Saidalavi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **Crl.Rev.Pet.No.864 OF 2005(C)** **CRA 41/2000 OF SESSIONS COURT, MANJERI** **CC 410/1998 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, PERINTHALMANNA** ## **REVISION PETITIONER/S:** **SAIDALAVI, S/O MOIDEENKUTTY KOALKKADAN HOUSE, KOTTAKKAL.** **BY ADV. SRI.K.P.MUJEEB** ## **RESPONDENT/S:** **STATE OF KERALA** **REPRESENTED BY PUBLIC PROSEDCUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SR.PP. M.S.BREEZ** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 21.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRRP No.864/2005 **==> picture [31 x 8] intentionally omitted <==** ## **O R D E R** The revision petitioner is the 1[st] accused in CC No. 410 of 1998 on the file of the Judicial First Class Magistrate Court-I, Pernthalmanna and the appellant in Crl. Appeal No. 41 of 2000 on the file of the Sessions Court, Manjeri. The offence alleged against accused 1 to 3 is punishable under Section 411 r/w Section 34 of the Indian Penal Code (hereinafter referred to as, “the IPC”). 2. The revision petitioner along with the 3[rd] accused faced trial before the trial court for the offence punishable under Section 380 r/w Section 34 of the IPC. It is alleged that PW9, the then Sub Inspector of Police, Valanchery, arrested the 1[st] accused in Crime No.167 of 1998 registered against the accused 1 to 3, alleging that on 15.05.1998 at about 2 pm, the CRRP No.864/2005 **==> picture [31 x 8] intentionally omitted <==** accused 1 to 3, in furtherance of their common intention, committed theft of dried areacanuts belonging to PW1 and kept it in four gunny bags in Building No.X/172 of Kuruva Panchayat. The 2[nd] accused absconded during the trial and hence, the case against him was split up. 3. During the trial of the case, PWs 1 to 9 were examined and marked Exts.P1 to P6 and MO1 series on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure. They denied all the incriminating circumstances appearing in the evidence against them. However, no defence evidence was adduced. 4. Heard Sri.Dheeraj C. Rajan, the learned _Amicus Curie_ appointed by this Court for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public Prosecutor for the respondent-State. CRRP No.864/2005 **==> picture [31 x 8] intentionally omitted <==** 5. PW9, the then Sub Inspector of Police Valanchery, testified before the court that he arrested the accused in connection with Crime No. 167 of 1998 of Valanchery Police Station. After the arrest of the accused, they were questioned in detail and on the basis of their confession statements, he recovered three gunny bags of areacanut sold by the accused to PW4. PW4 supported the version of PW9 that he purchased four gunny bags from the accused. According to him, one of the four gunny bags was sold and the remaining three were entrusted to the police. PW5, one of the witnesses in the mahazar, stated that he put signature in Ext.P2 seizure mahazar. However, PW5 maintained that he did not witness the actual recovery. The trial court as well as the appellate court entered a finding that the revision petitioner/1[st] accused was in conscious possession of MO1 series before CRRP No.864/2005 **==> picture [31 x 8] intentionally omitted <==** selling the same to PW4. In other words, the accused was in possession of the material object before actual sale was effected to PW4. Over and above the trial court as well as the appellate court relied on the recovery of the MO1 series, the conduct of the revision petitioner/1[st] accused pointing out PW4 and his shop, is taken as a relevant circumstance under Section 114(a) of the Evidence Act and accordingly, he was convicted and sentenced. 6. To attract the presumption under Section 114(a) of the Evidence Act, it is necessary on the part of the prosecution to prove that the accused was in possession of stolen goods soon after the theft or the accused had received the goods knowing them to be stolen. In the case on hand, PW4 adduced evidence before the trial court to show that he could not account for his possession of the material objects seized from his custody. PW4 stated that he CRRP No.864/2005 ..6.. purchased the material objects from the accused. This statement is not admissible under Section 27 of the Evidence Act. To attract Section 411 of the IPC, it is the duty of the prosecution 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. 7. Going by the prosecution case, it is clear that the revision petitioner/1[st] accused is one of the offenders, who committed the theft. The police rightly charged under Section 380 of the IPC as against the revision petitioner/1[st] accused along with accused Nos. 2 and 3. However, the trial court altered the conviction to one under Section 411 of the IPC and convicted the revision petitioner of the CRRP No.864/2005 **==> picture [31 x 8] intentionally omitted <==** offence under Section 411 of the IPC. 8. In **Mir Nagvi Askari** v. **CBI** [2009 KHC 973], the apex court held in paragraph 247 of the judgment that Section 411 of the IPC is directed not against the principal offender, e.g., a thief, robber or misappropriator, but against the class of persons, who trade in stolen articles and are receivers of stolen property. Hence, the apex court held that the principal offenders are outside the scope of Section 411 of the IPC. In the case on hand, the revision petitioner/1[st] accused is a principal offender. The accused has not traded stolen articles or received stolen property within the ambit of Section 411 of the IPC. Hence, both the trial court and the appellate court went wrong in convicting the accused under Section 411 of the IPC. 9. Judged by the above standards, the conviction and sentence rendered against the revision CRRP No.864/2005 ..8.. petitioner/1[st] accused are apparently unsustainable and are liable to be set aside. The findings of the trial court as well as the appellate court are illegal. Resultantly, the Crl.R.P. is allowed. The revision petitioner/1[st] accused is found not guilty of the offence under Section 411 of the IPC and accordingly, he is acquitted thereunder. Cancelling his bail bond, this Court directs that he be set at liberty. If any amount is deposited pursuant to an interim order passed by this Court, the same shall be released to the revision petitioner/1[st] accused in accordance with law. Pending applications, if any, stand disposed of. ## **Sd/-** ## **N.ANIL KUMAR** ## **JUDGE** Bka/21.12.2020