IMPORTANT POINTS
(1) Disclosure statement – While recovery under Section 27 of Evidence Act can be a crucial piece of evidence, it cannot be sole basis for conviction – It is not substantive evidence.
(2) Presumption of fact under Section 114(a) of Evidence Act must be drawn considering other evidence on record and without corroboration from other cogent evidence – It must not be drawn in isolation.

ORDER

The petitioner is the accused No.1 in C.C. No.172/2002, on the files of the Judicial First-Class Magistrate Court-I, Vadakara (for short, ‘the trial court’). He, along with the accused No.2, faced trial for the offence punishable under Section 379 read with Section 34 of the IPC. However, when the case was posted to question the accused under Section 313 of Cr.P.C., the accused No.2 absconded. The case against him was split up and refiled as C.C.No.913/2004.

2. The prosecution case in short is that on 11.11.2001 at about 9.45 pm, while the defacto complainant and his wife were returning to their house after seeing a movie through Vadakara-Villyapalli public road, both the accused came in an autorickshaw and one of them in furtherance of their common intention, snatched MO1 and MO2 series gold ornaments worn by the wife of the defacto complainant and fled away in the same autorickshaw.

3. PW1 to PW11 were examined and Exts.P1 to P5 were marked on the side of the prosecution. MO1, MO2 and MO2(a) were identified. Ext.D1 series were marked on the side of the defence. After trial, the trial court found that the petitioner is guilty of the offence punishable under Section 379 read with Section 34 of the IPC, and he was convicted for the said offence. He was sentenced to undergo rigorous imprisonment for two years. The petitioner challenged the conviction and sentence of the trial court before the Sessions Court, Kozhikode (for short, ‘the appellate court’), in Crl.A.No.11/2005. The appellate court dismissed the appeal. This revision petition has been filed challenging the judgments of the trial court as well as the appellate court.

4. I have heard Smt.Bhavana, the learned counsel for the petitioner and Sri. E.C. Bineesh, the learned Senior Public Prosecutor.

5. The learned counsel for the petitioner submitted that there is no legal evidence on record to show that it was the petitioner who snatched the gold ornaments worn by the wife of the de facto complainant. The learned counsel further submitted that the conviction was based solely on the evidence regarding the recovery of MO1, MO2 and MO2(a) gold ornaments, and the said recovery has not been legally proved. The learned counsel also submitted that in the absence of substantive evidence to connect the petitioner with the crime, the conviction based on evidence regarding the recovery under Section 27 of the Evidence Act and drawing a presumption under Section 114(a) of the Evidence Act is bad. On the other hand, the learned Senior Public Prosecutor supported the findings and verdict handed down by the trial court and the appellate court and argued that the prosecution had succeeded in proving the case beyond a reasonable doubt.

6. PW2 is the de facto complainant. Ext.P1, the FI statement was marked through him. PW1 is the wife of the de facto complainant. Both gave evidence that while they were returning to their home after seeing a movie, two people came in an autorickshaw and snatched the gold ornaments worn by PW1. Those gold ornaments were identified by them as MO1 and MO2 series. There is nothing to disbelieve the version of PW1 and PW2 that MO1 and MO2 series gold ornaments belong to PW1, and they were snatched away by two people who came in an autorickshaw on the alleged date and time of the incident. But the crucial question is whether the evidence adduced by the prosecution is sufficient to hold that it was the petitioner who snatched away MO1 and MO2 series gold ornaments worn by PW1.

7. The trial court found that PW1 and PW2 did not identify the petitioner or the accused No.2 at all. The said finding was confirmed by the appellate court. In Ext.P1 FI statement, PW2 categorically stated that he could not identify any of the persons in the autorickshaw. He could not notice the number of the autorickshaw. No test identification was also conducted. The petitioner or the accused No.2 was not shown to PW1 and PW2 during the investigation. Hence, the trial court found tha