Telangana High Court
Nedunuri Shravan Shravan Kumar vs The State Of Telangana on 10 August, 2020
Author: G.Sri Devi
Bench: G.Sri Devi
HONOURABLE JUSTICE G.SRI DEVI
CRIMINAL APPEAL No. 317 of 2020
JUDGMENT:
This appeal is directed against the judgment of the learned IV-Additional District and Sessions Judge (Fast Track Court), Karimnagar, in Crl.A.No.96 of 2017, dated 23.04.2019, whereby the appellant/A-1 was convicted for the offence punishable under Section 411 of I.P.C. and sentenced to undergo simple imprisonment for a period of six months, by reversing the judgment of acquittal, dated 22.03.2017 passed by the I-Additional Judicial Magistrate of First Class, Karimnagar, against the appellant/A-1 for the offence punishable under Section 382 of I.P.C. in C.C.No.1758 of 2015.
The gravamen of the charge against the appellant/A-1, in brief, is that on 05.02.2015 at about 1.00 P.M., while the de facto complainant and one Dulam Anjali were proceeding on the road, some unknown offenders came to the de facto complainant on a motor cycle, snatched away gold pusthalathadu from her neck and fled away. As such, she lodged a written complaint before the Police. Basing on the said complaint, the Police, II Town Police Station, Karimnagar, registered a case in Crime No.58 of 2015 for the offence punishable under Section 382 of I.P.C. After completion of investigation, charge sheet has been filed against A- 1 and A-2 for the offence punishable under Section 382 of I.P.C. 2
On appearance of the accused, a charge under Section 382 of I.P.C. alternatively under Section 411 of I.P.C. were framed, read over and explained to A-1 and A-2 in Telugu, for which A-1 pleaded not guilty and claimed to be tried and A-2 pleaded guilty of the said offence and hence he was convicted under Section 241 of Cr.P.C.
The prosecution, in order to prove its case against the appellant/A-1, examined P.Ws.1 to 4 and got marked Exs.P1 to P4 and M.O.1. After closure of prosecution evidence, the appellant/A-1 was examined under Section 313 Cr.P.C., with reference to the incriminating evidence appearing against him in the evidence of the prosecution witnesses, to which he denied. However, neither oral nor documentary evidence was adduced on behalf of the accused.
The trial Court, on appraisal of entire evidence, both oral and documentary, held that the prosecution has failed to establish the guilt of the appellant/A-1 beyond all reasonable doubt and accordingly acquitted the appellant/A-1 for the offence punishable under Section 382 of I.P.C. Aggrieved by the same, the State preferred Crl.A.No.96 of 2017 before the IV-Additional District and Sessions Judge (Fast Track Court), Karimnagar. By its judgment dated 23.04.2019, the learned Sessions Judge, reversed the said acquittal, holding that the prosecution has established the guilt of the appellant/A-1 for the offence punishable under Section 411 of I.P.C. and accordingly, convicted and sentenced the appellant/A-1 3 to undergo simple imprisonment for a period of six months for the said offence. Challenging the same, the present Appeal is filed by the appellant/A-1.
Learned Counsel for the appellant/A-1 submitted that there is no direct evidence to prove the offence of theft, and that the evidence of panch witness or Investigating Officer does not establish the alleged recovery of the stolen property from the possession of the appellant/A-1. It is further submitted that the police did not follow the mandatory provisions of Section 100 (4) of Cr.P.C. during seizure of the property and that the discovery of the articles was not in accordance with the provisions of Section 27 of the Evidence Act and as such the trial Court has rightly acquitted the appellant/A-1 but, however, the appellate Court without proper appreciation of primary ingredients of Section 114 of the Evidence Act, convicted the appellant/A-1 for the offence punishable under Section 411 of I.P.C.
On the other hand, the learned Assistant Public Prosecutor appearing for the respondent/State submits that the trial Court has committed an error in acquitting the appellant even though the evidence of P.W.2-panch witness is corroborated by the evidence of P.W.4-Investigating Officer. He further submits that the appellate Court, after re-appreciation of the entire evidence available on record, rightly convicted and sentenced the appellant/A-1 for the offence punishable under Section 411 of 4 I.P.C. and, therefore, no interference is called for by this Court, and prayed for dismissal of the appeal.
In the light of the aforesaid submissions, the points that arise for consideration in this appeal are as under:-
a) Whether the prosecution has established its case beyond reasonable doubt against the appellant/A-1?
b) Whether the trial Court is justified in acquitting the appellant/A-1 in respect of the charge leveled against him?
c) Whether the impugned judgment of the Appellate Court imposing punishment when the trial Court acquitted the appellant in respect of the charge leveled against him is sustainable?
As seen from the evidence available on record, P.W.1 deposed that on 05.02.2015 at 1.00 P.M., while she along with L.W.2 were proceeding on the road at Ramnagar, Karimnagar, two unknown offenders came on a motorcycle and snatched away her gold pusthalathadu from her neck weighing around five tulas and fled away. As such she went to the police station and lodged complaint.
P.W.2, who is said to be the panch witness for confession- cum-recovery of stolen property, deposed that on 12.10.2015 at Ganeshnagar, Karimnagar, police interrogated three persons i.e., A-1 and A-2 and another and during interrogation, they confessed that they have committed thefts at various places in Karimnagar town, Sultanabad Town and Mancherial Town, and also stolen motor cycles and gold ornaments. He further stated that the police recovered five motor cycles and nine gold ornaments from 5 A-1; three motor cycles and five gold pusthelathadu from A-2 under cover of confession-cum-recovery panchanama and obtained his signature.
P.W.3, the then Sub-Inspector of Police, II Town Police Station, Karimnagar, in his evidence, deposed that basing on the complaint lodged by P.W.1, he registered a case in Crime No.58 of 2015 for the offence under Section 382 of I.P.C. and issued Ex.P3- First Information Report. During the course of investigation, he examined P.W.1 and recorded her statement and in the presence of one Ajay Kumar (L.W.3) and M.Srinivas (L.W.4), he observed the scene of offence and prepared rough sketch and incorporated the same in Ex.P4-Crime Detail Form.
P.W.4, who is the Inspector of Police, II Town Police Station, Karimnagar, deposed that on 12.10.2015 on receipt of reliable information, he, along with his staff, went to the house of A.3 at about 5.10 A.M., and apprehended A-1, along with other accused; secured the mediators P.W.2 and L.W.5 and interrogated the accused. During the course of interrogation, the accused said to have confessed that they have committed this offence along with other crimes pertaining to Karimnagar II Town Police Station, Karimnagar III Town Police Station, Karimnagar Rural Police Station, Sultanabad Police Station and Mancherial Police Station, and that he recorded their confessional statement and seized the case property pertaining to different crimes along with M.O.1 of this crime under the cover of confession-cum-recovery 6 panchanama. P.W.4 in his cross-examination stated that he has not prepared panchanama for identification of the property in question.
The following principles have to be kept in mind by the Appellate Court while dealing with appeals, particularly, against the order of acquittal:
(i) There is no limitation on the part of the Appellate Court to review the evidence upon which the order of acquittal is found.
(ii) The Appellate Court in an appeal against acquittal can review the entire evidence and come to its own conclusions.
(iii) The Appellate Court can also review the Trial Court's conclusion with respect to both facts and law.
(iv) While dealing with the appeal preferred by the State, it is the duty of the Appellate Court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.
(v) An order of acquittal is to be interfered only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(vi) While sitting in judgment over an acquittal the Appellate Court is first required to seek an answer to the question whether finding of the Trial Court are palpably wrong, manifestly, erroneous or demonstrably unsustainable. If the Appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the Appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of 7 any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.
(vii) When the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of Ballistic Experts etc., the Appellate Court is competent to reverse the decision of the Trial Court depending on the materials placed.
The real principle is that where the presence of the panchas is obligatory at the time of search, the evidence of the Police Officer, who conducted the search, must ordinarily be corroborated, and that if there is no such corroboration, ordinarily, a conviction should not rest solely on the uncorroborated testimony of the police Officer who conducted the search. The absence of corroboration may be due to two factors, the failure of the police to keep panchas or the fact that panchas do not support the prosecution. Whatever be the reason, if there is no corroboration then ordinarily conviction should not rest on the uncorroborated testimony of the police officer conducting the search in such cases.
From a perusal of the evidence available on record, it is evident that there is no direct evidence to connect the appellant/A-1 to the commission of offence as P.W.1-complainant has stated that two unknown persons snatched away her gold pusthalathadu, while she was proceeding on the road at Ramnagar. The entire case based on confession-cum-recovery panchanama, alleged to have been prepared by P.W.4 in the presence of P.W.2 8 and L.W.4. A close scrutiny of the evidence of P.W.2, it is evident that the police interrogated the appellant/A-1 and other accused and seized M.O.1 and other case property, from their possession, but he did not specifically state the designation of the Police Officer, who interrogated the accused and seized the property. P.W.4-the Investigating officer, though in his evidence stated that he himself interrogated the accused, P.W.2-panch witness gave a different version in his cross-examination that the M.R.O. called him to the place of confession panchanama. There is no corroboration to the evidence of P.W.2, as the prosecution failed to examine the other panch witness, to prove the recovery, for the reasons best known to them. The evidence of P.Ws.3 and 4, who are the police officials, cannot be believed without proper corroboration by an independent witness.
The only evidence to indict the appellant/A-1 with the theft is his disclosure statement. This disclosure statement is in the form of confession which is not admissible in evidence until and unless the proviso to Sections 26 and 27 of Indian Evidence Act are made applicable to that confession. In the present case, there is no direct evidence to show that the appellant/A-1 has committed theft of M.O.1. Therefore, no case of committing the theft of M.O.1 is made out against the appellant/A-1. As there is no direct evidence to connect the appellant/A-1 in the commission of theft, the trial Court has rightly acquitted him for the offence punishable under Section 382 IPC. Further, though the lower appellate Court has given a finding that the prosecution has failed to prove the 9 guilt of the appellant/A-1 for the offence punishable under Section 382 of I.P.C., but convicted and sentenced him for the offence punishable under Section 411 IPC.
To bring home the guilt of the appellant/A-1 for the offence punishable u/s 411 IPC, it is the duty of the prosecution to prove that the stolen property was found in possession of the appellant/A-1, that some person other than accused had in possession of the property before the accused got possession of it and the third that the accused had knowledge that the property was stolen property.
A perusal of the testimony of P.W.2, who is the panch witness for recovery, would show that pursuant to the confession of the appellant/A-1 along with other accused, the stolen property pertaining to this case and some other case property pertaining to other crimes were recovered from the possession of the appellant/A-1, under a cover of panchanama. He did not specifically state the designation of the Police Officer, who interrogated the accused and seized the property from their possession. P.W.2 gave two different versions. Initially, he stated that the M.R.O. called him to the place of confession panchanama and later he stated that the Police called him to the said place. He also admitted that he does not know anything about the crime number or the case number of the articles recovered from the possession of the appellant/A-1. Therefore, his evidence gives rise to any amount of doubt with regard to the alleged recovery of the 10 stolen property from the possession of the appellant/A-1. Therefore, the prosecution failed to establish the guilt of the appellant/A-1 beyond all reasonable doubt for the offence punishable under Section 411 of I.P.C. and as such he is entitled for acquittal of the said offence.
For the foregoing reasons, I am of the considered view that the lower Appellate Court has not properly appreciated the evidence on record and on wrong assumption of facts, convicted the appellant/A-1.
In the result, the Criminal Appeal is allowed. The conviction and sentence passed against the appellant/A-1 for the offence punishable under Section 411 of I.P.C. by the IV-Additional District and Sessions Judge (Fast Track Court), Karimnagar, in Crl.A.No.96 of 2017, dated 23.04.2019, are hereby set aside and the appellant/A1 is acquitted for the said offence and he shall be set at liberty forthwith. The bail bonds of the appellant/A-1 shall stand cancelled and his sureties shall be discharged.
As a sequel thereto, miscellaneous petitions, if any, pending shall stand closed.
_______________ JUSTICE G.SRI DEVI 10.08.2020 Note : Office is directed to dispatch the operative portion of the judgment to the concerned, immediately as the appellant is in jail.
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