Madras High Court
Mohan vs The State Represented By on 8 April, 2022
Crl.R.C.No.628 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.04.2022
CORAM
THE HONOURABLE MR.JUSTICE M.NIRMAL KUMAR
Crl.R.C.No.628 of 2017
Mohan ... Petitioner
Vs.
The State represented by,
The Inspector of Police,
Railway Police Station,
Salem District.
(Crime No.112 of 2015). ... Respondent
PRAYER: Criminal Revision is filed under Section 397 r/w 401 of the Code
of Criminal Procedure, to set aside the judgment dated 13.02.2017 made in
Crl.Appeal No.108 of 2016 on the file of the First Additional District and
Sessions Judge, Salem, in confirming the judgment dated 19.10.2016 made in
C.C.No.69 of 2015 on the file of the Judicial Magistrate Court No.3, Salem
and allow the above Criminal Revision.
For Petitioner : Mr.D.Anbarasan
For Respondent : Mr.A.Damodaran,
Additional Public Prosecutor
*****
ORDER
The petitioner was convicted by the learned Judicial Magistrate No.III,
Salem (trial Court), vide judgment, dated 19.10.2016 in C.C.No.69 of 2015
and sentenced to undergo one year Simple Imprisonment for offence under
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Crl.R.C.No.628 of 2017
Section 379 of IPC. As against the judgment of trial Court, an appeal was
preferred by the petitioner before the learned I Additional District and
Sessions Judge, Salem (lower appellate Court) in C.A.No.108 of 2016. The
lower appellate Court, by judgment, dated 13.02.2017 dismissed the appeal
confirming the judgment of the trial Court, against which the present Criminal
Revision Case.
2.The gist of the case is that on 30.04.2015, at about 01.00 p.m.,
PW2/defacto complainant was waiting in Salem junction to proceed to Erode
and he place his mobile phone in waiting room connecting charger. At that
time, a person/petitioner enquired PW2 about Jollarpet train, PW2 informed
that he does not know anything about it. After sometime, PW2 found that his
mobile phone placed in waiting room, was found missing. Immediately, he
lodged a complaint (Ex.P2) to PW6, the Sub Inspector of Police, attached to
the respondent Police. On receipt of the complaint (Ex.P2), PW6 was keeping
surveillance over the place, where the mobile phone of PW2 was found
missing. At about 05.00 p.m., PW6 found the petitioner and questioned him.
Since he gave contradictory version, he was searched by PW6, from his
pocket, the black colour Nokia mobile phone (MO1) of PW2 was seized under
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Crl.R.C.No.628 of 2017
Seizure Mahazar (Ex.P3) in the presence of PW4 and PW5. In this case, PW1
is the witness for Observation Mahazar (Ex.P1), PW3 is a sweeper, she was
cleaning the waiting room situated at platform Nos.3 and 4 at the time of
occurrence. PW6 seized MO1, arrested the petitioner and produced him
before the concerned Magistrate for remand and on completion of
investigation, charge sheet was filed.
3.During trial, on the side of the prosecution, 6 witnesses were
examined as PW1 to PW6 and 8 documents were marked as Exs.P1 to P8. On
the side of the defence, no witness was examined and no document was
marked. The trial Court, on conclusion of trial, convicted and sentenced the
petitioner, vide judgment, dated 19.10.2016 in C.C.No.69 of 2015. As against
the judgment of the trial Court, an appeal was preferred by the petitioner
before the lower appellate Court in C.A.No.108 of 2016. The lower appellate
Court, by judgment, dated 13.02.2017 dismissed the appeal confirming the
judgment of the trial Court.
4.The learned counsel for the petitioner submitted that earlier, the
petitioner was convicted in C.C.No.236 of 2013 by the learned Judicial
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Crl.R.C.No.628 of 2017
Magistrate No.III, Salem and undergone five months imprisonment for
offence under Section 379 IPC. Likewise, he was convicted by the learned
Judicial Magistrate No.VI, Coimbatore in C.C.No.222 of 2016 and undergone
three months imprisonment for offence under Section 379 IPC. In the present
case, the petitioner had already undergone two months imprisonment in the
concerned prison. He further submitted that after the year 2015, the petitioner
not involved in any of the case and not committed any offence similar in
nature. Now, he is peacefully living with his family. Hence, the learned
counsel prayed this Court to allow this Criminal Revision Case considering
the period of incarceration already undergone by the petitioner.
5.The learned Additional Public Prosecutor appearing for the
respondent Police submitted that the petitioner is an habitual offender, he was
involved in two cases in C.C.No.236 of 2013, on the file of the Judicial
Magistrate Court No.III, Salem and C.C.No.222 of 2014, on the file of the
Judicial Magistrate Court No.II, Coimbatore. In this case, on 30.04.2015, at
about 01.00 p.m., when PW2 was waiting for train to go to Erode, the
petitioner came there and picked up a conversation about arrival of Jollarpet
train and stolen the mobile phone (MO1) of PW2. PW2 raised alarm, PW3,
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Crl.R.C.No.628 of 2017
the Sweeper in waiting room came there and made a search. Unable to find
his mobile phone (MO1), PW2 went to the respondent Police Station, lodged a
complaint (Ex.P2). On his complaint, FIR (Ex.P6) in Crime No.112 of 2015,
for offence under Section 379 IPC was registered by PW6, the Sub Inspector
of Police. PW6 came to the scene of occurrence, prepared Observation
Mahazar (Ex.P1), Rough Sketch (Ex.P7) in presence of PW1 and he was
keeping a watch over the area on the identification given by the PW2 about
the petitioner. The petitioner was found coming out from the wine shop and
when he was questioned by PW6, he gave contradictory version and got
suspicious. When his pocket was searched, the mobile phone (MO1) of PW2
was found and the same was seized under Seizure Mahazar (Ex.P3) in
presence of PW4 and PW5. At about 04.45 p.m., the petitioner was arrested
and produced before the concerned Magistrate for remand. In this case,
within three hours, the FIR (Ex.P6) was registered, the stolen article i.e.,
mobile phone of the petitioner (MO1) was recovered.
6.He further submitted that the petitioner being a regular offender, no
leniency to be given, otherwise he will not commit similar type of offences in
future. The trial Court on the materials produced had rightly convicted the
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Crl.R.C.No.628 of 2017
petitioner and the same was confirmed by the lower appellate Court. Hence,
he prayed for dismissal of this Criminal Revision Case.
7.This Court considered the rival submissions and perused the materials
available on record.
8.It is seen that in this case, the petitioner was arrested within few hours
from the theft of mobile phone of PW2 (MO1). In the complaint (Ex.P1),
PW2 stated about the placing of mobile phone (MO1) for charging in the
waiting room at platform Nos.3 & 4 in Salem Junction. PW3 confirmed that
PW2 searched his mobile phone (MO1) in waiting room and gave
identification of the suspect. PW2 lodged a complaint to PW6, who registered
FIR in Crime No.112 of 2015 (Ex.P6), arrested the petitioner, who found in
nearby wine shop and seized the mobile phone of PW2 (MO1) from him under
Seizure Mahazar (Ex.P3) in presence of PW4 and PW5, prepared Observation
Mahazar (Ex.P1) in presence of PW1. The trial Court on perusal of evidence
and materials rightly convicted the petitioner and the lower appellate Court on
its independent assessment, confirmed the judgment of the trial Court.
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Crl.R.C.No.628 of 2017
9.It is seen that after the year 2015, the petitioner not involved in
similar kind of offences. Already, the petitioner had undergone several
months imprisonment in two cases in C.C.No.236 of 2013, on the file of the
Judicial Magistrate Court No.III, Salem and C.C.No.222 of 2014, on the file
of the Judicial Magistrate Court No.II, Coimbatore. As far as this case is
concerned, he had undergone two months imprisonment.
10.Considering that the petitioner not involved in similar kind of
offences, he has to take care of his family, he is the sole breadwinner of the
family and the petitioner already undergone incarceration for two months, this
Court is inclined to reduce the sentence imposed by the trial Court from one
year Simple Imprisonment to that of the period of incarceration already
undergone by the petitioner.
11.In the result, the judgment, dated 19.10.2016 in C.C.No.69 of 2015
passed by the learned Judicial Magistrate No.III, Salem which was confirmed
by the judgment dated 13.02.2017 in C.A.No.108 of 2016 by the learned I
Additional District and Sessions Judge, Salem is hereby modified and the
sentence imposed by the Courts below from one year Simple Imprisonment to
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Crl.R.C.No.628 of 2017
that of the period of incarceration already undergone by the petitioner.
Accordingly, this Criminal Revision Case is partly allowed.
08.04.2022
Speaking order/Non-speaking order
Index: Yes/No
Internet: Yes/No
vv2
To
1.The I Additional District and Sessions Court,
Salem.
2.The Judicial Magistrate Court No.III,
Salem.
3.The Inspector of Police,
Railway Police Station,
Salem District.
4.The Public Prosecutor,
High Court, Madras.
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Crl.R.C.No.628 of 2017
M.NIRMAL KUMAR, J.
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Crl.R.C.No.628 of 2017
08.04.2022
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