Robbin s/o Raphel v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944** **CRL.A NO. 1485 OF 2007** **AGAINST JUDGMENT IN SC 216/2004 OF ADDITIONAL DISTRICT COURT** **(ADHOC), ERNAKULAM** ## **APPELLANT/6th ACCUSED:** ROBBIN,S/O. RAPHEL, ANATHURUTHEL VEEDU, MAY 1ST ROAD, THAMMANAM KARA, PUNITHURA VILLAGE. BY ADV T.A.SHAJI (SR.) ## **RESPONDENT/COMPLAINANT:** > [ STATE OF KERALA, [CIRCLE INSPECTOR OF POLICE, CENTRAL POLICE STATION, ERNAKULAM], REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR REKHA,GOVERNMENT PLEADER RAJESH A (SPL.GP) SMT.ARSHA DHARMAPALAN, AMICUS CURIAE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1485 of 2007 2 'C.R' ## K.BABU, J. -------------------------------------Criminal Appeal No.1485 of 2007 --------------------------------------Dated this the 20[th] day of December, 2022 ## JUDGMENT Aggrieved by the judgment dated 16.07.2007, passed by the Additional Sessions Court (Adhoc-I), Ernakulam in S.C.No.216/2004, the appellant/accused No.6 has preferred this appeal. The appellant was convicted under Section 379 of IPC and sentenced to undergo rigorous imprisonment for a term of 18 months. The appellant and the other accused faced charge under Section 395 IPC. 2. The prosecution case is that, on 18.07.2003 at 9.00 p.m, the accused, six in number, with the common intention to commit dacoity, travelled in a Qualis car bearing registration No.KL7/AM 6778 on Kaloor-Kadavanthra road, and when they reached near the residence of Mr.Ravi, Payyappillyparambu, the appellant/accused No.6 pushed down PW1, a 68-year-old lady who was walking along the road and accused No.4 snatched away a gold chain weighing 10.200 grams. The other accused aided in the commission of the Crl.A No.1485 of 2007 3 offence. 3. PW12, the Circle Inspector of Police submitted a final report alleging offence under Section 395 IPC against the appellant and other accused before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Section 395 of IPC. Accused No.6 pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 12 and proved Exts.P1 to P8 and MO1 gold chain with locket (two pieces). 5. The accused were examined under Section 313 Cr.P.C. They denied the circumstances brought out against them in the prosecution evidence. At the closure of the trial, accused Nos.1, 2 and 5 were acquitted of the offence under Section 395 IPC. Accused No.6, the present appellant, was convicted for the offence under Section 379 IPC. The case against accused Nos.3 and 4, who remained absconding, was refiled. 6. Heard both sides. Crl.A No.1485 of 2007 4 7. The prosecution relied on the oral evidence of PWs 1, 3 and 9 and the corroboration offered by Exts.P1 to P8 to bring home the offence against the accused. 8. PW1 is the defacto complainant. She was a 68-year-old housewife. On 18.07.2003 at 9.00 p.m, she was returning home from her workplace. When she reached Elamkulam, the place of occurrence, a person suddenly pushed her down. She sustained injuries. Another person snatched away a portion of the gold chain from her neck. PW1 could not identify the assailants. 9. PW3 is the Manager of the Muthoot Finance Company. PW3 gave evidence that on 19.07.2003, the appellant had pledged a gold chain in his financial institution. He had produced the gold chain before the Police. 10. PW5 is an Accountant in the Muthoot Finance Company. He had worked in the company as an Appraiser at the relevant time. PW5 identified the appellant as the person who pledged the gold ornament. PW9, the Sub Inspector of Police, had arrested the appellant in another crime and, registered Crime No.191/2003 based on his confession. PW9 effected the recovery of the portion of the gold chain based on the confession given by the appellant. PW1 Crl.A No.1485 of 2007 5 identified MO1 series pieces of gold chain snatched from her possession. 11. The Trial Court, relying on the oral evidence of PWs 1, 3, 5 and 9, recorded a finding that the appellant had been in possession of the gold chain immediately after the incident and that he pledged the same with Muthoot Finance Company. The Trial Court, with the aid of the presumption as provided in illustration (a) to Section 114 of the Indian Evidence Act, found that the appellant committed the offence punishable under Section 379 of IPC. 12. The learned counsel for the appellant essentially challenged the recovery alleged by the prosecution. The learned counsel for the appellant contended that, as the original of the ledger maintained at the finance company was not proved, the prosecution failed to establish the recovery of the gold. The learned counsel also contended that the alleged recovery would not come under Section 27 of the Indian Evidence Act. The learned counsel further contended that as the recovery is a weak piece of evidence, the presumption as provided in Section 114 illustration (a) of the Indian Evidence Act cannot be applied to convict the appellant/accused. Crl.A No.1485 of 2007 6 13. The learned Senior Public Prosecutor, per contra, contended that the prosecution could well establish the possession of the stolen article by the appellant immediately after the incident by way of recovery effected based on the confession statement of the appellant. 14. The learned Senior Public Prosecutor further contended that there is no illegality in recording the conviction against the appellant/accused No.6 based on the principle of the presumption as provided in Section 114 illustration (a) of the Indian Evidence Act. 15. The most important circumstance for the prosecution in this case is the disclosure statement of the appellant and the consequent recovery of the stolen property. PW9, the then Sub Inspector of Police, Ernakulam South Police Station deposed that the appellant gave the following statement while he was in his custody: “On 18.07.2003 at about 9.00 p.m a gold chain weighing about one sovereign was snatched from the neck of an elder lady after pushing her down and I pledged the gold chain with a bank at Palarivattom. I can show the bank where I pledged the gold chain.” A major portion of the confession statement is inadmissible in Crl.A No.1485 of 2007 7 evidence being hit by Sections 24 to 26 of the Evidence Act. However, a portion of the statement pertained to the information regarding the pledging of the gold chain by the appellant with the finance company is admissible under Section 27 of the Evidence Act. Based on this disclosure statement, on 23.07.2003, PW9 reached the finance company, the Manager of which is PW3. MO1 gold ornament was recovered from the finance company. PW3, the Manager of the finance company identified the appellant/accused as the person who had pledged the gold ornament on 19.07.2003. PW5, the appraiser attached to the finance company also identified the appellant/accused. 16. Under the Evidence Act, there are two situations in which confessions to the Police are admitted in evidence. One is when the statement is made in the immediate presence of the Magistrate, and the second is when the statement leads to the recovery of a fact connected with the crime. The discovery assures the truth of the statement and makes it reliable. 17. In the present case, the appellant/accused No.6 made a confession to PW9 which was recorded timely while he was in his custody. The relevant portion of the statement of the appellant that Crl.A No.1485 of 2007 8 “I pledged the gold chain with the finance company managed by PW3 and I can show the bank where I pledged the same” is, therefore, admissible under Section 27 of the Evidence Act. 18. Now, coming to the applicability of the Illustration (a) of Section 114 of the Evidence Act. Illustration (a) of Section 114 reads thus: “114. Court may presume existence of certain facts. --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. ## Illustrations The Court may presume -- (a) 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;” Illustration (a) of Section 114 says 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. Admittedly, the appellant had not accounted for the possession of the gold chain by him. The question whether a presumption should be drawn under Illustration (a) of Section 114 is a matter which depends upon the evidence and circumstances of each case. Crl.A No.1485 of 2007 9 ## 19. The learned author in Halsburys' Laws of England [Volume ## 15, Third Edition, page 263] comments thus: “ 477. When evidence is unnecessary . A fact does not require proof when it has been formally admitted or when the court takes judicial notice of it (k). Further, a fact may be presumed to be true by the court either without any preliminary evidence, as when a presumption of innocence or sanity is applicable (l), or on proof of other facts from which a presumption arises (m)” 20. In Ayodhya Singh v. State of Rajasthan [(1972) 3 SCC 885] , the Apex Court, while dealing with a case in which the stolen articles were recovered from the house of a prisoner even an interval of 17 days, was not considered sufficient to prevent the presumption that the prisoner was guilty of the theft in question. ## 21. In Earabhadrappa v. State of Karnataka [(1983) 2 SCC 330] where the recovery was after one year, the Supreme Court held thus: “No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particularly when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.” ## The Supreme Court further held that the conviction can be based on Crl.A No.1485 of 2007 10 this presumption unless the possession is satisfactorily accounted with. In Shri Bhagwan v. State of Rajasthan [(2001) 6 SCC 296] the Apex Court held that the unwillingness or inability to afford any explanation for the possession of the stolen article amounted to strong, self-inculpatory evidence. 22. The conviction grounded solely on the basis of presumptions had been upheld by the Privy Council in Otto George Gfeller v. King (AIR 1943 PC 211). The Privy Council ruled that an accused could be held to be guilty on such presumption as is drawn under Illustration (a) of Section 114 of the Indian Evidence Act. This was relied upon by the Supreme Court in Karnal Singh Uttam Singh v. State of Maharashtra [(1976) 1 SCC 882] and Nagappa Dondiba Kalal v. State of Karnataka (AIR 1980 SC 1753). 23. In the present case, the prosecution has successfully established the possession of the gold chain immediately after the theft. The possession of the same was not accounted for by the accused. Therefore, the prosecution has succeeded in bringing home the ingredients of the offence under Section 379 IPC. Therefore, the conviction requires no interference. 24. The learned counsel for the appellant submitted that the Crl.A No.1485 of 2007 11 sentence imposed is exorbitant. The Trial Court sentenced the accused to undergo rigorous imprisonment for a period of 18 months. The incident occurred on 18.07.2003. The proceedings continued for more than 19 years. It is submitted that the appellant/accused No.6, who is now aged 43 years, is living along with his wife and minor children. No materials have been placed before this Court to show that he had been involved in any other offences after the incident. In these circumstances, the reformative principle in sentencing has much significance. 25. In Mohammad Giasuddin v. State of A.P. [(1977) 3 SCC 287] = (AIR 1977 SC 1926) Justice V.R Krishna Iyer, speaking for the TwoJudge bench of the Apex Court held thus: “Crime is a pathological aberration, the criminal can ordinarily be redeemed and the State has to rehabilitate rather than avenge. The sub-culture that leads to anti-social behaviour has to be countered not by undue cruelty but by reculturisation. Therefore, the focus of interest in penology is the individual, and the goal is salvaging him for society. The infliction of harsh and savage punishment is thus a relic of past and regressive times. The human today views sentencing as a process of reshaping a person who has deteriorated into criminality and the modern community has a primary stake in the rehabilitation of the offender as a means of social defense. Hence a therapeutic, rather than an “in terrorem” outlook, should prevail in our Criminal Courts, since brutal incarceration of the person merely produces laceration of his mind. “If you are to punish a man retributively, you must injure him. If you are to reform him, you must improve him and, men are not improved by injuries.” Crl.A No.1485 of 2007 12 26. In Singh K.P. v. State of N.C.T. of Delhi (2015 KHC 4640) , the Apex Court, after taking into account the prolonged proceedings in the trial and appeal for nearly 17 years, reduced the sentence of two years' imprisonment imposed on the appellant therein to 7½ months being the period of imprisonment already undergone by him. The offence alleged in that case was punishable under Section 8 of the PC Act, 1988. 27. In Vinay and others v. State of Karnataka and another (2015 KHC 4296) , the Apex Court reduced the sentence of imprisonment for a period of three months under Section 326 IPC read with Section 34 and Section 427 IPC to the period already undergone by the appellant therein. 28. In this case, the appellant/accused was arrested on 23.07.2003. He was released on bail on 18.09.2003. He remained in confinement for a period of 58 days. 29. Taking into account all these circumstances, I am of the view that the sentence imposed on the appellant requires interference. In the result, the appeal is partly allowed. The judgment convicting the accused under Section 379 IPC is confirmed. The Crl.A No.1485 of 2007 13 sentence imposed on the appellant is modified as follows: The sentence of imprisonment is limited to the period already undergone by the appellant. Sd/K.BABU, JUDGE KAS