Selvaraj and Others vs State of Kerala

T.M. Hassan Pillai, J.—These three Criminal Revision Petitions have been filed by the convicted accused Nos. 1 to 3 in C.C. No. 41/97 on the file of the Judicial First Class Magistrate Court, Kattappana calling in question the legality, propriety and correctness of the concurrent findings of guilt recorded by the Courts below (learned Judicial Fist Class Magistrate, Kattappana in C.C. No. 41 of 1997 as affirmed by the learned Additional Sessions Judge, Thodupuzha in Criminal Appeal Nos. 83, 84 and 86 of 1998). These revisions are heard together and are being disposed of by this common order.

The accusation made against the revision Petitioners in the challan laid by P.W. 9 after verifying investigation was that in furtherance of their common intention to commit theft, the bars of the window of P.W. 1''s house were broken by them and they gained entry into that house on the intervening night between 18th December 1995 and 19th December 1995 at about 1.15 a.m. and had stolen M.O. 5 gold chain worn by P.W. 2 while she was asleep. It was alleged that the revision Petitioners committed offences punishable under Sections 380 and 457 read with Section 34 I.P.C.

With a view to connect the revision Petitioners with the crime alleged, prosecution examined as many as 12 witnesses. The documentary evidence exhibited by prosecution was Exts. P-1 to P-4. The Material objects produced were M.Os. 1 to 5.

On a consideration of the evidence led by the prosecution in support of its case, the learned Magistrate came to the conclusion that the prosecution succeeded in establishing the guilt of the accused persons and convicted all of them for the aforesaid offences. Sentence was imposed on each Court and each of them was ordered to undergo rigorous imprisonment for one year u/s 380 I.P.C. and to pay a fine of Rs. 1000 with a default clause. Each of them was also ordered to undergo rigorous imprisonment for one year u/s 457 I.P.C. and to pay a fine of Rs. 1000 with a default clause. The revision Petitioners unsuccessfully challenged the judgment and order of conviction passed by the learned Magistrate by preferring criminal appeals 83/1998, 84/1998 and 86/1998 before the Additional Sessions Judge, Thodupuzha.

The contention urged vehemently by the learned Counsel for the revision Petitioners for interfering with the concurrent findings of guilt recorded against accused 2 and 3 who are revision Petitioners in Crl. R.P. Nos. 398/1999 and 399/1999 respectively is that conviction of them is solely based on the confessional statements said to have been made by them to P.W.I1 who was the Circle Inspector of Police, Nedumkandam Police Station at the relevant time (they were arrested by him) in utter violation of the fundamental principle of criminal jurisprudence that a confession made by an accused person to a police officer is inadmissible under Sections 25 and 26 of the Indian Evidence Act. He challenged the conviction of accused No. Is on the ground that there is no direct evidence to prove the commission of the offences by him.

The question that is to be considered is whether the concurrent findings recorded by the Courts below regarding the involvement of the revision Petitioners in the alleged commission of the crime is liable to be interfered with exercising revisional powers of this Court.

The fact that theft was committed on the night intervening between 18th December 1995 and 19th December 1995 is spoken to by P.W. 1. P.W.2 has deposed that while she was asleep M.O. 5 gold chain worn by her was snatched away. On hearing her cry. P.W. 1 who is her husband''s brother rushed to the room and it was found that window bars were broken to gain entry into the house and front door was also found opened. Their evidence is unassailable and the cross-examiner was not able to bring out any material to make a dent to doubt the credibility of their versions. It is true that the date of incident according to P.W. 2 is 10th December 1995 and no significance can be attached to that on the ground that there was prompt lodging of Ext. P-1. (a) F.I.R. on the morning of 19th December 1995 asserting theft Was committed on the intervening night between 18th December 1995 and 19th December 1995. From their evidence (evidence of P.Ws. 1 and 2) it is clear that they have not attributed any specific role to anyone of the revision Petitioners in the alleged commission of the offences and no one had witnessed committing of theft. Ext. P-1, the F.I. statement of P.W. 1 corroborated his evidence.

It transpires from the evidence of P.W. 10 who was the then Circle Inspector of Police, Kumali Police Station that accused No. 1 was arrested by him on 13th June 1996 and when interrogated A-1 made Ext. P-3 (a) disclosure statement. Accused No. 1 led P.W. 10 to the shop of P.W.5 and P.W.5 produced M.O. 5 gold chain and it was seized by P.W. 10 under Ext. P-3 recovery mahazar. It is clear from the materials produced by the prosecution that recovery was made after 5 months of the alleged commission of the offences. P.W. 5''s evidence is to the effect that the accused persons brought to his shop gold chain and in his evidence he has not clearly stated which accused sold the ornament to him. However, it is clear from the evidence available that Ext. P-3 (a) disclosure statement was made by the first accused and he led P.W. 10 to the shop of P.W. 5, P.W. 2 identified M.O. 5 as the gold chain worn by her on the intervening night between 18th December 1995 and 19th December 1995 which was snatched away while she was asleep.

It is not disputed before me by the learned Public Prosecutor and the learned Counsel for revision Petitioners that article (M.O. 5) is calculated to pass readily from hand to hand and the question, therefore, to be decided is whether accused No. 1 was in recent possession of the stolen article. For attracting illustration (a) to Section 114 of the Indian Evidence Act, it has to be proved 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 i.e., witnessing the commission of offences by him, the question to be considered is whether he is the receiver of the stolen property or a thief without overlooking the fact that the recovery was made after a period of five months.

The evidence of P.W. 5 is to the effect that the stolen article was sold to him one month prior to the recovery. Whether a presumption under illustration (a) to Section 114 of the Evidence Act should be drawn in a given situation is a matter which depends on the evidence and circumstances of the cases. The nature of the stolen articles, the nature of its identification by the owner, the place and the circumstances of its recovery, the explanation of the person concerned from whom the recovery is made are all factors which are to be taken into consideration in arriving at a decision (See'' Devendran v. State of. Tamil Nadu 1998 S.C.C. 280.

Presumption that A-1 is a receiver of stolen property cannot be drawn on the ground that A-1 has not given any explanation for the possession of the stolen article and he has no defence case that he had purchased it bona fide believing that it was not a stolen property. Presumption to be drawn is that A-1 is the thief. There is no evidence to show that in furtherance of the common intention of the revision Petitioners to commit theft bars of the window of P.W. 1''s house were broken and they entered into the house of P.W. 1. There is unimpeachable evidence to show that M.O. 5 gold chain worn by P.W. 2 was snatched away while she was asleep. It is only legitimate to conclude on the basis of the evidence available that prosecution proved its case of commission of offences under Sections 380 and 457 I.P.C. It has to be further held, on the basis of the materials placed before Court, that both the Courts below have rightly found first accused guilty under Sections 380 and 457 I.P.C. No mitigating circumstance is brought to my notice to interfere with the discretion exercised by the trial Court in awarding sentence on A-1. The Additional Sessions Judge rightly affirmed the conviction of A-1 and maintained the sentence awarded to him. No ground is made out to interfere with that part of the judgment and Order of conviction passed by the learned Magistrate which was confirmed by the Learned Additional Sessions Judge.

Regarding the conviction of other revision Petitioners (A2 and A3) it has to be observed that severe criticism at the hands of this Court is warranted on the ground that conviction of them by the Courts below is solely based on confessional statements said to have been made by them to a police officer who had arrested them on 30th May 1996. Here is a Magistrate and an Additional Sessions Judge who are blissfully ignorant of the fundamental principle of criminal jurisprudence. The evidence led by the prosecution to prove their (A2 and A3''s) involvement is the confessions said to have been made to P.W. 11, who was the C.I. of Police, Nedurnkandam when they were arrested by him on 30th May 1996 in Crime No. 47/1996 of Kambammettu Police Station. Strange and wholly unsound reason given by the learned Magistrate for accepting P.W. 11''s evidence on the aspect of confessions made to him by A-2 and A-3 is that his evidence remains unchallenged. Learned Additional Sessions Judge has also given the same reasoning for affirming the conviction of them.

Both the Courts below proceeding on wrong premises held that prosecution succeeded in proving the offences charged against A-2 and A-3. The judgments rendered by the Courts below are typical examples of the ignorance of the Courts below regarding the fundamental principle that the confession made by an accused to a police officer is inadmissible in evidence. Confessions were alleged to have been made by them (A-2 and A-3) while in police custody and it is not the case of prosecution that confessions were made 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 levelled against them. Bail bond, if any, executed by them stand discharged.