T.A. Basha vs State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the learned Government Pleader.

The present petitioner was the accused No. 1 before the Trial Court, in the following circumstances:

"It is stated that on 26.07.2005, the complainant had parked his car in a shed situated in front of his house and he had locked the gate at about 8.30 p.m. But on the next day when he had woke up at 5.30 a.m., that his car, a Scorpio of blue colour bearing Registration No. KA-13-MA-3646 worth about Rs. 8,00,000/- was missing and he had noticed that the chain and lock put on the gate were also missing. It is in this background that he had registered a case with the Jurisdictional police, namely the Holenarisapura Police Station and a further investigation was conducted and a case registered against unknown persons. It thereafter transpires that on 16.09.2005, the missing vehicle was traced at Mumbai by the Boriville Police at Mangalamurthy Junction, Mumbai."

It is stated that the Boriville Police Station had received information that stolen vehicles from Kerala and Karnataka States were being brought to Mumbai and the Mangalamurthy Junction was a place where these vehicles were normally disposed of and therefore, the police had been lying in wait at Mangalamurthy Junction as usual, and when they noticed the blue colour Scorpio vehicle coming there, PW-11, a police official had stopped the vehicle at the junction. It is stated that Accused No. 1 - the petitioner herein was at the wheel while Accused No. 2 was at the front passenger seat and Accused No. 3 at the rear seat when the police stopped their vehicle. It is stated that all the accused had jumped from the vehicle and had started to run away, when they were stopped by the surrounding policemen. PWs 9 and 10 who were also present had caught hold of them and on further verification, it was found that the vehicle was carrying a false Registration number plate and also that the engine and chassis number when checked with the corresponding records, it was discovered that this was the stolen vehicle which was reported stolen by the complainant as already stated on 27.06.2005, from his house and it is thereafter that further proceedings having been taken against the accused, they were charge-sheeted and the court had proceeded to frame charges against the accused.

The accused having pleaded not guilty and having claimed to be tried, tendered evidence through PWs 1 to 15 and had marked several exhibits including the car as a material object. The statements of the accused having been recorded under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Cr.P.C., for brevity), the court below had framed the following points for its consideration:

"1. Whether the prosecution has proved that accused Nos. 1 to 3 committed theft of Scorpio car bearing registration No. KA-13-MA-3646 belonging to the informant on 26.07.2005 during night time?

Whether the prosecution has proved that accused Nos. 1 to 3 were caught hold along with the said car bearing registration No. KA-13-MA-3646 in Mumbai when they were attempting to sell the same by changing the number to KA-13-M-8696?

What order?"

The Trial Court had answered the points in the affirmative and found the accused to be guilty and convicted them for the offence punishable under Section 379 of the Indian Penal Code, 1860 (hereinafter referred to as ''the IPC, for brevity) and imposed a punishment of simple imprisonment for two years and six months. The same having been challenged in appeal before the Lower Appellate Court, the appeal was dismissed confirming the conviction and sentence imposed by the Trial Court. It is that which is sought to be challenged in the present revision petition.

The learned counsel appearing for the petitioner would contend that the allegation as to the car belonging to the complainant having been stolen on 26.07.2005, cannot be correlated with the accused who were said to have been caught by the police at Mumbai, in the absence of any independent evidence as to the manner in which the present petitioner along with other accused could possibly have stolen the car at Holenarasipura when they were all residents of Kerala State and it is clearly a case falsely foisted against them. Even if it could be said that the accused were apprehended when the car in question had been stopped at Mangalamurthy Junction, it would only enable the prosecution to bring a case against the accused for having been in possession of stolen property and it could not be said that the act of the petitioner having committed theft, stood established. Therefore, even if the entire evidence is accepted without being challenged, it would only establish that the petitioner and other accused were in possession of stolen property and it could not be said that the act of theft was established as against the petitioner and others. In the absence of other evidence to demonstrate that the petitioner and the other accused who are from Kerala State, had come to Karnataka and more particularly, Holenarisapura and had actually committed the theft of the car from the house of the complainant. These ingredients not having been established, it cannot be said that an offence punishable under Section 379 IPC was established or brought home. It is in this vein that the learned counsel for the petitioner would seek to take this Court through the evidence on record to demonstrate that the Trial Court has merely referred to the complaint having been made and therefore, the case of theft having been established and thereafter has placed reliance on the evidence of PWs 9, 10 and 11 who are said to be police attached to the Boriville Police Station, Mumbai who had waited at Mangalamurthy Junction and caught the blue colour scorpio car and that the present petitioners had tried to run away from the vehicle, when they were apprehended. Therefore, the primary ingredients of the accused having committed theft of the vehicle is not forthcoming and there being no charge in respect of the accused persons having stolen the property, it cannot be said that the offence punishable under Section 379 IPC has been made out against the petitioner. It is this which is emphasized by the learned counsel for the petitioner to claim that both the courts below have not chosen to address that aspect of the matter, nor have given any reasons as to how it could be said that the evidence of PWs 9, 10 and 11 would also establish the fact that the petitioner along with the other accused had stolen the vehicle from the garage belonging to the complainant. Therefore, the learned counsel seeks the acquittal of the accused.

The learned Government Pleader on the other hand would seek to justify the judgments of the courts below and would contend that the findings of the court below are concurrent findings and therefore, the scope of revision is limited. He would firstly point out that in a case of theft, the very classification of the alleged offence would indicate that there is little possibility of an eye-witness to the incident. In the instant case, there is no case of the prosecution that the theft of the vehicle had been witnessed by any person. Therefore, it cannot be accepted that the prosecution would be in a position to establish the manner in which the theft had been committed. The circumstance on the other hand namely, that the vehicle in question was indeed that of the complainant and it did have a registration number and chassis number and that the vehicle which was recovered tallied with the description and the identification that was provided as to the vehicle being stolen, was established. The further circumstance that the vehicle was ultimately traced at Mumbai, is the clinching evidence that would be available against the petitioners. The petitioner and the other accused, according to PWs 9, 10 and 11 who are the police officers attached to Boriville Police Station at Mumbai, were the occupants of the vehicle when it was stopped by them and it is the further conduct of the accused who are said to have exited from the vehicle and tried to escape, that they were apprehended and the further circumstance that on further verification, that the vehicle was carrying a false number plate at that point of time and the Engine number and the Chassis number when checked, the same tallied with the vehicle that was stolen from Holenarasipura and was in relation to the case that was registered. Thus, in the absence of any explanation by the petitioner and other accused as to the manner in which they came to be in possession of the vehicle, the presumption is that the accused had indeed stolen the vehicle and were trying to dispose of the same in Mumbai, as was suspected. Hence, it was not further necessary for the prosecution to establish that the petitioner and the other accused had committed theft in a particular fashion and it was not for the prosecution to also produce witnesses in this regard. The substantial evidence was ample when it had not been dented by the defence in seeking to claim that the petitioner and the other accused were not in any manner connected with the offence of theft. The circumstance that they were indeed found in possession of the vehicle and had no explanation for the same and the evidence of PWs 9, 10 and 11, it has gone without impeachment, necessarily would be the case of the prosecution as found by the Trial Court as well as the Appellate Court and therefore, would contend that there is no warrant for interference by this Court.

By way of reply, the learned counsel for the petitioner would insist that the charge as against the accused is for an offence punishable under Section 379 IPC and not for any other offence. Therefore, the primary ingredient of the section which contemplates the punishment for an offence punishable under Section 378 IPC, namely of having dishonestly taken any movable property out of the possession of any person without that person''s consent is said to have committed theft. Hence, the prosecution was bound to establish that the petitioner and the other accused had dishonestly taken the car in question out of the possession of the complainant, without his consent. This not having been established, the court below proceeding on the basis that the petitioner and the other accused were found in possession of the vehicle, could not possibly punish the petitioner and the other accused for theft, since the punishment could at best be for an offence punishable under Section 411 IPC, for dishonestly receiving stolen property. When there is no such charge as against the petitioner and the accused, the petitioner and other accused being punished in terms of Section 379 IPC is therefore not supported by the case of the prosecution and cannot be sustained.

Given the circumstances of the case, as rightly pointed out by the learned counsel for the petitioner, the charge framed against the accused by the Trial Court reads as follows:

"1) That on 26.07.2005 in the night in Nyamanahalli village you have committed theft of Scorpio Car bearing No. KA-13-MA-3646 which was standing in front of the house of C.W. 1 N.R. Ananthakumar, which is valued Rs. 8,00,000/-, belonging to C.W. 1 N.R. Ananthakumar, and thereby you have committed an offence punishable under Section 379 IPC within the cognizance of this Court."

The points framed for consideration would not stop at addressing the question whether the evidence on record disclosed that the accused had committed theft, but also enlarges into considering the case of the prosecution that the accused were caught when they were inside the car, in Mumbai when they were attempting to sell the same. Therefore, the court below has proceeded to consider the case in two parts. Firstly, whether the petitioner - accused had committed theft, which is the only charge that was framed against Accused No. 1. But however, the court below has proceeded to enlarge the scope of enquiry as to whether the accused were caught along with the car, in Mumbai, which need not necessarily be presumed that the petitioner and the other accused were indeed the persons who had also stolen the car. It is quite possible that they had received the vehicle in question as stolen property and they were attempting to run. In that, even if the evidence on record is accepted as not having been impeached by the defence in its cross-examination, it would only establish the second part of the point framed for consideration namely, that the accused were caught when they were in possession of the car which was however established to have been stolen. It would not also establish that it was the petitioner who indeed had stolen the car. The argument that the circumstance that the petitioner and the other accused were caught in possession of a car should be accepted as a circumstance, which would also lead to a presumption that they had stolen the car, may not be tenable. However, it could be said that the petitioner and the other accused were caught while they were in possession of the car which was found to be stolen and would possibly make out a case that they were in possession of stolen property, for which they would be punishable under Section 411 IPC. This infirmity has been overlooked both by the Trial Court as well as by the Appellate Court.

While there is sufficient evidence on record, in the opinion of this Court, to find that the prosecution has made out a case of the petitioner and the other accused having received stolen property and therefore, would be punishable under Section 411 IPC, it is advisable however that the accused are given an opportunity of meeting such an allegation as a matter of form. Therefore, in the absence of a charge that they were in possession of stolen property in addition to the charge of having committed theft, merely to hold that the prosecution had established its case and that the petitioner and the other accused would be punishable for an offence under Section 379 IPC, may not be tenable. Therefore, in the fitness of things, having regard to the substantial evidence that is available on record, which could still bring home a charge for an offence punishable under Section 411 IPC, it is appropriate that as a matter of form, the matter is remanded to the Trial Court.

Accordingly, the matter is remanded to the Trial Court with a direction to frame an additional charge for an offence punishable under Section 411 IPC, in addition to the charge that is already framed. Further, the accused shall be given an opportunity to cross-examine the witnesses after the charge is framed under Section 411 IPC. However, the prosecution shall not be permitted to examine any further witnesses.

Therefore, the petition is allowed in part and the matter is remanded for a fresh trial in terms as above. The court to frame an appropriate additional charge in terms as indicated and to proceed further, in accordance with law. The petitioner shall approach the court below in seeking any further relief, during the pendency of the proceedings.