Madras High Court
Sathiesh @ Sivakumar vs The State on 1 December, 2021
Crl.R.C.No.320 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.12.2021
CORAM
THE HON'BLE Ms. JUSTICE R.N.MANJULA
Crl.R.C.No.320 of 2016
and Crl.MP.Nos.2136 & 2137 of 2016
Sathiesh @ Sivakumar ... Petitioner/Accused No.2
Vs.
The State
By Sub Inspector of Police,
Sivagiri Police Station,
Sivagiri,
Erode District. ... Respondent/Complainant
Criminal Revision Petition filed under Section 397 r/w 401 Cr.P.C.
seeking to set aside the judgement dated 28.08.2014 made in Crl.A.No.6 of
2014 on the file of the Principal Sessions Court, Erode, confirming the
conviction and modifying the sentence of the judgement dated 07.01.2014 in
C.C.No.79 of 2009 on the file of the District Munsif – Cum – Judicial
Magistrate Court, Kodumudi.
For Petitioner : Mr.A.Sundaravadhanan
For Respondent : Mr.A.Gopinath
Government Advocate
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Crl.R.C.No.320 of 2016
ORDER
This criminal revision has been filed seeking to set aside the judgement of
the learned Principal Sessions Judge, Erode dated 28.08.2014 passed in
Crl.A.No.6 of 2014, confirming the conviction and modifying the sentence of
the judgement of the learned District Munsif – Cum – Judicial Magistrate,
Kodumudi dated 07.01.2014 in C.C.No.79 of 2009.
2. This petitioner is the second accused in CC.No.79/2009.
3. According to the case of the prosecution, on 01.09.2009 at about
00.30 am, accused 1 to 3 had stolen four goats worth Rs.6,000/- belonging to
Sengamuthu, with an intention to sell the same and raise money. Based on the
complaint given by Sengamuthu/PW.1, a case was registered in
Cr.No.207/2009 on the file of Sivagiri Police station for the alleged offence
under Sec.379 IPC. The FIR was prepared by PW.5/R.B.Sundharam, Sub
Inspector of Police/Investigating Officer. He also took up the case for
investigation went to the place of occurrence and prepared the observation
mahazaar and rough sketch in the presence of the witnesses.
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Crl.R.C.No.320 of 2016
3.1. On 02.09.2009 when he was checking vehicles at Vilakethethi, the
accused came in a Maruthi car. When he enquired them, they gave their
confession statement in the presence of the witness/PW.4. Their confession
statement led to the recovery of the goats under Seizure Mahazar (Ex.P.4). The
seized goats were sent to Court by Form-95, which is marked as Ex.P.7 and the
accused were arrested and sent to judicial custody. After concluding the
investigation, charge sheet has been filed against the accused for the offence
under Sec.379 IPC.
4. After the case was taken on file and after completing the legal
mandates, charges were framed against the accused under Sec.379 IPC he was
questioned. Since the accused denied the charges and claimed to be tried, the
trial was conducted.
5. During the course of the trial, on the side of the prosecution, 5
witnesses have been examined as PW.1 to PW.5 and 7 documents were marked
as Ex.P.1 to P.7. The seized goats were marked as M.Os.1 to 4. After the
conclusion of the trial and after considering the material evidence available on
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Crl.R.C.No.320 of 2016
record, the learned Trial Judge found the accused guilty under Sec.379 IPC and
convicted and sentenced him as below:
Rank of Povision Sentence
the under which
accused convicted
A-2 Sec.379 IPC To undergo one year of rigorous imprisonment
The Criminal Appeal filed by the accused before the learned Principal District
Sessions Judge, Erode in Crl.A.No.6/2014 was also dismissed, confirming the
conviction. However the sentence was modified reduced to 6 months rigorous
imprisonment. Aggrieved over the same, the second accused has filed this
Criminal Revision Case.
6. Heard Mr.A.Sundaravadhanan, learned counsel for the Revision
Petitoner and Mr.A.Gopinath, Government Advocate, (Cri.side) appearing for
the respondnet/State.
7. The learned counsel for the revision petitioner submitted that the
petitioner/A-2 is not involved in the occurrence and there is no incriminating
evidence against him. He further submitted that the vehicle in which all the
three accused said to have travelled was not marked as a Material Object before
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Crl.R.C.No.320 of 2016
the trial Court, but the same was marked only before the Appellate Court. The
Appellate Court has marked the vehicle only during the pendency of the
appellate proceedings before the Sessions Court. The stolen property namely
the goats were seen in the custody of the accused in a Maruthi Car bearing
Registration No.TN.09-E-5940. At the time when the Investigation Officer
enquired them the accused did not give any acceptable explanation for
possessing the goats. On their confession, the goats were recovered and they
were marked as the case properties in this case. The evidence of the
complainant would show that the goats belonged to him and they were found
missing from the night of 01.09.2009.
8. The Government Advocate, (Cri.side) appearing for the
respondent/State submitted that the prosecution ought to have marked the
Maruthi car in which the accused travelled along with the goats. But this minor
discrepancy on the part of the Investigation Officer will not defeat the entire
case of the prosecution, especially when the recovery was proved by the
prosecution beyond reasonable doubt.
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Crl.R.C.No.320 of 2016
9. Point for consideration:
Whether the findings and judgment of the
Appellate Court is fair, proper and legally sustainable?
10. Point: This is a case of theft in which the stolen properties have
been recovered from the accused. The stolen properties are the goats of the
complainant. And hence it can not be claimed by the accused that the said
properties are planted by the police and that the recovery is a drama enacted by
them.
11. When the stolen goats were found to be in possession of the
accused and the accused could not offer any explanation for his possession over
the same, it has to be presumed under sec.114 of the Evidence that the accused
had stolen the same. It is true that the van in which the goats were taken ought
to have been marked as a Material Object before the trial court itself. But the
said omission was subsequently cured at the time of hearing the appeal. There
should not be any negligence on the part of the prosecution to mark the van in
which the goats were found. In order to avoid the practical difficulties in
bringing the van to court at the time of trial, the photographs of the vehicle with
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Crl.R.C.No.320 of 2016
its Chasis number and Engine Number can be taken and preserved in the Court,
at the time when the vehicle is given on interim custody to its owner. And
during trial, it is sufficient to mark the photographs. So non-marking of the
Vehicle as a Material Object can not be considered as fatal to the case of the
prosecution.
12. But in this case the most important case properties are the goats
and they have been recovered from the accused and the recovery is proved
beyond reasonable doubt with the evidence of recovery witness namely PW4-
Karthikeyan and the same was identified by PW.1/Sellamuthu. With these
proved facts before the Court, the Court can come to one and only conclusion
that the accused had stolen the goats and kept it under his illegal custody. The
Courts below have rightly appreciated the evidence available on record and
recorded a finding of guilt against the accused for the offence under Sec.379
IPC.
13. In the given facts and circumstances of the case, I do not find any
reason to interfere with the judgments of the Lower Appellate Court as well as
the Trial Court. As it is seen from the records, the sentence imposed as against
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Crl.R.C.No.320 of 2016
one of the co-accused has been modified and reduced to the period already
undergone by him in prison, this Court is of the view that the very same
principle should be adopted in the case of the present petitioner/A-2 also.
In the result, this criminal revision petition is partly allowed and the
judgment of the learned Principal Sessions Judge, Erode dated 28.08.2014
passed in Crl.A.No.6 of 2014 is modified to that effect that the guilt of the
petitioner/A-2 is confirmed and he is convicted and sentenced to undergo simple
imprisonment for a period of imprisonment already undergone by him.
Connected Criminal Miscellaneous Petitions in Crl.MP.Nos.2136 & 2137 of
2016 are closed.
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Index:Yes/No
Speaking /Non Speaking
Internet: Yes/No
jrs
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Crl.R.C.No.320 of 2016
To
1.The Sub Inspector of Police,
Sivagiri Police Station, Sivagiri,
Erode District.
2.The Principal Sessions Judge,
Erode.
3.The District Munsif – Cum – Judicial Magistrate,
Kodumudi.
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Crl.R.C.No.320 of 2016
R.N.MANJULA, J.
jrs
Crl.R.C.No.320 of 2016
01.12.2021
https://www.mhc.tn.gov.in/judis
