Madras High Court
S.Sivasankar vs State By on 8 October, 2021
CRL.R.C.No.1226 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.10.2021
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
CRL.R.C.No.1226 of 2020
and
Crl.M.P.Nos.8575 & 8576 of 2020
S.Sivasankar
S/o, Selvam ... Petitioner
Versus
State by
The Inspector of Police,
Peelamedu Police Station,
Coimbatore. ...
Respondent
PRAYER: Criminal Revision Petition filed under Sections 397 & 401 of
the Code of Criminal Procedure, to set aside the judgment dated
07.03.2020 passed in C.A.No.162 of 2018 by the V Additional District
and Sessions Judge, Coimbatore, confirming the judgment dated
13.04.2018 passed in C.C.No.465 of 2013 by the Judicial Magistrate
No.VI, Coimbatore.
Page No.1 of 10
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CRL.R.C.No.1226 of 2020
For Petitioner : Mr.C.D.Sugumar
For Respondent : Mr,M.Sugendran
Government Advocate, (Criminal Side)
*****
ORDER
This Criminal Revision Petition has been filed to set aside the
judgment dated 07.03.2020 passed in C.A.No.162 of 2018 by the
V Additional District and Sessions Judge, Coimbatore, confirming the
judgment dated 13.04.2018 passed in C.C.No.465 of 2013 by the Judicial
Magistrate No.VI, Coimbatore.
2. The respondent police registered a case against the petitioner and
yet another person in Crime No.678 of of 2013 for the offence under
Section 392 I.P.C and after investigation laid a charge sheet before the
Judicial Magistrate No.VI, Coimbatore. The learned Magistrate taken the
charge sheet on file in C.C.No.465 of 2013. After completing the
formalities and conclusion of trial, convicted the petitioner for the offence
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CRL.R.C.No.1226 of 2020
under section 392 I.P.C and sentenced them to undergo three years
rigorous imprisonment and to pay fine of Rs.5,000/- in default to undergo
three months simple imprisonment. Challenging the said judgment of
conviction and sentence, both the accused filed the Criminal Appeal
before the Principal District and Sessions Court, Coimbatore. The
learned Principal District and Sessions Judge taken the case on file in
Crl.A.No.162 of 2018 and made over the same to the V Additional
District and Sessions Judge, Coimbatore. The learned Additional Judge,
after hearing the arguments advanced on either side and considered the
materials and judgment of the trial court, dismissed the appeal and
confirmed the conviction and sentence passed by the Magistrate. Now
challenging the said dismissal of the appeal, the first accused alone has
filed the present revision petition before this Court.
3. The learned counsel for the petitioner would submit that it is a
put up case against the petitioner by the police. Confession and Recovery
Mahazar witnesses were turned hostile and no independent witnesses
were examined in this case and other private witnesses other than the
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CRL.R.C.No.1226 of 2020
defacto complainant were also turned hostile. They did not support the
case of the prosecution. Though P.W.3, defacto complainant has stated
that she identified the accused before the Judicial Magistrate and the
Magistrate one who said to have conducted the identification parade was
not examined before the trial court by the prosecution. Even
identification proceedings and report were also not marked as prosecution
documents. Further, the prosecution produced the photo copy before the
defacto complainant and based on seeing the photos only, she identified
the accused before the trial court. The observation made by the trial court
is that the defacto complainant did not identify the accused at the first
instance and when the accused closed to him only, she identified the
accused. Therefore, the trial court failed to appreciate the evidence and
simply convicted the petitioner based on the official witness. Appellate
Court also failed to re-appreciate the evidence and simply endorsed the
views of the Magistrate and passed the order, which warrants interference
of this Court.
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CRL.R.C.No.1226 of 2020
4. The learned Government Advocate (Criminal Side) appearing for
the respondent would submit that P.W.3 is the defacto complainant. She
has clearly identified the accused and deposed that he is the one who
snatched the chain from her and the same was recovered and confession
statement also recorded. Therefore, the trial court rightly appreciated the
evidence and convicted the petitioner and imposed the sentence. The
Appellate Court also rightly re-appreciated the evidence and confirmed
the judgment passed by the trial court. Hence there is no merit in the
revision and the same is liable to be dismissed.
5. Heard the learned counsel for the petitioner and the learned
Government Advocate (Criminal Side) appearing for the respondent.
6. The case of the prosecution is that on the date of occurrence,
while the defacto complainant/P.W.3 walking on the road, A 1 and A2
came in motor cycle and when they approached P.W.3, A1, who is the
pillion rider, snatched the gold chain from the neck of P.W.3. Hence the
complaint.
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CRL.R.C.No.1226 of 2020
7. Admittedly, the respondent police registered a case against the
petitioner and yet another person in Crime No.678 of of 2013 for the
offence under Section 392 I.P.C. In order to substantiate the charges
framed against the accused, on the side of the prosecution, totally seven
witnesses were examined and 13 documents were marked. Out of 17
witnesses, P.W.3 is the defacto complainant. P.Ws.1 and 2 are the
Confession and Recovery Mahazar witnesses. They were not supported
the case of the prosecution. P.W.3 alone has stated that the petitioner and
another accused snatched her gold chain and she identified the accused
before the Judicial Magistrate. However, merely on perusal of the
materials, the prosecution has not marked the proceedings of the
Identification Parade and also the report filed by the Magistrate. Further,
the said Magistrate was also not examined by the prosecution. The main
contention of the revision petitioner is that, since there was no such
identification parade was conducted, the Magistrate was not examined
and the proceedings and report were also not marked and the Confession
and Recovery Mahazar witnesses were turned hostile and the place of
occurrence is also not proved.
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CRL.R.C.No.1226 of 2020
8. It is seen from the records, the prosecution miserably failed to
prove its case beyond reasonable doubt that the accused committed the
offence under section 392 I.P.C. Though P.W.3 has stated that she
identified the accused, however that was not proved by the prosecution
that P.W.3 identified the petitioner and other accused before the
Magistrate. Non -examination of the said Magistrate and non-production
of the documents are fatal to the case of the prosecution. The Confession
and Recovery Mahazar witnesses are also not supported the case of the
prosecution. Moreso, the defacto complainant has clearly stated that the
police shown the photographs of both the petitioner and other accused.
9. Though Revisional Court cannot sit in the arm chair of the
appellate court and re-appreciate the evidence, however, while exercising
its jurisdiction, it can find out as to whether there is perversity in the
appreciation of evidence. On a reading of the material documents, this
Court finds that there is a perversity in the appreciation of evidence by the
trial court and re-appreciation of evidence by the Appellate Court. The
prosecution failed to prove its case that the accused/petitioner has
committed the charged offence. P.W.3 identified the petitioner, in the
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CRL.R.C.No.1226 of 2020
absence of identification parade and also non-examination of the
Magistrate, which is fatal to the case of the prosecution. The appellate
court is a fact finding court and it should have re-appreciated the evidence
independently and should have rendered independent findings regarding
the commission of offence. A reading of the judgment of the appellate
court reveals that, the appellate court also failed to re-appreciate the
evidence. Therefore, this Court finds that there is a perversity in the
appreciation of evidence by both the Courts below that the accused has
committed the offence. The accused are not known to the defacto
complainant. She has never seen the accused before the occurrence. If any
stranger/unknown person is alleged to have committed the offence,
identification of the accused is mandatory. But, in this case,
proceedings/manner of the identification itself doubtful. The prosecution
neither produced the report of the Magistrate nor examined the said
Magistrate. Therefore, under these circumstances, this Court finds that,
there is a ground to interfere with the judgment of both the Courts below.
Judgment of both the Courts below are liable to be set aside.
10. In view of the above, the judgment dated 07.03.2020 passed in
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CRL.R.C.No.1226 of 2020
C.A.No.162 of 2018 on the file of the V Additional District and Sessions
Judge, Coimbatore, confirming the judgment dated 13.04.2018 passed in
C.C.No.465 of 2013 on the file of the Judicial Magistrate No.VI,
Coimbatore are set aside. Accordingly, the Criminal Revision Case is
allowed. Consequently, connected miscellaneous petitions are closed.
08.10.2021
Index: Yes/No
Internet: Yes/No
mfa
To
1. The V Additional District and Sessions Judge,
V Additional District and Sessions Court,
Coimbatore.
2. The Judicial Magistrate No.VI,
Coimbatore.
3. The Inspector of Police,
Peelamedu Police Station,
Coimbatore.
4. The Public Prosecutor,
High Court, Madras.
P.VELMURUGAN, J.
https://www.mhc.tn.gov.in/judis
CRL.R.C.No.1226 of 2020
mfa
CRL.R.C.No.1226 of 2020
and
Crl.M.P.Nos.8575 & 8576 of 2020
08.10.2021
https://www.mhc.tn.gov.in/judis
