(SHORT NOTE)
KERALA HIGH COURT
S. Padmanabhan, J.
State of Kerala – Petitioner
versus
Unnithen – Respondent
Criminal Appeal No. 415 of 1986
Decided on 1-10-1988
Counsels for the parties:
Smt. Chincy Gopakumar, Advocate – For the Petitioner.
S. Gopakumaran Nair, Advocate - For the Respondent.

IMPORTANT POINT
Even when there is every possibility of the accused being the thief, on account of the time lag of one year and three months alone there is reason for a genuine doubt whether such posses­sion by itself could be taken as legal evidence for raising the presumption under illustration (a) to Section 114 of the Evidence Act.

Headnote:(i) Evidence Act, 1872-Illnstration (8) to Section 114-Possession soon after the theft ­Interpretation of the words-Judicial decisions regarding.

       Held, no specific time limit is prescribed. It may depend upon the free or rare availability or transferability, the marketing facility availa­ble, the demand for it, the possibility of being hidden for a long time on account of the incri­minating effect the non - availability of the possessor and various other factors. In short, the judicial mind of the court applied to the facts and circumstances of the case must give an answer. (Para 13)

        (ii) Criminal Procedure Code, 1973-Sec­tion 378 - Indian Penal Code, 1860- Sections 461 and 379-Appeal against acquittal for offences under- A stereo radio belonging to PW 1 was found missing from his car-Evidence regarding possession of the accused coupled with attempts to sell it- Recovery of stereo from the accused after a period of one year and three months from the date of occurrence- Finger print or thumb impression found in the car on the date of incident, not properly brought in the court-Case is remanded to the trial court for further trial-Acquittal set aside (Cross Ref. Evidence Act, 1872-Section 114)

       Held, in this case, even though No.1 is a stereo radio which could be said to be easily transferable, it was not in a usable condition. Something more was necessary to put it to use. H was in such a condition as is a capable of creating some doubt and as such an incrimina­ting material. The position of the accused and his desire to dispose it of secretly also will have to be taken into account. Still the time lag is more then one year and three months. Even though there is every possibility of the accused being the thief, on account of the time Jag alone I feel that there is reason for a genuine doubt whether such possession by Itself could be taken as legal evidence for rais­ing the presumption under Illustration (a) to Section 1 14 of the Evidence Act in view of the time lag. The benefit of such a doubt must always go to the accused. But if the evidence of P.Ws 2 and 5 is supported by some other accepted material the position may be different. If the finger print or thumb impression found in the car on the date of incident is established to be that of the accused, that will be a valuable piece of evidence supporting the possession and recovery and mistakably point­ing out to the culpability. The evidence of P.Ws 5, 6 and 7 show that such a valuable item of evidence is there but was not properly brought in due to the lapses of P.Ws 5 and 6 and the Assistant Public Prosecutor. It is highly neces­sary in the interest of justice that these items of evidence are also properly brought in. The specimen impressions taken in Crime No. 51 of 1982 of the Vanchiyoor Police Station will have to be brought in and the person who took the same and sent there to the expert will have to be examined to prove them and their identity. The photographs and the enlarge­ments and tracings as welt as the correspon­dence from the expert also will have to be brought in and if necessary, the photographer and the expert also will have to be examined again after bringing all the necessary records in that connection. With these items of evidence, the accused will have to be questioned again on these Additional materials and an opportu­nity for evidence will have to be given to him. If the prosecution is not interested in bringing these items of oral and documentary evidence, they will be examined as court witnesses and the documents brought in and marked as court documents in exercise of .the powers of the Magistrate under Section 311 of the Code of Criminal Procedure. (Paras 15 and 16)

       Result: Appeal allowed.