High Court of KeralaSingle Judge2015-02-18Revision petition allowed in part and disposed of.

Prince @ Jins v. Sub Inspector of Police, Anthikkad, Thrissur District

Case / Petition Number:Crl.R.P.No.1203 of 2003

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. Ramakrishnan
Judgment Date: 2015-02-18
Court Decision / Holding: The sentence is modified: the period of imprisonment is confined to the period of detention already undergone—four months and twelve days. The revision petition is allowed in part and disposed of. If the accused is in custody, he shall be released forthwith if not required in other cases.
Final Disposition: Revision petition allowed in part and disposed of.

Parties to the Case

Appellants / Petitioners

Prince @ Jins, S/o Suriyan Veetil Rajan, Kolazhy Village Desom, Thrissur District

Respondents

Sub Inspector of Police, Anthikkad, Thrissur District (represented by the Public Prosecutor, High Court of Kerala, Ernakulam)

Legal Representation & Advocates

Counsels for Petitioners

• Sri U. O. Jose

Counsels for Respondents

• Sri V. H. Jasmine, Public Prosecutor

Case Synopsis & Summary

Prince @ Jins, s/o Suriyan Veetil Rajan, was charged in C.C.235/2000 with offences under sections 457 and 380 IPC for breaking into a shop at Kanjany and stealing cigarette bundles. The trial court acquitted him of 457 and 380 but convicted him under section 411 IPC and sentenced him to one year’s rigorous imprisonment with a set-off for the time already served. On appeal, the Sessions Court dismissed the appeal and affirmed the conviction. The Kerala High Court, after hearing, held that the prosecution established the revision petitioner’s possession of the stolen cigarette bundles recovered from a lodge and explained the chain of custody through MO1, Ext. P3, and the mahazar; relying on the presumption under Explanation (a) to section 114 IPC, the court found that the accused’s possession of stolen articles sufficed to sustain a conviction for 411 IPC even though the independent witnesses to the seizure were not examined. The court also cited State Govt. of NCT of Delhi v. Sunil & others, Modan Singh v. State of Rajasthan, George v. State of Kerala, and Karnal Singh v. State of Maharashtra to justify such reliance. On sentence, the HC observed that the accused had already undergone about four months and twelve days in custody and reduced the term accordingly, allowing the revision petition in part.

Provisions of Law Cited

Sections 457 IPCSection 380 IPCSection 411 IPCSection 313 Cr.P.C.Section 41(1)(d) Cr.P.C.Section 102 Cr.P.C.Section 114 IPC (explanation (a))Section 8 of the Indian Evidence Act

Legal Doctrines & Maxims

Presumption of guilt from possession of stolen property under Explanation (a) to Section 114 IPC
Admissibility of conduct under Section 8 of the Indian Evidence Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The revision petitioner contends that the acquittals of 457 and 380 IPC were grounded on a lack of direct evidence establishing entry into the shop and theft. He asserts there is no reliable identification of him as the offender, and that the only contentious link is his possession of the recovered cigarette bundles. He submits that the seizure of the bundles from a gunny bag in his custody, and the accompanying mahazar, do not by themselves establish the elements of theft, and that the prosecution failed to produce independent witnesses to corroborate the seizure, rendering the chain of custody suspect. He also stresses that the evidence relied on by the courts below rests on the presumption under Section 114 IPC coupled with Explanation (a) without a credible foundation for linking possession to the theft. The petitioner prays for acquittal or, in the alternative, for conviction only of the lesser-included offense with appropriate sentence. He further contends that the sentence of one year imprisonment is disproportionate, given the remand period and the lack of a direct admission of guilt.

Contentions of Respondents

The prosecution argues that the theft occurred and the accused was found in possession of the stolen cigarette bundles; the evidence including MO1 seizure, Ext P3, and the arrest, together with the presumption under 114 IPC, supports conviction for 411 IPC; non-examination of independent witnesses is not fatal in light of supportive testimony and settled law. It contends the trial court’s findings are properly grounded and the High Court should not substitute its own view where the evidence is adequate; the revision should be dismissed to maintain the conviction, though the High Court retains power to modify sentence.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
State Govt. of NCT of Delhi v. Sunil & others	2001 Crl.LJ 504	Positive	Supports the proposition that non-examination of independent witnesses to a seizure does not by itself negate the seizure if the seizing officer's evidence is credible.
Modan Singh v. State of Rajasthan	1978 Crl.L.J 1531	Positive	Reiterates the view that independent witnesses are not a strict necessity to prove seizure if the evidence is credible.
George v. State of Kerala	1994 (1) KLT SN.9 (C.No.9)	Positive	Affirms admissibility of conduct under Section 8 of the Evidence Act to show the place where stolen property was kept.
Karnal Singh v. State of Maharashtra	AIR 1976 SC 1097	Positive	Supports the use of possession evidence and the associated presumption to infer theft under relevant provisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **WEDNESDAY, THE 18TH DAY OF FEBRUARY 2015/29TH MAGHA, 1936** **Crl.Rev.Pet.No. 1203 of 2003 ( )** **---------------------------------** **AGAINST THE JUDGMENT IN CRL.A 565/2001 of III ADDITIONAL SESSIONS COURT, THRISSUR DATED 19-03-2003** **AGAINST THE JUDGMENT IN CC 235/2000 of J.M.F.C.-II,THRISSUR DATED 08-11-2001** ## **PETITIONER/REVISION PETITIONER :** **--------------------------------** **PRINCE @ JINS,S/O.SURYAN VEETIL RAJAN, KOLAZHY VILLAGE DESOM,THRISSUR DISTRICT.** **BY ADV. SRI.U.O.JOSE** **RESPONDENT/RESPONDENT:** **----------------------** **SUB INSPECTOR OF POLICE, ANTHIKKAD, THRISSUR DISTRICT REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM** **BY P.P.SRI. V.H.JASMINE** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18-02-2015, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. RAMAKRISHNAN, J.** ................................................. Crl.R.P.No.1203 of 2003 .................................................. Dated this the 18[th] day of February, 2015. ## **O R D E R** The accused in C.C.No.235/2000 on the file of the Judicial First Class Magistrate Court-II, Thrissur is the revision petitioner herein. 2. The revision petitioner was charge sheeted by the Sub Inspector of Police, Anthikad in Crime No.50/2000 of that police station under sections 457 and 380 of the Indian Penal Code. 3. The case of the prosecution in nutshell was that in the night of 20.2.2000 the revision petitioner had committed theft of cigarette bundles after break open the door of the shop belonging to PW2 Rappai at Kanjany and thereby he had committed the above said offences. 4. After investigation, final report was filed and the case was taken on file as C.C.No.235/2000. When the revision petitioner appeared before the court below, after hearing both sides charge under sections 457 and 380 of the Indian Penal Code were framed and the same was read over and explained to Crl.R.P.No.1203 of 2003 2 him and he pleaded not guilty. In order to prove the case of the prosecution, Pws 1 to 6 were examined and Exts.P1 to P3 and P1(a) and MO1 were marked on the side of the prosecution. After closure of the prosecution evidence, the revision petitioner was questioned under section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he had not committed any offence and he has been falsely implicated in the case. 5. After considering the evidence on record, the court below found the revision petitioner not guilty under section 457 and 380 of the Indian Penal Code, but found him guilty under section 411 of the Indian Penal Code and convicted him thereunder and sentenced him to undergo rigorous imprisonment for one year and set off was allowed for the period of detention already undergone by him. 6. Aggrieved by the same, he filed Crl.A.No.565/2001 before the Sessions Court, Thrissur which was made over to the Third Additional Sessions Court, Thrissur for disposal and the learned Additional Sessions Judge dismissed the appeal by the impugned judgment confirming the order of conviction Crl.R.P.No.1203 of 2003 3 and sentence imposed by the court below. Aggrieved by the same, the present revision has been filed by the revision petitioner/accused before the court below. 7. Heard the learned Public Prosecutor and perused the records. 8. The learned Public Prosecutor supported the concurrent findings of the courts below. 9. The case of the prosecution as emerged from the prosecution witnesses was as follows: PW2 was conducting a shop at Kanjany and he closed the shop on 19.2.2000 at 8 p.m and on 21.2.2000 morning, his employee informed him that the shop was broke open and he went to the shop and found that the tiles on the back portion of the roof were removed and wooden planks and shouters were also removed and cigarette packets worth Rs.25,000/were found stolen and he immediately informed his son PW1. He also came to the shop and thereafter they went to the police station and gave Ext.P1 statement on the same day which was recorded by PW6 and registered Ext.P1(a) First Information Report as Crime No.50/2000 against unknown person under sections 457 and 380 of the Indian Penal Code. On 9.3.2000 Crl.R.P.No.1203 of 2003 4 at about 7.30 p.m while PW5, then Circle Inspector of Police, Thrissur, was doing on patrol duty, he found the revision petitioner with another at Thekkinkadu Maidhanam and on getting suspicion about their conduct, they stopped them and examined MO1 bag in the revision petitioner's hand, which contained a tape recorder and he was not able to give any explanation regarding the same. So, PW5 arrested him and seized the bag as per the mahazer and came to the police station and registered Crime No.149/2000 under sections 41 (1)(d) and 102 of the Code of Criminal Procedure. When he questioned the revision petitioner, it was revealed that he had committed the offence in Crime No.50/2000 of Anthikad police station. On the basis of the statement given by the revision petitioner namely “I have placed the cigarette bundles in room No.39, Cylon Lodge, Achingal Lane, Thrissur and I will show the lodge and the cigarette bundles” PW5 went to Cylon lodge along with the revision petitioner and as shown by the revision petitioner from Room No.39 of that lodge, he had seized the cigarette bundles kept in a gunny bag as per Ext.P3 mahazer and thereafter the records were transmitted to the Sub Inspector of Police, Anthikad police station. The Sub 5 Crl.R.P.No.1203 of 2003 Inspector of Police conducted investigation and got it identified by PW2 and submitted final report. 10. PW4 was examined to prove that he was conducting sale of cigarettes and the revision petitioner try to sell cigarettes for him. It is true that Pws 1 and 2 have deposed about the theft committed in the shop and there is nothing to disbelieve their evidence regarding this aspect. It is true that they could not identify the revision petitioner as the person who committed the crime. But their evidence is sufficient to prove that theft was committed from the shop of PW2 and immediately on knowing about the theft, Ext.P1 statement was given by PW2 and on the basis of Ext.P1(a), a crime was registered. 11. The evidence of PW5 will go to show that when he arrested the revision petitioner it was revealed that he had committed the offence in this case and on the basis of the statement given, the articles were seized as per Ext.P3 mahazer in the presence of witnesses, but those witnesses were not examined. But that alone is not sufficient to come to the conclusion that the seizure has not been proved. In the decision reported in **State Govt. of NCT of Delhi v. Sunil &** Crl.R.P.No.1203 of 2003 6 **others** (2001 Crl.LJ 504), it has been observed that merely because independent witnesses have not supported or they were not examined is not a ground to disbelieve the case of seizure, if the court is satisfied with the evidence given by the seizing officer. The same view was reiterated in the decision reported in **Modan Singh v. State of Rajasthan** (1978 Crl.L.J 1531). Further, the revision petitioner had no explanation as to how he came in possession of these articles. Once it was proved by the prosecution that he was in possession of the articles which were stolen articles and unless the possession of the same is not explained or accounted by the accused, then it can be presumed that he is either a thief or responsible for the stolen articles in view of the presumption. 12. Further, the conduct of the revision petitioner showing the place of where the stolen articles were kept is admissible under section 8 of the Evidence Act and this was so held in the decision reported in **George v. State of Kerala [** 1994 (1) KLT SN.9 (C.No.9)] and **Karnal Singh v. State of Maharashtra** (AIR 1976 SC 1097). So under the circumstances, the courts below were perfectly justified in coming to the conclusion that the revision petitioner was found to be in Crl.R.P.No.1203 of 2003 7 possession of the stolen articles. However, the court below did not come to the conclusion that the evidence is sufficient to convict him for the offence under sections 457 and 380 of the Indian Penal Code but convicted him for the offence under section 411 of the Indian Penal Code which is a lesser offence than the offences mentioned above. So the court below was perfectly justified in convicting the revision petitioner for the offence under section 411 of the Indian Penal Code invoking the presumption available under explanation (a) to section 114 of the Indian Penal Code and the concurrent findings of the court below on this aspect do not call for any interference. 13. As far as the sentence is concerned, the court below sentenced him to undergo rigorous imprisonment for one year and this was confirmed by the appellate court. It is seen from the records that the revision petitioner was in remand for four months and 12 days. Having found that he is not guilty for the offences under sections 457 and 380 of the Indian Code but found guilty under section 411 of the Indian Penal Code which is a lesser offence than the offence under section 380 of the Indian Penal Code, this Court feels that sentence can be confined to period of detention already undergone by him Crl.R.P.No.1203 of 2003 8 namely 4 months and 12 days. So the sentence is modified as follows: The sentence is confined to period of detention already undergone by him namely four months and 12 days. With the above modification of the sentence alone, the revision petition is allowed in part and disposed of. If the revision petitioner is in jail in connection with this case, he is directed to be released forthwith if his custody is not required in connection with any other case. Office is directed to communicate this order to the concerned court and to the jail authorities immediately. ## **Sd/K. RAMAKRISHNAN, JUDGE.** cl /true copy/ P.S to Judge Crl.R.P.No.1203 of 2003 9