GOPALAN @ GOPI PANNARKUNNEL v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 23RD DAY OF MAY 2016/2ND JYAISHTA, 1938** **Crl.Rev.Pet.No. 351 of 2005 ( ) --------------------------------** **AGAINST THE JUDGMENT IN Crl.APPEAL NO. 118/1998 of ADDITIONAL DISTRICT& SESSIONS COURT (ADHOC, FAST TRACK COURT-1, PATHANAMTHITTA DATED 21-08-2004 AGAINST THE JUDGMENT IN CC 413/1994 of JUDICIAL FIRST CLASS MAGISTRATE COURT,THIRUVALLA DATED 26-08-1998** **REVISION PETITIONER(S)/APPELLANT/ACCUSED:** **---------------------------------------GOPALAN @ GOPI PANNARKUNNEL HOUSE, KADAMURI,VAKATHANAM VILLAGE,(MADUKOLIL CHARUVIL,THUKALASSERI MURI, MALLAPPALLY VILLAGE).** **BY ADVS.SRI.V.V.NANDAGOPAL NAMBIAR SRI.T.P.PRADEEP** **RESPONDENT(S)/RESPONDENT/COMPLAINANT: ------------------------------------STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.V.P. SATHI** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23-05-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.351 of 2005 ---------------------------------------------Dated this the 23[rd] day of May, 2016 ## **ORDER** This revision petition is preferred by the accused against the judgment in Crl.Appeal No.118/1998 of Additional Sessions Judge (Adhoc) Fast Track Court-I, Pathanamthitta. He was charge sheeted in C.C.No.413/1994 by the Judicial First Class Magistrate Court, Thiruvalla for having committed an offence punishable u/s.457 and 379 IPC. The charge against the accused is that on 25.12.1991 at night, he had stolen gold ornaments worth 37,600/- and a sum of 235/- from the house of PW3,₹ ₹ Ward No.III of Mallappally Panchayat. On 13.4.1992 at 6.30 a.m., the Sub Inspector of Police, Keezhvaipure Police Station was conducting patrol duty, at that time, the revision petitioner was found at the Mallappally bus stand, upon suspicion, he Crl.R.P. No.351/2005 2 interrogated him and detected MO1 to MO3. As there was no satisfactory explanation from the side of the revision petitioner about the seized articles, Crime 58/1992 of Keezhvaipure Police Station was registered u/s.41(1) (d) and 102 Cr.P.C. During interrogation, it is revealed that he committed the offence in this case. After completing investigation, C.I. of Police,Thiruvalla laid charge before Judicial First Class Magistrate Court, Thiruvalla. 2. To substantiate the allegation, prosecution examined PW1 to PW6 and marked Exts.P1 to P6 as documentary evidence. Material objects MO1 to MO5 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him, but he did not adduce any defence evidence. The learned Magistrate convicted the revision petitioner and sentenced thereunder. Against that, he preferred Crl.Appeal No.118/1998 before Additional Sessions (Adhoc), Fast Track-I, Pathanamthitta, where the learned Crl.R.P. No.351/2005 3 Sessions Judge dismissed the appeal. Being aggrieved by that, he preferred this revision petition. 3. The learned counsel appearing for the revision petitioner contended that nothing was recovered on the basis of information given by the accused. There is no recovery u/s.27 of the Evidence Act to connect the accused with the offence. There was no evidence to prove the seizure of MO1 to Mo3 also. Therefore, the oral testimony of the Sub Inspector and PW4 is not sufficient to convict the accused. 4. The learned Public Prosecutor contended that PW4 supported the seizure of MO4 and MO5 from Ambika Jewellery, Njaliakuzhy. MO1 to MO3 were identified by PW3, who is the owner of the property, therefore, no reason to discard that evidence. 5. Now the question is when the accused failed to answer the possession of stolen articles, whether that itself is sufficient to draw a presumption u/s.114A of the Crl.R.P. No.351/2005 4 evidence Act. According to S.114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The court may presume that 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. This position was explained by the Apex Court in **Aydodhya Singh** v. **State of Rajasthan** [AIR 1972 SC 2501] and held as follows: “According to illustration(a) of Section 114 of the Indian Evidence Act, 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 in our opinion, 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. We may state at this stage that the appellant has not been able Crl.R.P. No.351/2005 5 to account for his possession of the stolen articles and the explanation furnished by him is not at all worthy of credence. Looking to the facts and circumstances of the case, we are of the view that the courts below were justified n drawing the presumption that the appellant was guilt of the offence under Sections 457 and 380 Indian Penal Code. The fact that the culprit entered the room on the third floor by opening the window and thereafter broke open a large number of boxes and almirahs and removed huge quantity of gold and silver ware shows that it was not the work of a single individual. The fact that the appellant was found soon after the theft in possession of a very large umber of stolen articles shows that he was himself the thief and not the of stolen goods. The present is not a case wherein one or two or a very few of the stolen articles were found in the possession of the appellant soon after the theft. On the contrary, the bulk of stolen articles were recovered from him. The number and the nature of the stolen articles recovered from the appellant soon after the theft coupled with the other circumstances of the case, in our opinion, warrant the presumption that the appellant himself committed the theft after entering the room on the third storey of Kistoor Chand's house through the window. 6. The seizure of Mo1 to Mo3 was deposed by PW5, the Sub Inspector of Police, Keezhvaipure. His evidence shows that on 12.4.1992 at 6.20 a.m., he reached at Mallappally bus stand and the revision petitioner was found there in a suspicious circumstance, he interrogated him, thereafter conducted a body search. During search he seized one ear stud and one pair Crl.R.P. No.351/2005 6 jimika after preparing Ext.P3 mahazar. In these circumstances, he registered a crime. Ext.P2 is the FIR. During further interrogation, he admitted that on 25.12.1991 at 11.45 p.m., he had stolen certain gold ornaments from House No.120 in Ward No.III of Mallappally Panchayat and he recovered those **.** The disclosure ornaments after preparing Ext.P1 mahazar portion in Ext.P1 was marked as Ext.P1(a). He prepared Ext.P4 mahazhar and Ext.P5 and P6 reports. He also identified MO4 and MO5. On the other hand, those articles MO1 to Mo3 were received from the revision petitioner at the bus stand, Mallappally and there is no independent evidence to prove the seizure also. In the absence of any connecting evidence, the oral testimony of PW3 to PW5 are not admissible to connect the accused with the alleged offence. Therefore, seizure itself is not sufficient for a conviction in this case. 7. According to Section 27 of the Evidence Act, that part of statement, which distinctly relates to the discovery, is Crl.R.P. No.351/2005 7 admissible as a whole whether it be in the nature of confession or not. In order to attract Section 27, prosecution must establish that the information given by the accused led to the discovery of some facts deposed by him while in police custody. It is evident from the statement that the seizure of MO1 to MO3 were effected by PW5. Subsequently, after arrest accused made a confession to the Sub Inspector and Ext.P1(a) is the disclosure portion. Therefore, that portion of information distinctly connected with the recovery of any incriminating articles is admissible under Section 27 of the Evidence Act. What is seen from the evidence of PW4 is that while he was working at Ambika Jewellery,Njaliakuzhy, revision petitioner brought these old gold ornaments in that jewellery on several occasions and he weighed those old gold ornaments. The price of the gold ornaments was settled by the owner of the jewellery. Those gold ornaments were melted and converted as gold ingots, which were marked as MO4 and MO5. Those gold Crl.R.P. No.351/2005 8 ingots were recovered by the police, after preparing Ext.P1 mahazar. PW4 attested Ext.P1 mahazar. Apex Court in **K. Chinnaswamy Reddy** v. **State of Andhra Pradesh** [Air 1962 SC 1788] held that the statement distinctly relating to the discovery is admissible in evidence whether confession or not. Here nothing was recovered on the basis of information given by the accused as an incriminating article. The seized gold ingot is not an incriminating article since the stolen articles MO4 & MO5 were not identified by PW3, the owner of the gold ornaments. The facts and circumstance in this case show that the prosecution utterly failed to prove the case against the accused. Therefore, he is entitled to get the benefit of doubt. In the result, conviction and sentence passed by the trial Court u/s.457 & 379 IPC is set aside and he is acquitted and set at liberty. Crl.R.P. is allowed. **P.D. RAJAN, JUDGE.** acd Crl.R.P. No.351/2005 9 6. Crl.R.P. No.351/2005 10 The only piece of evidence available in this case is recovery of MO4 and MO5 gold ingots and the recovery of gold ornaments MO1 to MO3. According to PW5, the revision petitioner was arrested on 13.4.1992 from Mallappally bus stand and after arresting him, they registered a crime. Thereafter, recorded the statement. The disclosure portion made by the revision petitioner was marked as Ext.P1(a). As per Ext.P1(a), MO1 to MO3 and other gold ornaments were kept in his house, which was recovered on the basis of information given by the revision petitioner to the Sub Inspector of Poolice, Keezhvaipur. Crl.R.P. No.351/2005 11 The statement of the accused is not admissible u/s.27 of the Evidence Act, since at the time of arrest itself, MO1 to MO3 were seized from him u/s.102 Cr.P.C.