Allowed

Santhosh v. State of Kerala

Kerala HC4 Jan 2021Crl.Rev.Pet/631/2013

Case brief

AI extract

What is this about?

In a criminal revision, the High Court of Kerala set aside the conviction and acquitted the petitioner of theft. The court held that the prosecution failed to prove the complainant's legal possession of the motorcycle, thereby making the presumption of theft inapplicable despite the accused's inability to account for the vehicle's possession.

What did the court decide?

The conviction and sentence were set aside, and the revision petitioner was acquitted. His bail bond was cancelled, and he was set at liberty.

Santhosh Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE N.ANIL KUMAR

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MONDAY, THE 04TH DAY OF JANUARY 2021 / 14TH POUSHA, 1942

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Crl.Rev.Pet.No.631 OF 2013

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CRA 50/2012 OF ADDITIONAL DISTRICT COURT (ADHOC)-I, KALPETTA

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CC 240/2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, MANANTHAVADY

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REVISION PETITIONER/S:

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SANTHOSH, AGED 27 YEARS S/O.RAMACHANDRAN, THANDARAKANDIL HOUSE, BAIRAKUPPA, BEECHANAHALLI, KARNATAKA.

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BY ADVS. SHRI.JOHN VARGHESE SRI.P.M.JOSEPH

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RESPONDENT/S:

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STATE OF KERALA

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REPRESENTED BY THE SUB INSPECTOR OF POLICE, MANANTHAVADY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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OTHER PRESENT:

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SR.PP.M.S.BREEZ

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THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04.01.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.Rev.Pet.No.631 OF 2013

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O R D E R

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The revision petitioner is the 1^st accused in

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CC No. 240 of 2008 on the file of the Judicial First Class Magistrate Court-I, Mananthavady and the appellant in Crl.Appeal No. 50 of 2012

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on the file of the Additional Sessions Court (Adhoc)-I, Kalpetta. The offence alleged against the accused in punishable under Section 379 r/w Section 34 of the Indian Penal Code.

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The prosecution case, in brief, is as hereunder;

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A motorcycle, bearing Reg.No.18 A-5159, belonging to PW1 was parked in front of a shop at Chettappalam on 23.03.2007 between 8 pm and 9 pm. PW2, the then Sub Inspector of Police, Ambalavayal, while conducting routine patrol duty at 1.50 pm within his jurisdiction, found

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the 1^st accused riding the aforesaid motorcycle

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along with the 2^nd accused on pillion from Vaduvanchal Bhagom. After giving signal, the vehicle was stopped at Menonmukku and PW2 made a request to the accused to furnish the documents to prove the ownership of the motorcycle. However, the accused could not produce any document to prove the ownership of the motorcycle. Since the accused could not explain their possession of the vehicle, the vehicle was seized as per Ext.P2 seizure mahazar and the accused 1 and 2 were arrested. Accordingly, PW2 registered Ext.P3 First Information Report under Sections 41(1)(d) and

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102 of the Code of Criminal Procedure (hereinafter referred to as, “the Cr.P.C.”). On investigation, it was disclosed that the motorcycle was involved in Crime No. 154 of 2007 of Mananthavady Police Station. In the meanwhile, PW1 appeared before PW5, the then

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Head Constable, Mananthavady Police Station, on 27.03.2007 and submitted Ext.P1 statement.

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On the strength of Ext.P1, PW5 filed Ext.P6 First Information Report before the court.

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On the appearance of the accused 1 and 2,

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after having heard both sides, the trial court framed charge against the accused for the offence punishable under Section 379 r/w Section 34 of the IPC. The charge was read over, to which the accused pleaded not guilty.

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During the trial, PWs 1 to 7 were examined and marked Exts.P1 to P9 on prosecution side. On closing the evidence of the prosecution, the accused were questioned under Section 313(1)

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(b) of the Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them. When they were called upon to enter on their defence, no evidence was adduced.

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After hearing both sides, by its judgment

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..5..

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dated 27.02.2012, the trial court convicted the accused under Section 379 of the IPC and

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accordingly, they were sentenced to undergo simple imprisonment for six months and to pay

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a fine of Rs.2,000/- each for the offence under Section 379 r/w Section 34 of the IPC and in default of payment fine to undergo simple imprisonment for one month each more.

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Challenging the conviction and sentence imposed by the trial court, the accused preferred Crl. Appeal No. 50 of 2012 and the appellate court, by its judgment dated 28.09.2012, allowed the appeal in part. The 2^nd accused was found not guilty of the offence punishable under Section 379 r/w Section 34 of

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the IPC and accordingly, he was acquitted. However, the conviction and sentence rendered against the 1^st accused were upheld. Feeling aggrieved, the 1^st accused is before this Court in revision.

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Crl.Rev.Pet.No.631 OF 2013

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Heard Sri.John Varghese, the learned counsel

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for the revision petitioner; and Sri.M.S.Breez, the learned Senior Public

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Prosecutor for the respondent-State.

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The learned counsel for the revision

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petitioner submitted that there is nothing on record to show that PW1 was in possession of the vehicle as testified by him. According to him, both the trial court and the appellate court went wrong in holding that the 1^st accused committed theft without establishing the legal possession as contemplated under law. Elaborating on the submission, the learned counsel submitted that the vehicle was found missing since 23.03.2007. However, PW1 lodged Ext.P1 statement before the police on 27.03.2007. It was argued that the delay in lodging Ext.P1 First Information Statement has not been explained by PW1. Added to this, the learned counsel for the revision petitioner

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submitted that necessary ingredients under Section 379 of the Indian Penal Code to

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sustain the conviction under Section 379 of

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the IPC have not been brought out in evidence.

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On the other hand, the learned Senior Public

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Prosecutor submitted that the accused 1 and 2 were found in possession of the motorcycle involved in this case and they could not satisfactorily account for their possession when PW2 seized the motorcycle from them. The learned Senior Public Prosecutor further submitted that both the trial court and the appellate court concurrently held that the 1^st accused was not able to account for his possession of the vehicle and the presumption under Section 114(a) of the Evidence Act is applicable. It is submitted that when concurrent findings of fact are sought to be assailed in revision, unless the finding is perverse in nature, the revisional court is

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not justified in upsetting the findings in exercise of powers under Section 401 of the Cr.P.C.

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10.It is a fact that PW2 and party seized the motorcycle bearing Reg. No. 18 A-5159 while they were on vehicle checking duty at Ambalavayal area precisely at Thomattuchal Village from the possession of accused 1 and 2. At the time of seizing the vehicle, the 1^st accused was the rider and the 2^nd accused was thereon as a pillion rider. It is the case of PW2 that when the motorcycle was stopped and the accused were interrogated, they could not properly account for their possession of the motorcycle and the documents pertaining to the

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motorcycle were not available with them. Accordingly, the vehicle was seized and Ext.P3 First Information Report was registered for the offences under Sections 41(1)(d) and 102 of the Cr.P.C. by PW2. Surprisingly, in the

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meanwhile, on 27.03.2007, PW1 appeared at Mananthavady Police Station and tendered Ext.P1 statement before PW5 and accordingly, PW5 registered Ext.P6 First Information Report.

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11.When PW1 was examined before the trial court, he was not able to produce the documents to prove that he was the owner of the motorcycle allegedly seized from the accused 1 and 2.

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12.Section 378 of the IPC defines the term “theft”. In order to prove “theft” as defined under Section 378 of the IPC, it is essential on the part of the prosecution to prove that the accused intended to take dishonestly any movable property out of the possession of any person without that person's consent and moved that property in order to such taking. Thus, it is clear that it is essential to prove that the motorcycle involved in this case was moved out of the possession of any person without

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that person's consent. PW1 stated before the court that he had no documents to prove the legal possession of the vehicle in question. According to him, somebody had entrusted the vehicle to him for a ride. He was not sure as to whether the vehicle was under hypothecation agreement with a financier. He had not witnessed the occurrence. No other evidence was adduced to show that the accused 1 and 2 took the motorcycle involved in this case out of the possession of PW1 dishonestly with an intention to cause wrongful gain to the 1^st accused or wrongful loss to PW1. There is also no evidence to show that the 1^st accused took the motorcycle or moved it from the place, where it was parked, without the consent of PW1. Going by the evidence in this case, PW1 failed to adduce evidence to prove that he was in legal possession of the motorcycle involved in this case. When there was no evidence to

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substantiate the fact that PW1 was in legal possession of the motorcycle in question, the presumption contemplated under Section 114(a) of the Evidence Act is not applicable. Merely because the accused was not able to give satisfactory answers to PW2 when they were interrogated by him on the date of seizure of the vehicle, the same itself is not sufficient to hold that the 1^st accused was in possession of the stolen good soon after the theft. The presumption will come into play only after PW1 adducing evidence to prove that he was in legal possession of the motorcycle in question.

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13.Further, according to PW1, the motorcycle was found missing since 23.03.2007. He had no case that he had produced any document before PW2 to prove the legal possession of the vehicle involved in the case. Ext.P1 was lodged only on 27.03.2007. It is clear from Ext.P6 First

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Information Report that PW1 straight away went to the police station and lodged Ext.P1 statement before PW5. The delay in lodging Ext.P1 First Information Statement has also not been explained.

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14.It is, therefore, clear that the presumption under Section 114(a) of the Evidence Act is not applicable in this case. The offence of “theft”, as defined under Section 378 of the IPC, is not proved in evidence. Both the trial court and the appellate court analyzed the evidence without considering the above legal aspects involved in this case. Thus, the conviction and sentence concurrently rendered against the 1^st accused are liable to be set aside.

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In the result, the criminal revision petition is allowed. The revision petitioner/1^st accused is found not guilty of the offence punishable under Section 379 r/w Section 34 of the IPC

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and 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/accused in accordance with law. Pending applications, if any, stand disposed of.

Sd/-

N.ANIL KUMAR

JUDGE

Bka/04.01.2021

Santhosh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Santhosh v. State of Kerala

Case brief

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What did the court decide?

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