Andhra HC (Pre-Telangana)
Yatagiri Sreenivasulu And Two Others vs The State Of A.P., Rep. By Its Public ... on 19 February, 2014
Author: L. Narasimha Reddy
Bench: L. Narasimha Reddy
THE HONBLE SRI JUSTICE L. NARASIMHA REDDY AND THE HONBLE SRI JUSTICE M.S.K. M.S.K.ISWAL
Crl.A.No.1372 of 2009
19-02-2014
Yatagiri Sreenivasulu and two others.. Appellants
The State of A.P., rep. by its Public Prosecutor, High Court of A.P.,
Hyderabad.. Respondent
Counsel for appellants : Ms. Naseeb Afshan
Counsel for respondent : The Public Prosecutor
<GIST:
>HEAD NOTE:
?CASES REFERRED : ----
THE HONBLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HONBLE SRI JUSTICE M.S.K. JAISWAL
CRIMINAL APPEAL No.1372 of 2009
JUDGMENT :(Per LNR,,J) One Sri Nannuru Venkata Swamy (P.W.1) is a resident of Thurupu Vendodu Arundhatheeyawada village of Gudur Rural Mandal in Nellore District. He runs a provision shop in that village. Apart from provisions, he is said to be selling bottles of liquor also. He is said to have run the shop up to 11.00 p.m. on 07.08.2007, and asked his father, Varadaiah, to sleep in the shop for its safety.
On 08.08.2007, P.W.1 is said to have noticed a gathering of people at 6.00 a.m. in front of his shop. He is said to have rushed there and found that the door of the shop was broken and his father died, on account of an injury on neck. A carton of brandy bottles, a rupee coin box and cash of about Rs.1,800/-, apart from some provisions, are said to have been stolen away. He submitted a complaint (Ex.P.1) to the S.H.O., Gudur Rural P.S. (P.W.12). Based upon Ex.P.1-complaint, P.W.12 registered Crime No.57 of 2007. P.W.1 stated in Ex.P.1 that he noticed that cash of Rs.1,800/- in the cash box, a rupee coin box and some brandy bottles were missing. He did not name anyone in Ex.P.1 and he stated that some unknown persons have killed his father and committed theft.
The police prepared scene of offence panchanama and caused inquest and post-mortem of the deceased. The Investigating Officer, P.W.13, is said to have received information on 21.09.2007 at 3.00 p.m. about the accused in the crime, and immediately secured the presence of one panch witness (P.W.7) and proceeded to Kothapatnam Girijan Colony of Kota Mandal. On seeing P.W.13 and his party, three persons were said to have been making an effort to run away, but they were apprehended, after some chase. These persons are framed as accused Nos.4 to 6. P.W.15, the C.I. of Police, Nellore, who worked at Gudur Circle between 14.11.2006 and 20.02.2009, is said to have received information about few more accused in relation to Crime No.57 of 2007, and apprehended accused Nos.1 to 3 on 31.08.2007. Accused Nos.7 to 9 are also said to have been apprehended, at a later stage.
After the conclusion of investigation, charge sheet, alleging the offences punishable under Sections 395, 396, 457 and 380 IPC, was filed against all the accused. After the case was committed to it and numbered as S.C.No.320 of 2008, the Court of III Additional Sessions Judge (Fast Track Court), Nellore, tried accused Nos.1 to 5 only, since accused No.6 died, during the pendency of the case, and the case pertaining to accused Nos.7 to 9 was split up. Through its judgment, dated 08.09.2009, the trial Court acquitted accused Nos.1 to 5 of all the charges framed against them. However, it convicted accused Nos.1 to 3 for the offence punishable under Section 412 IPC and imposed punishment of imprisonment for life and fine of Rs.1,000/- each, in default, to suffer simple imprisonment for one month. Hence, this Criminal Appeal by the accused Nos.1 to 3.
Ms. Naseeb Afshan, learned counsel for the appellants, submits that once the trial Court found that accused Nos.1 to 5 are not guilty of the offences alleged against them and when no charge for the offence punishable under Section 412 IPC was framed against accused Nos.1 to 3, there was no basis for it to convict them of that offence. She contends that the attempt made by the trial Court to justify the punishment under Section 412 IPC by invoking Section 222 Cr.P.C., cannot be countenanced in law. According to the learned counsel, the offence punishable under Section 412 IPC is an independent one and it cannot be treated as a minor offence.
Learned Public Prosecutor, on the other hand, submits that the appellants were found to be in possession of the property stolen from the place, where a dacoity was committed, and since they were not able to explain the ownership or the source thereof, the inevitable conclusion is that they are in possession of the property stolen in the dacoity. He contends that the trial Court has taken the correct view of the matter and no interference with the judgment of the trial Court is warranted.
Two points arise for consideration in this appeal. The first is as to whether the offence punishable under Section 412 IPC can be treated as a minor offence, capable of being dealt with under Section 222 Cr.P.C. The second is as to whether the prosecution has proved the offence under Section 412 IPC against accused Nos.1 to 3.
The brief introduction of the case has already been given in the preceding paragraphs. The trial Court framed charges, alleging the offences punishable under Sections 395, 396 r/w 149, 457 and 380 IPC.
Though as many as nine accused were arrayed in the case, accused No.6 died and, accordingly, the case against him abated. The case against accused Nos.7 to 9 was split up, obviously because they were not apprehended. The trial was confined to accused Nos.1 to 5. The prosecution examined P.Ws.1 to 15 and filed Exs.P.1 to P.16. M.Os.1 to 15 were taken on record. The trial Court itself found that none of the charges framed by it against accused Nos.1 to 5 is proved and, accordingly, it acquitted them of the said charges. However, it proceeded to convict accused Nos.1 to 3 for the offence punishable under Section 412 IPC, on the ground that certain number of one rupee coins and an empty plastic tin were recovered from them and they did not explain the ownership thereof to the satisfaction of the Court. The trial Court did take note of the fact that no charge was framed against accused Nos.1 to 3 for the offence punishable under Section 412 IPC. However, it tried to justify the conviction of accused Nos.1 to 3 for that offence, by taking recourse of Section 222 Cr.P.C. For answering the first point, it becomes necessary to extract both the provisions. They read:
Section 222 Cr.P.C. - When offence proved included in offence charged.
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
Illustrations:-
(a) A is charged, under section 407 of the Indian Penal Code (45 of 1860 ), with criminal breach of trust in respect of property entrusted to him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section
406.
(b) A is charged, under section 325 of the Indian Penal Code (45 of 1860 ), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.
Section 412 IPC - Dishonestly receiving property stolen in the commission of a dacoity:- Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
A perusal of Section 222 Cr.P.C. discloses that it enables the Court to convict a person of an offence of a lesser magnitude, if such person has been tried for an offence of a larger magnitude, of which, the one of lesser magnitude can be treated as a concoctant part. In other words, if the prosecution is not able to prove the offence of a larger magnitude, the Court can convict the accused of an offence of lesser magnitude, in case the ingredients of the latter are found to be existing from the evidence on record. The Court is free to take such recourse, without there being any specific charge, in relation to the offence of lesser magnitude.
The legislature has employed the expression minor offence. Neither the IPC nor the Cr.P.C. defined this expression. It is to be understood, by taking into account, the magnitude. An example to understand this phenomenon would be an attempt to murder, punishable under Section 307 IPC, and the allegations of causing grievous injuries, which fits into Section 324 or 326 IPC. It is not difficult to understand that the gravity of injuries as well as the motive of the offender would differentiate the two offences. Another factor is the punishment, which is prescribed for the respective offences. It is axiomatic that the punishment for minor offence must be less, compared to the one which is of a larger magnitude. It is only when the minor and the major (if one may so say) offences form part of the same species of offences, that the facility created under Section 222 Cr.P.C., can be availed. In other words, the ingredients of both the categories of offences referred to above must be broadly similar, so that the evidence, that is adduced with reference to a major offence, would be sufficient to drive home the allegation as to commission of a minor offence. If the law stipulates different ingredients for the two categories of offences, there does not exist any scope for invoking Section 222 Cr.P.C.
Referring to the facts of the case, the basic accusation, against accused Nos.1 to 3, or for that matter, the rest of the accused, is that they committed acts of house trespass, theft, dacoity and dacoity with murder. In this category of offences, one thing, which runs common, is that the predominant objective of the accused is to commit theft, and in that process, they came together and committed the murder of the person, who was found to be an obstacle for them. All the offences fall into one species and the class of offences comes to be differentiated depending on the presence or absence of certain factors. The offence punishable under Section 412 IPC is of a totally different character altogether from those mentioned in the charges framed by the trial Court. The person, who faces the charge under that Section, would not be accused of committing any theft by himself, or doing anything of that nature. What all he would be accused of is that he receives or retains any stolen property dishonestly, knowing fully well or having reason to believe that the property was secured by commission of a dacoity. Similarly, if he receives a stolen property from a person, whom he knows or has reason to believe to be a dacoit by himself or part of a gang, he can be said to have committed the offence punishable under Section 412 IPC. The sentence for this offence is imprisonment for life or rigorous imprisonment for a term which may extend to ten years. It needs to be mentioned that the punishment for this offence is the same, as the one that is stipulated for the offence punishable under Section 395 IPC, and it is more than the one prescribed for the offences punishable under Sections 457 and 380 IPC.
A careful reading of Section 412 IPC discloses that to prove this offence, the prosecution must establish that A (i) the accused dishonestly received or retained stolen property, and
(ii) the accused is aware of the fact that the property so received or retained has been procured by commission of a dacoity or B (i) the accused dishonestly received the property from a person, whom he knows or has reason to believe to be a part of a gang of dacoits, and
(ii) has reason to believe that the property received from such person has been stolen by such dacoits.
For all practical purposes, Section 412 IPC comes into play as a sequel to a comprehensive prosecution, wherein the prosecution has not only established the commission of dacoity, but also has proved the person, with whom the property is existing. Through an independent proof of the commission of dacoity, it is difficult to establish an offence punishable under Section 412 IPC.
In case the prosecution intends to get the accused convicted for an offence punishable under Section 412 IPC, it must take the assistance of some other material, to establish that the property, which is found to be in possession of the accused of that offence, has been stolen in the process of dacoity. Mere possession of property by an individual, even if he is not able to explain the source thereof, cannot lead to a conclusion that it has been the one stolen in the process of dacoity. Here itself, a note of caution needs to be added. The possession of every stolen property does not lead to an offence under Section 412 IPC. It is only the property, that is stolen through dacoity, that would become relevant. When such is the subtle distinction maintained by the legislature, it is not at all permissible to treat an offence under Section 412 IPC, as a minor offence.
There is another way of looking at the issue. Assuming that the offence under Section 412 IPC is subsidiary to the one of dacoity, whether under Section 395 or 396 IPC and, thereby, a minor offence, as mentioned under Section 222 Cr.P.C., it needs to be noted that an accused in an offence of dacoity is the one who committed an offence of that magnitude, by himself, along with other members of a gang. In contrast, an accused in an offence punishable under Section 412 IPC need not be alleged to have committed dacoity. He is otherwise innocent, except that he received or retained the goods that are stolen through dacoity. Therefore, the attempt made by the trial Court to treat the offence punishable under Section 412 IPC as a minor one, and to punish accused Nos.1 to 3 for that offence, even after the charges referable to Sections 395, 396 r/w 149, 457 and 380 IPC framed against them were found not proved, cannot be sustained in law. Further, the offences of dacoity, on the one hand, and the one under Section 412 IPC, on the other hand, are independent. Ultimately, if there exists any doubt as to the ingredients, alternative charges can be framed, by invoking Section 221 Cr.P.C., which, the trial Court did not do, in this case.
Coming to the second point, substantial part of this is covered by the discussion on the first point. It has already been pointed out that while a thief of higher degree would figure as an accused for the offences punishable under Sections 395 and 396 IPC, it is only a person, who just received or retained the goods which are procured through dacoity, that figures as an accused under Section 412 IPC.
If it is a property which is simply stolen, the provision that gets attracted is Section 411 IPC. If, on the other hand, a property is stolen in the process of a dacoity, the provision is Section 412 IPC. There is a phenomenal difference between the punishments that are stipulated under these two provisions. At the most, an offence under Section 411 IPC can be treated as a minor offence, vis--vis, an offence of theft or dacoity. The prosecution failed to establish any of the ingredients of the offence punishable under Section 412 IPC, which we have enlisted in the preceding paragraphs.
Added to that, the property involved is some one rupee coins, that aggregate, hardly to Rs.100/-, and an empty plastic tin. It would be childish to imagine that one has to commit a dacoity to get possession of such number of one rupee coins or an empty tin. At any rate, the trial Court itself found that the prosecution failed to prove the charge of dacoity. Therefore, the question of treating the recoveries said to have been made from accused Nos.1 to 3 as the goods stolen in the process of dacoity, cannot be countenanced. Added to that, the important ingredient, namely, the accused had knowledge or reason to believe that the property, which they were getting control of, was the one stolen in the dacoity; was not proved.
For the foregoing reasons, the Criminal Appeal is allowed, and the conviction and sentence ordered against the appellants/accused Nos.1 to 3, in S.C.No.320 of 2008 on the file of III Additional District & Sessions Judge (Fast Track Court), Nellore, through judgment dated 08.09.2009, are set aside. The appellants shall be set at liberty forthwith, unless their detention is needed with reference to any other crime. The fine amount, if any, paid by the appellants shall be refunded to them.
_____________________ L. NARASIMHA REDDY, J.
_______________ M.S.K. JAISWAL, J.
19th February, 2014