THE HONOURABLE SMT. JUSTICE P.SREE SUDHA
CRL.R.C.No. 820 of 2009
ORDER:
This Criminal Revision Case is directed against the judgment of the learned Metropolitan Sessions Judge, Hyderabad, in Crl.A.No.364 of 2008, dated 12.02.2009, confirming the conviction and sentence of rigorous imprisonment for a period of three years for the offence punishable under Section 380 of I.P.C. imposed against the revision petitioner/A-1 by the learned XI Additional Chief Metropolitan Magistrate, Secunderabad, in C.C.No.180 of 2008 dated 17.06.2008.
2. It is the case of the prosecution that on 20.11.2007 when P.W.1 and his family members went out of the house situate at SBH, Trimulgherry after locking the same and returned to house and found removal of mesh of the door and also inner hooks of the door being broke open and that 2 on verification they found theft of gold and several silver articles weighing about 1000 grams and also 8 wrist watches and basing on his complaint, police registered a case in Crime No.211 of 2007 and took up investigation. It is further stated that on 17.12.2007 at about 20.00 hours, P.W.2 lodged a complaint stating that on 30.11.2007 he along with his family left for Delhi on official work after duly locking the house at Plot No.8, Banjara Nagar. Trimlgherry and that on 01.12.2007 he received a telephonic call from his housekeeping lady about the theft in the house after breaking open lock of the house and that on 17.12.2007 he came to the house and found gold ornaments weighing about 150 to 200 grams were stolen away and that basing on his report, police registered a case in Crime No.225 of 2007. During the course of investigation, P.W.6/Sub Inspector of Police, Kulsumpura Police Station arrested the accused on 30.12.2007 and that in pursuance of statement given by A-1, some of the stolen properties in the aforesaid two crimes 3 were recovered at her instance. Subsequently, A-1 was produced before the Court for judicial custody and A-2 was produced before the Juvenile Court as he is a juvenile. Previously, A-1 was convicted and sentenced in C.C.Nos.303 of 1999, 501 of 2000, 1658 of 2003, 1646 of 2003 and 2705 of 2003 by the II and VIII Metropolitan Magistrates, Hyderabad, and thereby the accused is liable for the offences punishable under Sections 454 and 380 read with Section 75 I.P.C.
3. Charges under Sections 454 and 380 of I.P.C. were framed against the revision petitioner/A-1 and she pleaded not guilty and claimed to be tried. The prosecution, in order to prove its case against the accused, examined P.Ws.1 to 7 and got marked Exs.P1 to P7 and M.Os.1 to 39. Neither oral nor documentary evidence was adduced on behalf of the accused.
4. On appraisal of entire evidence, both oral and documentary, the trial Court found the revision 4 petitioner/A-1 guilty of the offence punishable under Section 380 or 411 of I.P.C and accordingly convicted and sentenced her to undergo rigorous imprisonment for a period of three years for the said offence.
5. Aggrieved by the aforesaid conviction and sentence, the revision petitioner/A-1 preferred Crl.A.No.364 of 2008 and by judgment dated 12.02.2009, the learned Metropolitan Sessions Judge, Hyderabad, observed that the trial Court did not give definite finding whether the evidence on record proved an offence under Section 380 I.P.C. or an offence under Section 411 I.P.C. and there is no prohibition for framing of alternate charges, but certainly at the time of final decision, the Court has to find either of the two offences and not both the offences alternatively. The learned Judge further observed that as per Section 114 (a) of the Evidence Act, the prosecution has proved the offence under Section 380 of I.P.C. and in fact, there was no charge framed by the trial Court against A-1 for the offence under 5 Section 411 of I.P.C. Accordingly, the learned Judge held that the prosecution has proved guilt of A-1 under Section 380 of I.P.C. and thereby confirmed the conviction and sentence recorded by the trial Court for the said offence.
6. Aggrieved by the aforesaid conviction and sentence, the revision petitioner/A-1 preferred this criminal revision, inter alia, contending that there are no eyewitnesses to the incident and the panch witnesses did not elicit anything against the accused and moreover they did not identify the accused and that they turned hostile to the case of the prosecution. It is further contended that no identification parade was conducted to identify the accused and that the revision petitioner/A-1 was convicted only basing on the evidence of the Investigating Officer and, therefore, requested this Court to set aside the conviction and sentence imposed against the revision petitioner/A-1.
7. Heard both sides and perused the entire material available on record.
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8. Admittedly, the revision petitioner/A-1 was a habitual offender and she was involved in several cases of theft as per the crime numbers mentioned above. At her instance, ornaments were recovered from several pawnbrokers. Both the Courts below discussed the evidence at length. Though ornaments were recovered from the possession of revision petitioner/A-1 and they were seized at her instance from the pawnbrokers, as no charge is framed for an offence punishable under Section 411 of I.P.C. separately, the appellate Court held that the revision petitioner/A-1 is not liable to be punished for the said offence. Therefore, this Court is not inclined to go into the details regarding the said offence. A perusal of the judgment of the trial Court shows that charges under Sections 454 and 380 of I.P.C. were framed against the revision petitioner/A-1, but there was no discussion regarding Section 454 of I.P.C. The judgment of the trial Court was not clear regarding the sentence portion. As the 7 said aspect was already observed by the appellate Court, this Court is not inclined to go into the details of the same. There is a concurrent finding of both the Courts regarding the offence under Section 380 of I.P.C. No doubt, the revision petitioner/A-1 is a woman aged about 37 years, but she has committed theft in several houses and has been involved in several criminal cases. The appellate Court also held that when the panch witnesses turned hostile to the prosecution, if it results in dismissal of the case itself, then it gives a wrong signal to the society and hence they cannot be decisive persons to direct final result in the criminal cases. Thus, the said aspect of panch witnesses turning hostile was already dealt with by the appellate Court. Therefore, there is no interference warranted as far as conviction is concerned, but with regard to the sentence of imprisonment imposed against the revision petitioner/A-1 by the Courts below for the offence punishable under Section 380 of I.P.C., this Court finds it just and reasonable to reduce the sentence 8 of rigorous imprisonment of three years to simple imprisonment for a period of Six months.
9. The Criminal Revision Case is partly allowed and the sentence of rigorous imprisonment of three years imposed against the revision petitioner/A-1 by the Courts below is reduced to simple imprisonment for a period of Six months. The remand period, if any, shall be given set off Under Section 428 of Cr.P.C.
Miscellaneous petitions, if any, pending, shall stand closed.
________________________ JUSTICE P.SREE SUDHA 06.04.2023 Gsn.