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2026 DAILYLAW 645 (KER)

Chandi Philip v. State of Kerala

2026-06-03

Jobin Sebastian

body2026
ORDER : 1. This Criminal Revision Petition has been filed under Sections 397 and 401 of the Code of Criminal Procedure , challenging the judgment of conviction and the order of sentence passed against the revision petitioner for the offence punishable under Section 411 of Indian Penal Code by the Judicial First Class Magistrate Court-I, Pathanamthitta, as per judgment dated 14.03.2003 in C.C. No.570/1999, which was confirmed in appeal by the Additional District and Sessions Court, (Fast Track Court-III) Pathanamthitta, by judgment dated 31.05.2006 in Criminal Appeal No.106/2003. The revision petitioner is the first accused in the said case. Accused Nos.2 and 4 were acquitted by the trial court. Accused No.3 is no more. 2. The prosecution case is summarised as follows: On 25.11.1993, at the instigation of the 1st accused, accused Nos. 2 to 4 committed theft of Ambassador Car No. KRO 2293, worth Rs. 1,00,000/- belonging to CW2, who was the registered owner of the car, and which was in the possession of CW1, the husband of CW2, from the car shed attached to House No. 437 situated in the 1st Ward of Kozhencherry Panchayat. The 1st accused sold the car. Thus, the accused committed offences punishable under Sections 379 and 109 read with Section 34 of the Indian Penal Code . 3. In order to establish the guilt of the accused, the prosecution had examined fifteen witnesses as PW1 to PW15 and marked Exts.P1 to P11. After the closure of the prosecution evidence, the accused were questioned under Section 313 of the Cr.P.C., during which they denied all the incriminating circumstances brought out in evidence against them. On the side of the defence, one witness was examined as DW1 and marked Exts.D1 to D3. 4. After hearing both sides, the learned Magistrate found all the accused not guilty of the offence punishable under Sections 379 and 109 r/w Section 34 IPC and acquitted them on the said charges. However, the first accused was found guilty of the offence punishable under Section 411 of the and was convicted. The first accused was directed to pay a fine of Rs.2,000/-, in default of payment of the fine, the accused was directed to undergo simple imprisonment for three months. Accused Nos.2 and 4 were acquitted by the trial court. Accused No.3 is no more. 5. The first accused was directed to pay a fine of Rs.2,000/-, in default of payment of the fine, the accused was directed to undergo simple imprisonment for three months. Accused Nos.2 and 4 were acquitted by the trial court. Accused No.3 is no more. 5. Aggrieved by the judgment of conviction and the order of sentence passed by the trial court, the first accused preferred Criminal Appeal No.106/2003 before the Sessions Court, Pathanamthitta. The learned Additional District and Sessions Judge(Fast Track Court-III), who heard the appeal, confirmed the conviction and sentence imposed on the first accused by the trial court. Aggrieved thereby, the first accused has preferred the present revision petition. 6. Heard Sri. Sergi Joseph Thomas, the learned counsel appearing for the revision petitioner and Smt.Hasnamol N.S., the learned Public Prosecutor. The records were also perused. 7. The learned counsel for the revision petitioner submitted that the trial court as well as the appellate court convicted the accused without properly appreciating the facts and evidence on record. According to the learned counsel, there is absolutely no evidence to establish that the first accused was in possession of the alleged stolen engine of the car with the knowledge that it was stolen property. Likewise, there is no evidence to show that the accused had reason to believe that the engine in his possession was the proceeds of a crime or stolen property. It was therefore contended that the essential ingredients of the offence punishable under Section 411 of the Indian Penal Code are not made out in the present case and, consequently, the revision petitioner is entitled to an acquittal. 8. Per contra, the learned Public Prosecutor submitted that there is ample evidence to show that the stolen car engine was recovered pursuant to the disclosure statement made by the first accused and that such recovery constitutes a significant incriminating circumstance against him. According to the learned Public Prosecutor, the recovery evidence substantially supports the prosecution's case and establishes the guilt of the accused. Further, the learned Public Prosecutor invited my attention to Illustration (a) to Section 114 of the Indian Evidence Act, 1872 , which permits the Court to presume that a person found in possession of stolen property soon after the theft is either the thief or has received the property knowing it to be stolen, unless he offers a satisfactory explanation for such possession. According to the learned Public Prosecutor, once such a presumption operates in favour of the prosecution, the burden shifts to the accused to explain how the stolen property came into his possession. 9. The prosecution case is that a car was stolen by accused Nos. 2 to 4. It is further alleged that, after committing the theft, the vehicle was dismantled and its parts were sold to different persons. As is evident from the impugned judgment, the involvement of the accused in the present case came to light when accused Nos. 2 to 4 were arrested in connection with another case. It was on the basis of the information allegedly furnished by accused Nos. 2 to 4 that the first accused, who is the revision petitioner herein, was implicated in the present crime. Subsequently, during the course of the investigation, the first accused was apprehended and interrogated. According to the prosecution, he made a disclosure statement, and pursuant thereto, the engine of the stolen car was recovered from the verandah of his house. 10. It was primarily on the strength of the said recovery evidence that both the trial court and the appellate court recorded a finding of guilt against the first accused. Significantly, accused Nos. 2 and 4 were acquitted by the trial court on the ground that there was no convincing evidence establishing their complicity in the commission of the offence. Furthermore, both the trial court and the appellate court found that there was no evidence to establish who had actually perpetrated the theft. The first accused was also found not guilty of the offence punishable under Sections 379 and 109 read with Section 34 of the Indian Penal Code . Thus, there is a concurrent finding by both courts below that the charge under and 109 read with IPC was not proved against any of the accused who faced trial in the case. 11. The first accused alone came to be convicted for the offence punishable under Section 411 IPC . The crucial question that arises for consideration is whether the essential ingredients of the offence under have been established in the facts and circumstances of the present case. For addressing the said question, it would be apposite to refer to the provisions of Section 411 IPC. “ Dishonestly receiving stolen property. The crucial question that arises for consideration is whether the essential ingredients of the offence under have been established in the facts and circumstances of the present case. For addressing the said question, it would be apposite to refer to the provisions of Section 411 IPC. “ Dishonestly receiving stolen property. Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.” 12. A bare reading of the above provision makes it clear that the existence of the requisite mens rea is an essential ingredient of the offence. As in the case of other criminal offences, it is the duty of the prosecution to establish that the accused possessed the necessary mens rea at the time of committing the act. In order to attract the offence punishable under Section 411 IPC , there must be convincing evidence to show that the accused received or retained the stolen property dishonestly and with the knowledge that the property was stolen, or that he had reason to believe the same to be stolen property. 13. In the case at hand, it is discernible from the impugned judgment itself that the prosecution miserably failed to prove the charge of theft levelled against accused Nos. 2 and 4. Likewise, the first accused was also acquitted of the charge of theft for want of evidence. There is no material on record to attribute knowledge to the first accused that the engine found in his possession was the subject matter of theft. Moreover, there are no materials or circumstances from which it can be inferred that the accused had reason to believe that the engine was stolen property. 14. Therefore, I have no hesitation in holding that the ingredients necessary to attract an offence under Section 411 IPC are wanting in the present case. Mere possession of stolen property, ipso facto, will not constitute an offence under . It is only when such possession is accompanied by a dishonest intention, and there is evidence to show that the accused had the property with the knowledge that it was stolen property, or had reason to believe it to be so, that a conviction under can be sustained. 15. It is only when such possession is accompanied by a dishonest intention, and there is evidence to show that the accused had the property with the knowledge that it was stolen property, or had reason to believe it to be so, that a conviction under can be sustained. 15. In the case at hand, as I have already discussed, it was mainly on the strength of the alleged recovery of the stolen engine that the trial court as well as the appellate court entered a finding of guilt against the accused. It is now well settled through a series of judicial pronouncements that it is unsafe to record a conviction based solely on recovery evidence. However, in theft cases, it is a matter of common knowledge that such offences are committed in secrecy, and therefore it may not always be possible or prudent to insist upon independent evidence of the actual commission of the offence. 16. Moreover, where a stolen article is recovered from the possession of an accused, and such recovery is based on a disclosure statement made by him, the presumption under Section 114(a) of the Indian Evidence Act may, in appropriate cases, come into operation. As per Section 114(a), when a stolen article is found in the possession of a person soon after the theft, a presumption may be drawn that the possessor is either the thief or the receiver of stolen property. 17. In the present case, however, on the facts established, I am of the considered view that the said presumption cannot be invoked. The vehicle’s engine was allegedly recovered after a lapse of about one and a half years from the date of occurrence. Therefore, by no stretch of imagination can it be said that the recovery was effected soon after the theft. The presumption under Section 114(a) of the Indian Evidence Act would operate only when there exists a reasonable nexus between the time of theft and the recovery of the stolen property. Where there is an inordinate delay, the possibility of intervening circumstances and involvement of third parties cannot be ruled out. Therefore, it is not safe to draw a presumption under Section 114(a) of the Indian Evidence Act to sustain a finding of guilt against the first accused. 18. Where there is an inordinate delay, the possibility of intervening circumstances and involvement of third parties cannot be ruled out. Therefore, it is not safe to draw a presumption under Section 114(a) of the Indian Evidence Act to sustain a finding of guilt against the first accused. 18. In the above background, I am of the considered view that the first accused cannot be held to be a receiver of stolen property with the knowledge that the same was the subject of theft. Hence, the ingredients necessary to attract the offence under Section 411 IPC are also not made out in the present case. In the result, this criminal revision petition is allowed. The judgment of conviction and the order of sentence passed against the revision petitioner/1 st accused for the offence punishable under Section 411 of the Indian Penal Code is set aside, and the first accused is acquitted. The fine amount, if any, deposited by the revision petitioner/1 st accused shall be refunded to him in accordance with law.