Theft; Unnikrishnan Vs. State [Kerala High Court, 08-06-2016]

Penal Code, 1860S. 380 –Evidence Act, 1872 – S. 114(a) –  Presumption under – the unexplained possession of the stolen article by the accused justifies the presumption that it was stolen or received stolen article.

# Possession of Stolen Goods


IN THE HIGH COURT OF KERALA AT ERNAKULAM

P.D. RAJAN, J.

Crl.R.P.No.3140 of 2003

Dated 8th June, 2016

AGAINST THE JUDGMENT IN CRA 389/2001 of III ADDL.SESSIONS COURT, THRISSUR DATED 18-03-2003 AGAINST THE JUDGMENT IN CC 657/1999 of J.M.F.C.,KUNNAMKULAM DATED 25-07-2001

REVISION PETITIONER/APPELLANT/ACCUSED

UNNIKRISHNAN, S/O.GOVINDAN IYYANIKATTLE HOUSE CHEMMANUR DESOM, ARTHAT VILLAGE, THALAPPILLY TALUK. BY ADV. SMT.DHANYA P.ASHOKAN

RESPONDENT/RESPONDENT/COMPLAINANT

STATE OF KERALA, REP, BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA ERNAKULAM. BY PP SMT M.G.LISHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

This revision petition is preferred by the accused against the judgment in Crl.A.389 of 2001 of III Additional Sessions Judge, Thrissur. Revision petitioner was charge sheeted in C.C.657 of 1999 before Judicial First Class Magistrate, Kunnamkulam for offences punishable under Section 457, 380 IPC. The charge against him is that on 4.5.1999 at 2 am, he trespassed into the house of Suneesh, PW1 and thereafter committed theft of a tape recorder, Calculator and Rs.1000/- and thereby committed the offence punishable under Section 457, 380 IPC. Kunnamkulam police registered a crime and after completing investigation, S.I laid charge before Judicial First Class Magistrate, Kunnamkulam.

2. During trial, prosecution examined PW1 to PW8 and marked Ext.P1 to P4. Tape recorder and Calculator were marked as material objects 1 and 2. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Section 313 Cr.P.C. He examined DW1 in the trial court. Learned Magistrate convicted the accused under Section 457 and 380 IPC and sentenced to rigorous imprisonment for two years under Section 380 IPC and rigorous imprisonment for six months under Section 457 IPC. Against that accused preferred Crl.A.389 of 2001 before III Additional Sessions Judge, Thrissur where the accused was acquitted under Section 357 IPC and the conviction was confirmed under Section 380 IPC and sentenced to rigorous imprisonment for one year. Being aggrieved by that, the accused preferred this revision petition.

3. Heard both sides. The main contention advanced by the learned counsel appearing for the revision petitioner is that whether he was in possession of the stolen article or not ? The occurrence was stated by PW1 in the trial court. His evidence shows that on 14.5.1999, he went to Velankanni with his wife and children after locking the house and returned on 16.5.1999. At that time, the front lock was dismandled and door was opened by somebody. During inspection, he realised that the tape recorder and calculator (MO1 and MO2) and Rs.1000/- were stolen by somebody. Immediately, he informed the matter to Kunnamangalam police and lodged Ext.P1 statement. Subsequently, MO1 and MO2 were recovered from the accused. The wife of PW1 was examined as PW2 who supported the evidence of PW1, her husband. She also identified MO1 and MO2. PW6 attested Ext.P3 seizure mahazar and supported that Sub Inspector arrested the accused and recovered MO1 and MO2 on 16.5.1999 from his house. PW5 registered the oral evidence of PW1 and registered the case.

4. The stolen articles MO1 and MO2 were recovered by the Sub Inspector. PW8 deposed that he arrested the revision petitioner and recovered MO1 and MO2 from him. No serious legal infirmities were detected in the oral and documentary evidence of the prosecution witnesses. The police constable PW3 deposed that while he was conducting patrol duty with the S.I on 16.5.1999, near Bright Hotel, Thrissur, the accused was found carrying tape recorder and calculator. He interrogated the accused, arrested him and recovered MO1 and MO2 from the accused. PW4 is also another witness who attested Ext.P2 mahazar. PW7, Assistant S.I conducted investigation in this case. According to Section 114(a) of the Indian Evidence Act it is presumed that a person who is in possession of a stolen good soon after the theft is either a thief or has received stolen goods knowing them to be stolen unless he could account for his possession. Even though DW1 was examined by the revision petitioner in the trial court, no evidence has been adduced by the revision petitioner to rebut the presumption.

5. In

# Ayodhya Singh v. State of Rajasthan, AIR 1972 SC 2501

it was held as follows:-

According to illustration (a) of S.114 a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. It would depend upon the facts and circumstances of each case whether the court should draw the presumption that a person found in possession of stolen goods soon after the theft and who has not been able to account for his possession is the thief or whether he is the receiver of the goods knowing them to be stolen. Where the stolen articles were recovered within seventeen days of the theft from the possession of the accused, it is proper for a court to draw the presumption that the accused was guilty of the offence under Ss.457 and 380, Indian Penal Code, particularly when the accused was found in possession of a very large number of stolen articles so soon after the theft.”

The unexplained possession of the stolen article by the revision petitioner justifies the presumption that it was stolen or received stolen article. This is a fit case to draw the presumption under Section 114(a) since the accused had no explanation with regard to the stolen article. In the circumstances, the trial court convicted the accused which was modified by the appellate court. I find no illegality in the above finding. Therefore the conviction under Section 380 IPC is confirmed.

6. After hearing the revision petitioner and learned Public Prosecutor, I obtained a report from the District Probation Officer, Thrissur in which he recommended that the accused is entitled to get the benefit of Probation of Offenders Act. The District Probation Officer reported that he is a law abiding citizen and is regretting about the immature behaviour on his part. Honourable Supreme Court in

# Dalbir Singh v. State of Haryana, AIR 2000 SC 1677

held that the probation of offenders Act can be applied in fit cases.

7. Having regard to the circumstances of the case including the nature of the offence and character of the offender, instead of sentencing the petitioner at once to any punishment, I direct that he be released on probation for good conduct for a period of one year under

# Section 4 of the Probation of Offender’s Act, 1958

subject to the following conditions:-

a) Petitioner shall execute a bond for Rs.10,000/- (Rupees Ten thousand only) with two solvent sureties of the like sum to the satisfaction of the Judicial First Class Magistrate Court, Kunnamkulam.

b) He shall report his permanent place of abode to the trial court.

c) He shall be under the supervision of the District Probation Officer for a period of one year.

d) He shall not commit similar offence of which he is accused of during this period.

e) During such period, he shall maintain peace, abstinence from intoxicants; and if he violates any of the conditions, he has to undergo the sentence imposed by the trial court.

f) The District Probation Officer shall furnish quarterly report to the trial Magistrate.

The revision petition is disposed of as above.

Comments