Madras High Court
Gowtham vs State on 20 January, 2022
CRL.R.C.No.1184 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.1184 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 No.5 of 2013
dated 23.04.2013 by the II Additional District and Session Judge, Salem
confirming the conviction and sentence passed by the Judicial Magistrate
No.II, Salem in C.C.No.413 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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CRL.R.C.No.1184 of 2014
ORDER
(The case has been heard through video conferencing)
On 25.06.2011, P.W.1 went to the Sooramangalam Police
Station and when P.W.6 viz Ravichandran, the Sub Inspector of Police
was on duty, he lodged a complaint to the effect that on 20.05.2011
pursuant to his official work at about 2.00 p.m. opposite to railway
junction, he had parked his Hero Honda Splendor bearing Reg. No.
TN30F4896 near the Railway Junction Hotel and when he came back
after 30 minutes after having his lunch, he found his motorcycle missing.
On such complaint, a case in Crime No.797 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.413 of 2011 and upon summoning to the petitioner
and furnishing copies u/s. Section 207 Cr.P.C., the accused denied the
charges and stood trial.
2.Thereafter, the prosecution examined P.W.1 to P.W.7 and
marked Ex.P1 to Ex.P10. The Hero Honda Splendor motorcycle which
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CRL.R.C.No.1184 of 2014
was recovered from the accused was also marked as MO1.
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, 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 motorcycle by the owner / P.W.1., the trial Court
held that the offence is 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.
5.Aggrieved by the same, the petitioner / accused filed an
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CRL.R.C.No.1184 of 2014
appeal in Crl.A.No.5 of 2013 on the file of the learned II Additional
District and Sessions Judge, Salem and by judgment dated 23.04.2013
and after independently appreciating the evidence on record, the learned
Appellate Judge found that then in the case of theft, there will not be any
other evidence but recovery of the property which connects the accused
to the crime. That with 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.
6.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.
7.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
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CRL.R.C.No.1184 of 2014
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,
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
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CRL.R.C.No.1184 of 2014
conviction, this Court shall intervene in the present case also in exercise
of its Revisionary Power.
8.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 dismissal of the Revision.
9.I have considered the rival submissions made on behalf of
both sides. I have gone through the material evidence on record.
10.As contended by the learned counsel for the petitioner, there
is material contradiction with regard to the recovery itself which is the
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CRL.R.C.No.1184 of 2014
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
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.
11.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 stands allowed accordingly. The judgment of
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CRL.R.C.No.1184 of 2014
D.BHARATHA CHAKRAVARTHY, J.
kas
the learned Judicial Magistrate No.II, Salem dated 10.12.2012 in
C.C.No.413 of 2011 and the learned II Additional District and Sessions
Judge, Salem in C.A.No.5 of 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
(1/2)
kas
To
1.The Judicial Magistrate No.II, Salem
2.The II Additional District and Sessions Judge, Salem
3.The Public Prosecutor, High Court of Madras
4.The Deputy Registrar
Criminal Side, High Court of Madras
Crl.R.C.No.1184 of 2014
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