Telangana High Court
Kunta Shankar, vs The State Of Ap Rep By Its Pp Hyd., on 3 November, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL REVISION CASE No.1135 of 2011
ORDER:
This revision is filed aggrieved by the judgment dated 25.09.2009 passed in C.C.No.1021 of 2007 which was confirmed in Crl.A.No.113 of 2009 dated 04.05.2011 on the file of the V Additional Sessions Judge, Karimnagar.
2. The facts in brief as per the record are that PW.1 has filed a complaint before the police concerned stating that on the intervening night of 9/10.03.2007 unknown culprits entered into his house and committed theft of diamond necklace weighing 4 tulas, black beats chain weighing 3.5 tulas, one gold chain weighing 1 tula, one gold bangle weighing 1.5 tula, one gold ring weighing ½ tula, 4 cell phones, 1 wrist watch and net cash of Rs.32,000/-. On the basis of the said complaint, a case has been registered by the police in Crime No.38 of 2007 for the offence under Sections 457 and 380 IPC and issued FIR.
3. During the course of investigation, on 30.03.2007 at about 5.00 p.m., the SI of Police has apprehended the 2 petitioner/accused at Tower Circle, Karimnagar and on interrogation, he has voluntarily confessed that he is a professional property offender and committed theft of the articles in this case. In pursuance of his confession, police have recovered one diamond gold necklace weighing 53 grams, 2 Nokia cell phones and one Titan wristwatch from possession of the petitioner under the cover of panchanama in the presence of the mediators. Later, the petitioner was arrested and on completion of investigation, charge sheet is filed.
4. In order to prove the charges levelled against the petitioner, the prosecution examined PWs.1 to 7 and marked Exs.P1 to P5 and the property, which was committed as theft, was marked as M.Os.1 to 4. On completion of trial, the trial Court felt that the petitioner found guilty for the offence under Section 457 IPC and sentenced him to suffer simple imprisonment for a period of one year and also to pay fine of Rs.500/- and in default, to suffer simple imprisonment of one month and also found guilty for the offence under Section 380 IPC and sentenced 3 him to suffer simple imprisonment for a period of one year and also to pay fine of Rs.500/- and in default, to suffer simple imprisonment for one month. The remand period already undergone by the accused if any shall be set off under Section 428 Cr.P.C. M.Os.1 to 4 are ordered to be returned to PW.1. Aggrieved by the said finding and the said conviction and sentence recorded by the trail Court the petitioner has preferred an appeal before the appellate Court. The appellate Court also on hearing both sides dismissed the appeal as per judgment dated 04.05.2011 recording a finding that the trial Court has properly recorded the finding. Aggrieved by the same, the present revision is filed on the following grounds:
5. The trial Court has come to erroneous conclusion without appreciating the evidence in proper lines. There are no overt acts to whom the accused was found guilty for the offence under Section 457 IPC. The evidence of PWs.5 and 6 should not have been believed. The recovery is artificial and the witnesses are set up. Except the evidence of panch witnesses there is no other evidence. 4
6. Heard both sides and perused the record.
7. Now, the point for determination is whether the judgment dated 04.05.2011 passed in Crl.A.No.113 of 2009 can be set aside?
8. The powers of the revisional Court in interfering with the judgments of the lower appellant Court more particularly, in case where there is a concurrent finding, the trial Court and also the lower appellate Court are very limited. Unless it is shown to the Court that there is a misapplication of law or procedure or on account of judgments of the trial Court, gross injustice was done on account of miscarriage of justice, the revisional Courts are not expected to interfere and reassess the evidence as if the appellate Courts do.
9. In the case on hand, the trial Court has found the revision petitioner guilty of the offence on the ground that the stolen property was recovered by his possession in the presence of independent mediator, who, according to the evidence of the mediator/PW.5, which was corroborated by 5 the evidence of PW.7/S.I. of Police. As seen from the judgment of the trial Court and also the appellate Court, when the police have interrogated the petitioner when he is about to confess the mediator services were pressed into in whose presence, the petitioner has confessed the offence and led the team and through which the stolen property was recovered.
10. As per the discussion made in the trial Court, the petitioner has, in fact, claimed the property recovered from his possession stating that he is the owner of the property, however, he could not file any record to show that he is the owner of the property. In the absence of any such material believing the evidence of the de-facto complainant that he is the owner of the property and lost the same on the intervening night of 9/10.03.2007, the trial Court has found him guilty.
11. However, on perusal of the entire record, it appears to this Court that the trial Court and the appellate Court have committed error in application of penal provision to the facts of the case. According to the police, since the theft 6 was committed in a dwelling house belonging to the de- facto complainant i.e., PW.1, the charge sheet is filed for the offence punishable under Sections 457 and 380 IPC.
Section 457 IPC runs as under:
"457. Lurking house-trespass or house-breaking by night in order to commit offence punishable with imprisonment.-- Whoever commits lurking house- trespass by night, or house-breaking by night, in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and, if the offence intended to be committed is theft, the term of the imprisonment may be extended to fourteen years."
Section 380 IPC runs as under:
"380. Theft in dwelling house, etc.-- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
12. Though there is no dispute that the property was stolen from the dwelling house of PW.1, the investigation did not reveal that the petitioner has committed theft from the house of PW.1. Similarly, the prosecution witness also 7 did not speak that the accused has committed theft of M.Os.1 to 4.
13. In order to fasten the criminal liability under Section 457 IPC, the prosecution is expected to allege and place before the Court the material evidence to show that there was a house break in the night by the petitioner. In the case on hand, according to the de-facto complainant, on the intervening night of 09/10.03.2007, there was a theft in his house. None of the witnesses of the prosecution have deposed that they have seen while the petitioner was committing theft in the night in the house belonging to the de-facto complainant. Therefore, as long as there is no evidence, the charge under Sections 457 and 380 IPC will not sustain.
14. The appropriate section under which the charges could have been framed was under Section 411 IPC, which runs as under:
"411. Dishonestly receiving stolen property.-- Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with 8 imprisonment of either description for a term which may extend to three years, or with fine, or with both."
15. It is the case of the de-facto complainant that on 09/10.03.2007 the petitioner was apprehended by the police and on interrogation, he was found in possession of M.Os.1 to 4, which were stolen from the house of the de- facto complainant. Therefore, merely because the stolen property from the house of the de-facto complainant was found in the possession of the petitioner, it cannot be said that he has committed the theft of stolen property from the house of the de-facto complainant. He was only a person in whose possession the stolen property was found and he could not give proper explanation. It is true that the petitioner has confessed that he has committed the offence of theft on the intervening from the house of the de-facto complainant. However, it is to be noted that part of the confession is not admissible in law. Only limited portion of the confession statement of the petitioner, which lead to recovery of M.Os.1 to 4 are admissible under Section 27 of the Evidence Act. Therefore, once recovery alone is proved, as long as there is no evidence to show that the petitioner 9 has entered into the house of the de-facto complainant and committed theft of M.Os.1 to 4, the charge under Sections 457 and 380 IPC will not sustain. However, the petitioner can be found to be guilty for the offence under Section 411 IPC.
16. This Court has given a thought as to whether without there being a charge under Section 411 IPC, can the petitioner be found guilty under Section 411 IPC. Offence under Section 411 is property offence belonging to the category of the offence under Sections 457 and 380 IPC. It is the practice of the police to file charge sheet either for the offence under Section 380 or 457 IPC instead of Section 411 IPC. The punishment for all these offences is one and the same though the requirements for these offences are different. Therefore, this Court is of the opinion that no separate charge is required finding a person guilty for the offence under Section 411 IPC when he is being tried for the charges for the offence either under Section 457 or 380 IPC.
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17. Considering the discussion made above, in view of the fact that the prosecution could not prove the charges originally framed against the petitioner under Sections 457 and 380 IPC and that the petitioner is liable for punishment under Section 411 IPC for which the charge has not been framed and the petitioner was not given an opportunity to challenge the same, and also considering the fact that Section 411 IPC is not a distinct offence when compared to Section 380 IPC and thereby this Court can also find the petitioner guilty of the offence even though the charges are framed specifically under Section 411 IPC, as the finding of the trial Court and the lower appellate Court under Section 380 is being set aside.
18. Considering the fact that the offence took place on 09/10.03.2007 and is of so many years, the prosecution though stated that the petitioner is a professional offender in respect of the property offence, no record is placed before the trial Court or the appellate Court or this Court. Therefore, this Court is of the opinion that though the 11 recovery has been proved under Section 411 IPC, lenient view can be taken while imposing the sentence.
19. Accordingly, the judgment dated 04.05.2011 in Crl.A.No.113 of 2009 confirming the judgment dated 25.09.2009 passed in C.C.No.1021 of 2007 is modified to the extent that the petitioner is ordered to suffer simple imprisonment for a period of six (6) months and the remand period already undergone by the petitioner, if any, shall be ordered to be set off under Section 428 Cr.P.C.
20. With the above observation, the criminal revision case is disposed of.
Miscellaneous applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 03.11.2022 ES