Madras High Court
Arumugam @ Suresh vs State Represented By on 1 April, 2016
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON 05.03.2021
DELIVERED ON 19.03.2021
CORAM :
THE HONOURABLE MRS.JUSTICE S.ANANTHI
Crl.RC(MD)No. 387 of 2016
1. Arumugam @ Suresh
2. Thiruneelakandan @ Manikandan .. Petitioners/Appellants/A-1 & 2
Vs.
State represented by
The Inspector of Police,
Velayuthampalayam Police Station,
Karur District,
in Crime No. 171 of 2010. ... Respondent/Respondent/Complainant
PRAYER: Criminal Revision filed under Section 397 r/w 401 of the
Criminal Procedure Code to set aside the Judgment dated 01.04.2016 made in
Criminal Appeal No.18 of 2016 on the file of the Mahila Court, Karur,
confirming the Judgment made in C.C. No. 123 of 2010 on the file of the
learned Judicial Magistrate No.II, Karur, dated 11.02.2016 and set aside the
Judgment and allow this revision.
For Petitioners : Mr.S. Gokul Raj
For Respondent : Mrs.M. Anantha Devi
Government Advocate (crl.side)
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http://www.judis.nic.in
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ORDER
This Criminal Revision Case has been filed by the revision petitioners to set aside the Judgment, dated 01.04.2016 made in Criminal Appeal No.18 of 2016 on the file of the Mahila Court, Karur, confirming the Judgment, dated 11.02.2016 in C.C. No. 123 of 2010 passed by the learned Judicial Magistrate No.II, Karur.
2. As against the judgment of conviction and sentence passed by the learned Judicial Magistrate No.II, Karur, in C.C.No.123 of 2010, dated 11.02.2016, the petitioners have preferred an appeal before the learned Sessions Judge, Mahila Fast Track Court, Karur, in C.A.No.18 of 2016. The lower appellate Court, by judgment dated 01.04.2016, dismissed the appeal. The conviction and sentence to undergo simple imprisonment for One Year, each, and to pay a fine of Rs.1000/- each, in default to undergo simple imprisonment for One month, each, for the offence under Section 380 of IPC was confirmed. Aggrieved over the same, the petitioners have preferred the instant criminal revision case.
3. The case of the prosecution is that on 22.02.2010 at about 23.45 hrs., while the first petitioner/A-1 was a lorry driver and the second petitioner/A-2 was a cleaner of the lorry bearing registration No.TN-28-AY-4709 went to http://www.judis.nic.in 3 TNPL, Karur and they have committed theft by taking 380 kg of iron rods worth able Rs.5400/-which belongs to the defacto complainant and hidden the same in the cabin of the lorry. Based on the complaint given by PW1, a case in Crime No.171 of 2010 was registered by the respondent Police for the offence under Section 380 of IPC. The respondent Police, after investigation, has filed the final report for the offence under Section 380 of IPC and both the Courts below have convicted the petitioners/A-1 & A-2 as stated supra.
4. The learned Counsel for the revision petitioners submitted that the occurrence took place on 22.02.2010 at about 23.45 hrs., and the complaint lodged by the complainant on 23.02.2010 at about 12.30 hrs., and the distance between the occurrence place and the police station is 1 km., and hence, there was a huge delay on the part of the complainant and no valid explanation for the delay in lodging the complainant. He further submitted that the iron materials were stolen kept within the premises of the TNPL company and no in-charge person of the building section has been examined to speak about the stolen of the iron materials. He further submitted that the owner of the lorry was not examined to prove that the lorry was entrusted on contract basis for loading and unloading of the materials of TNPL. He further submitted that the reasons stated by the Courts below for convicting the http://www.judis.nic.in 4 petitioners are liable to be set aside. He prayed to allow the Criminal Revision Case.
5. Per contra, the learned Government Advocate (Crl. Side) submitted that to prove the case against the petitioners the prosecution has examined P.W.1 to P.W.6 and marked Ex.P.1 to Ex.P.8 and M.O.1 and M.O.2. She further submitted that the minor discrepancies in the evidence of prosecution is not material contradiction. She further submitted that the prosecution has proved the case against the revision petitioners beyond reasonable doubts and therefore, she prays for dismissal.
6. Heard the learned counsel for the petitioners and the learned Government Advocate (crl. Side) for the respondent police and perused the material documents available on record.
7. The petitioners/A-1 & A-2 have filed this Civil Revision petition to set aside the Judgment, dated 01.04.2016 made in Criminal Appeal No.18 of 2016 on the file of the Mahila Court, Karur, confirming the Judgment, dated 11.02.2016 in C.C. No. 123 of 2010 passed by the learned Judicial Magistrate No.II, Karur.
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8. The petitioners/A-1 & A-2 were charged for an offence under Section 380 of IPC and they were convicted and sentenced to undergo simple imprisonment for One Year, each and to pay a fine of Rs.1000/- each, in default to undergo simple imprisonment for One month, each, for the offence under Section 380 of IPC.
9. The case of the prosecution is that on 22.02.2010 at about 23.45 hrs., while the first petitioner/A-1 was a lorry driver and the second petitioner/A-2 was a cleaner of the lorry bearing registration No.TN-28-AY-4709 went to TNPL, Karur and they have committed theft by taking 380 kg of iron rods worth able Rs.5400/-which belongs to the defacto complainant and hidden the same in the cabin of the lorry. According to the prosecution, these petitioners have committed theft and stolen iron rods which belongs to the defacto complainant. The stolen iron rods were found by the P.W.2 and informed to P.W.1 on the spot itself. On 23.02.2010 at about 12.30 hrs., P.W.1 to P.W.5 along with accused persons went to the police station and lodged complaint by the P.W.1.
10. The alleged occurrence took place on 22.02.2010 at 11.45 p.m and the complaint was preferred on 23.02.2010 at 12.30 p.m. There was a long delay in lodging the complaint. The complainant and accused went to the http://www.judis.nic.in 6 police station to file the complaint. Confession statement was also recorded in the police station. It is hit by the Section 25 of Indian Evidence Act.
11. The relevant portion of the Judgment reported in 2013(4)131 Katturaja Vs. State, is extracted hereunder:
......
“11. But, the trial court has relied on the alleged confession made by the accused to P.W.13 during the course of investigation in the presence of P.W.6 and another witness. In paragraph 24 of its judgement, the trial court has extracted the entire confession and in the concluding portion of the judgement, the trial court has observed that the confession of the accused corroborates the evidence of P.W.4 and P.W.5. This observation of the trial court is really shocking. It is well known that a confession made by the accused to the police during the course of investigation is irrelevant and the same is not admissible in evidence against the accused as envisaged in Section 25 of the Evidence Act. Section 27 of the Evidence Act is only a proviso to Section 25 of the Evidence Act. To what extent the said statement could be admitted in evidence as relevant was examined in detail by the Privy Council in Pulukuri Kottaya vs Stae of Emperor, AIR 1947 PC 87. The said judgement finds reference in almost all Text Books on The Evidence Act. In the said judgement, the expression distinctly as employed in Section 27 of the Evidence Act was examined in detail and ultimately, it was held that the part of the statement which distinctly leads to the discovery of a fact alone is admissible. This, exception provided in Section 27 of the Evidence Act is very limited. But, in the instant case, unfortunately, the trial court has relied on the http://www.judis.nic.in 7 entire confession to come to the conclusion that the accused had illicit intimacy with the deceased. Subsequently, the deceased developed intimacy with the others which was opposed to by the accused and on the fateful day when the accused advanced sexual overtures, the deceased did not respond positively and, therefore, the accused had attacked the deceased with wooden log and caused her death. In order to prove the above facts, absolutely there is no evidence. But, the trial court has relied on the confession of the accused by quoting the same extensively forgetting for a moment that Section 25 of the Evidence Act is a bar''.
12. Further, the prosecution had failed to seize and mark the entry register. No independent witness has been examined. The prosecution has failed to prove the identity of the property whether it is belonged to TNPL. P.W.2 informed the occurrence to P.W.1. P.W.2 saw the iron rod inside the cabin of the lorry. How they have stolen the iron rods when there was high security inside the company. Iron rods are also available in other open market as per evidence of P.W.2.
13. Further, the Investigation officer was examined as P.W.6. The relevant portion of the cross examination of the P.W.6 is extracted hereunder:
“,t;tof;fpy; 1 Kjy; 5 tiuapyhd rhl;rpfs;
midtUNk b.vd;.gp.vy;. fk;ngdpapy; Ntiyghh;g;gth;fs; vd;why; rhpjhd;. mth;fs; b.vd;.gp.vy; fk;ngdpapy; Ntiy ghh;g;gjw;fhd Mjhuk; vJTk; tof;fpy; jhf;fy; nra;ag;gltpy;iy vd;why; rhpjhd;. rh.ngh.2 b.vd;.gp.vy;
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eph;thfj;jpw;F nrhe;jkhdJ vd;w Mjhuq;fNsh>
Mtzq;fNsh ifg;gw;wg;gl;ljh vd;why; ,y;iy.
rh.ngh.2y; b.vd;.gp.vy; fk;ngdpf;F nrhe;jkhdJ
vd;wgjw;fhd FwpaPLfNsh milahsNkh ,y;iy
vd;why; rhpjhd;. rh.ngh.2 gioa ,Uk;G Jz;Lfs;
vd;why; rhpjhd;. Gfhh; rk;gtk; ele;j kWehs;jhd; nfhLf;fg;gl;Ls;sJ vd;W nrhd;dhy; rhpjhd;. 23.02.2010 md;W 12 kzp vd;why; rhpjhd;. m.j.rh.M.7 12.00 vd;gij 12.30 vd;gjhf jpUj;jk; nra;ag;gl;Ls;sJ. mij ahh; jpUj;jpdhh;fs; vd;gJ vdf;F njhpahJ. GfhhpYk; Neuk; jpUj;jg;gl;Ls;sJ vd;W nrhd;dhy; rhpjhd;. ,Uk;G Jz;Lfspd; kjpg;G vt;tsT vd;gjw;fhd urPJ vJTk; ngwg;gltpy;iy vd;why; rhpjhd;. ehDk; vilNghl;L thq;ftpy;iy. vjphpfs; 23k; Njjp 12 kzpf;F ifJ nra;ag;gl;lhh;fs;. fhty;epiyak; Kd;G itj;J tof;F nrhj;Jf;fs; ifg;gw;wpajhf Fwpg;gplg;gl;Ls;sJ vd;W nrhd;dhy; rhpjhd;. m.rh.1 kw;Wk; m.rh.2> 3 rhl;rpfs; nfhz;L te;jdh;. kfrhpy;
yhhpapy; ,Ue;J rh.ngh.2 ifg;gw;wg;gl;ljhf nrhy;ytpy;iy vd;W nrhd;dhy; rhpjhd;. yhhpia ifg;gw;w jdp kfrh; jahh; nra;ag;gltpy;iy. ,Uk;G nghUl;fs; ahhplkpUe;J ifg;gw;wg;gl;lJ vd;gjw;fhd nuf;fhh;Lfs; vJTk; kfrhpy; ,y;iy vd;why; rhpjhd;.”
14. There is no eye witness. When only circumstantial evidence, it must be continuous and unchallenged. But, here no corroborative evidence. The subordinate Court relied on confession and convicted the revision petitioners/A-1 & A-2.
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15. In view of the above discussions and considering the totality of the circumstances, this Court is of the view that the conviction and sentence on the petitioners/accused cannot be sustained and the same warrants interference. Accordingly, the Judgment, dated 01.04.2016 made in Criminal Appeal No.18 of 2016 on the file of the Mahila Court, Karur, confirming the Judgment, dated 11.02.2016 in C.C. No. 123 of 2010 passed by the learned Judicial Magistrate No.II, Karur, are set aside and the petitioners/A-1 & A-2 are acquitted of the charge framed against them. Fine amount, if any paid, shall be refunded and bail bonds, if any executed, shall stand terminated.
16. In fine, this Criminal Revision Case is allowed.
Index :Yes/No 19.03.2021
Internet:Yes/No
ksa
Note:In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate/litigant concerned. http://www.judis.nic.in 10 To
1. The Mahila Court, Karur.
2. The Judicial Magistrate No.II, Karur.
3. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
4. The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in 11 S.ANANTHI, J.
ksa Order made in Crl.RC(MD)No.387 of 2016 19.03.2021 http://www.judis.nic.in