Andhra Pradesh High Court - Amravati
Gummala Murali Krishna vs The State Of A.P. on 16 November, 2023
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.740 of 2012
ORDER:
This Revision is arising out of judgment dated 13.04.2012
passed in C.A.No.384 of 2010 on the file of III Additional District &
Sessions Judge, Kakinada, wherein the learned Judge has dismissed
the appeal confirming the conviction and sentence imposed against
the revision petitioner/accused for the offence punishable under
Section 411 I.P.C. in the judgment dated 14.09.2010 in C.C.No.598
of 2007 passed by the learned Judicial Magistrate of First Class, Tuni.
2. Brief facts of the case of the prosecution are that: On
13.07.2007 at about 10.00 p.m, one N.Subbareddy(PW.1) parked his
Hero Honda Splendor motorcycle bearing No.AP 5N 1459 (M.O.1) in
front of his house. On the next day morning i.e. on 14.07.2007, he did
not find the vehicle. Immediately, he along with PW.2-V.Ramakrishna
while searching for his vehicle, found the revision petitioner/accused
trying to start the vehicle at Kottam Centre. On questioning, the
revision petitioner confessed to have committed the offence. They
handed over the revision petitioner/accused along with motor cycle
by lodging a complaint(Ex.P1) before the police. Later, the S.I. of
Police (PW.5), Tuni Police Station, after registration of First
Information Report(F.I.R) in Crime No.120 of 2007, arrested the
revision petitioner and seized the said motorcycle (MO.1) in the
presence of two mediators (PW.3 and PW.4) under Ex.P5-mediators
report. After completion of investigation, the police filed the charge
sheet.
3. The prosecution examined PW.1 to PW.5 and marked Ex.P1 to
Ex.P5 and Material Object(MO.1). On behalf of the accused, neither
oral nor documentary evidence was adduced.
4. The trial Court convicted the accused for the offence
under Section 411 IPC and sentenced him to undergo simple
imprisonment for a period of three months and to pay a fine of
Rs.1,000/-, in default, to suffer simple imprisonment for a period of
two weeks.
5. Aggrieved by the impugned order, the revision
petitioner/accused preferred an appeal before the lower appellate
Court, but the same was dismissed by confirming the trial Court
judgment.
6. Being aggrieved, the present revision has been filed by the
petitioner.
7. Heard Smt.S.A.V.Ratnam, learned Counsel for the revision
petitioner through video conference and the learned Assistant Public
Prosecutor for the respondent-State.
8. Learned counsel for the revision petitioner submits that the
appellate court, without appreciating the facts and evidence on
record, confirmed the judgment mechanically. Except the confession
allegedly made by the accused, there is no evidence or any
documentary proof to show that the revision petitioner committed
theft of motor cycle. she further submits that the mediators, in
whose presence the motor cycle was said to be seized, categorically
stated that the police have not seized any vehicle in their presence.
The prosecution failed to examine independent witnesses to establish
the guilt of the accused. Hence, prayed to allow the revision.
9. Learned Assistant Public Prosecutor while supporting the
impugned order submits that there is ample evidence produced by
the prosecution to bring home the guilt of the accused and there is
prima facie case against the revision petitioner/accused and there
are no grounds to interfere with the impugned order.
10. The point that arises for consideration in this revision is:
"Whether there is any illegality or impropriety in the
sentence imposed by the trial Court as confirmed by the
appellate Court i.e. III Additional District & Sessions
Judge, Kakinada?"
11. The trial Court i.e. learned Judicial Magistrate of First Class,
Tuni, vide judgment dated 14.09.2010 in C.C.No.598 of 2007, found
the accused guilty for the offence punishable under Section 411 I.P.C.
since MO.1-motor cycle was recovered from the possession of the
accused and also convicted and sentenced him to undergo Simple
Imprisonment for a period of three months and to pay a fine of
Rs.1,000/-.
12. Mainly, in the trial Court, the prosecution relied upon Ex.P5,
which is a mediator report(seizure report). On perusal of Ex.P5, it
shows that on 14.07.2007 at 8.30 p.m. in the presence of PW.3-
M.Krishna and in the presence of PW.4-K.Murali Krishna seized MO.1-
motor cycle said to be belonged to PW.1-N.Subbareddy and said
seizure said to be done by PW.5 by name T.Rama Mohan Reddy, who is
the Sub-Inspector of Police, Tuni Town Police Station.
13. Ex.P5- mediator report(seizure report) is a crucial document to
decide as to whether the revision petitioner/accused was in
possession of MO.1-motor cycle and in the presence of PWs.3 and 4,
PW.5, the Sub-Inspector of police seized the said motor cycle.
14. Further, on perusal of Ex.P5-mediator report(seizure report), it
is found that there are no details of PWs.3 and 4 except their
signatures at the end of the document. Besides it, as per prosecution
case, in the presence of PWs.3 and 4, the accused caught right-
handedly with MO.1-motor cycle and it is a stolen property belonging
to PW.1 by name N.Subbareddy. If Ex.P5 is established/proved, then
the burden shifts to the revision petitioner/accused to explain his
possession over MO.1-motorcycle.
15. In this case, as already stated supra Ex.P5-mediator
report(seizure report) does not contain the details of PWs.3 and 4.
Suddenly, PWs.3 and 4 were brought to the court and examined them.
16. PW.3 in his evidence stated that he is a Municipal Councillor
and he categorically stated that he did not act as mediator and about
three years prior to Ex.P5-mediator report(seizure report), the police
obtained his signature. But nothing was seized in his presence from
anybody as well he did not know the contents therein. Likewise,
PW.4 by name K.Murali Krishna also stated that he was running a
saloon shop near Police Station and he categorically stated that the
signature in Ex.P5 belonged to him but no seizure was made in his
presence from anybody and police obtained his signature. Except
that he did not know anything in this case.
17. Section 100(4) read with Section 102 Cr.P.C. says that the
search shall be made in the presence of witnesses and a list of things
seized in the case of such search and all the places in which they are
respectively found shall be prepared by such officer or other person
and signed by such witnesses.
18. In order to found the guilt of the accused under Section 411
I.P.C., the prosecution has to prove that the person, who possessed or
retained any property, which he has known that it is stolen property,
knowing or having reason to believe the same to be stolen property.
19. Unless Ex.P5 is not established/proved, the accused cannot be
found that he committed the offence under Section 411 I.P.C. In this
case, in particular, the trial Court, simply relied upon the evidence of
PW.5, who is the Investigating Officer and found the accused was in
possession of MO.1-motor cycle.
20. The trial Court also drawn inference under Section 114 of the
Indian Evidence Act rather presumed the existence of any fact which
thinks likely to have stolen. The trial Court also relied upon
illustration (1) of Section 114 of the Indian Evidence Act. But the said
illustration and Section 114 of the Evidence Act compared to the facts
presented before this Court, the prosecution could not prove MO.1 is
in possession of accused. Unless and until Ex.P5 is established it
cannot be said that the accused committed an offence punishable
under Section 411 I.P.C. Even the appellate Court did not carefully
gone through Ex.P5-mediator report(seizure report) or the evidence
of PWs.3 and 4 to confirm the judgment of the learned Judicial First
Class Magistrate, Tuni.
21. In the circumstance of the case, the person who speaks
against the accused is the Sub Inspector. Thus, in the context of the
case, the prosecution fails to establish that the revision
petitioner/accused has committed offence punishable under Section
411 of IPC. However, neither the circumstance to state nor the
consideration to state. Thus, knowledge of vehicle being stolen one in
the mind of the revision petitioner/accused is not established.
22. Both the learned Judicial Magistrate of First Class in
C.C.No.598 of 2007 and the learned III Additional District & Sessions
Judge in C.A.No.384 of 2010, have committed a serious error in
holding the revision petitioner/accused guilty for the offence
punishable under Section 411 of IPC. In consequence, the judgment
is not sustainable, it is deserved to be allowed.
23. Accordingly, the Criminal Revision Case is allowed, setting
aside the conviction and sentence recorded in the judgment dated
14.09.2010 in C.C.No.598 of 2007 passed by the learned Judicial First
Class Magistrate, Tuni, as confirmed in judgment dated 13.04.2013 in
C.A.No.384 of 2010 by the learned III Additional District & Sessions
Judge, Kakinada and thereby the revision petitioner/accused is
acquitted of the charge under Section 411 I.P.C. The
petitioner/accused shall be released forthwith if he is not required in
any other case.
24. Interim orders granted earlier if any, stand vacated.
25. Miscellaneous petitions pending if any, shall stand closed.
__________________
JUSTICE V.SRINIVAS
Date: 16.11.2023
Pab
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.740 of 2012
DATE: 16.11.2023
Pab
