Hydrose s/o Muhammad v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938** **CRL.REV.PET.NO. 4073 OF 2006 ( ) ---------------------------------** **AGAINST THE JUDGMENT IN CRA NO.215/2005 OF ADDITIONAL SESSIONS JUDGE, (ADHOC-I), ERNAKULAM DATED 10.05.2006** **AGAINST THE JUDGMENT IN CC NO.551/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, PERUMBAVOOR DATED 04.02.2005** **---------------------** ## **REVISION PETITIONER(S)/APPELLANT/2ND ACCUSED:** **--------------------------------------------** **HYDROSE,S/O.MUHAMMAD, PUTHENPURA HOUSE, NELLIKKUZHI,ERANELLOOR VILLAGE, KOTHAMANGALAM.** ## **BY ADV. SRI.GEORGE SEBASTIAN** **RESPONDENT(S)/RESPONDENT/COMPLAINANT:** **-------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26-10-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **NS** **P.D. RAJAN, J. -------------------------------Crl. Rev.Pet. No.4073 of 2006 ---------------------------------Dated this the 26[th] day of October, 2016** ## **O R D E R** This revision petition is preferred by the 2[nd] accused against the judgment in Criminal Appeal No.215 of 2005 of the Additional Sessions Judge, Adhoc-I, Ernakulam. Two persons were charge sheeted in C.C. No.551 of 2003 by the Judicial First Class Magistrate, Perumbavoor under Secs.379 and 201 read with Sec.34 of the Indian Penal Code ('IPC' for short). The learned Magistrate convicted the 1[st] accused to undergo rigorous imprisonment for one year under Sec.379 IPC and rigorous imprisonment for six months under Sec.201 IPC and sentenced the 2[nd] accused to undergo rigorous imprisonment for six months under Sec.201 IPC. Against that, the 2[nd] accused preferred the above criminal appeal before the Sessions Court, where the learned Additional Sessions Judge dismissed the appeal. Being aggrieved by that, the 2[nd] accused preferred this revision petition. 2. The charge against the accused is that on Crl. Rev.Pet. No.4073 of 2006 2 11.05.2003 at 3.30 a.m., the 1[st] accused committed theft of a motorbike bearing registration No.KL-7/AB-3387 from the corridor of Kallungal complex and took the same to the custody of 2[nd] accused at Kothamangalam where he removed the registration number and inserted a new number KL-7/AB-616 with the intention of disappearing the evidence thereby, committed the aforesaid offences. Perumbavoor Police registered a crime and after completing investigation, laid charge in the trial court. During trial, prosecution examined PW1 to PW9 and marked Exts.P1 to P6 as documentary evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. MO1 motorbike was admitted as material object. 3. Learned counsel appearing for the revision petitioner contended that independent witnesses were not accompanied when recovery was effected by the Sub Inspector from the possession of the revision petitioner. Hence that evidence is unbelievable. Perumbavoor Police arrested A1 in another crime (Crime No.378 of 2003) and Crl. Rev.Pet. No.4073 of 2006 3 during interrogation of that crime, he disclosed that he committed the offence in this case also. After two days of the confession, they went to the place of occurrence for collecting the documents. When they searched the house of the revision petitioner independent witnesses were not accompanied. Therefore the recovery is not believable and the revision petitioner is entitled to get the benefit of doubt. The confession made by the 1[st] accused cannot be used against the 2[nd] accused. 4. The specific case of the revision petitioner is that A1 made Ext.P4(a) confession to the Police on 18.06.2003 to PW6, Sub Inspector of Police, Perumbavoor in Crime No.371 of 2003 of Perumbavoor Police Station. On the basis of information, the 1[st] accused revealed that he entrusted the vehicle to one Hydros for changing the number plate KL-7AA into KL-7AB-616. On the basis of that information, they arrived at the place of A2. During interrogation of A2, he made another disclosure which was marked as Ext.P1(a). On the basis of Ext.P1(a) the motor cycle, MO1, was recovered. It is found that the number of the motor vehicle was changed as KL7-AB-616. Crl. Rev.Pet. No.4073 of 2006 4 It was released to PW4 by virtue of Ext.P3 kychit. Now the evidence is that A1 made a confession that he entrusted vehicle to A2 on the basis of that information Police interrogated A2 which resulted in the discovery of the Motor cycle, it is admissible to prove the case against A2. Apex Court in **Jaffar Hussain Dastagir v. State of Maharashtra [1969 (2) SCC 872]** which reads as follows: “ That in order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evident that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused. The essential ingredient of the section is that the information given by the accused must lead to the discovery of the fact which is the direct outcome of such information. Secondly, only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused. Thirdly, the discovery of the fact must relate to the commission of some offence. The embargo on statements of the accused before the police will not apply if all the above conditions are fulfilled. If an accused charged with a theft of articles or receiving stolen articles within the meaning of Section 411 I.P.C., states to the police “ I will show you the articles at the place where I have kept them” and the Crl. Rev.Pet. No.4073 of 2006 5 articles are actually found there, there can be no doubt that the information given by him led to the discovery of a fact, i.e. keeping of the articles by the accused at the place mentioned. The discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. In principle, there is no difference between the above statement and that made by the appellant in this case which in effect is that “ I will show you the person to whom I have given the diamonds exceeding 200 in number”. The only difference between the two statements is that a “named person” is substituted for “the place” where the articles are kept. In neither case are the articles or the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the appellant would be admissible in evidence.” **K.Chinnaswamy Reddy v. State of Andhra Pradesh (1963) 3 SCR 412** , referred to. 5. It is true that confession made by A1 is not admissible against proving the case against A2. But, disclosure was made by A2 and on the basis of that disclosure he stated that the vehicle was in his custody and he produced it, that evidence is admissible against that person and is admissible in evidence. Apex Court in **Lachhman Singh and others v. The State [AIR 1952 SC 167]** held that an indefinite information given by all Crl. Rev.Pet. No.4073 of 2006 6 the accused to the person could not lead to any discovery unless the accused followed it up conducting the Police to actual spot where the part of the bodies were recovered. 6. Here A1 gave information with regard to MO1 and they failed to recover that vehicle from the place hidden it. The incriminating portion towards A1 is not applicable to A2. But when a disclosure is made by A2 the evidence of recovery of the motor bike against A2 is admissible since prior knowledge with regard to the motor cycle was given by A2 which was recovered by the Police from where it was concealed. Therefore, the basis of recovery was within the control and occupation of the revision petitioner alone. Even if it is assumed that the recovery was made after two days of the incident, the information given by A2 is relevant which prompted the trial court to reach a conclusion that A1 stolen MO1 motor cycle as alleged by the Police. Therefore, the evidence shows that he either stolen the article or received the stolen article. According to 114(a) of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being ## Crl. Rev.Pet. No.4073 of 2006 7 had to the common course of natural events, human conduct and public and private business, in their relation to the fact of the particular case. The court may presume that the man who is in possession of a 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. The possession of motorcycle was proved by the prosecution. He is unable to answer for the possession of the stolen article. ## 6. Apex Court in **Ayodhya Singh V. State of Rajasthan (AIR 1972 SC 2501)** 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 Crl. Rev.Pet. No.4073 of 2006 8 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.” 7. Unless and until the accused failed to prove the possession in proper course it is presumed that he received the stolen article which is an offence punishable under Sec.411 IPC. But the trial court convicted the accused under Sec.201 IPC alone. Now the petitioner is aged 73 years. Since the offence was committed long back and the stolen article was returned the defacto complainant, conviction under Sec.201 IPC is confirmed and the sentence imposed by the trial court is modified as follows: Revision petitioner is sentenced to imprisonment till rising of the court and fine of Rs.15,000/- in default simple imprisonment for six months. This Criminal Revision petition is disposed of as above. Sd/- NS/13.10.2016 **P.D. RAJAN, JUDGE** / True Copy / P.A. To Judge