Madras High Court
M. Periyasamy vs State By on 2 September, 2015
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.09.2015 CORAM: THE HONOURABLE MR.JUSTICE B.RAJENDRAN Criminal Revision Case No. 141 of 2009 M. Periyasamy .. Petitioner Versus State by The Inspector of Police North Police Station Tirupur Coimbatore District .. Respondent Criminal Revision Case filed under Section 397 and 401 of the Code of Criminal Procedure against the Judgment dated 26.11.2008 made in Criminal Appeal No. 306 of 2008 on the file of Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore confirming the judgment dated 19.08.2008 made in C.C. No. 525 of 2003 on the file of Judicial Magistrate No.I, Tirupur. For Petitioner : Mr. C. Prasanna Venkatesh For respondent : Mr. S. Veerabagu Government Advocate (Crl.side) ORDER
The petitioner is the sole accused in C.C. No. 525 of 2003 on the file of the learned Judicial Magistrate No.I, Tirupur. The petitioner was tried for the offences punishable under Sections 457 and 380 of IPC. On conclusion of trial, the trial Court convicted the petitioner for the offences punishable under Sections 457 and 380 of IPC and sentenced to undergo rigorous imprisonment for a period of one year. Aggrieved by the same, the petitioner filed Criminal Appeal No. 306 of 2008 and the appellate Court, by judgment dated 28.11.2008 confirmed the conviction imposed on the petitioner under Sections 457 and 380 of IPC but modified the sentence from one year to six months for each of the offences and the sentences were ordered to run concurrently. It is as against the Judgment of the Appellate Court, the petitioner is before this Court with this Criminal Revision Case.
2. The case of the prosecution is that on the night of 01.01.2003, the petitioner criminally trespassed into the shop run by one Balasubramaniam in the name and style of Gowri Dyes and Chemicals at L.R.G. Layout, Bridge way colony, Tirupur and committed theft of 45 sovereigns of jewels, Rs.25,000/- in cash by breaking open the lock of the shop. On 03.01.2013, when PW1 returned from Tiruchendhur to his shop, he was shocked to see the missing of articles and the lock of the door broken. Immediately, a complaint was given to PW8, Kasi, the Sub Inspector of Police based on which the case in Crime No. 11 of 2003 came to be registered for the offence punishable under Sections 457 and 380 of IPC. During the course of investigation, PW9, Inspector of Police went to Tiruppur old bus stand when on seeing him, the accused attempted to flee. PW9 caught hold of the accused and enquired him in the presence of PW3, Ramamoorthy and PW7, Bagavathiraja and the accused alleged to have confessed the theft committed by him from the shop of PW1. The confession given by the accused also led to recovery of Mo2 and Mo3, golden vankis and cash of Rs.2,000/- and they were recovered under a Mahazar, Exs. P3. Thereafter, the accused had taken the investigation team to the house of one Murugesan where Mo1, Golden Ottiyanam, Mo4 series, Golden bangles - 6 Nos, Mo5, Golden Aaram and cash to the tune of Rs.18,000/- were recovered. The investigation agency also recovered an iron rod used by the accused for commission of the offence. Thereafter, the accused was sent to the Court of learned Judicial Magistrate No.1, Tirupur for remand.
3. During the course of trial, the prosecution examined 9 witnesses, produced 9 documentary evidence and marked 6 material objects to strengthen their case. When the accused was questioned uner Section 313 of Cr.P.C., he denied his involvement in the offence and also denied the evidences appearing against him. The trial Court, on consideration of the oral and documentary evidence made available, convicted the accused for the offences punishable under Sections 457 and 380 of IPC and sentenced him to undergo rigorous imprisonment for a period of one year. Such sentence alone was modified by the Appellate Court into six months.
4. The learned counsel for the petitioner would contend that there is no evidence, much less legal evidence, available to implicate the petitioner in the commission of offence. Except the confession statement, there is no direct evidence made available to implicate the petitioner in the crime and therefore, the judgment of conviction passed by the trial Court and modified by the Appellate Court are liable to be set aside. The learned counsel for the petitioner, relying on the provisions of Section 457 of IPC would indicate that neither in the first information report nor in the charge sheet, there is no indication as to the time of occurrence. Merely because there was theft of valuables, it cannot be concluded that such occurrence had taken place in the night and it is the burden of the prosecution to prove the time and date of occurrence. When the time of occurrence is not brought out by the prosecution in the first information report or in the charge sheet, the ingredients of Section 457 cannot be pressed into service against the petitioner. The learned counsel for the petitoiner also relied on the oral testimony of PW2, who is the wife of PW1. In her cross examination, PW2 has stated that if one has to gain access to the shop where the valuables were kept and stolen, the entry is possible only through a shutter, however, the shutter was kept in tact. Further, PW2 has not identified the jewels said to have been stolen by the petitioner. Therefore, the learned counsel for the petitioner vehemently argued that the ingredients of Section 457 of IPC cannot be pressed into service in this case. The learned counsel for the petitioner further submitted that the petitioner was in jail for about 59 days and he has no previous case. Therefore also, the learned counsel for the petitioner prayed for setting aside the orders passed by the courts below.
5. On the other hand, the learned Government Advocate would contend that the very fact that the lock of the main door was damaged and valuables have been stolen would indicate that the occurrence must have taken place during night. There is no scope for such occurrence during day time as the neighbours and other passers-by would have prevented such theft. Therefore, the presumption is that the occurrence had taken place only during night hours and non-mentioning of the time of occurrence will not be fatal to the case of the prosecution.
6. I heard the learned counsel for the petitoner as well as the learned Government Advocate appearing for the State. I also perused the materials placed on record, including the orders passed by the courts below. The main ground of attack raised by the counsel for the petitioner is that the ingredients of Section 457 of IPC cannot be pressed into service against the petitioner in this case. In this context, it is necessary to look in to the provisions of Section 457 of IPC which reads as follows:-
"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."
7. A perusal of the first information and the charge sheet would disclose that there is no mentioning about the time of occurrence, whether it took place in the day or night. There is no other evidence made available to suggest that the occurrence took place only during night. Further, the shutter in front of the shop remained intact and according to PW2, to gain access to the room where the valuables are kept, one has to open the shutter. PW1 also did not state anything regarding the damage caused to the shutter. Therefore, it is not known as to how access was gained to the room by the offender and it was not proved by the prosecution by any evidence. Therefore, as rightly pointed out by the learned counsel for the petitioner, the ingredients of Section 457 of IPC cannot be attracted in this case and the conviction and sentence imposed on the petitioner by the courts below for the offence under Section 457 of IPC has to be set aside.
8. Next it has to be seen whether the conviction and sentence imposed on the petitioner for the offence under Section 380 of IPC is sustainable. Admittedly, there is recovery of 43 sovereigns of jewels from the accused which were marked as MO1 to Mo5 before the trial Court. The recovery mahazar was duly attested by PW3 and PW7. Besides jewels, cash was also recovered from the possession of the petitioner. The prosecution has proved by evidence that the petitioner was in possession of the cash and jewels involved in this case. Therefore, at best, the petitioner can be convicted for the offence under Section 380 of IPC.
9. The learned counsel for petitioner would contend that the petitioner is the sole bread winner in his family, presently he is 43 years of age and was in jail for 59 days. It is also submitted that the petitioner repents for his misdeeds. The trial Court imposed a punishment of one year for both the offences which was reduced to six months by the Appellate Court. Having regard to the period of sentence undergone by the petitioner, the learned counsel for the petitioner prayed this Court to show leniency to the petitioner in the matter of imposition of sentence.
10. Having regard to the above submission of the counsel for the petitioner that the petitioner is the sole bread winner in his family and he had already undergone 59 days of sentence and the facts and circumstances of the case, this Court is of the view that the sentence of six months imposed on the petitioner for the offence under Section 380 of IPC shall be modified in to one of the period already undergone by him. Accordingly, the Criminal Revision Case is partly allowed and the conviction and sentence imposed by the courts below for the offence under Section 457 of IPC is set aside. The conviction imposed on the petitioner for the offence under Section 380 of IPC is confirmed, however, the sentence imposed on him is modified to the period of sentence already undergone by him.
02.09.2015 Internet : Yes / No Index : Yes / No rsh To
1. The Additional District and Sessions Judge (Fast Track Court No.V), Coimbatore
2. The Judicial Magistrate No.I Tirupur B. RAJENDRAN, J rsh Crl.R.C. No. 141 of 2009 02.09.2015