Andhra Pradesh High Court - Amravati
Chittoor vs Unknown on 27 March, 2023
THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR
CRIMINAL REVISION CASE No.1581 of 2008
ORDER:
This Criminal Revision Case is filed by a convict/A.2 under Sections 397 and 401 Cr.P.C. questioning the guilt and punishment inflicted against her by the Courts below for the offence punishable under Section 411 I.P.C.
2. Before the Courts below prosecution was at the behest of the State which is shown as respondent in this revision.
3. A few facts are required to be noticed. The written information dated 28.03.2005 in Ex.P.1 was lodged by PW.1 reporting theft of Nikon Camera and cash of Rs.150/-. That was registered as Crime No.54 of 2005 at CCS Police Station, Chittoor.
4. Written information dated 29.03.2005 in Ex.P.2 was lodged by PW.2 stating that at Kodanda Rama Swami Temple in PGR Lines, Chittoor, the hundi was broke open and cash of Rs.500/- was stolen. That was registered as Crime No.55 of 2005 by CCS Police Station, Chittoor. The above are the two relevant crimes for which the revision petitioner as A.2 and her son as A.1 were prosecuted in C.C.No.174 of 2005 on a charge 2 Dr. VRKS, J Crl.R.C.No.1581 of 2008 under Section 411 I.P.C. After due trial, the learned V Additional Judicial Magistrate of First Class, Chittoor by a judgment dated 13.02.2006 found A.1 and A.2 guilty for the offence under Section 411 I.P.C. A.1 was sentenced to undergo rigorous imprisonment for three years and pay a fine of Rs.100/- with a default sentence of simple imprisonment for one month. A.2 was sentenced to undergo rigorous imprisonment for six months and pay a fine of Rs.100/- with a default sentence of simple imprisonment for one month. Both the convicts preferred Criminal Appeal No.43 of 2006. Learned District and Sessions Judge, Chittoor after due hearing on both sides and after an elaborate reference to the evidence and after scrutiny of the judgment of the trial Court, rendered its judgment dated 13.10.2008 and approved the finding of guilt and conviction as against both the appellants and modified the punishment awarded to A.1. The learned Sessions Judge reduced the rigorous imprisonment of three years inflicted against A.1 to that of one year. For A.2 rigorous imprisonment of six months was found appropriate. The fine inflicted against both of them was maintained.
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5. It is stated that A.1, after criminal appeal was disposed of, underwent the sentence. His mother A.2 brought this revision challenging the judgments of the Courts below.
6. Record discloses that there are various offences of theft and loss of property occurred within the jurisdiction of various police stations of Chittoor District. They are:
CCS Police Station, Chittoor:
Crime Nos.140/2004, 144/2004, 158/2004, 160/2004, 171/2004, 7/2005, 11/2005, 12/2005, 18/2005, 27/2005, 49/2005, 50/2005, 51/2005 and 52/2005.
Penumur Police Station:
Crime Nos.176/2004 and 19/2005.
Bangarupalem Police Station:Crime No.38/2004
S.R.Puram Police Station:Crime No.8/2005 4
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7. Investigating agencies have been investigating all the above referred crimes. It is in the backdrop of these aspects, the relevant facts pertaining to the present case are to be considered.
8. PW.6 was the Inspector of Police, CCS Police Station, Chittoor. He got credible information about persons concerned with the crimes. Therefore, he procured Assistant Secretary, Gandlapalli Panchayat/PW.3 and Deputy Tahsildar working in the Mandal Revenue Office, Chittoor/PW.4. Both of them were asked to participate in the investigative process that was led by PW.6. On 01.04.2005 the police party along with PWs.3 and 4 were waiting at a place opposite to Municipal High School at Chittoor and at about 8:00 A.M. they found A.1 coming with a cardboard box and PW.6 stopped him, questioned him and verified the cardboard box and found large number of sarees, wrist watches, gold chain and cash and on interrogation A.1 confessed his guilt. He was arrested and those articles were seized and Ex.P.3-Mahazar was prepared. Then A.1 led the police party to his house in Godugumur of Chittoor and there they found A.2. A.1 told the police party that the stolen articles are available with A.2 in the house. Then A.2 produced a large 5 Dr. VRKS, J Crl.R.C.No.1581 of 2008 number of stolen articles. She was arrested and those articles were seized and Ex.P.4-Mahazar was prepared. Then A.1 and A.2 told the police party that they have concealed some more stolen articles in the bushes at a distance of 40 feet from their house and led the police party and retrieved from the bushes several stolen articles. Police seized them and in this regard Ex.P.5-Mahazar was prepared. Be it noted, it is at this place police detected MO.1-Camera pertaining to Crime No.54 of 2005 lodged by PW.1 and MO.2-cash pertaining to Crime No.55 of 2005 lodged by PW.2. Then A.1 and A.2 led them to a pawn broker's shop stating that several other stolen articles were given by them to the pawn broker. There from him police seized large number of stolen articles and in that regard they prepared Ex.P.6-Mahazar.
9. Alleging that both the accused were in possession of stolen articles, they were tried before the learned Magistrate. Prosecution examined PWs.1 to 6 and got marked Exs.P.1 to P.11 and MOs.1 and 2. All the witnesses were cross-examined by the learned counsel who appeared on behalf of both the accused. Incriminating material available on record was offered to both the accused under Section 313 Cr.P.C. and their 6 Dr. VRKS, J Crl.R.C.No.1581 of 2008 response was a mere denial and they did not offer any other explanations. Record discloses that seizures were effected at four places. One among them is the very house of this accused. The house was located in Godugumur of Chittoor. The house door number was mentioned as 3-341 at some places and 4-341 at some places. It is with reference to this discrepancy the defence had examined DW.1 who is Revenue Officer. He stated that Door No.3-341 is in Godugumur. He said that Door No. 4-341 is not in Godugumur, but is at a distance of 2 KMs. from Godugumur and that house is located in Balaji Nagar, Chittoor and that belonged to Catholic Mission and used as a Church. He produced Ex.D.1 in that regard. On the basis of this discrepancy in the door number, the contention that was raised by the defence before the Courts below was that it was a false case in which they were implicated as otherwise there could not have been any such discrepancy and when the Mahazar indicate Door No.4-341 and when they have established by evidence that the said premises is a Church and not a house, they made out their defence and they should be acquitted. Both the Courts bestowed lot of attention on this argument and concluded that oral evidence established that the recovery was 7 Dr. VRKS, J Crl.R.C.No.1581 of 2008 effected at the residential house of accused and the difference in door number in some of the Mahazars was a clerical error and they refused to concede to the argument advanced on behalf of the defence. Trial Court on considering the evidence of PWs.1 and 2 found that MO.1 belonged to PW.1 and MO.2 belonged to PW.2. Both the witnesses were offered for cross-examination and the defence reported 'Nil' cross-examination. With that material on record the trial Court recorded that MOs.1 and 2 belonged to PWs.1 and 2 respectively and as per their evidence they were stolen and therefore they are stolen properties. By the evidence of PWs.3, 4 and 6 learned trial Court found that this stolen property was recovered by virtue of confessions made by A.1 and A.2 and by virtue of the fact that they themselves retrieved them from secret bushes. The trial Court held that the accused knew that they were stolen properties and with that knowledge they retained them and therefore they were guilty for the offence under Section 411 I.P.C.
10. Learned Appellate Court revisited the entire evidence and appreciated it independently and arrived at the same conclusions and confirmed the guilt and conviction. 8
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11. In this revision it is urged that Courts below failed to appreciate the evidence properly and the following rulings were not complied with.
1. Pullareddigari Venkataramana Reddy v. State of A.P.1
2. Rajendra Nath Mahato v. T.Gangooly2
3. V.Sathyamaiah v. State of Andhra Pradesh3 The evidence was discrepant. Charging this revision petitioner basing on the confession given by accused No.1. is incorrect. No independent witness of the locality was examined. The essential ingredients of Section 411 I.P.C. were not established by evidence. While the prosecution alleged seizure at Door No.4-341 the defence established that in the said house accused were not living and that was a Church. In ignorance of all these, both the Courts erroneously recorded guilt of the revision petitioner and therefore they shall be set aside. 1 2002 (1) ALD (Crl.) 491 2 (1972) 1 SCC 450 3 (1978) 1 APLJ 83 (AP) 9 Dr. VRKS, J Crl.R.C.No.1581 of 2008
12. Arguing on behalf of the revision petitioner learned counsel cited S.Babu Saheb v. The State of A.P.4.
13. Arguing on behalf of the State, learned Special Assistant Public Prosecutor submits that credible evidence was available before the Courts below and all the facts and law were considered and appropriate conclusions were recorded requiring no interference in this revision.
14. Having heard the arguments of learned counsel on both sides, the point that falls for consideration is:
"Whether there was no believable evidence constituting ingredients of offence under Section 411 I.P.C. and the judgments of the Courts below are illegal or irregular requiring interference?
15. Point:
Competency of the Court which tried the revision petitioner, the procedure followed by the Court for conducting a trial and the competency of the Court which heard the appeal 4 Manu/AP/0268/2009 10 Dr. VRKS, J Crl.R.C.No.1581 of 2008 and the procedure that was followed by the appellate Court are in accordance with law and they are not subject matter of any challenge in this revision.
16. The entire case of the revision petitioner turns on evidence, its credibility and its appreciation. In the grounds of revision, three legal authorities are cited. They are:
1. Pullareddigari Venkataramana Reddy's case (supra 1) was a case of conviction of accused for the offence under Section 302 read with 34 I.P.C.
2. Rajendra Nath Mahato's case (supra 2) was a case under earlier Criminal Procedure Code, 1898 with reference to Sections 202 and 204 Cr.P.C. dealing with the aspect as to whether a learned Magistrate to whom a case was not entrusted to was entitled to issue summons to the accused or not?
3. V.Sathyamaiah's case (supra 3) was a case where offences occurred because of faction feuds. The offences were against human body. There was oral evidence and 11 Dr. VRKS, J Crl.R.C.No.1581 of 2008 medical evidence. As to how in a faction case, such evidence was to be appreciated was considered.
17. All the above three rulings have absolutely no relevance to the subject matter of the case and the arguments submitted in this revision. Therefore, any further discussion on these rulings is not necessary.
18. During the course of hearing, learned counsel for revision petitioner cited S.Babu Saheb's case (supra 4). That is a case of search of a car and recovery of non-duty paid liquor. Offences were pertaining to the A.P. Prohibition Act and the A.P. Excise Act. Section 100(4) Cr.P.C. was considered. These facts indicated that the investigating officer carried with him two panch witnesses out of whom one was found to be inimical against the accused. These two panch witnesses were brought from different places by the investigating officer and they were not the neighbours where the accused was arrested and contraband was seized. It was in those facts and circumstances, the legality of the search and the believability of the evidence concerning search and seizure fell for consideration before this Court.
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19. At para No.16 of the judgment, the ruling on law is stated to the effect that when the raid was conducted based on a prior information the investigating officer is right in taking mediators along with him. Referring to Sections 100(4) and 100(5) of Code of Criminal Procedure, which used the terms 'independent' and 'respectable' inhabitants of the locality, it is stated that respectability does not connote any particular status or wealth or anything of that kind. Independent respectable mediator means one who can speak truth and depose honestly. Respectable means one who is impartial and independent and not closely connected with the officials or under the influence of the officials. After appreciating the evidence this Court for reasons recorded therein did not find the evidence on record believable. It is based on this ruling, the learned counsel for revision petitioner argued that in the case at hand search and seizure occurred at the alleged house of accused and the two panch witnesses are not local inhabitants and the two panch witnesses used are stock witnesses and the learned Courts below committed error in ignoring these aspects. On a careful consideration of this contention, it has to be recorded that this contention has no merit. In the first place what occurred at the 13 Dr. VRKS, J Crl.R.C.No.1581 of 2008 alleged house of the accused was not a search as contemplated by Section 100 Cr.P.C. The evidence of PW.6 and PWs.3 and 4 clearly show that A.1 was intercepted and was arrested at an open place and seizures were effected from him. It was the confession of A.1 that led the police party resulting in discovery of another fact which was located in the house of accused. It was A.1 who led the police party to his house and there it was A.1 and A.2 who retrieved some other stolen articles pertaining to other crimes. Therefore, no search was conducted and only seizure took place. MOs.1 and 2 pertaining to this case were not recovered at that place. Therefore, whatever that happened there is not very relevant so far as the present case is concerned. PWs.3 and 4 are responsible Government servants. It is never the case of defence and there is no evidence on record showing that either of those two panch witnesses or the investigating inspector/PW.6 had any oblique motives to implicate the innocents. The large number of articles pertaining to large number of crimes described in detail at para No.12 of the impugned judgment of the appellate Court is itself is an indication that it was quite improbable to say that they were all planted by police. The fact that this revision petitioner along 14 Dr. VRKS, J Crl.R.C.No.1581 of 2008 with her son/A.1 made statements to the police and led them to a secret place and retrieving MO.1 from under the bushes is a fact that was proved by evidence. Therefore, the contention of the revision petitioner that she was implicated based on confession of A.1 is factually incorrect. As stated by Courts below, MOs.1 and 2 were claimed to have been owned by PWs.1 and 2 respectively and for such items, defence never raised any claim of ownership in themselves. The fact that they were stolen from the respective places was spoken to by PWs.1 and 2 and that remained unchallenged as the defence did not question the factum of theft. Thus, MOs.1 and 2 satisfy the definition of stolen property in terms of Section 410 I.P.C. Their discovery at the behest of accused indicated knowledge of revision petitioner that they are stolen properties. Courts below concluded that such recovery was a recovery from the possession of this revision petitioner. Learned trial Court recorded presumption contained in Section 114 of the Indian Evidence Act and concluded that accused did not explain as to how they came to possess these articles showing that they never had knowledge of the fact that they were stolen properties. Therefore, conclusions were reached at by both the Courts below in accordance with 15 Dr. VRKS, J Crl.R.C.No.1581 of 2008 legal mandate. There is absolutely no merit in the contention of the revision petitioner that for the offence under Section 411 I.P.C. was not established. It is a clear case that revision petitioner was found in possession of stolen property knowing that it was stolen property. Therefore, conviction of revision petitioner for the offence under Section 411 I.P.C. is correct on facts and law.
20. Learned counsel for revision petitioner submits that this revision petitioner is a woman and is now aged just about 58 years and there is no other criminal history and she herself was not the thief and argued that punishment of imprisonment is harsh. Considering the fact that 18 years ago the crime incident took place and for 17 years there has been legal proceedings at one Court or other and considering the fact that there is no other criminal history and that the revision petitioner is an old woman, this Court finds is just that the rigorous imprisonment of six months be converted into fine of Rs.9,000/- with a default sentence of simple imprisonment for six (6) months. With that modification, the point is answered against the revision petitioner.
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21. In the result, the Criminal Revision Case is allowed in part modifying the judgment dated 13.10.2008 of learned District and Sessions Judge, Chittoor in Criminal Appeal No.43 of 2006 and the judgment dated 13.02.2006 of learned V Additional Judicial Magistrate of First Class, Chittoor in C.C.No.174 of 2005. While retaining the fine and the default sentence that were imposed by the Courts below, the substantive sentence of rigorous imprisonment for six months that was imposed by the trial Court and confirmed by the appellate Court is converted into fine of Rs.9,000/- with a default sentence of simple imprisonment for six (6) months. The revision petitioner shall pay the fine amount on or before 10.04.2023 before the learned trial Court, failing which the learned trial Court shall secure her presence and enforce the punishment.
22. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court to the Court below and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner in C.C.No.174 of 2005, dated 13.02.2006, and to report compliance to this Court. Registry is directed to dispatch 17 Dr. VRKS, J Crl.R.C.No.1581 of 2008 a copy of this order along with the lower Court record, if any, to the Court below on or before 29.03.2023. A copy of this order be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
As a sequel, miscellaneous applications pending, if any, shall stand closed.
_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 27.03.2023 Ivd 18 Dr. VRKS, J Crl.R.C.No.1581 of 2008 THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR CRIMINAL REVISION CASE No.1581 of 2008 Date: 27.03.2023 Ivd