Madras High Court
The State Rep. By vs N.Srinivasan on 19 January, 2023
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.01.2023
CORAM
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Criminal Appeal No.430 of 2012
The State rep. by
The Inspector of Police,
Idol Theft Prevention Wing,
Chennai.
(Cr.No.4/2008) .... Appellant
Vs.
N.Srinivasan .... Respondent
PRAYER: The Criminal Appeal has been filed under Section 378(ii) of
Cr.P.C. to set aside the judgment of acquittal dated 03.04.2012 passed by
the II Metropolitan Magistrate, Egmore, Chennai - 8 and convict the
respondent/ accused.
For Appellant :
Mr.R.Kishore Kumar
Government Advocate
(Criminal Side)
For Respondent : M/s.K.Ramesh
for Mr.R.Subramanian
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2
JUDGMENT
Aggrieved by the judgment dated 03.04.2012 of the learned II
Metropolitan Magistrate, Egmore, Chennai - 8 in C.C.No.9758 of 2008 in
and by which, the respondent-accused was acquitted by the trial Court of the
charge under Section 380 (2) of the Indian Penal Code, the present Appeal is
laid before this Court.
2. The case of the prosecution is that on 28.03.2008, upon
receipt of secret information, the respondent-accused was apprehended
opposite to Bhuhari Hotel near Chennai Central Railway Station and two
idols of Lord Vinayaga belonging to Selva Vinayagar Temple, Arcot Town
were found to be in his possession and the respondent voluntarily confessed
that he had stolen the same from his brother-in-law (P.W.6) who was one of
the Trustees of the Temple for selling the same for its antiquity value and
hence, the charge.
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3. In order to bring home the charges, the prosecution examined
one Devamurthy, who was an old book seller in Moor Market and who was
a witness to seizure mahazar, as P.W.1. One Sri Murugan, who was another
witness to the seizure being a Head Constable in the Idol Wing, was
examined as P.W.2. One Jothi, whose ancestors are said to have donated the
idols to the Temple was examined as P.W.3. One Magalingam, who was
also acquainted with the affairs of the Temple was examined as P.W.4. One
Purushothaman, who witnessed the television news and came to know about
the seizure of Temple idols and informed the same to P.W3 and P.W.4, was
examined as P.W.5. One Sathiyamurthy from whose house the idols are said
to have been stolen was examined as P.W.6. The Archaka of the Temple one
Sathish @ Sachithanantham was examined as P.W.7. One Pazhani, who
was a devotee was examined as P.W.8. One Sivakrishnakumar, who was
also a devotee was examined as P.W.9. Another devotee Baskaren was
examined as P.W.10. One Vasantha Kalyani, an Expert, who examined the
idols and gave a report, was examined as P.W.11. The Investigating Officer
Kather Basha was examined as P.W.12.
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4. Exhibits P1 to P11 were also marked on behalf of the
prosecution and Material Objects 1 to 3 were marked including the idols
which were produced as M.O.1 to M.O.3.
5. Upon being questioned about the incriminating
circumstances and material evidence on record under Section 313 of Cr.P.C.,
the accused denied the same as false. Thereafter, D.W.1 to D.W.4 viz.
Amirtham, Duraisamy, Sekar, and Kamalanathan were examined on behalf
of the accused and Ex.D1 was marked.
6. The trial Court thereafter proceeded to consider the case of
the prosecution and after hearing the learned Additional Public Prosecutor
and the leaned counsel appearing on behalf of the accused acquitted the
accused of the charge by its judgment dated 03.04.2012. Aggrieved by the
same, the prosecution has filed the present appeal.
7. Heard Mr.R.Kishore Kumar, Government Advocate
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(Criminal Side) appearing on behalf of the appellant and M/s.K.Ramesh, for
Mr.R.Subramanian, learned counsel appearing on behalf of the respondent.
8. The learned Government Advocate (Criminal Side) appearing
for the appellant taking this Court through the evidence on record would
submit that the seizure of the idols has been duly proved by the prosecution
by examining P.W.1 and P.W.2, the seizure witnesses. P.W.1 is an
independent witness. Just because, he had deposed in the earlier case, his
evidence ought not to have been totally discarded by the trial Court. Once
the evidence of P.W.1 is accepted, the prosecution has proved the seizure
with at least one independent witness and therefore, once the idols have been
seized from the accused and the same has been duly certified as being
antique in nature by P.W.11, coupled with the admissible portion of
confession leading to recovery, it can be seen that the prosecution has
established its case beyond doubt. It can be seen that the Trustees and the
other persons connected with the Temple did not know about the theft as the
idols were kept in a wooden box in P.W.6's house and the idols, being in the
nature of Urchava idols, will be taken only during the relevant poojas. Since
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the Temple was under renovation and since no celebration had taken place
for 2 - 3 years, the theft of the idols was not noticed and thereafter, even
though the exact time is not specifically established, by the available
evidence on record, that is, by the seizure mahazar, Ex.P1 and the
admissible portion of confession in Ex.P2, coupled with the report of
P.W.11 in Ex.P5 and Ex.P8, Form - 95; by seizure and producing the M.Os
2 and 3, the idols themselves, the prosecution has established its case
beyond doubt and therefore, the trial Court has erred in acquitting the
accused.
9. Per contra, the learned counsel appearing on behalf of the
respondent accused would submit that in this case, the charge itself is not
clear as to when and what date the idols were stolen from the house of
P.W.8. As a matter of fact, upon perusal of the evidence of the prosecution
witnesses, whether the idols were stored in the house of P.W.6 itself is
doubtful. One witness says that because of the Temple renovation work, the
same was stored, whereas the other witness says that the idols are Urchava
idols and normally, it is kept only in the Dharmakartha's house. If so, even
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after P.W.3 becoming the President of the Trustee of the Temple, there was
no reason, which was given as to why the idols and the box were kept in the
house of P.W.6. Therefore, the very basis of the case of the prosecution is
doubtful. Secondly, the entire case of the prosecution rests only on Ex.P1,
seizure mahazar. The seizure is said to have been taken place in a crowded
place, that too opposite to Bhuhari Hotel near Chennai Central Railway
Station. Obviously, there would have been many persons who witnessed the
search and seizure and confession. However, only P.W.1 was examined as
an independent witness. In this regard, the defence had by marking Ex.D1
and cross examining the Investigating Officer had established that P.W.1 is
a platform book seller and thus has a nexus to the police since he is in their
mercy to continue the illegal occupation of the platform and that he has
already deposed in favour of the police in yet another case in C.C.No.685 of
2009 and thus, he is used as a stock witness by the police. In that view of
the matter, the conclusion drawn by the trial Court that the seizure has not
been proved by the police beyond doubt cannot be termed as perverse. Once
the view of the trial Court is a plausible view, this Court in an appeal against
acquittal cannot upturn the finding into one as conviction.
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10. I have considered the rival submissions made on either side
and perused the materials available on record.
11. As rightly contended by the learned counsel appearing for
the defence, in an appeal against acquittal not only the evidence has to be
reappraised, this Court also has to decide as to whether the finding of the
trial Court is a plausible view. In that view of the matter, the trial Court
primarily acquitted the respondent-accused on the ground that when the sole
material for the prosecution to charge the accused for the offence under
Section 380 (2) of I.P.C is the seizure and when the seizure was made in
broad daylight, taken opposite to Central Railway Station, where
innumerable persons are present at any point of time, non-examination of
even one single independent witness for the seizure and the mahazar not
being witnessed even by one single independent witness, especially, when
P.W.1 has been discarded by the trial Court, cannot be said to be an
impossible view or a perverse view and in that view of the matter, when the
trial Court, after appraisal of the evidence, takes a view in favour of the
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accused and acquits the accused, this Court cannot turn the acquittal into
one of guilt by mere re-appreciation of evidence, unless it is not a possible
view or the findings are perverse in nature.
In that view of the matter, this appeal fails and is dismissed.
19.01.2023
asi
To
1. The II Metropolitan Magistrate, Egmore, Chennai - 8.
2. The Public Prosecutor, High Court of Madras.
https://www.mhc.tn.gov.in/judis
D.BHARATHA CHAKRAVARTHY, J.
asi
Criminal Appeal No.430 of 2012
19.01.2023
https://www.mhc.tn.gov.in/judis
