Madras High Court
Vairamuthu vs Steate Rep. By on 16 September, 2022
Crl.RC.No.321 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.09.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Revision Case No.321 of 2019
and
Crl.M.P.Nos.4047 and 4049 of 2019
1.Vairamuthu
2. Veeraraj ... Petitioners
Vs.
Steate Rep. By
Sub-Inspector of Police
Chidambaram Town Police Station
Chidambaram
Cuddalore District
(Crime No.247 of 2012) ... Respondent
Prayer: Criminal Revision filed under Section 397 and 401 of Criminal
Procedure Code, praying to call for records pertaining to the Judgment
dated 10.12.2018 passed in C.A.No.75 of 2018 on the file of the learned II
Additional District and Sessions Judge, Chidambaram, confirming the
Judgment dated 06.08.2018 passed in C.C.No.293 of 2012 on the file of
learned Judicial Magistrate No.2, Chidambaram and set aside the same.
For Petitioner : Mr.T.M.Ramalingam
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
1
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Crl.RC.No.321 of 2022
ORDER
The Criminal Revision Case has been filed seeking to set aside the
Judgment dated 10.12.2018 passed in C.A.No.75 of 2018 on the file of the
learned II Additional District and Sessions Judge, Chidambaram, confirming
the Judgment dated 06.08.2018 passed in C.C.No.293 of 2012 on the file of
learned Judicial Magistrate No.2, Chidambaram.
2. The respondent police registered the case against the petitioners in
Crime No.247 of 2012 for the offence under Sections 379 IPC and after
investigation, laid charge sheet before the leaned Judicial Magistrate No.2,
Chidambaram. The learned Magistrate, taken the case on file in C.C.No.293
of 2012 and after completion of trial, found the guilt of the petitioners and
thereby, convicted and sentenced to undergo 3 years Rigorous Imprisonment
each and to pay fine of Rs.1,000/- in default to undergo Simple
Imprisonment for a period of one week each. Challenging the said Judgment
of conviction and sentence, both the petitioners herein preferred appeal
before the Sessions Judge, Cuddalore and the same was taken on file in
C.A.No.75 of 2018 and made over to the II Additional District and Sessions
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Crl.RC.No.321 of 2022
Judge, Chidambaram, for disposal. The learned Sessions Judge, after
hearing the arguments, dismissed the same and confirmed the conviction
and sentence passed by the learned Magistrate. Aggrieved over the same,
the petitioners have filed the present revision before this Court.
3. The case of the prosecution is that on 25.04.2012 at about 12.45
p.m., the petitioners committed theft of the vehicle belongs to the
defacto complainant bearing Regn.No.PY01AU3951, Chase
No.MD634LE5692A05403, Engine No.OE5A92005456, Orange Colour
TVS Appachee Motor cycle, which was parked opposite to Star Complex at
Chidambaram South Street.
4. The learned counsel for the petitioners would submit that both the
Courts below have failed to appreciate the evidence of the prosecution and
wrongly convicted the petitioners. He would submit that P.W.4 and P.W.7
are the witnesses to the recovery and they both have stated different colours
of vehicle during their examination. Actually, the vehicle of the defacto
complainant which is shown in the case property is Orange in colour,
whereas P.W.4 in his cross examination has stated that the vehicle recovered
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Crl.RC.No.321 of 2022
from the petitioners was Black in colour and P.W.7 has stated that it was
White in colour. Therefore, there is a material contradiction and that the trial
Court as well as the appellate Court have failed to appreciate the
contradiction regarding the colour of the vehicle. Further, P.W.7 has stated
that the first petitioner/A1 alone had given confession statement and the
second petitioner/A2 has not given any confession statement, whereas P.W.4
has stated that both the petitioners had given confession statements. If at all,
based on the confession statement the vehicle was recovered, it must be in
Orange in colour, whereas the recovery witnesses have stated different
colours. Therefore, the vehicle marked as M.O.1 is not actually recovered
from the petitioners herein and it is a put up case by the prosecution. The
contradiction is a vital contradiction which would go into the root of the
prosecution. The evidence of the prosecution itself would prove that the
prosecution has failed to establish its case beyond all reasonable doubt and
both the Courts below have failed to properly appreciate the evidence of the
prosecution and wrongly convicted the petitioners based on the perverse
appreciation of evidence which warrants interference of this Court.
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Crl.RC.No.321 of 2022
5. The learned Additional Public Prosecutor appearing for the
respondent police would submit that the petitioners were arrested and the
vehicle was also recovered from them before P.W.4 and P.W.7. based on the
confession statements. He would further submit that the occurrence took
place in the year 2012. The chief examination of P.W.4 took place in the
year 2016, whereas the cross examination took place in the year 2017 and
that the Chief and Cross Examination of P.W.7 took place in the year 2017
and due to the gap between the date of occurrence and the date of cross
examination, there was some contradiction in the statements of P.W.4 and
P.W.7. Further, the petitioners themselves have given confession admitting
that they have involved in more than 8 cases of similar nature. Even
P.W.1/defacto complainant has clearly spoken about the Material Object
which belongs to him and the complaint given to the police and
subsequently, the Investigating Officer registered the case and recovered the
vehicle/ M.O.1 from the petitioners based on their confession statement.
Thereby, the prosecution proved its case and the Courts below have rightly
appreciated the evidence and convicted the petitioners. Hence, there is no
merit in the revision and the revision is liable to be set aside.
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Crl.RC.No.321 of 2022
6. Heard the learned counsel for the petitioners and the learned
Additional Public Prosecutor appearing for the respondent police and
perused the materials on record.
7. Admittedly the respondent police registered the case against the
petitioners in Crime No.247 of 2012 for the offence under Sections 379 IPC
and after investigation, laid charge sheet before the learned Judicial
Magistrate No.2, Chidambaram and the same was taken on file in
C.C.No.293 of 2012. During trial, on the side of the prosecution, totally 9
witnesses were examined and 10 documents were marked besides M.O.1
was exhibited.
8. In this case, P.W.1 is the defacto complainant and he has spoken
about his missing vehicle bearing Regn.No.PY01AU3951, Orange Colour
TVS Appachee Motor cycle and recovery of vehicle.
9. The confession and recovery witness P.W.4 in his cross
examination has stated that the colour of the recovered vehicle was Black in
colour whereas, P.W.7 has stated that the colour of the recovered vehicle
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Crl.RC.No.321 of 2022
was white in colour. Even the prosecution has not declared the witnesses as
hostiles. Admittedly, the colour of M.O.1 is Orange which belongs to
P.W.1/defacto complainant. But none of the recovery witnesses have stated
that the vehicle which was recovered from revision petitioners was Orange
in colour. Even a careful scrutiny of the materials on record shows that the
prosecution has not recovered the M.O.1 either in the presence of P.W.4 or
in the presence of P.W.7. who are the vital witnesses to this case and
therefore, there is a material contradiction.
10. Though the revision Court cannot re-visit or re-appreciate the
entire evidence, the revision Court has got power to find out if there is any
perversity in the appreciation of evidence or illegality by the Courts below.
11. In this case, both the Courts below have failed to appreciate the
evidence properly and convicted the petitioners based on the perverse
appreciation of evidence. Therefore, there is perversity in the judgements of
the Courts below which warrants interference.
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Crl.RC.No.321 of 2022
12. This Court finds that the prosecution has failed prove its case
beyound all reasonable doubt and the Judgments of the Courts below are
perverse. Therefore, the Judgments of both the trial Court as well as the
appellate Court are liable to be set aside and the benefit of doubt has to be
extended to the revision petitioners.
13. Accordingly, this Criminal Revision Case is Allowed.
Consequently, the connected Miscellaneous Petitions are closed. The
Judgment dated 10.12.2018 passed in C.A.No.75 of 2018 on the file of the
learned II Additional District and Sessions Judge, Chidambaram,
confirming the Judgment dated 06.08.2018 passed in C.C.No.293 of 2012
on the file of learned Judicial Magistrate No.2, Chidambaram is set aside.
14. Bail bond, if any, executed by the petitioners shall stand cancelled
and fine amount if any paid by the petitioners shall be refunded to the
petitioners.
16.09.2022
ksa-2
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Crl.RC.No.321 of 2022
To
1. The II Additional District and Sessions Judge,
Chidambaram,
2. The Judicial Magistrate No.2,
Chidambaram
3. Sub-Inspector of Police
Chidambaram Town Police Station
Chidambaram
Cuddalore District
4. The Public Prosecutor
High Court of Madras, Chennai
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Crl.RC.No.321 of 2022
P.VELMURUGAN,J.
Ksa-2
Criminal Revision Case No.321 of 2019
16.09.2022
https://www.mhc.tn.gov.in/judis
