Madras High Court
K.Karthick vs State Rep.By on 22 December, 2021
Crl.R.C.No.1221 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 22.12.2021
CORAM :
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
Crl.R.C.No.1221 of 2016
K.Karthick .. Petitioner/2nd
accused
Vs.
State rep.by
Inspector of Police,
Gobi Police Station
Erode District
Crime No.592/2013 .. Respondent
PRAYER : Criminal Revision Case has been filed under sections 397
read with 401 of Criminal Procedure Code to set aside the judgment and
conviction dated 12.09.2016 made in C.A.No.46/2016 on the file of III
Additional District cum Sessions Judge, Gobichettipalayam confirming
the judgment dated 24.02.2016 made in C.C.No.161/2013 on the file of
Judicial Magistrate No.I, Gobichettipalayam.
For Petitioner : Mrs.S.Vasavi Sridevi (Legal aid)
For Respondent : Mr.A.Gopinath
Government Advocate (Crl.side)
1/13
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Crl.R.C.No.1221 of 2016
ORDER
This Criminal Revision Case has been preferred challenging
the judgment of the learned III Additional District and Sessions Judge,
Gopichettipalayam, dated 12.09.2015 passed in C.A.No.46 of 2016.
2. The case of the prosecution is that on 31.07.2013, at about
3.00 p.m., the defacto complainant / Subbayal [PW.1] was walking
towards West near Gopi Pachaimalai Road, Mayura Nagar, the 2nd
accused drove the Yamaha motorcycle bearing registration No.TN 39 BY
8322, in which, the 1st accused travelled as a pillion rider. When they
came near the defacto complainant/PW.1, the 1st accused snatched her
gold chain of weighing about 3 sovereigns from her neck and escaped
from the scene of occurrence. On the complaint given by the defacto
complainant, a case has been registered by the Gopichettipalayam police
station in Crime No.592 of 2013 for an offence under Section 392 IPC.
3. The case was registered by the Sub Inspector of Police
[PW.8] in Crime No.592 of 2013 for an offence under Section 392 IPC
and FIR was prepared [Ex.P6]. The Inspector of police [PW.9] took up
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Crl.R.C.No.1221 of 2016
the case for investigation, went to the place of occurrence, prepared the
rough sketch and the Observation Mahazar in the presence of PW.1 to
PW.6. He also examined some of the witnesses and recorded their
statement. On 15.08.2013, at about 5.00 p.m., when he was involved in
vehicle check up at Gopichettipalayam-Kunnathur Road, Vadugapalayam
junction, the accused came in a red colour Yamaha motorcycle bearing
registration No. TN 39 BY 8322. On seeing the police in the check up
point, the accused were trying to escape from the spot, but the police
caught hold of them and enquired them. Thereafter, they confessed that
they had snatched the golden chain of the victim in this case; thereafter
police have arrested the accused and recorded their confession statement
in the presence of witnesses PW.7-Manikandan and Premkumar. In the
confession statement, the accused had spoken about the stolen property.
On the basis of the confession, stolen property involved in this case was
recovered under the Seizure Mahazar in the presence of witnesses
Manikandan and Premkumar. Thereafter, the accused was remanded to
judicial custody. The stolen property viz. Gold chain was marked as
MO.1. After completion of the investigation, the charge sheet was filed
against the accused for the offence under Section 392 IPC.
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Crl.R.C.No.1221 of 2016
4. On taking the case on file and on being satisfied with the
prima facie materials available on record, the learned trial Judge framed
the charges against the accused for the offence under Section 392 IPC
and questioned. Since the accused pleaded innocence and claimed to be
tried, trial was conducted.
5. On the side of the prosecution, nine (9) witnesses have
been examined as PW.1 to PW.9 and eight (8) documents were marked as
Ex.P1 to Ex.P8 and two material objects were marked as M.O.1 and
M.O.2. The incriminating materials that appear before the evidence on
the prosecution were put to the accused under Section 313 Cr.P.C., the
accused was questioned, he denied the same. On the side of the accused
no witness has been examined and two (2) documents were marked as
Ex.D1 and Ex.D2.
6. After the conclusion of the trial and after considering the
materials available on record, the learned trial Judge, found both the
accused guilty for the lesser offence under Section 379 and 356 IPC and
convicted them as follows:
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Crl.R.C.No.1221 of 2016
Rank of Charges Findings of Punishment
the the trial
accused Court
1st accused U/s.356 IPC Found guilty Convicted and sentenced to
undergo one year Rigorous
Imprisonment and to pay a fine
of Rs.1,000/-, in default to
undergo one month Simple
Imprisonment.
U/s.379 IPC Found guilty To undergo two years Rigorous
Imprisonment and to pay a fine
of Rs.1,000/-, in default to
undergo one month Simple
Imprisonment.
2nd accused U/s.356 IPC Found guilty Convicted and sentenced to
undergo one year Rigorous
Imprisonment and to pay a fine
of Rs.1,000/-, in default to
undergo one month Simple
Imprisonment.
U/s.379 IPC Found guilty To undergo two years Rigorous
Imprisonment and to pay a fine
of Rs.1,000/-, in default to
undergo one month Simple
Imprisonment.
7. Aggrieved over the said judgment, an appeal was
preferred by the 2nd accused in C.A.No.46 of 2016 and that the appeal
was also dismissed by the III Additional District and Sessions Judge,
Gopichettipalayam and found the accused guilty for an offence under
Section 392 IPC and convicted and sentenced as below:
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Crl.R.C.No.1221 of 2016
Rank of Charges Findings of Punishment
the the
accused appellate
Court
2nd accused U/s.392 IPC Found guilty Convicted and sentenced to
undergo two years Rigorous
Imprisonment and to pay a fine
of Rs.1,000/- in default to
undergo one month Simple
Imprisonment.
Challenging the same, the 2nd accused preferred the present criminal
revision case.
8. Heard the learned counsel for the petitioner and the
learned Government Advocate (Crl.side) for the State.
9. The learned counsel for the revision petitioner submitted
that the 2nd accused was convicted on the basis of his confession, which
is not legal; the defacto complainant had identified the accused for the
first time before the Court; and hence her evidence before this Court
cannot be relied on; since the name of the 2nd accused was not mentioned
in the F.I.R and the name of the accused was also not mentioned during
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Crl.R.C.No.1221 of 2016
the enquiry made by the police, the investigating officer ought to have
given a request for conducting test identification parade; the learned
counsel has also relied on the decision of the Hon'ble Supreme Court
rendered in Dana Yadav @ Dahu & Ors Vs. State of Bihar reported in
2002 Supp(2) SCR 363 in support of the above contention. In the said
judgment, it is held as under:
“(g) Ordinarily, if an accused is not named in
the First Information Report, his identification
by witnesses in Court, should not be relied
upon, especially when they did not disclose
name of the accused before the police, but to
this general rule there may be exceptions as
enumerated above.”
10. The learned Government Advocate (Crl. side) submitted
that both the accused have been arrested one and the same time and their
confession have also been recorded at the same time; since both the
accused have stated about the stolen object, the recovery was made; just
because the recovery of the article was made on the basis of the
confession statement of either of the accused, that will not absolve the
other from the criminal liability; the judgment of the Courts below does
not require any interference.
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Crl.R.C.No.1221 of 2016
11. Points for consideration:
Whether the sentence and judgment of the lower Appellate
Court confirming the judgment of the learned trial Judge is unfair,
improper or not legal?
12. On a perusal of the complaint given by PW.1, it is seen
that she had mentioned about two persons, who were coming in the bike.
Her evidence would reveal that one person was riding the bike and other
person was sitting behind the rider. PW.1 has not stated in her complaint
that she had not seen the face of the accused clearly and that it is possible
for her to identify him in case he was arrested by the police. Even during
the cross-examination, PW.1 has stated that she had seen this accused
only from a side view and hence she could not have noticed his face
fully. When such being the evidence on record, it is unreasonable to state
that the identification parade ought to have been conducted prior to the
trial. After recovering the stolen jewel from the accused, P.W1 was told
by the police that he was the accused who had stolen her jewel. So it is
possible for her to take notice of the accused only at that point of time
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Crl.R.C.No.1221 of 2016
and thereafter she identified him at the time of trial. So this case does not
deserve any identification parade. It is for the simple reason that PW.1
never claimed any time during the investigation that she had registered
the identity of the accused in her mind at the time of occurrence and she
could identify him, if any identification parade was conducted.
13. Both the accused were arrested together and they have
jointly given the confession and shown the place where exactly the stolen
jewels were concealed. In fact on the basis of the same confession, the
police could recover some other stolen properties involved in some other
cases as well.
14. It is submitted by the learned counsel for the petitioner
that once the recovery was made based on the confession of the 1 st
accused, the statement of the 2nd accused in connection with the recovery
of the article cannot be held as incriminating material against the 2 nd
accused. It is to be noted that both the accused have been arrested in one
and the same time and the recovery was made in the presence of both the
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Crl.R.C.No.1221 of 2016
accused in the presence of witnesses. Both the accused were travelling in
the bike which was also a stolen one. So the involvement of the 2nd
accused cannot be overlooked for any super technical reason.
15. The evidence of PW.1 to PW.6 would show that PW.1
has lost her jewels as it was snatched by two persons came in the bike.
After recovery of the jewels on the confession of the accused, it was
identified by PW.1. Thus the connection between the stolen articles and
the accused was established in this case. The custody of the stolen
articles with the accused would no doubt draw an advance presumption
under Section 114 of Evidence Act and that alone is sufficient to prove
their involvement in the offence. The learned trial Judge and the first
appellate Judge have rightly appreciated the evidence on record and
convicted both the accused by recording a finding about their guilt for
the offence under Sections 379 and 356 IPC.
16. It seems that the appellate Court has modified the
sentence and convicted the accused for the offence under Section 392
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Crl.R.C.No.1221 of 2016
IPC. This is a simple case of theft. It is not the case of the prosecution
that the accused had threatened the defacto complainant to part away
with her property. So it is wrong on the part of the appellate Court to
convict the accused under Section 392 IPC. Such a finding cannot be
given by the appellate Court in an appeal filed by the accused and not by
the prosecution. So I feel that the judgment of the first appellate Court
should be modified by confirming the judgment of the Judicial
Magistrate No.I, Gobichettipalayam, dated 24.02.2016 passed in
C.C.No.161/2013.
17. However, this Criminal Revision Case is disposed of
and the judgment of the appellate Court made in C.A.No.46 of 2016,
dated 12.09.2016 is modified to the effect of confirming the judgment of
the trial Court in C.C.No.161 of 2013 that the accused is found guilty for
the offence under Section 379 IPC. The accused is convicted and
sentenced to undergo two years R.I and to pay a fine of Rs.1,000/-, in
default to undergo one month S.I. The period of incarceration undergone
by the accused can be set off under Section 428 Cr.P.C.
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Crl.R.C.No.1221 of 2016
18. The trial Court is directed to issue NBW to secure the
petitioner/accused and commit him to prison to undergo the remaining
period of sentence.
22.12.2021
Index : Yes/No
Internet : Yes/No
rpl
To
1. The III Additional District cum Sessions Judge, Gobichettipalayam.
2.The Judicial Magistrate No.I, Gobichettipalayam.
3.The Inspector of Police,
Gobi Police Station
Erode District
4.The Public Prosecutor,
High Court, Madras.
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Crl.R.C.No.1221 of 2016
R.N. MANJULA, J.
rpl
Crl.R.C.No.1221 of 2016
22.12.2021
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