Conviction For Theft Can't Be Solely Based On Recovery Of Items, Identification Of Accused Necessary: Kerala High Court

The Kerala High Court has held that a conviction under charges for theft cannot take place solely based on the recovery of items, and it needs to be corroborated by other evidence to establish guilt beyond a reasonable doubt.

The Court was considering a Revision Petition against an order of the Trial Court whereby the Petitioner was convicted of offence punishable under Section 379 read with Section 34 of the Indian Penal Code.

The single judge bench of Justice Kauser Edappagath observed, "While recovery under Section 27 of the Act can be a crucial piece of evidence, it cannot be the sole basis for conviction. It is not substantive evidence. It needs to be corroborated by other evidence to establish guilt beyond a reasonable doubt.....For these reasons, I hold that the conviction of the petitioner based on the evidence regarding recovery under Section 27 of the Evidence Act and drawing presumption under Section 114(a) of the Evidence Act alone cannot be sustained."

The Petitioner was represented by Advocate Shri Sunny Mathew, while the Respondent was represented by Senior Public Prosecutor E.C. Bineesh.

Facts of the Case

The prosecution's case was that on November 11, 2001, during nigh 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 the series gold ornaments worn by the wife of the defacto Complainant and fled away in the same autorickshaw.

The Trial Court convicted the Petitioner for offence punishable under Section 379 read with Section 34 of the IPC. The Appeal against the same before the Sessions Court was rejected. 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. It was further submitted that the conviction was based solely on the evidence regarding the recovery of gold ornaments, and the said recovery was not legally proved. The 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.

Reasoning By Court

The Court at the outset noted that while there is nothing to disbelieve the version of de facto Complainant and his wife, the crucial question is whether the evidence adduced by the prosecution is sufficient to hold that it was the Petitioner who snatched away the series gold ornaments.

Noting that while the Trial Court and Appellate Court did note that the de facto Complainant and his wife did not identify the Petitioner or the Accused No.2 at all, the Court pointed out that relying on the evidence regarding the recovery of the gold ornaments pursuant to the confession statement given by the petitioner while in police custody under Section 27 of the Indian Evidence Act and also drawing the presumption under Section 114(a) of the Evidence Act, they found the Petitioner guilty of the offence.

The Court agreed with the submissions of the Counsel for the Petitioner and held that the conviction of the Petitioner based on the evidence regarding recovery under Section 27 of the Evidence Act and drawing presumption under Section 114(a) of the Evidence Act alone cannot be sustained.

The Petition was accordingly allowed.

Cause Title: Abdul Jabbar vs. The State Of Kerala (2025:KER:61858)

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