Gowtham vs State
2022 Latest Caselaw 879 Mad

                                                                                  CRL.R.C.No.1185 of 2014


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 20.01.2022

                                                          CORAM :

                      THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                    Crl.R.C.No.1185 of 2014

                     Gowtham
                     S/o.Muthaiya,                                            ... Petitioner

                                                             Vs.

                     State
                     Represented by
                     The Inspector of Police,
                     Sooramangalam Police Station.                            ... Respondent


                     Prayer: Revision petition filed under Section 397 r/w 401 of Cr.P.C.
                     pleased to set aside the Order passed in Criminal. Appeal 6 of 2013
                     dated 23.04.2013 by II Additional District and Session Judge, Salem
                     confirming the conviction and sentence passed by Judicial Magistrate
                     No.II, Salem in C.C.No.414 of 2011, dated 10.12.2012, u/s 379 IPC to
                     undergo rigorous imprisonment for 2 years.


                                   For Petitioner        : M/s.Y.Kavitha

                                   For Respondent :      Mr.L.A.J.Selvam
                                                         Government Advocate (Crl side)



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https://www.mhc.tn.gov.in/judis
                                                                            CRL.R.C.No.1185 of 2014


                                                      ORDER

(The case has been heard through video conferencing) On 02.04.2011, P.W.1 went to the Sooramangalam Police

Station and when P.W.6 viz Jagadeesan, the Sub Inspector of Police was

on duty, lodged a complaint to the effect that on 30.03.2011 she had gone

to receive her husband from the Airport and returned home at about

11.30 a.m. and found her TVS XL Super Heavy Duty motorcycle bearing

Reg.No.TN54A3705 parked in front of her house missing. On such

complaint, a case in Crime No.715 of 2011 was registered u/s.379 IPC.

Thereafter, P.W.7 took up the case for investigation and filed a final

report proposing the petitioner / accused guilty of the offence u/s.379

IPC. The learned Judicial Magistrate No.II, Salem, took up the case on

file in C.C.No.414 of 2011 and upon summoning to the petitioner and

furnishing copies u/s. Section 207 Cr.P.C., the accused denied the charge

and stood trial.

2.Thereafter, the prosecution examined P.W.1 to P.W.7 and

marked Ex.P1 to Ex.P10. The TVS XL Super Heavy Duty motorcycle

which was recovered from the accused was also marked as MO1.

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3.Upon being questioned about the adverse evidence on record

and circumstances u/s. 313 Cr.P.C., the accused denied the same.

However, no oral or documentary evidence let in on behalf of the

defence. The Trial Court therefore proceeded to hear the learned

Additional Public Prosecutor for the prosecution and the learned counsel

for the accused. The trial Court came to the conclusion that P.W.1 is the

owner of the motorcycle had identified the motorcycle recovered. When

P.W.7 was checking the road, by chance, he was able to intercept the

accused and on his voluntary confession totally six (6) motorcycles were

recovered from the backyard of the house. Therefore, the admissible

portion of confession leading to the recovery, seizure mahazar and

identification of the P.W.1., the trial Court held that the offence as

proved beyond reasonable doubt and found the petitioner / accused guilty

of the offence u/s.379 IPC and imposed punishment of two (2) years

Rigorous Imprisonment.

4.Aggrieved by the same, the petitioner / accused filed an

appeal in Crl.A.No.6 of 2013 on the file of the learned II Additional

District and Sessions Judge, Salem and vide judgment dated 23.04.2013

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after independently appreciating the evidence on record, the learned

Appellate Judge found that then in the case of theft, there will not be no

other evidence but recovery of the property which connects the accused

to the crime. That with the evidence of P.W.1 and P.W.7/ the

Investigating Officer proved the charge against the petitioner / accused.

After holding so, the learned Judge confirmed the conviction and

sentence imposed by the trial Court. Aggrieved by the same, the present

Revision is laid before this Court.

5.Heard Mrs.Y.Kavitha, the learned counsel appearing on

behalf of the petitioner and Mr.L.A.J.Selvam, the learned Government

Advocate (Crl. Side) appearing on behalf of the prosecution.

6.Taking this Court to the evidence of the mahazar witness as

well as the Investigating Officer, the learned counsel for the petitioner

points out that this the case where the conviction is made only on the

basis of recovery. As far as the recovery is concerned, there is material

contradiction as to the place of recovery. In one place it is mentioned as

if the vehicle was recovered from the workshop of the Parasuraman,

https://www.mhc.tn.gov.in/judis CRL.R.C.No.1185 of 2014

however, the observation mahazar says that the vehicle was recovered at

the backyard of the house of the accused. In this connection, the learned

counsel would submit that admittedly the prosecution on the same date

pursuant to the confession of the petitioner / accused had recovered this

motorcycle and the petitioner / accused was prosecuted in six (6)

different cases pursuant to the same recovery. However, in respect of the

six cases, four criminal Appeals preferred in C.A.No.2 of 2013,

C.A.No.3 of 2013, C.A.No.4 of 2013 and C.A.No.7 of 2013 were all

allowed vide judgment dated 23.04.2013 by the learned II Additional

District and Sessions Judge, Salem in respect of C.C.No.410 of 2011,

C.C.No.411 of 2011, C.C.No.412 of 2011 and C.C.No.415 of 2011

arising out of the same transaction. However, in respect of the two cases

alone, the conviction was confirmed. The learned counsel would further

submit that the manner of the charge and proof that including the delay in

complaint are same and similar in all the 6 cases therefore when the

accused has been acquitted on the ground that there is material

contradictions in respect of the recovery which is the similar basis of

conviction, this Court shall also intervene in the present case in exercise

of its Revisionary Power.

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7.Opposing the said submission, the learned Government

Advocate (Crl. Side) appearing on behalf of the prosecution would

submit that the petitioner is a habitual offender. Apart from the above

four cases acquitted there are sixteen (16) cases against him, in which, he

has been convicted in about 14 cases, which shows that the accused is an

incorrigible offender and that the offence has been proved by recovery.

Merely because there is discrepancy in the recovery evidence as to the

place of recovery, the same should not be considered as material and it

warrants no interference of this Court to exercise revisionary jurisdiction

and prays for dismissal of the Revision.

8.I have considered the rival submissions made on behalf of

both sides. I have gone through the material evidence on record.

9.As contended by the learned counsel for the petitioner, there

is material contradiction with regard to the recovery itself which is the

sole basis of the conviction in the present case. The place of recovery as

per the admissible portion of confession, which is Ex.P8 is that he has

kept the vehicles in his house. As per the evidence of Mahazar witnesses

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P.W.4 and P.W.5, the place of recovery was not at all mentioned. As per

the evidence of the Investigating Officer, the motorcycle was seized from

the backyard of the house of the accused in Selaiyamman Nagar.

Vazhapadi Therefore, since there is material contradiction of the

witnesses and the seizure mahazar, the same reason which was adopted

by the learned II Additional District and Sessions Judge, Salem, in

respect of the recovery of the other four cases would also apply to this

case. Therefore, the Lower Appellate Court even while acquitting the

accused in the four other connected cases convicted the petitioner in this

case alone. Therefore, I find this is the case that needs interference of

this Court in exercising its Revisional jurisdiction.

10.In view of the material contradictions as to the manner of

recovery, the accused is acquitted granting the benefit of doubt. This

Criminal Revision Case is allowed. The judgment of the learned Judicial

Magistrate No.II, Salem dated 10.12.2012 in C.C.No.414 of 2011 and the

learned II Additional District and Sessions Judge, Salem in C.A.No.6 of

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D.BHARATHA CHAKRAVARTHY, J.

kas 2013 dated 23.04.2013 are setaside. Fine amount any paid by the accused

to be refunded. The bail bonds if any executed by the petitioner shall

stand cancelled. The Registry is directed to transmit the original records

if any, to the respective Courts forthwith. Consequently, the connected

miscellaneous petition if any is closed.

20.01.2022 (2/2) kas

To

1.The Judicial Magistrate No.II Salem

2.The II Additional District and Sessions Judge Salem

3.The Deputy Registrar Criminal Side High Court, Madras

4.The Public Prosecutor High Court of Madras

Crl.R.C.No.1185 of 2014

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