Madras High Court
S.Rameshkumar vs The State Represented By on 27 June, 2022
Crl.R.C.No.75 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.06.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.R.C.No.75 of 2019
and
Crl.M.P.Nos.727, 728 & 732 of 2019
S.Rameshkumar ... Petitioner
Versus
The State represented by
The Inspector of Police,
Dharapuram Police Station,
Tirupur District,
Crime No.591 of 2013 ... Respondent
Prayer: Criminal Revision Case filed under Section 397 & 401 Cr.P.C, to
set aside the judgment passed by the III Additional District and Sessions
Judge, Tirupur in C.A.No.37 of 2014, dated 28.11.2018, modifying the
judgment passed by the Judicial Magistrate, Dharapuram Tirupur District
on 16.06.2014 in C.C.No.386 of 2013 and allow the revision petition.
For Petitioner : Mrs.Girija
Legal Aid Counsel
For Respondent : Mr.S.Vinoth Kumar,
Government Advocate (Crl.Side)
for Public Prosecutor
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Crl.R.C.No.75 of 2019
ORDER
This Criminal Revision Case is filed to set aside the judgment
passed by the III Additional District and Sessions Judge, Tiruppur, in
C.A.No.37 of 2014, dated 28.11.2018, modifying the judgment passed by
the Judicial Magistrate, Dharapuram, Tirupur District, on 16.06.2014, in
C.C.No.386 of 2013 and allow the revision petition.
2.The accused no.3 in Crime No.591 of 2013 is the petitioner before
this Court. The gist of the case of the prosecution in the instant case is that
on 24.10.2013 at about 6.15 p.m. in the evening when PW1 and PW2 were
returning home from their evening walk, the first accused had tried to
snatch her Thali chain. PW1 caught hold of her Thali and therefore, the
hook got widened and the chain attached to the Thali was taken away by
the first accused and PW2, who was the Sub Inspector of police and the
husband of PW1 gave a chase to the first accused, he ran and boarded in a
three wheeler goods auto, which was standing in some distance and the
accused 2 and 3 were standing near the auto, got into the vehicle and all
the three of them went away. PW2 noted down the registration number of
the auto and immediately, he reported to the police, upon which, the auto
was caught by the police patrol by PW5, upon which, the accused were
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Crl.R.C.No.75 of 2019
brought to the police station and A1 had given the chain from his pocket
and therefore, upon recovery, the police had filed a charge sheet, which
was taken on file in C.C.No.386 of 2013 for charges under Section 392
IPC.
3.Before the trial Court, the defacto complainant, namely, Mary
Jhansi was examined as PW1 and her husband Paulraj was examined as
PW2. PWs 3 and 4 were observation mahazar witnesses, PW5 is the Sub
Inspector of Police who was conducting the police patrol, in which, he
caught the auto and brought them to the police station. PW6 is the Special
Sub Inspector, who registered the FIR, PW7 is the Investigation officer.
4.The prosecution has also marked Exs.P1 to P8 and also produced
the chain recovered as M.O.1 and the auto seized as M.O.2 before the trial
Court. There was no evidence let in on behalf of the defence.
5.The trial Court therefore considered the evidence on record and
proceeded to hear the learned Public Prosecutor for the petitioner and the
learned counsel appearing on behalf of the accused and found the accused
guilty for the offences under Section 392 IPC and convicted all the three
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Crl.R.C.No.75 of 2019
accused for the offences under Section 392 r/w 34 IPC and imposed a
sentence of three years rigorous imprisonment and fine of Rs.1,000/- each,
in default to pay the fine, to undergo three months simple imprisonment
for A1 and A2 and in respect of A3, a fine of Rs.100/- was imposed while
imposing the rigorous imprisonment for a period of three years.
6.Aggrieved by the same, all the three accused filed appeals in
Crl.A.Nos.28, 33 and 37 of 2014, before the III Additional District and
Sessions Court. The Appellate Court found that the evidence on record
did not prove all the ingredients for the offences under Section 392 IPC as
there was no evidence on record to suggest that there was any voluntary
hurt caused or there was any threat of life or wrongful restraint and
therefore held that however, in view of Section 222 Cr.P.C., the accused
can be punished for a minor offence even though charge has been framed
for a major offence of the same genus i.e, offences under Section 379 and
Section 379 r/w 34 IPC and as far as the appellant is concerned,
considering the fact that he had faced the trial as an accused in jail,
modified the punishment as two years rigorous imprisonment and imposed
a fine of Rs.100/- and in default to pay the fine amount, to undergo simple
imprisonment for another one month.
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Crl.R.C.No.75 of 2019
7.Aggrieved by the same, the present revision is laid before this
Court.
8.When the matter came up for hearing, the learned counsel
originally appeared for the petitioner reported no instruction. Therefore,
this Court is pleased to appoint Mrs.Girija as legal aid counsel in this
matter.
9.Heard Mrs.Girija, legal aid counsel for the petitioner and the
learned Government Advocate (Crl.Side) for the prosecution side and
perused the material records in this case.
10.In this case, on a perusal of the entire evidence on record, it is
clear that except PWs 1 and 2 who had seen the first accused snatching the
chain and running away, there is no other evidence identifying the third
accused either before Court or by way of an identification parade. There is
no evidence except for PWs 1 and 2 and the observation mahazar
witnesses and PW5 police patrol Sub Inspector and PW6 the Special Sub
Inspector, who registered the FIR, examined in this case. Therefore, there
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Crl.R.C.No.75 of 2019
is no iota of evidence to prove the charge under Section 34 IPC or even the
presence of the accused in the scene of occurrence. Even PW5 in his cross
examination has admitted that he did not remember as to who drove the
auto or who was the co-passenger in the auto. Therefore, while converting
the offence under Section 379 IPC which is only removing the valuable
from the possession of the particular person, which admittedly is only done
by the first accused in this case, the lower appellate Court omitted to
consider that there was no evidence for the involvement of the present
petitioner/A3 is concerned. Unless and otherwise a common intention or
abetting is proved in the manner known to law, the petitioner before this
Court could not be convicted for the alleged offence committed by the first
accused. Though Section 34 is charged, absolutely there is no iota of
evidence as to what was the relationship between A1, A2 and A3 and what
was the common intention, how they planned etc. It is categorically held
by the Hon'ble Supreme Court in the case of Abdul Sayed Vs. State of
Madhya Pradesh reported in (2010 10 SCC 259) as to the ingredients of
Section 34 IPC and how it is to be proved by the prosecution. Therefore,
unless the common intention is proved, there is no iota of evidence to
connect A3 to the scene of occurrence and therefore, I am of the view that
the conviction as far as the petitioner herein is totally unsustainable and
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Crl.R.C.No.75 of 2019
accordingly, the conviction and sentence imposed on the petitioner by the
III Additional District and Sessions Judge, Tirupur, in C.A.No.37 of 2014,
dated 28.11.2018 for the offences under Section 379 r/w Section 34 IPC is
set aside. The accused is acquitted of the charges. Fine amount paid, if
any, is ordered to be refunded.
11.Accordingly, the criminal revision is allowed. Consequently,
connected miscellaneous petitions are closed.
27.06.2022
Index : Yes/No
Internet: Yes /No
Speaking/Non-speaking order
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To
1.The III Additional District and Sessions Judge, Tirupur.
2.The Judicial Magistrate, Dharapuram, Tirupur District.
3.The Public Prosecutor,
High Court of Madras.
4.The Inspector of Police,
Dharapuram Police Station,
Tirupur District,
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Crl.R.C.No.75 of 2019
D.BHARATHA CHAKRAVARTHY, J.
sli
Crl.R.C.No.75 of 2019
27.06.2022
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