Jose @ George v. Sub Inspector of Police, Kottayam East Police Station and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 18[TH] DAY OF AUGUST 2023 / 27TH SRAVANA, 1945** ## **CRL.REV.PET NO. 97 OF 2016 JUDGMENT IN CRA 159/2014 OF ADDITIONAL SESSIONS COURT - V,** ## **KOTTAYAM** ## **JUDGMENT IN CC 268/2009 OF JUDICIAL FIRST CLASS MAGISTRATE** ## **COURT-I, KOTTAYAM** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **==> picture [81 x 138] intentionally omitted <==** JOSE @ GEORGE AGED 46 YEARS THAYYIL HOUSE, THIDANADU, KONDOOR VILLAGE, ERATTUPETTA, KOTTAYAM DISTRICT-686123. BY ADVS. SRI.BENHUR JOSEPH MANAYANI SRI.JEEVAN MATHEW MANAYANI ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** 1 SUB INSPECTOR OF POLICE KOTTAYAM EAST POLICE STATION, KOTTAYAM EAST P.O., KOTTAYAM DISTRICT-686001. 2 STATE OF KERALA REPRESENTED BY ITS STATE PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18.08.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.R.P.No.97/2016 ## **“C.R.”** ## **ORDER** _**Dated this the 18[th] day of August, 2023**_ This revision petition has been filed under Section 397 read with Section 401 of the Code of Criminal Procedure (for short 'the Cr.P.C.' hereinafter) and the revision petitioner, who is the second accused in C.C.No.268 of 2009 on the files of the Judicial First Class Magistrate Court-I, Kottayam, impugns judgment dated 28.06.2014 in the above case as well as judgment in Crl.Appeal No.159 of 2014 dated 11.12.2015 arose therefrom. 2. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor. Perused the records available to exercise the limited power of revision available to this Court. 3. In precise form, the prosecution case is that at about 3.00 A.M., on 17.12.2007, accused Nos.1 to 3 committed theft of a Lancer car bearing registration No.KL17/B-3678 worth Rs.3,25,000/- owned by Smt.Leena Mohan from the car porch of Sri.Prasanth. Later, the said car was recovered while the same was at the custody of the first and 3 Crl.R.P.No.97/2016 second accused, together. On this occurrence, crime was registered alleging commission of offences punishable under Sections 380, 411 and 201 read with Section 34 of the Indian Penal Code (for short "IPC") by accused Nos. 1 to 3. 4. The trial court secured the presence of the second accused for trial, since the first and third accused were absconded after refiling their case. During trial, PWs 1 to 12 were examined, Exts.P1 to P8 and MO1 were marked on the side of the prosecution. 5. Thereafter the accused was questioned under Section 313(1)(b) of the Cr.P.C. and offered opportunity to adduce defence evidence, but the accused did not adduce evidence. 6. On appreciation of evidence, the trial court convicted the accused and sentenced as under : _In the result, second accused is convicted under Sections 411 and 201 IPC and he is sentenced to undergo simple imprisonment for 6 months under Section 411 IPC and to undergo simple imprisonment for two months under Section 201 IPC. Sentences shall run concurrently. Set off allowed. Case against A1 and A3 split up and refiled as C.C.No.1968/14._ 7. The revision petitioner challenged conviction and 4 Crl.R.P.No.97/2016 sentence before the appellate court. The appellate court on re-appreciation of evidence confirmed the conviction, while modifying the sentence as under : _(1) Conviction and sentence passed by the lower court for the offence punishable under Section 201 IPC is hereby set aside and the second accused is acquitted for the said offence under Section 248(1) IPC._ _(2) Conviction and sentence passed by the lower court for the offence punishable under Section 411 IPC is hereby confirmed._ 8. While impeaching the veracity of the concurrent findings as to commission of offence under Section 411 of IPC by the revision petitioner/second accused, learned counsel for the revision petitioner/second accused argued that in order to establish an offence under Section 411 of IPC, it is necessary to prove the ingredients, viz., I. dishonestly II. receives or retains any stolen property III. knowing or IV. having reason to believe the same to be stolen property. It is also submitted by the learned counsel for the revision petitioner that the term 'believe' also has significance. He has placed reliance on a decision of the Apex Court reported in **Shiv Kumar v. The State of Madhya Pradesh** [MANU/SC/1114/2022] wherein in 5 Crl.R.P.No.97/2016 paragraph No.15, it was held that _to establish that a person is dealing with stolen property, the “believe” factor of the person is of stellar import. For successful prosecution, it is not enough to prove that the accused was either negligent or that he had a cause to think that the property was stolen, or that he failed to make enough inquiries to comprehend the nature of the goods procured by him. The initial possession of the goods in question may not be illegal but retaining those with the knowledge that it was stolen property, makes it culpable._ 9. Learned counsel for the revision petitioner also given emphasis to another decision of the Apex Court reported in **Trimbak v. The State of Madhya Pradesh** [MANU/SC/0116/1953], wherein the Apex Court considered essential ingredients for the offence punishable under Section 411 of IPC in paragraph No.5 as under : _“It is the duty of the prosecution in order to bring home the guilt of a person under Section 411 IPC to prove, (1) that the stolen property was in the possession of the accused, (2) that some person other than the accused had possession of the property before the accused got possession of it, and (3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these ” facts._ 6 Crl.R.P.No.97/2016 10. Learned Public Prosecutor supported the conviction and sentence and it is submitted that all the ingredients to constitute an offence punishable under Section 411 of IPC has been established by the prosecution beyond reasonable doubt and the red handed recovery of the stolen car affixed with a false number plate from the possession of accused Nos.1 and 2 with the aid of identification of the same as the property stolen, by PW1 and PW2 are sufficient to prove the guilt of the accused and in such a case the conviction as well as the sentence modified by the appellate court cannot be interfered at all. 11. In the case at hand, the question emerges are; (1) what are the ingredients necessary to constitute an offence punishable under Section 411 of IPC? (2) whether the prosecution succeeded in establishing commission of offence punishable under Section 411 of IPC by the revision petitioner herein. 12. In this connection, it is relevant to refer Section 411 of IPC as under : “ _411._ _**Dishonestly receiving stolen property** . – Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be_ 7 Crl.R.P.No.97/2016 _punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.”_ 13. In this matter, the trial court as well as the appellate court concurrently held that the revision petitioner/second accused committed offence punishable under Section 411 of IPC on the finding that he had possessed the stolen car and the stolen car was found in possession of the second accused with a fake registration number. Further, both courts relied on the evidence of PW1, PW2, PW4 and PW8 to found that the car recovered from accused Nos. 1 and 2 as the car in the name of PW1 used by PW2 at the time of occurrence. 14. In this connection, the evidence of PW8, the S.I. of Police, Kottayam East Police Station, is relevant. It was deposed by him that he got a reliable information from PW2 and PW4 that they had seen the stolen car at Petta junction. Accordingly, the police party reached Petta Junction at 5:45 P.M. and the car was identified by PW2. Later PW2 given evidence in support of this contention and the same was recovered by PW8. Later 8 Crl.R.P.No.97/2016 PW2 and PW4 deposed in support of the prosecution in the matter of recovery. PW4 given candid evidence that at the time of detection and recovery, two persons were found sitting inside the car and they were identified as 1[st] and 2[nd] accused later. PW2 and PW8 deposed further that, at the time of detection, instead of the original number, i.e., KL-17/B-3678, the car was affixed with a fake number, i.e. DL-07/CS-1656. PW8 also given evidence that he recovered the car as per Ext.P3 mahazar, from the custody of first and second accused. 14. In this matter, PW1 is the registered owner of the car and he had given evidence that he handed over the car for the use of PW2. PW2 supported the evidence of PW1 and deposed that the car was stolen from his house in between 12 A.M. and 7 P.M. on 17.12.2007. PW2 also given evidence that he had shown the car to PW8. Accordingly, PW8 recovered the Lancer car parked at Petta Junction as shown by PW2 and PW4. PW2 also given evidence that at the time of recovery, accused No.2 was at the driving seat of the car and accused No.1 was 9 Crl.R.P.No.97/2016 inside the car. The other witnesses also supported the prosecution case that at the time of recovery, revision petitioner/second accused was at the driving seat. 15. In this case, on evaluation of the evidence discussed by the trial court and re-appreciated by the appellate court, it could be gathered that the revision petitioner/second accused was at the driving seat of the car and the first accused who is now absconding, was inside the car, which was affixed with a fake registration number. Thus the possession of the stolen car belonged to PW1 and used by PW2 by the second accused along with the first accused after affixing a fake registration number is well established herein by the prosecution. 16. Coming to the ingredients to attract offence punishable under Section 411 of IPC, as could be gathered from the provision and as per the settled law including the decisions of the Apex Court in _**Shiv Kumar**_ 's case (supra) and **Trimbak** 's case (supra) are as under : _(1) that the stolen property was in the possession of the accused,_ _(2) that some person other than the accused had possession of the property before the_ 10 Crl.R.P.No.97/2016 ## _accused got possession of it, and_ _(3) that the accused had knowledge that the property was stolen property. There is no reliable evidence to prove either of these facts._ 17. In the case at hand the above ingredients have been established by the prosecution. At this juncture comes the relevance of Section 106 of the Evidence Act, which provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 106 of the Evidence Act reads thus : _“_ _**106. Burden of proving fact especially within knowledge.** —When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him._ _Illustrations_ _(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him._ _(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had a ticket is on him._ 18. Scope of Section 106 of the Evidence Act has been considered by the Apex Court in many decisions. As early in **Gurcharan Singh v. State of Punjab (AIR 1956 SC 460)** , the Apex Court held that the burden of proving a 11 Crl.R.P.No.97/2016 plea specially set up by an accused, which may absolve him from criminal liability, certainly lies upon him. 19. In **Sawal Das v State AIR 1974 SC 778: 1974 Cr LJ 664, M. Krishna Reddy v State (1992) 4 SCC 45** , it was held by the Apex Court that the prosecution must discharge the initial burden of establishing prima facie the guilt of the accused beyond all reasonable doubt. As section 106 is an exception to section 101 of the Evidence Act, it is not attracted unless the initial burden of the prosecution is proved. 20. Thus the law as regards the burden of proof under Section 106 of the Evidence Act, is upon the person who is having especial knowledge regarding the said fact. It is also settled that in order to apply Section 106 of the Evidence Act, the prosecution must discharge its burden and only after the discharge of the said burden, the accused is duty bound to prove his burden under Section 106 of the Evidence Act. 21. In this matter, as I have already found, prosecution established possession of stolen car by the revision petitioner/second accused along with the first 12 Crl.R.P.No.97/2016 accused and also proved that the said car was the stolen car owned by PW1 and possessed by PW2 at the time of occurrence. Therefore, the prosecution discharged its burden to prove the ingredients of the offence punishable under Section 411 of IPC imposing duty upon the accused to account for his possession as regards the stolen car. It is discernible that, through out the proceedings before the trial court, the revision petitioner/second accused remained silent and he had no explanation how he was in possession of the stolen car affixed with a fake registration number and why he was inside the car at the time of recovery. The said stoic silence, in fact, supports the prosecution case. 22. This Court is mindful of the fact that the limited power of revision is being exercised by this Court, where reappreciation of evidence is impermissible. Thus, the available materials would show that the appellate court correctly re-appreciated the evidence and confirmed conviction on the finding that the prosecution succeeded in establishing that the revision petitioner herein committed offence punishable under Section 411 of IPC. Therefore, the conviction imposed by the trial court and confirmed by the 13 Crl.R.P.No.97/2016 appellate court for the offence punishable under Section 411 of IPC does not require any interference, accordingly, the conviction stands confirmed. 23. Coming to the sentence, the maximum punishment provided for the offence punishable under Section 411 of IPC may extent to three years. The appellate court imposed imprisonment for six months. Considering the facts of the case and in consideration of leniency in the matter of sentence sought for by the learned counsel for the revision petitioner, the sentence can be modified and accordingly, sentence imposed by the trial court confirmed by the Appellate Court can be reduced for a period of four months. 24. In the result, this revision petition succeeds in part. The conviction imposed by the trial court and confirmed by the appellate court stands confirmed. The sentence stands modified and accordingly the revision petitioner/second accused is sentenced to undergo simple imprisonment for four months for the offence punishable under Section 411 of IPC. 25. In view of the above finding, the order 14 Crl.R.P.No.97/2016 suspending sentence and granting bail to the revision petitioner stands vacated with direction to the revision petitioner to surrender before the trial court to undergo the modified sentence imposed as above within four weeks, failing which the trial court is directed to execute the modified sentence without fail. Registry is directed to forward a copy of this order to the trial court for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** csl/SK