Prabu @ Moongial Adi Prabu vs State Rep By The Inspector Of ...
2021 Latest Caselaw 2185 Mad

                                                                            Crl.RC.Nos.641 and 581 of 2021


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               Reserved on : 21.10.2021

                                              Pronounced on : 07.01.2022

                                                        Coram:

                                  THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                   Criminal Revision Case Nos.641 and 581 of 2021 and
                                          Crl.M.P.Nos.9636 and 10536 of 2021


                     Prabu @ Moongial Adi Prabu
                                                             .. Petitioner in Crl.RC.No.641 of 2021

                     1.Manikandan @ Mani
                     2.Selvam @ Idappadi Selvam
                                                              Petitioners in Crl.RC.No.581 of 2021

                                                            Vs.
                     State rep by the Inspector of Police
                     Mallur Police Station
                     Salem District
                     (Crime No.524 of 2017)                        ... Respondent in both Crl.RCs.

Prayer Crl.RC.No.641 of 2021 : Criminal Revision filed under Section 397 read with 401 of Criminal Procedure Code, praying to allow the criminal revision by setting aside the judgment dated 02.02.2021 in Crl.A.No.54/2020 on the file of the learned Principal Sessions Judge, Salem, confirming the Judgement in C.C.No.45 of 2018 on the file of the Judicial Magistrate Court No.VI, Salem.

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

Prayer Crl.RC.No.581 of 2021 : Criminal Revision filed under Section 397 read with 401 of Criminal Procedure Code, praying to call for records in C.A.No.54 of 2020 dated 02.02.2021 on the file of the learned Principal Sessions Judge, Salem, confirming the order in C.C.No.45 of 2018 dated 06.08.2020 on the file of the Judicial Magistrate Court No.VI, Salem and set aside the conviction and sentence to secure the ends of justice.

For Petitioner in Crl.RC.No.641 of 2021 : Mr.C.Rajasekaran For Petitioners in Crl.RC.No.581 of 2021 : Mr.R.Sankarasubbu For Respondent in both Crl.RCs. : Mr.S.Sugendran Government Advocate (Crl. Side)

COMMON ORDER

(The case has been heard through video conference)

The Criminal Revision cases have been filed against the Judgment in

C.A.No.54 of 2020 dated 02.02.2021 on the file of the learned Principal

Sessions Judge, Salem, confirming the order of conviction and sentence

passed in C.C.No.45 of 2018 dated 06.08.2020 on the file of the Judicial

Magistrate Court No.VI, Salem.

2. The respondent police registered a case against the petitioners in

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

Crime No.524 of 2017 and after investigation, they laid charge sheet before

the learned Judicial Magistrate-VI, Salem, for the offence under Sections

454 and 380 of IPC. The learned Magistrate taken the charge sheet on file

and after completing the formalities framed charges against the A1 for the

offence under Sections 454 and 380 IPC and against A2 and A3 for the

offence under Sections 454 read with 34 IPC and 380 read with 34 IPC.

3. After completion of trial, the learned Magistrate found guilt of A1

for the offence under Sections 454 and 380 IPC and convicted and sentenced

him to undergo 3 years simple imprisonment and to pay fine of Rs.1000/- in

default to undergo one month simple imprisonment for the offence under

Section 454 IPC and also convicted and sentenced him to undergo 3 years

simple imprisonment and to pay fine of Rs.1000/- in default to undergo one

month simple imprisonment for the offence under Section 380 IPC. The

learned Magistrate also found guilt of A2 and A3 for the offence under

Sections 454 read with 34 IPC and 380 read with 34 IPC and convicted and

sentenced them to undergo 3 years simple imprisonment and to pay fine of

Rs.1000/- each in default to undergo one month simple imprisonment for the

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

offence under Section 454 read with 34 IPC and they were also convicted

and sentenced to undergo 3 years simple imprisonment and to pay fine of

Rs.1000/- each in default to undergo one month simple imprisonment for

the offence under Section 380 read with 34 IPC.

4. Challenging the said Judgment of conviction and sentence, the

accused persons had filed an appeal before the learned Principal District and

Sessions Judge, Salem, in Crl.A.No.54 of 2020 and the learned Principal

District and Sessions Judge after hearing the arguments advanced on either

side and considering the materials on record, dismissed the appeal and

confirmed the conviction and sentence passed against the appellants therein.

5. Now challenging the said Judgment of dismissal of appeal, A1 and

A2 have filed the present revision in Crl.RC.No.581 of 2020 and A3 has

filed Crl.RC.No.641 of 2021 before this Court. Since, both the revision cases

arising out of same Judgment, both the matters are heard together and

disposed of by the common order.

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

6. Learned Counsel for the petitioners in both the revisions submitted

that the prosecution has failed to prove its case beyond all reasonable doubt.

The petitioners/accused are strangers to the defacto complainant and

identification parade was not conducted in a proper manner. Though, the

occurrence is alleged to have taken place during day time, no independent

witness was examined. Even the defacto complainant has stated that A1

alone entered into her house and A2 was standing in the street and the other

accused/A3 was waiting in a vehicle near the compound wall. Therefore, the

offence under Section 454 IPC would not attract as against A2 and A3 and

that there is no proper evidence to connect them in this case. The material

documents on record show that the police had brought sniffer dog to the

house of the victim, which went till the end of the street and did not proceed

further, which itself shows that the accused were not identified, whereas, the

trial Court failed to appreciate the evidence and wrongly convicted the

petitioners.

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

7. The learned counsel would further submit that the appellate Court

as a final Court of fact finding, has to re-appreciate the evidence and to give

its findings independently, whereas, the learned Sessions Judge without

considering the materials, simply endorsed the views of the Magistrate and

dismissed the appeal. Further, photos of the accused have been shown to

P.W.1 through CCTV footages at the police station and thereafter only

P.W.1 adduced evidence identifying the petitioners as accused and P.W.1

could not have identified the accused without seeing the photos, which is

fatal to the case of the prosecution and both the Courts below failed to

appreciate the same, which warrants interference. Further, no recovery was

effected from A2 and A3. Further, the confession statements recorded by the

police parties are not admissible in evidence and it cannot be relied on as

evidence against A2 and A3. Therefore, the Judgment of the appellate Court

is liable to be set aside and the revision petitions have to be allowed.

8. The learned Government Advocate (Crl. Side) would submit that

A1 to A3 went to the house of P.W.1. At that time, no one was there in the

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

house and the door was locked. Hence, taking advantage of the same, A1

entered into the house, and took the jewels and money from the locker of

P.W.1. A2 was standing on the road and observing if anybody was coming

and the other accused/A3 was waiting in a two wheeler nearby the

compound wall of house of P.W.1 in order to escape soon after the

occurrence. Meantime, P.W.1 after dropping her children in the school

returned home. At that time, she saw A2 standing on the road by speaking

on the cell phone and A3 waiting in a two wheeler nearby the compound

wall. Thereafter when she reached her house, she found her house door was

opened and when she entered into the house, she saw A1 inside her house

and on seeing P.W.1, A1 ran away and climbed on the compound wall and

jumped outside from where, A3 who was standing in a two wheeler, picked

him up and escaped from the place. Immediately, she informed to her

husband and lodged a complaint. P.W.5 who is a neighbour of P.W.1 has

clearly stated that she saw A1 and A3 in the occurrence place and

subsequently she also identified the accused. Further, the accused have made

confession statement before the Village Administrative Officer following

which, recovery was also effected and from the recovery mahazar and

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

observation mahazar, the prosecution proved its case beyond all reasonable

doubt. The Magistrate as well as the Sessions Judge, rightly appreciated the

entire evidence and convicted the accused. Since P.W.1 had clearly seen the

accused, in order to confirm, the police had shown the photographs of

suspected accused to P.W.1 and after seeing the same, she confirmed

identification of the accused and subsequently the accused made confession

statements. Therefore, from the evidence of P.W.1 and P.W.5 and through

mahazar witnesses, the prosecution proved its case beyond all reasonable

doubts and the stolen properties were also recovered from A1. Therefore,

there is no merit in the revision cases and the revision cases are liable to be

dismissed.

9. Heard Mr.R.Sankarasubbu, learned counsel for the petitioners/A1

& A2 in Crl.R.C.No.581/2021, Mr.G.Rajasekaran, learned counsel for the

petitioner/A3 in Crl.R.C.No.641 of 2021 and Mr.S.Sugendran, learned

Government Advocate (Crl. Side) appearing for the respondent police and

also perused the materials on record.

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

10. The case of the prosecution is that on 03.11.2017 between 9.00 to

11 a.m., at Nilavarapatty, Muthusamy Nagar, the accused broke open the

door of the house of the defacto complainant with iron rod and entered into

the house and committed theft of 18 sovereigns of gold jewels and cash of

Rs.50,000/- from the bureau.

11. In order to substantiate the charges, framed against the accused,

before the learned Magistrate, on the side of the prosecution, totally 12

witnesses were examined as P.W.1 to P.W.12 and 11 documents were

marked as Ex.P1 to Ex.P.11. The stolen jewels were exhibited as M.O.1 to

M.O.6 and the cash was exhibited as M.O.7.

12. A reading of the evidence of P.W.1 shows that on 03.11.2017 at

about 9 a.m., P.W.1 had gone to drop her daughter in the school and

thereafter went to the vegetable market at Salem and returned to home

which is situated at Nilavarapatty, Muthusamy Nagar, Salem at about 11

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

a.m. At that time, near the entrance of her house, two persons were standing,

out of which, one person was standing in the middle of the road by talking

in cell phone and the other one was waiting in a two wheeler near the

compound wall. When she reached her house, she found the door was

opened and when she entered into the house, one person was running away

from the house. Immediately, she chased him at about 100 meters. However,

he ran towards the compound wall and climbed on the wall and escaped.

Thereafter, when she entered inside the room, she found her jewels and cash

of Rs.50,000/- kept in the bureau were missing. Therefore, she informed to

her husband and at about 4 p.m. they lodged the complaint.

13. In the evidence, P.W.5 who is the neighbour of P.W.1 has clearly

spoken that her house is just behind the house of P.W.1 and on hearing the

noise of P.W.1, she came out. At that time, she saw A1 jumping the

compound wall of house of P.W.1 and he got into the two wheeler, which

was driven by A2 and they flew away however, she has stated that she had

not seen A3. Thereafter, when she enquired P.W.1, she was informed that

the jewels and cash were missing.

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

14. P.W.6 is the Magistrate who conducted the Identification Parade

and he has spoken about the proceedings of the Identification Parade and

that Identification Parade Report was marked as Ex.P.4. P.W.9 is Village

Assistant and P.W.10 is the Village Administrative Officer and they have

spoken about the confession statements and recovery. P.W.3 and P.W.4 are

the witnesses to the observation mahazar. P.W.2 is the husband of P.W.1.

15. A reading of the evidence of the witnesses P.Ws.1, 2, 5, 6, 9 and

10 show that the prosecution proved its case beyond all reasonable doubt.

The counsel for the petitioners contended that P.W.1 herself did not identify

the accused and only after seeing the photographs taken from the CCTV

footages, shown by the police, she identified the accused before

P.W.6/Judicial Magistrate during Identification Parade. But in the evidence,

P.W.1 has clearly stated that she saw all the three accused at the time and

place of occurrence.

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

16. In the cases of this nature, the police would have got some

photographs of suspected accused and if they want to confirm, they would

show it to the victim and subsequently they would conduct Identification

Parade and that may not be a sole ground to disbelieve the evidence of

P.W.1, who is the eyewitness and who identified the accused. Further, the

evidence of P.W.9 and P.W.10 shows that the recovery was effected from A1.

17. The scope of revision is very limited. This Court cannot conduct

re-trial or re-appreciate the entire evidence. The Court has to only see if there

is any perversity in appreciation of evidence by the Courts below. It cannot

substitute its own view on the finding of facts, unless there is perversity in

the appreciation of evidence.

18. On a perusal of records, this Court does not find any perversity in

appreciation of evidence and the trial Court has rightly appreciated the

evidence and convicted the accused. As a fact finding Court, the appellate

Court has also given its independent findings and confirmed the conviction

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

and sentence passed by the learned Magistrate. There is no merit the

revision petitions. Accordingly, these Criminal Revision Cases are dismissed.

Consequently, connected miscellaneous petitions are closed. The trial Court

is directed to secure the custody of the petitioners in both the revisions to

serve remaining period of imprisonment, if any.

07.01.2022

Index : Yes/No

Speaking order/Non Speaking order

ksa-2

To:

1. The Principal Sessions Judge, Salem.

2. The Judicial Magistrate Court No.VI, Salem.

3. The Inspector of Police, Mallur Police Station, Salem District.

4. The Public Prosecutor, High Court of Madras.

https://www.mhc.tn.gov.in/judis Crl.RC.Nos.641 and 581 of 2021

P.VELMURUGAN,J.

ksa-2

Pre-delivery Judgment

Criminal Revision Case Nos.641 and 581 of 2021 and Crl.M.P.Nos.9636 and 10536 of 2021

07.01.2022

https://www.mhc.tn.gov.in/judis