Madras High Court
Durai vs State Rep. By The on 12 April, 2007
Author: P. Murgesen
Bench: P. Murgesen
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12/04/2007 CORAM THE HONOURABLE MR. JUSTICE P. MURGESEN Criminal Revision Petition No.284 of 2006 Durai .. Petitioner Vs State rep. By the Sub-Inspector of Police Oomachikulam Police Station Madurai District. .. Respondent Criminal Revision Case filed under Section 397(1) r/w 401 of Cr.P.C. against the Judgment and conviction imposed by the learned Addl. Sessions Judge (Fast Track Court No.III), Madurai in C.A.No.156 of 2005 dated 7.3.2006 confirming the order of the learned Judicial Magistrate No.II, Madurai in C.C.No.638 of 2000. !For Petitioner ... Mr.S.Mahendrapathy ^For Respondent ... Mr.Siva Iyyappan, Govt. Advocate (Crl.side) :O R D E R
The Revision is directed against the Judgment and conviction imposed by the learned Addl. Sessions Judge (Fast Track Court No.III), Madurai in C.A.No.156 of 2005 dated 7.3.2006 confirming the order of the learned Judicial Magistrate No.II, Madurai in C.C.No.638 of 2000.
2.The case of the prosecution is briefly as follows:
i)P.W.1 Ramalingam is the resident of P.S.Colony. P.W.2 is his Watchman.
In the month of February 2000, he left the house for Chennai. P.W.2 used to guard the house during night. On 3.3.2000, he found that the door was broken and the things were missing. Then he complaint was lodged before P.W.7-Special Sub-Inspector of Police, Oomatchikumal Police Station. P.W.7 received the complaint and registered the case in Crime No. 400/2000 under sections 457 and 511 IPC and prepared the printed F.I.R.-Ex.P8. He proceeded to the scene of occurrence, prepared the observation mahazar-Ex.P3, sketch-Ex.P9 and examined the witnesses and recorded their statements. After completing the investigation, he placed the entire file before the Inspector of Police-P.W.10.
ii)P.W.10-Inspector of Police attached to Oomachikulam Police Station took up investigation. He proceeded to the scene of occurrence. He had taken steps to summon the Finger Print Experts. He had also summoned the sniffer dog to detect the case. While he was conducting investigation about the case in Crime No.1182 of 2000, on 27.2.2000, at about 13.00 hours he saw three persons namely Kaviarasan, Nagendran and Durai travelling in a vehicle which does not have register number. So, P.W.10 suspected about that vehicle and conducted search in the presence of one Madhivanan-P.W.5 and Manoharan-P.W.6 and examined them. The accused gave the confession statements.
iii)The father of A1 was the Head Constable and the properties were recovered in the presence of P.Ws 5 & 6. Exs.P4 and P6 are the confession statements of A1 and A2. P.Ws 5 & 6 admitted their signatures in those exhibits. On the basis of the confession statements, stolen jewels were recovered from Umaial Finance, Srinivasa Finance, Chidambaram Finance, Ramu Finance and also from the house of the first accused.
iv)P.W.8 was the Finger Print Expert. He went to the scene of occurrence on 5.3.2000, he marked the finger prints available at the scene of occurrence as V1 to V4 and had arranged for taking photos of the said finger prints. He compared the finger prints with five persons who were also residing in the scene of occurrence. But the finger prints were not tallying with those finger prints taken by him and submitted his report.
v)P.W.9 was the another Finger Print Expert. He compared the finger prints of Kaviarasu with that of the photos already taken in the scene of occurrence viz. V1 to V4 and found that V2 finger print tallies with Kaviarasu. He gave the report Ex.P8 to the Police.
vi)P.W.10-Inspector of Police, in continuation of investigation, examined the witnesses and recorded their statements under Ex.P11. On 23.7.2000, he submitted the confession statement of the accused and the properties recovered for judicial custody. After completing the investigation, he filed the charge sheet against the accused under Sections 454 and 380 IPC. P.Ws 5 & 6 attested their signatures in the confession statements and the Athachi prepared by P.W.10.
3.Before the trial Court, P.Ws 1 to 10 were examined, Ex.P1 to P11 were filed and M.Os 1 to 3 were marked.
4.On consideration of the evidence, the learned Judicial Magistrate No.II, Madurai found the A3 guilty under sections 454, 380 IPC and sentenced him to undergo three years rigorous imprisonment along with the fine of Rs.2,500/- in default one month simple imprisonment.
5.Aggrieved over the Judgment of the learned Judicial Magistrate, an appeal in C.A.No.156 of 2005 was preferred before the Addl. Sessions Judge (Fast Track Court No.III), Madurai and the learned Appellate Judge confirmed the Judgment of the learned trial Judge. Challenging the Judgment of the learned Appellate Judge, the above revision has been filed by the petitioner/A3.
6.When the accused was examined under section 313 of Cr.P.C. in respect of the incriminating materials appearing against him through the evidence adduced by the prosecution, he has come forward with the version of total denial and pleaded innocence.
7.The learned counsel for the revision petitioner argued that there was a delay in preferring the complaint and the finger prints of the accused/revision petitioner was not found in the scene of occurrence. Therefore, the revision petitioner /A3 is entitled for acquittal.
8.The claim of the revision petitioner was resisted by the learned Government Advocate (Crl.side). He submitted that there is no delay in lodging the F.I.R. According to the learned Government Advocate, the complaint was lodged only on 4.3.2000.
9.P.W.1 Ramalingam is the resident of P.S.Colony. P.W.2 is his Watchman. In the month of February 2000, P.W.1 left the house to go for Chennai. P.W.2 used to guard the house during night time. On 3.3.2000, he found that the door was broken and the things were missing. So, he preferred a complaint on 4.3.2000 before P.W.7-Sub-Inspector of Police, Oomatchikulam Police Station. A perusal of F.I.R. Ex.P8 would show that the complaint was lodged on 4.3.2000. So, immediately after the occurrence, the complaint was lodged. Hence the submission of the learned counsel that there is a delay in lodging the complaint is not correct.
10.The second ground urged by the learned counsel as regards the reports of the Finger Print Experts-P.Ws 8 & 9. Their evidence would show that they are able to see the finger prints of the first accused alone and the finger print of this petitioner/A3 was not found in the scene of occurrence. But, that will not be a ground for acquittal.
11.The evidence of P.W.3 would show that he received the stolen articles from this petitioner/A3. The accused were introduced to P.W.3 by the father of A1 who was the Police Head Constable. When a Police Head Constable introduces the persons to the Pawn Broker, naturally, he would be interested in getting the articles. Moreover, the accused were convicted in other cases also. This is not in dispute.
12.The learned counsel for the revision petitioner argued that the recovery mahazar witnesses have turned hostile. Eventhough the recovery mahazar witnesses turned hostile, the evidence of P.W.3 is clear and acceptable. There is no reason to reject his evidence. His evidence would show that he received the articles only from this accused. Hence, it is clear that the accused handed over the stolen articles to P.W.3- Pawn Broker and that was recovered from P.W.3. The accused is unable to give any explanation for pledging the stolen articles with P.W.3. So, it is clear that the accused has participated in the crime and thereby he pledged the articles. Hence, I find that the prosecution has proved the case. There is no illegality or infirmity on the findings of the trial Court and the Appellate Court.
13.So far as the sentence of conviction is concerned, the accused was found guilty under sections 454 & 380 IPC and sentenced him to undergo three years rigorous imprisonment along with the fine of Rs.2,500/- in default one month simple imprisonment is concerned, considering the age of the A3/revision petitioner, the circumstances of the case and the value of the property involved, I deem it appropriate to modify the sentence. Accordingly, for the offence committed by the petitioner/A3 under sections 454 & 380 IPC, he is directed to undergo six months rigorous imprisonment with a fine of Rs.3,000/-. With the above modification, the above Criminal Revision Case is disposed of.
To
1.The Addl. Sessions Judge (Fast Track Court No.III), Madurai
2.The Judicial Magistrate No.II, Madurai
3.The Sub-Inspector of Police Oomachikulam Police Station Madurai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.