Kavadi Venkamma Another vs The State Of A.P.
2022 Latest Caselaw 8698 AP

         HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

         CRIMINAL REVISION CASE No.367 OF 2013

ORDER:

This Criminal Revision Case came to be filed on behalf of the

petitioners, who are the appellants in Criminal Appeal No.206 of

2012 on the file of the Court of Additional District and Sessions

Judge, Narsapur (for short, „the learned Additional Sessions

Judge‟), challenging the judgment therein, dated 01.02.2013,

where under the learned Additional Sessions Judge dismissed the

Criminal Appeal filed by the petitioners herein confirming the

judgment in C.C. No.396 of 2010, dated 04.07.2012, on the file of

the Court of Additional Judicial First Class Magistrate, Narsapur,

East Godavari District (for short, „the trial Court‟).

2. The petitioners faced trial in C.C. No.396 of 2010, as above,

for the charge under Section 380 of the Indian Penal Code, 1860

(for short, „the IPC‟) or under Section 411 IPC in alternative and

the trial Court found them guilty of the charge under Section 380

IPC and, after questioning them about the quantum of sentence,

sentenced them to suffer Rigorous Imprisonment for two years and

to pay a fine of Rs.1,000/- each, in default to suffer Simple

Imprisonment for 30 days each.

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3. The parties to this Criminal Revision Case will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

4. The State of A.P. represented by the Sub-Inspector of Police,

Narasapur Town Police Station filed the charge sheet in Crime

No.237 of 2009 under Section 380 or 411 IPC alleging in

substance that LW.1-Thota Rambabu reported that two female

persons came to their shop on the pretext of purchasing silver

anklets. They observed many anklets nearly for one and half hour

in their shop. They purchased one pair of silver anklets and

committed theft of 10 pairs of silver anklets worth Rs.27,000/-

from their shop. The photographs of the said persons were found

in C.C. Camera, which was fixed in the shop. Basing on the said

report, LW.6, the Sub-Inspector of Police, Narsapur Town Police

Station, registered a case in Crime No.37 of 2009 for the aforesaid

offences on 15.11.2009 and investigated into. He examined the

scene of offence, prepared rough sketch and examined the

witnesses. He arrested the accused on 18.11.2009 at 10:00 A.M at

Palakole bus stand in the presence of the mediators. During

confession, they admitted the guilt and the Police recovered 10

pairs of silver anklets from the accused. Hence, the charge sheet.

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5. The learned Magistrate, took cognizance of the case under

Section 380 or 411 IPC and, on appearance of the accused,

documents were furnished to them as required under Section 207

of the Code of Criminal Procedure, 1972 (for short, „the Cr.P.C‟).

Thereafter, the learned Magistrate framed charge under Section

380 or 411 IPC against the accused in alternative for which the

accused denied the allegations, pleaded not guilty and claimed to

be tried.

6. In order to establish the guilt of the accused, the

prosecution examined PWs.1 to 6 and got marked Exs.P-1 to P-4

and MO.1. The trial Court, after closure of the evidence of the

prosecution witnesses, examined the accused as to the

incriminating circumstances in the evidence of the prosecution

witnesses under Section 313 Cr.P.C. and they denied the

incriminating circumstances and reported that they have no

defence witnesses.

7. The learned Magistrate, on hearing both sides and on

considering the oral as well as documentary evidence on record,

found the accused guilty of the offence under Section 380 IPC and

accordingly convicted and sentenced them as above. Felt aggrieved

of the same, the unsuccessful accused in the said case preferred

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Criminal Appeal No.206 of 2012 before the learned Additional

Sessions Judge, who, on hearing both sides and on considering

the oral and documentary evidence on record, gave a finding that

the prosecution was able to prove the guilt against the accused

before the trial Court beyond reasonable doubt, as such dismissed

the Criminal Appeal.

8. Felt aggrieved of the same, the unsuccessful appellants in

Criminal Appeal No.206 of 2012, dated 01.02.2013, preferred this

Criminal Revision Case.

9. Before framing the point for determination, it is pertinent to

place on record certain facts as evident from the proceeding sheet.

Originally, on challenging the judgment of the appellate Court, and

on the request of the petitioners, this Court on 20.02.2013,

suspended the sentence of imprisonment imposed against the

petitioners directing that they shall be released on bail on their

furnishing a personal bond for a sum of Rs.5,000/- each with two

sureties for a like sum each to the satisfaction of the learned

Magistrate. While so, when the petitioners were not getting ready

in the Criminal Revision Case and, when learned counsel

appearing for the petitioners was not appearing, several

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conditional orders were passed. Ultimately, on 14.03.2022, this

Court passed the following order:

"When there is no representation on behalf of the petitioner on 07.03.2022, the matter was directed to be listed under the caption of „for dismissal‟. Even today also there is no representation on behalf of the petitioner.

Therefore, this Court feels that the petitioner‟s counsel is not interested to prosecute this case. Hence, the bail granted on 20.02.2013 in Crl.Rc.M.P. No.560/2013 stands cancelled and the court below i.e., the learned Additional First Class Magistrate is directed to take steps to take the petitioner into judicial custody. Post this matter on 21.03.2022."

10. As against the above, it appears that the Police executed the

Warrant against the second petitioner, as such second petitioner

is taken into the judicial custody. Against the same, the second

petitioner filed I.A. No.1 of 2022 describing therein that the first

petitioner died and the prayer in the above is to suspend execution

of the sentence, pending disposal of the Criminal Revision Case.

While so, when this Court ordered notice on the said Application

to the learned Public Prosecutor, with a direction to list the matter

on 27.10.2022, on that day Sri J. Sarath Chandra Babu, learned

counsel, representing Sri V. Vijay Vardhan, learned counsel for the

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petitioners, reported that learned counsel for the petitioners is

ready to argue the Revision itself and sought time. Having heard

the matter on 02.11.2022, the matter was directed to be listed to

this date under the caption „For Pronouncement of Order‟. As

evident from the death certificate of first petitioner, which is

enclosed to in I.A. No.1 of 2022, the contents of the death

certificate are such that Kavadi Venkamma, female, husband of

Kavadi Mallikarjuna Rao, resident of Korukollu Village, Palakoderu

Mandal, died on 25.04.2014. The particulars that are mentioned

in the death certificate tallied with the first petitioner. Hence, the

Criminal Revision Case filed, insofar as first petitioner is

concerned, is going to be abated.

11. Now, the point that arises for consideration in deciding this

Revision is that whether the order, dated 01.02.2013, of the

learned Additional Sessions Judge in Criminal Appeal No.206 of

2012 suffers with any illegality and irregularity and whether it is

sustainable under law and facts as against the second petitioner?

12. POINT: Learned counsel appearing for the petitioners,

adverting to the grounds of Revision, would contend that the trial

Court recorded conviction under Section 380 IPC, which is only

relating to committing of theft in a dwelling house and it is not the

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case of the prosecution that the second petitioner committed theft

in any dwelling house, as such ingredients of Section 380 IPC are

not established. He would further contend that identification of the

silver anklets was not done by involving the learned Magistrate, as

such the evidence of PW.1 would not carry any weight.

Overlooking all these aspects, the Courts below convicted the

second petitioner as such Revision is liable to be allowed.

13. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, would contend that the evidence of

PWs.1 to 3 is consistent and Section 380 IPC has application to

the case on hand and the prosecution proved the guilt against the

second petitioner beyond reasonable doubt as such the Criminal

Revision Case is devoid of merits and is to be dismissed.

14. At the outset, this Court would like to make it clear that

Section 380 IPC contemplates the commission of theft in dwelling

house etc. It reads literally the commission of 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. So, it goes to

show that shop of PW.1 was a shop which was dealing with selling

of the ornaments and it can be taken as a place where the custody

of the property was there. So, evidently, Section 380 IPC has

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application to the allegations of the prosecution. Apart from this,

there is no hard and fast rule that identification of property

recovered in an offence pertains to commission of theft should be

done in the presence of the Magistrate alone. In this regard, while

Rule 34 of Criminal Rules of Practice and Circular Orders, 1990

(for short, „the Criminal Rules‟) contemplates the identification

parade of suspects shall be done by the Magistrate, no such

mandatory direction is there in Rule 35 of the Criminal Rules as

regards identification of the property. According to it, identification

parade of the property shall be done in the Court of the Magistrate

where the properties are lodged. It is not a case where the property

was originally lodged before the Court. Investigation Officer asked

PW.1 to identify the property, soon after it is recovered. It is not in

each and every case, such identification is to be done. The

property was committed theft from a jewellery shop, according to

the case of the prosecution, and it is not a case where PW.1, who

was the maker of the report, was not able to say in the report

about description of the property. So, the contentions advanced on

behalf of learned counsel for the petitioners in this regard are not

at all tenable.

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15. As the charge before the trial Court is relating to

commission of theft in a dwelling house, now the simple question

that falls for consideration is whether the prosecution has proved

before the Court below beyond reasonable doubt that second

petitioner (A-2) along with A-1 committed theft of 10 pairs of silver

anklets from the shop of PW.1.

16. In order to establish the case against the present petitioner

(A-2), (A-1 died during pendency of the Revision), prosecution got

examined PWs.1 to 3. So, PWs.1 to 3 are concerned with the

jewellery shop. PW.1 is the sales man in the shop. The substance

of his evidence is that on 14.11.2009 at 01:30 P.M both the

accused came to jewellery shop and asked about the silver anklets

which they intend to purchase. They saw all varieties of silver

anklets and purchased one pair. After the accused went away,

they verified the stock of silver anklets and found missing of 10

silver anklet pairs. They verified the C.C. camera footage and

found that both the accused committed theft of those 10 pairs of

silver anklets and on the next day, he lodged report, which is

Ex.P-1. They took the photographs through C.C. camera and made

out the prints. Police informed him that the property was traced.

He went to the Police Station and identified the stolen property.

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After that they took it from the Court towards interim custody.

Today, he brought the property. MO.1 is 10 pairs of silver anklets

weighing about 1 KG.

17. According to his cross-examination, prior to the incident, he

has no acquaintance with the accused. He did not say before the

Police that the accused purchased one pair of silver anklets from

his shop. This answer given by PW.1 has no significance as he

disclosed in Ex.P-1 clearly about the purchase of one pair of silver

anklets from the shop by the accused. He further deposed that

every day he opens the shop at 09:00 A.M. and closes it at 09:00

P.M. The business will be busy between 06:00 to 09:00 P.M. He

verified the silver anklets at 05:00 P.M on the date of incident.

Nearly 7 persons are working in the shop. He came to the shop at

09:00 A.M on the date of incident. His owner came to the shop at

09:20 A.M. His owner and his father daily used to sit in the

counter of the shop. He verified the C.C. camera personally on the

date of incident and found that the stolen property was kept with

A-2. Suresh Kumar and owner Rajendra Kumar also verified the

C.C. camera. He alone went to the Police Station and lodged the

report. He denied that he did not say before the Police that he

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verified the C.C. camera. He denied that there was no incident

happened on that day and he is deposing false.

18. On close analysis of the evidence of PW.1, there appears

nothing to doubt his testimony. He categorically mentioned in

Ex.P-1 that he verified the C.C. camera. When it is the evidence of

PW.1 speaking about the minute details regarding the commission

of theft of the property and keeping the property with A-2 and the

presence of A-1 and A-2 in the shop for about one and half hour

and their purchasing one pair of silver anklets, accused did not

venture to challenge the said testimony. No specific suggestion

was put before PW.1 that accused never visited the shop of PW.1

and never spent any time and never purchased one pair of silver

anklets.

19. Now coming to the evidence of PW.2, he corroborated the

evidence of PW.1 on all material aspects. PW.1 is no other than the

owner of the jewellery shop under the name and style of Jain

Jewellery Park at Narasapur. His evidence is similar as that of the

evidence of PW.1. Accused got elicited during the course of cross-

examination the same answers which were spoken by PW.1 with

regard to the timings of the opening of the shop at 09:00 A.M. and

closure at 09:00 P.M and that the owner of the shop and his father

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used to sit in the counter etc., So, the answers spoken by PW.2 are

consistent with the answers spoken by PW.1. Even the testimony

in his cross-examination shows that both the accused stayed at

his shop nearly for one and half hours. He denied in cross-

examination that there was no incident happened. So, even during

the course of cross-examination of PW.2, accused did not venture

to dispute their presence by entering into the shop of PW.1 on the

pretext of purchasing of silver anklets and their spending time for

one and half hours etc.,

20. Now turning to the evidence of PW.3, he is also a clerk in the

Jain Jewellery Park and he testified that PW.2 is the owner and

PW.1 is the sales man. He saw the accused on 14.11.2009 at his

shop at 01:30 P.M. He further spoke about the minute details as

regards the presence of the accused and their spending time for

one and half hours and their purchasing one pair of silver anklets

etc., Even during the course of cross-examination, PW.3

consistently deposed about the fact that he came to the shop at

09:15 A.M. and after that PW.2 came. He testified that the timings

of the shop and further busy timings between 06:00 to 09:00 P.M

every day. Even he testified that he also verified the C.C. T.V.

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footage and found the accused etc., So, even the evidence of PW.3

remained unshaken, during the course of cross-examination.

21. Turning to the evidence of PWs.4 and 5, who were cited as

mediators to speak about the arrest of the accused and recovery of

the property from them by the Investigating Officer, they turned

hostile to the case of the prosecution. Their evidence that at the

request of the Police they signed on the written papers is not

believable. They have no obligation to oblige the Police in signing

the mahazarnama. Simply because PWs.4 and 5 turned hostile to

the case of the prosecution, the case of the prosecution cannot be

thrown out.

22. There is evidence of PW.6, Investigating Officer, who deposed

that previously he worked as Sub-Inspector of Police, Narsapur

Town Police Station from 03.11.2009 to 29.08.2010. While he was

at Police Station, he received a report from PW.1. He registered a

case in Crime No.237 of 2009 under Section 380 IPC and Ex.P-4 is

the original FIR. He examined PW.1 and recorded his statement.

He visited the scene of offence at Jain Jewellery. He further

examined PWs.2 and 3. On 18.11.2009, he received credible

information about the accused and basing on which he proceeded

to Palakol bus stand along with PWs.4 and 5 and arrested the

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accused on 18.11.2009 at 10:00 A.M. In the presence of PWs.4

and 5, he seized 10 pairs of silver anklets from the possession of

the accused under the cover of mahazarnama. After that he sent

the accused to the Court for remand. After completion of

investigation, he filed charge sheet. During the cross-examination,

he deposed the mediators report was drafted at Palakol bus stand

and it took one hour for completing the mediators report. He does

not know whether both the accused previously involved in any

crime. He denied that he did not go to the scene of offence and did

not prepare mediators report. There remains nothing in the cross-

examination of PW.6 also to doubt his testimony. So, by virtue of

the evidence of PWs.1 to 3, which is cogent, trustworthy and

believable, the prosecution before the trial Court was able to

establish that the accused committed theft of 10 pairs of silver

anklets from the shop of PW.1. Apart from this, there was recovery

of the stolen property from the accused on 18.11.2009. The

commission of theft was occurred on 14.11.2009.

23. At this juncture, it is evident from Section 114(a) of the

Indian Evidence Act, 1872 that there is a presumption available in

support of the case of the prosecution. So, if a person is found in

possession of the stolen goods soon after commission of theft, he

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may be presumed as an offender of the commission of theft or that

he received the stolen goods knowing them to be stolen. The time

lag between the commission of theft and recovery can be taken as

soon after the theft.

24. In the light of the peculiar facts and circumstances, the

defence of the accused is denial simplicitor. The second petitioner

had no probable explanation as to how she came into the custody

of the Police at Palakol bus stand. So, in my considered view, the

evidence on record categorically proves the charge under Section

380 IPC against the present petitioner who was A-2 before the trial

Court. In the light of the above, the evidence adduced by the

prosecution before the Court below is consistent, trustworthy and

believable and the learned Additional Sessions Judge rightly

dismissed the Appeal filed by the petitioner (A-2) along with A-1

confirming the judgment of the trial Court.

25. The contention of the revision petitioners that there were no

ingredients to constitute the offence and that the learned trial

Judge placed reliance on the evidence of PWs.1 to 3 is devoid of

merits. The further contention that the prosecution did not

produce C.D of the C.C. Camera lacks bona-fides as the accused

did not dispute their presence in the shop of PW.1. Now, coming to

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the contention of the petitioner (A-2) that the sentence is unduly

severe as mentioned in the grounds of Revision, a perusal of the

judgment of the trial Court reveals that accused pleaded mercy to

take a lenient view before the trial Court. According to the

judgment of the trial Court, both the accused pleaded mercy. The

trial Court observed that there are mitigating circumstances to

take a lenient view and accordingly sentenced the accused to

Rigorous Imprisonment for two years under Section 380 IPC. In

my considered view, A-2, the present petitioner, was shown as 19

years old as on the date of offence. There were no previous

convictions proved against her. There was no evidence that

previously she had involved in any type of these offences. Though

the facts and circumstances are such that the case on hand

cannot be taken as a case to apply the benefits of the Probation of

Offenders Act, 1958 but the trial Court, in my considered view,

sentenced the present petitioner for a period of two years which is

excess. Having regard to the age of the present petitioner, as on

the date of offence, this Court is of the considered view that the

ends of justice would be met if the sentence of Rigorous

Imprisonment imposed against the second petitioner is reduced to

one year instead of two years.

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26. In the result, the Criminal Revision Case is allowed in part,

modifying the sentence of Rigorous Imprisonment imposed against

the second revision petitioner (A-2) as that of one year instead of

two years and the rest of the judgment of the appellate Court shall

stand confirmed in all respects. The case against the first revision

petitioner stands abated.

27. The Registry is directed to take steps immediately under

Section 388 Cr.P.C. to certify the judgment of this Court to the

trial Court and on such certification, the trial Court shall take

necessary steps to carry out the sentence imposed against the

second petitioner (A-2) in C.C. No.396 of 2010, dated 04.07.2012

and to report compliance to this Court.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date :14.11.2022 DSH