Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 17TH DAY OF JUNE 2016/27TH JYAISHTA, 1938** **Crl.Rev.Pet.No. 994 of 2004 ( )** **-------------------------------AGAINST THE JUDGMENT IN CRL.APPEAL NO.505/1999 of ADDITIONAL SESSIONS FAST TRACK COURT-II(ADHOC), THRISSUR DATED 03-03-2004** **AGAINST THE JUDGMENT IN CC 389/1996 of JUDICIAL MAGISTRATE OF FIRST CLASS,KUNNAMKULAM DATED 16-11-1999** **REVISION PETITIONER(S)/APPELLANT/ACCUSED NO.2.:** **-----------------------------------RAJAN, S/O.KUNJUMON, UOORAPPARAMBIL HOUSE, ANJOOR VILLAGE, PUTOKKARA, THRISSUR DIST.** **BY ADV. SRI.DILIP J. AKKARA** ## **RESPONDENT(S)/RESPONDENT/COMPLAINANT.:** **------------------------------------** **THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. M.G.LISHA.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.R.P.No.994 of 2004 ---------------------------------------------Dated this the 17[th] day of June, 2016 ## **ORDER** This revision petition is preferred by the 2[nd] accused against the judgment in Crl.Appeal No.505/1999 of Additional Sessions Judge, Fast Track Court-II (Adhoc), Thrissur. Three persons were charge sheeted in C.C.No.389/1996 by the Judicial First Class Magistrate Court, Kunnamkulam for offence punishable u/s.457, 380, 461 r/w.34 IPC. The learned Magistrate acquitted the 1[st] accused and convicted the 2[nd] and 3[rd] accused and sentenced them to rigorous imprisonment for two years each u/s.380 IPC and rigorous imprisonment for one year each u/s.457 IPC. Against that, they preferred Crl.Appeal No.505/1999 before Crl.R.P. No.994/2004 2 Additional Sessions Judge Fast Track Court-II (Adhoc), Thrissur, which was dismissed by the learned Magistrate. Being aggrieved by that, the 2[nd] accused preferred this revision petition. 2. The charge against the accused is that on 9.5.1996 at 1 a.m., the accused in furtherance of their common intention to commit theft, trespassed into the house of PW1 by breaking the lock of the front door, thereafter they entered into the bed room, opened the cupboard by taking the key kept under the bed and had stolen a bottle of foreign liquor and VCP kept in the visiting room, thereby committed the offence. On 4.8.1996, Circle Inspector of Police, Ernakulam arrested the accused in connection with Crime No.118/1996 of Peramangalam Police Station. At that time, he made a confession and on the basis of information received from Crl.R.P. No.994/2004 3 him, he arrested A2 and A3 and recovered a VCP. After completing investigation, laid charge in the Judicial First Class Magistrate, Kunnamkulam. During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P4. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him, he did not adduce any defence evidence. 3. Heard both sides. The main contention advanced by the learned counsel appearing for the revision petitioner is that there is no proper identity of the seized article. But the learned Public Prosecutor strongly opposed the above contention and contended that the property was properly identified by the owner of the property. 4. In order to ascertain the illegality or Crl.R.P. No.994/2004 4 irregularity in the finding of the Court below, I have examined the oral evidence of the witnesses. PW1 in his evidence deposed that on 8.5.1996, he left his house along with his wife. When they returned on 10.5.1996 at 9.30 a.m., the lock of the house was found dismantled. On inspection, it was found that one bottle of brandy and MO1 VCP were stolen from his house. PW1 did not file any complaint before any Police authority. Subsequently, the stolen articles were recovered by the Police and he identified it at the Police Station. PW2 supported the evidence of PW1. 5. In this context, I have examined the recovery of MO1 VCP. The evidence of PW3 shows that on 11.5.1996, A2 and A3 approached his shop and A3 informed him that the VCP belonged to A2 and he purchased it from him. PW3 identified MO1 VCP brought Crl.R.P. No.994/2004 5 by A3. There was nobody to purchase that VCP and the accused pledged that VCP before PW4 and received ₹5,000/-. PW4 supported the evidence of PW3. He also stated that on 11.5.1996, A2 and A3 approached PW3 with MO1 VCP. The recovery was effected by PW6 on the basis of information given by A3. According to Section 114(a) of the Evidence Act, if a person is accused of receiving stolen goods knowing them to be stolen, it is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen. 6. 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 Crl.R.P. No.994/2004 6 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 Crl.R.P. No.994/2004 7 the presumption under Section 114(a) since the accused had no explanation with regard to the stolen article. It is presumed that PW6 recovered the stolen articles on the basis of information given by the accused. There is no reason to discard the evidence. Both Courts rightly appreciated the evidence and convicted the accused. I do not find any illegality in the findings of the Courts below. Therefore, the conviction u/s.380 & 457 is confirmed. 7. The District Probation Officer, Thrissur reported the antecedents of the revision petitioner, in which it is stated that the revision petitioner was involved in another case charged with similar offence and it is pending against him, which also happened in the same period, but it is learnt that he has not been involved in any other offence in recent years. Now he is leading a peaceful life with his family. Considering the nature of Crl.R.P. No.994/2004 8 offence, the circumstances under which it was committed, the gravity of the allegation and the character of the offender, instead of sentencing him, I release him on probation of good conduct u/s.4 of the Probation of Offenders Act, 1958. ## 8. Apex Court in **Dalbir Singh** v. **State of Haryana and others** [AIR 2000 SC 1677] held as follows: “In the matter of release of a person convicted of an offence on probation of good conduct the Parliament has made it clear that it has to be only if the Court forms the opinion that it is expedient to release him on probation for his good conduct regard being had to the circumstances of the case. One of the circumstances which cannot be sidelined in forming the said opinion is “the nature of the offence”. Parliament has left it to the Court to decide when and how the Court should form such opinion. It provided sufficient indication that releasing the convicted person on probation of good conduct must appear to the Court to be expedient. The word “expedient” had been thoughtfully employed by the Parliament in the section so as to mean it as “apt and suitable to the end in view”. Here the word “expedient” is used in S.4 of the Probation of Offenders Act in the context of casting a duty on the court to take into account “the circumstances of the case including the nature of offence.......... “This means S.4 can be resorted to when Crl.R.P. No.994/2004 9 the Court considers the circumstances of the case, particularly the nature of the offences, and the Court forms the opinion that it is suitable and appropriate for accomplishing a specified object that the offender can be released on probation of good conduct.” In the result, the revision petitioner is released u/s.4 of the Probation of Offenders Act, according to the following conditions: 1) The revision petitioner shall be released on probation of good conduct for one year on executing a bond for 10,000/- with two solvent sureties of the like₹ amount to the satisfaction of the trial Court. 2) He shall maintain peace and good behaviour during this period and he shall be under the supervision of the District Probation Officer during this period. 3) He shall abstain from intoxicants and not commit similar offence during this period. The District Probation Officer shall send quarterly report during this Crl.R.P. No.994/2004 10 period. 4) If he violates any of the conditions mentioned above during these period, the order of release on probation of good conduct shall be cancelled and he shall undergo the original sentence imposed upon him. 5) The revision petitioner is directed to appear in the trial Court and execute a bond as directed above forthwith. Crl. R.P. is disposed of. **P.D. RAJAN, JUDGE.** acd