evidence of PW 5 is to the effect that the stolen article was sold tohim one month prior to the recovery. Whether a presumption under illustration (a) to S.114 of the Evidence Act should be drawn in a given situation is amatter which depends on the evidence and circumstances of the cases. Thenature of the stolen articles, the nature of its identification by the owner, theplace and the circumstances of its recovery, the explanation of the personconcerned from whom the recovery is made are all factors which are to betaken into consideration in arriving at a decision (See Devendran v. State of Tamil Nadu (1998 SCC (Crl) 280). 11. Presumption that A1 is a receiver of stolen property cannot be drawn onthe ground that A1 has not given any explanation for the possession of thestolen article and he has no defence case that he had purchased it bona fidebelieving that it was not a stolen property. Presumption to be drawn is that A1is the thief. There is no evidence to show that in furtherance of the commonintention of the revision petitioners to commit theft bars of the window of PW1's house were broken and they entered into the house of PW 1. There isunimpeachable evidence to show that M. O. 5 gold chain worn by PW 2 wassnatched away while she was asleep. It is only legitimate to conclude on thebasis of the evidence available that prosecution proved its case of commissionof offences under S.380 and 457 I.P.C. It has to be further held, on the basisof the materials placed before court, that both the courts below have rightlyfound first accused guilty under S.330 and 457 I.P.C. No mitigatingcircumstance is brought to my notice to interfere with the discretion exercisedby the Trial Court in awarding sentence on A1. The Additional Sessions Judgerightly affirmed the conviction of A1 and maintained the sentence awarded tohim. No ground is made out to interfere with that part of the Judgment andOrder of conviction passed by the learned Magistrate which was confirmed bythe Learned Additional Sessions Judge. 12. The Additional Sessions Judgerightly affirmed the conviction of A1 and maintained the sentence awarded tohim. No ground is made out to interfere with that part of the Judgment andOrder of conviction passed by the learned Magistrate which was confirmed bythe Learned Additional Sessions Judge. 12. Regarding the conviction of other revision petitioners (A2 and A3) it has tobe observed that severe criticism at the hands of this Court is warranted onthe ground that conviction of them by the courts below is solely based onconfessional statements said to have been made by them to a police officerwho had arrested them on 30th May 1996. Here is a Magistrate and anAdditional Sessions Judge who are blissfully ignorant of the fundamentalprinciple of criminal jurisprudence. The evidence led by the prosecution toprove their (A2 and A3 's) involvement is the confessions said to have beenmade to PW 11, who was the C. I. of Police, Nedumkandam when they werearrested by him on 30th May 1996 in Crime No. 47/1996 of KambammettuPolice Station. Strange and wholly unsound reason given by the learnedMagistrate for accepting PW 11's evidence on the aspect of confessions madeto him by A2 and A3 is that his evidence remains unchallenged. LearnedAdditional Sessions Judge has also given the same reasoning for affirming theconviction of them. 13. Both the courts below proceeding on wrong premises held thatprosecution succeeded in proving the offences charged against A2 and A3.The Judgments rendered by the courts below are typical examples of theignorance of the courts below regarding the fundamental principle that theconfession made by an accused to a police officer is inadmissible in evidence.Confessions were alleged to have been made by them (A2 and A3) while inpolice custody and it is not the case of prosecution that confessions weremade in the immediate presence of a Magistrate. In the result, Crl. R. P. 397 of 1999 filed by the convicted first accused is dismissed and Crl. R. P. Nos. 398/199 and 399/199 filed by convicted accused 2 and 3 respectively are allowed and they are acquitted of the charges leveled against them. Bail bond, if any, executed by them stand discharged.