Chittoor vs Unknown
2023 Latest Caselaw 1685 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE No.1581 of 2008

ORDER:

This Criminal Revision Case is filed by a convict/A.2

under Sections 397 and 401 Cr.P.C. questioning the guilt and

punishment inflicted against her by the Courts below for the

offence punishable under Section 411 I.P.C.

2. Before the Courts below prosecution was at the behest of

the State which is shown as respondent in this revision.

3. A few facts are required to be noticed. The written

information dated 28.03.2005 in Ex.P.1 was lodged by PW.1

reporting theft of Nikon Camera and cash of Rs.150/-. That

was registered as Crime No.54 of 2005 at CCS Police Station,

Chittoor.

4. Written information dated 29.03.2005 in Ex.P.2 was

lodged by PW.2 stating that at Kodanda Rama Swami Temple in

PGR Lines, Chittoor, the hundi was broke open and cash of

Rs.500/- was stolen. That was registered as Crime No.55 of

2005 by CCS Police Station, Chittoor. The above are the two

relevant crimes for which the revision petitioner as A.2 and her

son as A.1 were prosecuted in C.C.No.174 of 2005 on a charge

Dr. VRKS, J Crl.R.C.No.1581 of 2008

under Section 411 I.P.C. After due trial, the learned V

Additional Judicial Magistrate of First Class, Chittoor by a

judgment dated 13.02.2006 found A.1 and A.2 guilty for the

offence under Section 411 I.P.C. A.1 was sentenced to undergo

rigorous imprisonment for three years and pay a fine of

Rs.100/- with a default sentence of simple imprisonment for

one month. A.2 was sentenced to undergo rigorous

imprisonment for six months and pay a fine of Rs.100/- with a

default sentence of simple imprisonment for one month. Both

the convicts preferred Criminal Appeal No.43 of 2006. Learned

District and Sessions Judge, Chittoor after due hearing on both

sides and after an elaborate reference to the evidence and after

scrutiny of the judgment of the trial Court, rendered its

judgment dated 13.10.2008 and approved the finding of guilt

and conviction as against both the appellants and modified the

punishment awarded to A.1. The learned Sessions Judge

reduced the rigorous imprisonment of three years inflicted

against A.1 to that of one year. For A.2 rigorous imprisonment

of six months was found appropriate. The fine inflicted against

both of them was maintained.

Dr. VRKS, J Crl.R.C.No.1581 of 2008

5. It is stated that A.1, after criminal appeal was disposed of,

underwent the sentence. His mother A.2 brought this revision

challenging the judgments of the Courts below.

6. Record discloses that there are various offences of theft

and loss of property occurred within the jurisdiction of various

police stations of Chittoor District. They are:

CCS Police Station, Chittoor:

Crime Nos.140/2004, 144/2004, 158/2004, 160/2004,

171/2004, 7/2005, 11/2005, 12/2005, 18/2005, 27/2005,

49/2005, 50/2005, 51/2005 and 52/2005.

Penumur Police Station:

Crime Nos.176/2004 and 19/2005.

Bangarupalem Police Station:

Crime No.38/2004

S.R.Puram Police Station:

Crime No.8/2005

Dr. VRKS, J Crl.R.C.No.1581 of 2008

7. Investigating agencies have been investigating all the

above referred crimes. It is in the backdrop of these aspects,

the relevant facts pertaining to the present case are to be

considered.

8. PW.6 was the Inspector of Police, CCS Police Station,

Chittoor. He got credible information about persons concerned

with the crimes. Therefore, he procured Assistant Secretary,

Gandlapalli Panchayat/PW.3 and Deputy Tahsildar working in

the Mandal Revenue Office, Chittoor/PW.4. Both of them were

asked to participate in the investigative process that was led by

PW.6. On 01.04.2005 the police party along with PWs.3 and 4

were waiting at a place opposite to Municipal High School at

Chittoor and at about 8:00 A.M. they found A.1 coming with a

cardboard box and PW.6 stopped him, questioned him and

verified the cardboard box and found large number of sarees,

wrist watches, gold chain and cash and on interrogation A.1

confessed his guilt. He was arrested and those articles were

seized and Ex.P.3-Mahazar was prepared. Then A.1 led the

police party to his house in Godugumur of Chittoor and there

they found A.2. A.1 told the police party that the stolen articles

are available with A.2 in the house. Then A.2 produced a large

Dr. VRKS, J Crl.R.C.No.1581 of 2008

number of stolen articles. She was arrested and those articles

were seized and Ex.P.4-Mahazar was prepared. Then A.1 and

A.2 told the police party that they have concealed some more

stolen articles in the bushes at a distance of 40 feet from their

house and led the police party and retrieved from the bushes

several stolen articles. Police seized them and in this regard

Ex.P.5-Mahazar was prepared. Be it noted, it is at this place

police detected MO.1-Camera pertaining to Crime No.54 of 2005

lodged by PW.1 and MO.2-cash pertaining to Crime No.55 of

2005 lodged by PW.2. Then A.1 and A.2 led them to a pawn

broker's shop stating that several other stolen articles were

given by them to the pawn broker. There from him police seized

large number of stolen articles and in that regard they prepared

Ex.P.6-Mahazar.

9. Alleging that both the accused were in possession of

stolen articles, they were tried before the learned Magistrate.

Prosecution examined PWs.1 to 6 and got marked Exs.P.1 to

P.11 and MOs.1 and 2. All the witnesses were cross-examined

by the learned counsel who appeared on behalf of both the

accused. Incriminating material available on record was offered

to both the accused under Section 313 Cr.P.C. and their

Dr. VRKS, J Crl.R.C.No.1581 of 2008

response was a mere denial and they did not offer any other

explanations. Record discloses that seizures were effected at

four places. One among them is the very house of this accused.

The house was located in Godugumur of Chittoor. The house

door number was mentioned as 3-341 at some places and 4-341

at some places. It is with reference to this discrepancy the

defence had examined DW.1 who is Revenue Officer. He stated

that Door No.3-341 is in Godugumur. He said that Door No.

4-341 is not in Godugumur, but is at a distance of 2 KMs. from

Godugumur and that house is located in Balaji Nagar, Chittoor

and that belonged to Catholic Mission and used as a Church.

He produced Ex.D.1 in that regard. On the basis of this

discrepancy in the door number, the contention that was raised

by the defence before the Courts below was that it was a false

case in which they were implicated as otherwise there could not

have been any such discrepancy and when the Mahazar

indicate Door No.4-341 and when they have established by

evidence that the said premises is a Church and not a house,

they made out their defence and they should be acquitted. Both

the Courts bestowed lot of attention on this argument and

concluded that oral evidence established that the recovery was

Dr. VRKS, J Crl.R.C.No.1581 of 2008

effected at the residential house of accused and the difference in

door number in some of the Mahazars was a clerical error and

they refused to concede to the argument advanced on behalf of

the defence. Trial Court on considering the evidence of PWs.1

and 2 found that MO.1 belonged to PW.1 and MO.2 belonged to

PW.2. Both the witnesses were offered for cross-examination

and the defence reported 'Nil' cross-examination. With that

material on record the trial Court recorded that MOs.1 and 2

belonged to PWs.1 and 2 respectively and as per their evidence

they were stolen and therefore they are stolen properties. By

the evidence of PWs.3, 4 and 6 learned trial Court found that

this stolen property was recovered by virtue of confessions made

by A.1 and A.2 and by virtue of the fact that they themselves

retrieved them from secret bushes. The trial Court held that the

accused knew that they were stolen properties and with that

knowledge they retained them and therefore they were guilty for

the offence under Section 411 I.P.C.

10. Learned Appellate Court revisited the entire evidence and

appreciated it independently and arrived at the same

conclusions and confirmed the guilt and conviction.

Dr. VRKS, J Crl.R.C.No.1581 of 2008

11. In this revision it is urged that Courts below failed to

appreciate the evidence properly and the following rulings were

not complied with.

1. Pullareddigari Venkataramana Reddy v. State of

A.P.1

2. Rajendra Nath Mahato v. T.Gangooly2

3. V.Sathyamaiah v. State of Andhra Pradesh3

The evidence was discrepant. Charging this revision petitioner

basing on the confession given by accused No.1. is incorrect.

No independent witness of the locality was examined. The

essential ingredients of Section 411 I.P.C. were not established

by evidence. While the prosecution alleged seizure at Door

No.4-341 the defence established that in the said house accused

were not living and that was a Church. In ignorance of all

these, both the Courts erroneously recorded guilt of the revision

petitioner and therefore they shall be set aside.

2002 (1) ALD (Crl.) 491

(1972) 1 SCC 450

(1978) 1 APLJ 83 (AP)

Dr. VRKS, J Crl.R.C.No.1581 of 2008

12. Arguing on behalf of the revision petitioner learned

counsel cited S.Babu Saheb v. The State of A.P.4.

13. Arguing on behalf of the State, learned Special Assistant

Public Prosecutor submits that credible evidence was available

before the Courts below and all the facts and law were

considered and appropriate conclusions were recorded requiring

no interference in this revision.

14. Having heard the arguments of learned counsel on both

sides, the point that falls for consideration is:

"Whether there was no believable evidence

constituting ingredients of offence under Section 411 I.P.C.

and the judgments of the Courts below are illegal or

irregular requiring interference?

15. Point:

Competency of the Court which tried the revision

petitioner, the procedure followed by the Court for conducting a

trial and the competency of the Court which heard the appeal

Manu/AP/0268/2009

Dr. VRKS, J Crl.R.C.No.1581 of 2008

and the procedure that was followed by the appellate Court are

in accordance with law and they are not subject matter of any

challenge in this revision.

16. The entire case of the revision petitioner turns on

evidence, its credibility and its appreciation. In the grounds of

revision, three legal authorities are cited. They are:

1. Pullareddigari Venkataramana Reddy's case (supra 1)

was a case of conviction of accused for the offence under

Section 302 read with 34 I.P.C.

2. Rajendra Nath Mahato's case (supra 2) was a case

under earlier Criminal Procedure Code, 1898 with

reference to Sections 202 and 204 Cr.P.C. dealing with

the aspect as to whether a learned Magistrate to whom a

case was not entrusted to was entitled to issue summons

to the accused or not?

3. V.Sathyamaiah's case (supra 3) was a case where

offences occurred because of faction feuds. The offences

were against human body. There was oral evidence and

Dr. VRKS, J Crl.R.C.No.1581 of 2008

medical evidence. As to how in a faction case, such

evidence was to be appreciated was considered.

17. All the above three rulings have absolutely no relevance to

the subject matter of the case and the arguments submitted in

this revision. Therefore, any further discussion on these rulings

is not necessary.

18. During the course of hearing, learned counsel for revision

petitioner cited S.Babu Saheb's case (supra 4). That is a case

of search of a car and recovery of non-duty paid liquor.

Offences were pertaining to the A.P. Prohibition Act and the A.P.

Excise Act. Section 100(4) Cr.P.C. was considered. These facts

indicated that the investigating officer carried with him two

panch witnesses out of whom one was found to be inimical

against the accused. These two panch witnesses were brought

from different places by the investigating officer and they were

not the neighbours where the accused was arrested and

contraband was seized. It was in those facts and circumstances,

the legality of the search and the believability of the evidence

concerning search and seizure fell for consideration before this

Court.

Dr. VRKS, J Crl.R.C.No.1581 of 2008

19. At para No.16 of the judgment, the ruling on law is stated

to the effect that when the raid was conducted based on a prior

information the investigating officer is right in taking mediators

along with him. Referring to Sections 100(4) and 100(5) of Code

of Criminal Procedure, which used the terms 'independent' and

'respectable' inhabitants of the locality, it is stated that

respectability does not connote any particular status or wealth

or anything of that kind. Independent respectable mediator

means one who can speak truth and depose honestly.

Respectable means one who is impartial and independent and

not closely connected with the officials or under the influence of

the officials. After appreciating the evidence this Court for

reasons recorded therein did not find the evidence on record

believable. It is based on this ruling, the learned counsel for

revision petitioner argued that in the case at hand search and

seizure occurred at the alleged house of accused and the two

panch witnesses are not local inhabitants and the two panch

witnesses used are stock witnesses and the learned Courts

below committed error in ignoring these aspects. On a careful

consideration of this contention, it has to be recorded that this

contention has no merit. In the first place what occurred at the

Dr. VRKS, J Crl.R.C.No.1581 of 2008

alleged house of the accused was not a search as contemplated

by Section 100 Cr.P.C. The evidence of PW.6 and PWs.3 and 4

clearly show that A.1 was intercepted and was arrested at an

open place and seizures were effected from him. It was the

confession of A.1 that led the police party resulting in discovery

of another fact which was located in the house of accused. It

was A.1 who led the police party to his house and there it was

A.1 and A.2 who retrieved some other stolen articles pertaining

to other crimes. Therefore, no search was conducted and only

seizure took place. MOs.1 and 2 pertaining to this case were

not recovered at that place. Therefore, whatever that happened

there is not very relevant so far as the present case is

concerned. PWs.3 and 4 are responsible Government servants.

It is never the case of defence and there is no evidence on record

showing that either of those two panch witnesses or the

investigating inspector/PW.6 had any oblique motives to

implicate the innocents. The large number of articles pertaining

to large number of crimes described in detail at para No.12 of

the impugned judgment of the appellate Court is itself is an

indication that it was quite improbable to say that they were all

planted by police. The fact that this revision petitioner along

Dr. VRKS, J Crl.R.C.No.1581 of 2008

with her son/A.1 made statements to the police and led them to

a secret place and retrieving MO.1 from under the bushes is a

fact that was proved by evidence. Therefore, the contention of

the revision petitioner that she was implicated based on

confession of A.1 is factually incorrect. As stated by Courts

below, MOs.1 and 2 were claimed to have been owned by PWs.1

and 2 respectively and for such items, defence never raised any

claim of ownership in themselves. The fact that they were stolen

from the respective places was spoken to by PWs.1 and 2 and

that remained unchallenged as the defence did not question the

factum of theft. Thus, MOs.1 and 2 satisfy the definition of

stolen property in terms of Section 410 I.P.C. Their discovery at

the behest of accused indicated knowledge of revision petitioner

that they are stolen properties. Courts below concluded that

such recovery was a recovery from the possession of this

revision petitioner. Learned trial Court recorded presumption

contained in Section 114 of the Indian Evidence Act and

concluded that accused did not explain as to how they came to

possess these articles showing that they never had knowledge of

the fact that they were stolen properties. Therefore, conclusions

were reached at by both the Courts below in accordance with

Dr. VRKS, J Crl.R.C.No.1581 of 2008

legal mandate. There is absolutely no merit in the contention of

the revision petitioner that for the offence under Section 411

I.P.C. was not established. It is a clear case that revision

petitioner was found in possession of stolen property knowing

that it was stolen property. Therefore, conviction of revision

petitioner for the offence under Section 411 I.P.C. is correct on

facts and law.

20. Learned counsel for revision petitioner submits that this

revision petitioner is a woman and is now aged just about 58

years and there is no other criminal history and she herself was

not the thief and argued that punishment of imprisonment is

harsh. Considering the fact that 18 years ago the crime

incident took place and for 17 years there has been legal

proceedings at one Court or other and considering the fact that

there is no other criminal history and that the revision

petitioner is an old woman, this Court finds is just that the

rigorous imprisonment of six months be converted into fine of

Rs.9,000/- with a default sentence of simple imprisonment for

six (6) months. With that modification, the point is answered

against the revision petitioner.

Dr. VRKS, J Crl.R.C.No.1581 of 2008

21. In the result, the Criminal Revision Case is allowed in

part modifying the judgment dated 13.10.2008 of learned

District and Sessions Judge, Chittoor in Criminal Appeal No.43

of 2006 and the judgment dated 13.02.2006 of learned V

Additional Judicial Magistrate of First Class, Chittoor in

C.C.No.174 of 2005. While retaining the fine and the default

sentence that were imposed by the Courts below, the

substantive sentence of rigorous imprisonment for six months

that was imposed by the trial Court and confirmed by the

appellate Court is converted into fine of Rs.9,000/- with a

default sentence of simple imprisonment for six (6) months. The

revision petitioner shall pay the fine amount on or before

10.04.2023 before the learned trial Court, failing which the

learned trial Court shall secure her presence and enforce the

punishment.

22. The Registry is directed to take steps immediately under

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

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

necessary steps to carry out the sentence imposed against the

petitioner in C.C.No.174 of 2005, dated 13.02.2006, and to

report compliance to this Court. Registry is directed to dispatch

Dr. VRKS, J Crl.R.C.No.1581 of 2008

a copy of this order along with the lower Court record, if any, to

the Court below on or before 29.03.2023. A copy of this order be

placed before the Registrar (Judicial), forthwith, for giving

necessary instructions to the concerned Officers in the Registry.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 27.03.2023 Ivd

Dr. VRKS, J Crl.R.C.No.1581 of 2008

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.1581 of 2008

Date: 27.03.2023

Ivd