Credible evidence can support conviction even without a complaint being lodged; presumption of theft established when stolen property found in possession of accused.

ORDER :

1. The accused in C.C No.66 of 2010 on the files of the Judicial First Class Magistrate Court-I, Tirur is the revision petitioner. He was convicted and sentenced by the trial court for the offences under Sections 457 , 380 and 461 of the INDIAN PENAL CODE , 1860. In the appeal, his conviction and sentence for the offences under Sections 457 and 380 of the IPC were confirmed. His Conviction and sentence under Section 461 were set aside. The petitioner challenges the said concurrent findings leading to conviction and sentence in this revision, filed under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973.

2. As per the order dated 17.02.2020 in Crl.M.A No.1 of 2020, additional respondent No.2 who is the defacto complainant was impleaded.

3. Heard the learned counsel for the petitioner and the learned Public Prosecutor.

4. The allegations against the petitioner were that, he broke open the back side door of the residential house bearing door No.VII/223 of Valanchery Panchayath at about 9.00 p.m. on 28.08.2009. PW1 is the owner of that building. The petitioner having gained entry to the building broke open the Almirah kept inside and stole one mobile phone, a digital camera, two torches and a few spray bottles together worth Rs.40,000/-.

5. No crime regarding the incident was soon registered, since no complaint was lodged by PW1. The petitioner was arrested by PW3 who was the Sub Inspector of Police, Perinthalmanna Police Station on 01.11.2009. While he along with his colleagues was on patrol duty, happened to intercept the petitioner who was riding a motorcycle. He was arrested in connection with Crime No.201 of 2009 of Kolathur Police station. In his body search, MO1 mobile phone was found. It was revealed that the said mobile phone was stolen from the house of PW1. Under Ext.P1 Seizure Mahazar, MO1 was seized to which PW2 is a witness. On the basis of the information he had gathered regarding the theft occurred in the house of PW1, he had registered Crime No.714 of 2009 of Perinthalmanna Police station. Ext.P2 is that F.I.R. Since the place of occurrence was within the local limits of Valancherry Police Station, the matter was transferred to the said station and that resulted in registration of Crime No.430 of 2009. Ext.P4 is the FIR. PW5 had registered that crime. It was PW4 who conducted the investigation. He visited the house of PW1 on 14.11.2009 and prepared a Scene Mahazar, Ext.P3. After necessary investigation he had submitted the final report also.

6. At the trial that took place after framing of the charge and its denial by the petitioner, PW1 to 5 were examined and Exts.P1 to P4 were marked. When the petitioner was questioned under Section 313 of the Code of Criminal Procedure, he took the stand that MO1 was his mobile phone. The trial court after appreciating the evidence took the view that what PW1 deposed can be believed and in the light of the other evidence, the accused was proved to have committed the offences with which he was charged. The appellate court on observing that there was no evidence to prove that the Almirah, where stolen articles were kept was broken open, conviction for the offence under Section 461 of the IPC could not be sustained. The appellate court however, held that the evidence let in by the prosecution proved beyond doubt that the petitioner had broken open the house of PW1 during night and committed theft of MO1 mobile phone.

7. The learned counsel for the petitioner would submit that even if the evidence tendered by the prosecution that MO1 was recovered from the possession of the petitioner is believed, there cannot be a successful prosecution against h