Madras High Court
Veeran @ Muruganantham vs State Represented By Inspector Of ... on 11 July, 2022
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.R.C.No.495 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 11.07.2022
CORAM
THE HON'BLE Dr.JUSTICE G.JAYACHANDRAN
Crl.R.C.No.495 of 2015
Veeran @ Muruganantham ... Petitioner
-Vs.-
State represented by Inspector of Police,
Sivagiri Police Station,
Erode District.
Crime No.66 of 2014 .. Respondent
Criminal Revision Petition filed under Sections 397 and 401 of
Code of Criminal Procedure to set aside the judgment dated 10.04.2015
passed in C.A.No.66 of 2014 on the file of the learned I Additional
Sessions Judge, Erode confirming the judgment passed in C.C.No.49 of
2014 dated 09.08.2014 on the file of the learned District Munsif cum
Judicial Magistrate, Kodumudi convicting the petitioner for the offence
under Section 457(2) and 380 IPC read with Section 75 IPC and acquit
the petitioner.
For Petitioner : Mr.S.N.Arunkumar
for Mr.A.P.Sathyamurthy.
For Respondent: Mr.N.S.Suganthan,
Government Advocate (Criminal side)
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https://www.mhc.tn.gov.in/judis
Crl.R.C.No.495 of 2015
ORDER
The revision petition is filed against the concurrent findings of the Courts below holding the petitioner herein, guilty of charges under Section 457(ii) read with 75 IPC and Section 380 read with 75 IPC.
2. The facts of the case as projected by the prosecution witnesses is that, on 26/27.04.2014 at about 2.00 a.m., this petitioner and one Madhu @ Bombay Madhu broke opened the house of Kesavaraj at Door No.103, Bharathi Street, Sivagiri. They robbed 13 Sovereigns of gold jewel, worth a sum of Rs.2,60,000/- from the steel almirah. The said incident came to light when the father of Kesavaraj came to his house and saw the house open. He called Kesavaraj over phone and informed him on 27.04.2014 at 08.00 a.m., that the jewels kept in the Almirah have been stolen away. Immediately, the de facto complainant and his wife returned to Sivagiri and lodged the complaint, which came to be registered in Crime No.66 of 2014. In the course of investigation, the prosecution found that the petitioner/Veera @ Muruganantham and one Madhu @ Bombay Madhu are the culprits, who have committed the crime. This fact 2/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 came to light, when the Madhu @ Bombay Madhu was arrested on 05.06.2014 by the patrol police of Kodumudi. The iron rod used for break opening the house of the de facto complainant and some of the jewels were recovered based on the confession statement of Madhu @ Bombay Madhu and thereafter on the information given by Madhu @ Bombay Madhu, this petitioner/Veera @ Muruganantham was apprehended on 18.06.2014 at 04.30 a.m. This petitioner had also given a statement admitting his guilt. Based on his statement, the stolen jewels, which were hidden in a almirah at his father-in-law's house, was recovered under Mahazar.
3. Based on the statements of PW1 to PW8 and documents Ex.P1 to Ex.P13 and also the Material Objects M.O.1 to M.O.10, the trial Court held both the accused guilty of offence under Section 457(ii) and 380 of IPC. As far as this petitioner is concerned, he had three previous cases, hence charged altered to Section 457(ii) r/w 75 IPC and Section 380 r/w 75 IPC, and questioned. In the light of his previous convictions for the offences of similar nature in C.C.No.480 of 2013, C.C.No.479 of 2013 3/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 and C.C.No.18 of 2013, the trial Court gave an enhanced sentence of three years rigorous imprisonment, for each of the charges and also directs that the same shall run concurrently.
4. The learned counsel appearing for the petitioner primarily contended that based on the confession of the co-accused, this appellant was arrested and the alleged seizure of jewels based on his confession did not tally with the description of jewels found in Form 95 as well as the description of jewels mentioned by the de facto complainant.
5. The learned counsel would further submit that the Courts below failed to properly appreciate the provisions of Section 75 IPC and without proper charge, imposed an enhanced sentence on this petitioner. As far as Section 75 IPC is concerned, enhanced punishment can be awarded only in case, where a person convicted by the Indian Court for an offence punishable in Chapter XII and Chapter XVII of IPC with punishment of either description for a term of 3 years or upward and shall be guilty of offence punishable under these chapters with like 4/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 imprisonment for the like term, subject to imprisonment for life or imprisonment which may extend to 10 years. In this case, though the trial Court has referred about three previous convictions, the term of imprisonment was not mentioned in the judgement. The references to the calender extract of these three cases on verification indicates that in all these three cases, A2 was punished only for the term of 1½ years rigorous imprisonment and therefore, Section 75 IPC will not get attracted.
6. Further, the learned counsel submitted that to award an enhanced punishment for the previous convictions, charges should be framed disclosing the facts, like date and place of the previous convictions, whereas in this case, the charges does not disclose the date and place of previous convictions except reference about the calender extract of those cases.
7. The learned Government Advocate (Criminal side) submits that the evidence of prosecution witness stands unassailed. Based on the confession statement of this accused, material objects were recovered and 5/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 the de facto complainant has identified those material objects namely golden jewels as the articles stolen from his house. Regarding the enhanced sentence for previous convictions, the learned Government Advocate would submit that even in the absence of charges under Section 75 IPC, for offence under Section 457(ii) and 380 IPC, the accused is liable for sentence of imprisonment of either description which may extends to 5 years and shall also be liable to fine. If the house trespass by night was with an intention to commit theft, then the term of imprisonment may extend to 14 years. Similarly, for offences under Section 380 IPC, whoever committed theft in a dwelling house shall be punished by the imprisonment for a term, which may extend to 7 years and may also be liable to fine.
8. In this case, the prosecution has proved that the petitioner herein, had stolen M.O.3 to M.O.7 and M.O.10, which was recovered from the father-in-law house of the accused based on the confession given by the accused. Therefore, the period of imprisonment of three years rigorous imprisonment is not in contrary to punishment prescribed 6/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 for offences under Section 457 or Section 380 IPC.
9. In response, the learned counsel for the revision petitioner would submit that there is no evidence to show that the theft was committed during night time to attract Section 457 IPC, while alleged incident has been taken place on 26/27 of April, 2014. This crime came to be noticed at 08.00 a.m. Even according to the prosecution, the owner of the house left the house on 26.04.2014 morning at 07.30, leaving the keys to his father. Therefore, exact time of occurrence is not certain even according to FIR or through the other witnesses.
10. The learned counsel, referring to the complaint marked as Ex.P.1, would submit that the de facto complainant himself was not certain about the time of occurrence, that is why he has mentioned the occurrence ought to have happened between 12.00 noon on 26.04.2014 and 7.00 a.m. on 27.04.2014.
11. Heard the learned counsel appearing for the Petitioner and the 7/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 learned Government Advocate (criminal side) appearing for the Respondent and perused the materials placed on record.
12. The case of the prosecution wholly relies upon the confession statement of the co-accused, as well as recovery of material objects, based on the statement of the accused/appellant. P.W.1/de facto complainant has listed out the jewels found missing from the broken locker in the almirah. This accused was arrested on 05.06.2014 and M.O.1, M.O.2 series and M.O.3 to M.O.7 were recovered and same was identified by P.W.1. No cross examinations of these witnesses were made to impeach their evidence. The charges under Sections 457 and 380 IPC were proved beyond doubt through these witnesses. As far as enhanced sentence under Section 75 IPC concerned, the details of facts, date and place were not properly found in the charge as required under Section 211 of Cr.P.C and the calender extract of those three previous cases indicates that extends of punishment in all these cases was only 1½ years rigorous imprisonment. Since the petitioner was not convicted for imprisonment of either description for a term of three years, the 8/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 sentences in this case has to be imposed independently for Sections 457 and 380 IPC without reading with Section 75 IPC.
13. The punishment prescribed for offences under Section 457 IPC is imprisonment for maximum extent of 5 years, if it is a case of lurking, house trespass or house breaking, with an intention to commit theft, it may extended to 14 years. Under Section 380 IPC whoever, commits theft in any buildings, tents or vessels, which is used as a human dwelling shall be punished with imprisonment of either description for a term, which may extend to 7 years and shall also be liable to fined.
14. The learned counsel for the revision petitioner contended that since Accused Nos.1 and 2 are placed similarly and Section 75 IPC will not apply to the facts of the case, no higher sentence can be imposed to A2. This Court though agree with the submission of the learned counsel for the petitioner that Section 75 IPC will not apply but parity with other accused cannot be sought. If in case, the Court for some special reason is of the view that the punishment for this accused should be different from 9/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 what imposed to the co-accused, within the parameter of law, any sentence can be imposed. So far as this case is concerned, this Court is of the view that the petitioner is being a habitual offender, he must be given a higher sentence than the first time offender. Therefore, the period of sentence is modified to 2 years rigorous imprisonment for offences under Section 457(ii) and 2 years rigorous imprisonment for offences under Section 380 IPC. The period of sentence shall run concurrently. The period of imprisonment already undergone shall be set off.
15. With the above observations and directions, this revision petition is partly allowed. The trial Court is directed to secure the accused and commit him to the prison to undergo the remaining period of imprisonment.
11.07.2022 Speaking/Non-speaking order Index: Yes/No Internet : Yes/No nsa 10/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 To The Inspector of Police, Sivagiri Police Station, Erode District.
Crime No.66 of 201411/12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.495 of 2015 Dr.G.JAYACHANDRAN.J., nsa Crl.R.C.No.495 of 2015 11.07.2022 12/12 https://www.mhc.tn.gov.in/judis