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2013 DIGILAW 162 (KER)

Abdul Gafoor v. State of Kerala

2013-02-25

K.HARILAL

body2013
ORDER K. Harilal, J. 1. The Revision Petitioner is the accused in C.C.No.150/2008 on the files of the Judicial First Class Magistrate Court-I, Manjeri, as well as the appellant in Crl. Appeal No.98/2010 of the Additional Sessions Judge (Ad hoc)-III, Manjeri. He was prosecuted for the offence punishable under Section 379 of the Indian Penal Code. After trial, the learned Magistrate found him guilty of the said offence and convicted thereunder. He was sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5,000/-, in default of payment of fine, he shall undergo simple imprisonment for a further period of three months. Though the Revision Petitioner had preferred an appeal, the Appellate Court also confirmed the conviction and sentence. This Revision Petition is filed challenging the concurrent findings of conviction entered and sentence imposed on the revision petitioner by the courts below. 2. Prosecution case is that a motor cycle bearing No. KRP 6959 worth Rs.10,000/-, belongs to the brother of PW5 who is working at Bangalore, was being used by PW5 for his personal use. On 08.02.2007, PW5 visited the District Hospital, Manjeri, after parking the above motor bike in the premises of the said hospital. When he came back at 6 PM, the bike was found stolen. According to the prosecution, it was the Revision Petitioner/Accused who committed the theft of the above motor cycle from the premises of the said hospital and thereby he committed the offence punishable under Section 379 of the Indian Penal Code. 3. In trial, PW1 to PW7 were examined and Exts.P1 to P7 were marked for the prosecution. No evidence was adduced by the Revision Petitioner/Accused. PW1 is the Sub Inspector of Police of the Perinthalmanna Police Station, who arrested the accused and seized the motor cycle. He deposed that on 08.02.2007 at about 2 AM, he saw the Revision Petitioner/Accused in front of a service station at Perinthalmanna, riding a motor cycle along the road in a suspicious circumstance. So, he arrested the Revision Petitioner, seized the motor cycle and FIR was prepared under Section 41(1)(d) of the Code of Criminal Procedure. Thereafter, on interrogation, it was revealed that the Revision Petitioner was the person who committed the theft of PW5's motor cycle. Then PW1 filed Ext.P3 report before the Judicial First Class Magistrate, Perinthalmanna incorporating Section 379 of Indian Penal Code. Thereafter, on interrogation, it was revealed that the Revision Petitioner was the person who committed the theft of PW5's motor cycle. Then PW1 filed Ext.P3 report before the Judicial First Class Magistrate, Perinthalmanna incorporating Section 379 of Indian Penal Code. Since the place of occurrence alleged in this case comes within the jurisdiction of the Manjeri Police Station, the case records were transferred to Manjeri Police Station for further action. PW7 Sub Inspector of Police, Manjeri Police Station prepared the Scene Mahazar and conducted the investigation in this case. PW6 is the then Sub Inspector of Police, Manjeri. He has deposed that he laid the final report against the Revision Petitioner/Accused. 4. The Revision Petitioner/Accused entered appearance and pleaded not guilty. After considering the oral and documentary evidence, the court below found the Revision Petitioner/Accused guilty of the offence punishable under Section 379 of Indian Penal Code. The court below mainly relied on the evidence of PW1 Sub Inspector of Police, Perinthalmanna, PW2 Head Constable who accompanied PW1 at the time of arrest and seizure of the vehicle, PW5 the person who was in possession of the motor vehicle at the time of theft and relied on Exts.P1 Seizure Mahazar, P2 FIR and P5 FIR in Crime No.140/2007 of Manjeri Police Station. The arrest and seizure of the vehicle from the possession of the Revision Petitioner/Accused were proved by PW1 and PW2. PW1 deposed that while PW1 was conducting patrol duty, along with PW2, the Revision Petitioner/Accused was arrested with the above motor cycle, seized the motor bike under Ext.P1 Seizure Mahazar and thereafter registered Ext.P2 FIR against the Revision Petitioner/Accused under Section 41(1)(d) of the Code of Criminal Procedure. It is also proved that at the time of arrest and seizure, no document relating to the vehicle was found in possession of the Revision Petitioner/Accused. He was unable to account the possession of the vehicle and it is also pertinent to note that the time of arrest was 2 AM. On suspicion, after arrest when he was interrogated, he admitted that the vehicle is one which belongs to PW5 and regarding the possession, the specific case advanced by the Revision Petitioner/Accused, as defence contention, is that PW5 had given the bike to the Revision Petitioner/Accused, through one Sheriff in connection with a financial transaction. On suspicion, after arrest when he was interrogated, he admitted that the vehicle is one which belongs to PW5 and regarding the possession, the specific case advanced by the Revision Petitioner/Accused, as defence contention, is that PW5 had given the bike to the Revision Petitioner/Accused, through one Sheriff in connection with a financial transaction. But PW5 is seen examined in this case and PW5 deposed that he had no transaction with the Revision Petitioner/Accused and the vehicle was found missing on 08.02.2007 from the premises of District Hospital, Manjeri and the vehicle was parked in the premises of the hospital when it was stolen away. Thus, the arrest and seizure were proved by the oral evidence of PW1 and PW2 and the missing of the vehicle from the possession of PW5 was proved by PW5 himself. 5. Then, the only question to be considered is whether the explanation given by the Revision Petitioner/Accused regarding his possession of the motor cycle is sufficient and satisfactory to rebut the presumption under Section 114(a) of the Indian Evidence Act. The specific case of the Revision Petitioner/ Accused is that PW5 had given the above said bike to the Revision Petitioner/Accused through one Sheriff in connection with the financial transaction. By taking this defence, it is seen that though PW5 is not the registered owner of the vehicle, the Revision Petitioner/Accused himself admitted that PW5 was in lawful possession of the vehicle when the vehicle was taken away from the hospital premises. Thus, one of the essential ingredients of Section 379 is established by the admission of the Revision Petitioner/Accused himself. According to the Revision Petitioner/Accused, he got the possession of the vehicle from PW5 through one Sheriff in connection with the financial transaction. But no evidence was forthcoming in connection with the alleged financial transaction and also the said Sheriff was not examined as a witness to prove his rightful possession. Thus, the Revision Petitioner/Accused miserably failed to prove his rightful possession as provided under Section 114 (a) of the Indian Evidence Act and thereby the said presumption stood against the Revision Petitioner/Accused, as unchallenged. 6. The learned counsel for the Revision Petitioner/Accused pointed out that though the vehicle was found missing, PW5 has not filed a complaint to the police alleging the missing of his bike. 6. The learned counsel for the Revision Petitioner/Accused pointed out that though the vehicle was found missing, PW5 has not filed a complaint to the police alleging the missing of his bike. But going by the judgment under challenge, it is seen that PW5 was cross examined touching this point. He deposed that tax of the vehicle was in arrear for a long time and he stayed away from filing complaint before the police authorities due to fear of that laches. Moreover, the person who was responsible to pay the tax was not PW5 but his brother who is at Bangalore. 7. The counsel for the Revision Petitioner further pointed out that the person from whose possession the vehicle was allegedly stolen is not the Registered owner and the registered owner has not filed any compliant alleging theft of his vehicle so far and this circumstance is a suspicious one pointing toward falsity of the prosecution case. 8. To attract the offence under Section 379 of the Indian Penal Code, with respect to theft of a motor vehicle the person from whose possession the vehicle was removed shall not be the registered owner of the vehicle. The only essential ingredient to attract the said offence is that the person from whose possession the vehicle was removed must be a person in rightful possession of the vehicle only. 9. This view is supported by the definition of the word 'owner' provided under Section 2(30) of the Motor Vehicles Act. 'Owner' means a person in whose name a motor vehicle stands registered, and where such a person is a minor, the guardian of such minor and in relation to a motor vehicle which is the subject of a hire purchase, agreement or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. Thus, the owner includes a person in possession of a vehicle under an agreement with the registered owner. 10. According to Section 2(e) of the Indian Contract Act, every promise and every set of promises forming the consideration for each other, is an agreement. So, an agreement can be either written or oral, provided that it must be lawful and enforceable. 10. According to Section 2(e) of the Indian Contract Act, every promise and every set of promises forming the consideration for each other, is an agreement. So, an agreement can be either written or oral, provided that it must be lawful and enforceable. In short, a person in possession of a vehicle by virtue of a lawful agreement either oral or written with the registered owner can be deemed to be a person in rightful possession of the vehicle and when a motor vehicle is found stolen away from such possession, that act would come under the offence of theft, notwithstanding the fact that registered owner is another person. Consequently, if the motor vehicle is removed from the possession of such person, certainly that act will come under the purview of "theft" provided under Section 379. 11. Therefore, at all points, the court below concurrently found that the Revision Petitioner/Accused is guilty of the offence punishable under Section 379 of the Indian Penal Code. There is no illegality or impropriety in the impugned judgment under challenge. The Revision Petitioner/Accused could not point out any kind of perversity in the appreciation of evidence. Unless and until any kind of perversity is pointed out under revisional jurisdiction, this Court is not inclined to interfere with the findings of the courts below. Therefore, the conviction imposed by the court below is confirmed. 12. Coming to the sentence, the learned counsel for the Revision Petitioner submits that the Revision Petitioner is not a habitual offender and he is not involved in any other offence. The Public Prosecutor was directed to verify the said submission about his antecedents. The Public Prosecutor, on instruction, submitted that the said submission is true and correct. The learned counsel for the Revision Petitioner prayed for applying, the provisions of the Probation of Offenders Act. 13. Considering the facts and circumstances of the case, in supersession of the sentence of simple imprisonment for six months imposed on the Revision Petitioner under Section 379 IPC by the trial court and confirmed by the Appellate Court, the substantive sentence of simple imprisonment will stand reduced and modified to simple imprisonment for four months and to pay a fine of Rs. 2000/- (Rupees two thousand only). In default of payment of fine, to undergo simple imprisonment for a further period of 3 months. This Criminal Revision Petition is allowed in part.