Kandukari Somachary vs The State Of Telangana
2022 Latest Caselaw 3802 Tel

 THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

      CRIMINAL REVISION CASE No.279 of 2021

JUDGMENT:

1. Heard the submission of Sri Dharmesh D.K.Jaiswal,

learned counsel for the revision petitioner as well as the

learned Assistant Public Prosecutor who is representing the

respondent-State.

2. Challenge in this revision case is the judgment that is

rendered by the Court of IV Additional District & Sessions

Judge (Fast Track Court-III), Sathupally in Crl.A.No.43 of

2020, dated 15.02.2021.

3. The crux of the case as could be perceived through

the contents of the charge sheet is that PW1 is the resident

of Siddaram and is a businessman. On 06.07.2019, he

closed his shop, returned home and kept a small bag

containing Rs.95,000/- in the cupboard of the bed room

which is located at the upstairs portion of his house and

slept. At about 1:00AM on 07.07.2019, PW1 and his wife

heard some sound and on that, they woke up and found

one person running in the dark. They also found the grill

of the window opened. On that, they raised cries. The

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brother of PW1, who was at the ground floor, approached

them. They all found missing of Rs.95,000/-. It is the

accused who entered into the house by removing the

screws of the window grill and committed theft of the said

amount. During the course of investigation, the accused

was arrested and a sum of Rs.25,000/- was recovered from

him.

4. The allegation of the prosecution is that, the accused

committed offences punishable under Sections 457 and

380 of IPC. Subjecting the evidence of PWs 1 to 4, Exs.P1

to P4 and MO1 to scrutiny, the learned Judge of the trial

Court came to a conclusion that the prosecution

established the guilt of the accused beyond all reasonable

doubt for the offences punishable under Sections 457 and

380 of IPC. The accused was accordingly convicted for the

said offences and was sentenced to undergo rigorous

imprisonment for a period of three years and to pay fine of

Rs.10,000/- for the offences punishable under Section 457

IPC. The accused was also sentenced to undergo simple

imprisonment for a period of three years and to pay fine of

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Rs.10,000/- for the offence punishable under Section 380

IPC.

5. Aggrieved by the said judgment, the accused

preferred appeal. The Appellate Court i.e. the Court of IV

Additional District & Sessions Judge (Fast Track Court-III),

Sathupally, concurred with the findings of the trial Court

as far as merits of the case are concerned. However, the

Appellate Court ordered that both the sentences i.e. the

sentence imposed under Section 457 IPC and the sentence

imposed under Section 380 IPC shall run concurrently.

Aggrieved by the findings given thus, the accused is before

this Court.

6. Making his submission, the learned counsel for the

petitioner/accused contended that the petitioner has not

committed any offences what- so- ever and the prosecution

miserably failed to establish the guilt of the petitioner

beyond all reasonable doubt, but the trial Court as well as

the Appellate Court failed to appreciate the lacunae in the

case of the prosecution and thereby arrived at an unjust

conclusion. The main ground urged by the learned counsel

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for the petitioner/accused during the course of his

submission are three fold which are hereunder:-

(i) Firstly, that there is delay of three days in giving complaint to the police.

(ii) Secondly, that the alleged recovery is not proved beyond all reasonable doubt.

(iii) Thirdly, the alleged confession that is given by the petitioner/accused is inadmissible and is hit by Section 27 of the Indian Evidence Act and therefore, the trial Court as well as the Appellate Court ought not to have relied upon such piece of confessional statement.

7. The learned counsel further submits that there are no

ocular witnesses to the incident and the case is based on

circumstantial evidence and if that being the situation,

heavy responsibility vests upon the prosecution to connect

each limb of the link, but it failed to do so.

8. Per contra, the submission of the learned Assistant

Public Prosecutor is that a sum of Rs.25,000/- out of total

sum of Rs.95,000/- was recovered from the possession of

the accused and the accused has not given any explanation

with regard to the possession of the said amount. Learned

Assistant Public Prosecutor also contended that PW1

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identified the accused before the Court and that itself is

sufficient to convict him.

9. The evidence of PW1 is that on 06.07.2019, in the

midnight, one person entered into his house by opening

the window and committed theft of Rs.95,000/-. He

deposed that when they woke up and raised cries, the

offender escaped. PW1 stated that he came to know that

the offender is the accused herein and that he committed

theft two or three times. PW1, during the course of giving

evidence, stated that he can identify the accused. The

Court recorded that the witness-PW1 identified the

accused. PW1, during the course of cross-examination,

admitted that when a person escapes, they would have the

opportunity to see his back. However, PW1 volunteered

that they saw the accused beside their bed clearly. How far

the statement of PW1 is justifiable has to be seen by

comparing with the report submitted by him before the

Police. The said report is marked as Ex.P1. In Ex.P1, PW1

contended that on the date of incident, at about 1:00 AM,

he heard a big noise and on that, himself and his wife woke

up and found the person escaping and on that, they raised

Dr.CSL,J Crl.RC.No.279 of 2021

cries and his brother reached them and they found missing

of Rs.95,000/-. He narrated that they suspected that it is

the accused who committed theft. It is also narrated that

as they were searching for him, there was delay. How PW1

came to conclusion that it is the accused who committed

theft is neither narrated in Ex.P1 nor before the Court.

Furthermore the fact that the accused was fond present

beside their bed is not stated anywhere in Ex.P1.

Admittedly, when the incident occurred on 06/07-07-2019,

the complaint was given to Police on 09.07.2019. The

reason as to why the complaint was not given to Police

immediately is not convincing. As rightly submitted by the

learned counsel for the petitioner/accused, PW1 had got

the opportunity to search for the accused even after lodging

a complaint. Why he did not do so is not mentioned

anywhere.

10. As per the version of the prosecution, the accused

was subsequently traced out and a sum of Rs.25,000/-

was recovered from his possession. To establish the said

fact, the prosecution produced the evidence of PW3. Even

if it is believable that an amount of Rs.25,000/- was

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recovered from the possession of the accused, it does not

mean that the said amount is out of the amount that stood

missing from the house of PW1. Admittedly, there is no

mention of at least the denomination in Ex.P1 complaint.

Though, not the numbers of the notes, at least, the

denomination ought to have been mentioned. Even, that

was not done. Therefore, this Court does not understand

as to how the trial Court as well as the Appellate Court

came to conclusion that the sum of Rs.25,000/- that was

allegedly recovered from the possession of the

petitioner/accused is the amount that belongs to PW1.

Also, as rightly submitted by the learned counsel for the

petitioner/accused, the alleged confessional statement

which is marked as Ex.P3, cannot form basis for convicting

the petitioner/accused.

11. Law is well settled that such part of confessional

statement which leads to recovery, can be relied upon by

the Court to come to conclusion only in respect of the

recovery of material object but not regarding the

participation or guilt of the person from whom the material

object was recovered. The confessional statement shall not

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be used for the purpose of convicting the accused basing

on the admission of guilt. Admission of guilt before the

person in authority is inadmissible in evidence as per

Sections 24 to 27 of the Indian Evidence Act. Therefore,

Ex.P3 cannot form basis for the Court to come to a

conclusion that the petitioner/accused has committed the

offence. That apart, even after apprehending the

petitioner/accused, the prosecuting agency has not taken

any steps for conducting any identification parade for

identification of the petitioner/accused. Therefore, the

identification of the petitioner/accused for the first time

before the Court by PW1 on the date he gave evidence,

ought not to have been relied upon by the trial Court.

Without observing all these factors, the trial Court has

convicted the accused and the Appellate Court has

confirmed it.

12. Having regard to the aforementioned lacunae in the

case of the prosecution, this Court is of the view that the

sentence imposed is unsustainable. Therefore, this Court

considers desirable to allow this Criminal Petition.

Dr.CSL,J Crl.RC.No.279 of 2021

13. Resultantly, the Criminal Petition is allowed. The

judgment of the Court of Judicial Magistrate of First Class,

Sathupalli, in CC.No.761 of 2019, which is confirmed by

the Court of IV Additional District & Sessions Judge (FTC-

III), Sathupally, in Crl.A.No.43 of 2020, is set-aside. The

petitioner/accused is thereby acquitted of the charges

levelled. The petitioner/accused is directed to be set at

liberty forthwith if he is not required in any other cases.

The fine amount if any paid shall be refunded.

14. As a sequel thereto, miscellaneous petitions pending,

if any, shall stand closed.

________________________________________ Dr. JUSTICE CHILLAKUR SUMALATHA

Dt.21.07.2022.

Note: Issue CC by Monday

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Dr.CSL,J Crl.RC.No.279 of 2021

THE HON'BLE Dr. JUSTICE CHILLAKUR SUMALATHA

CRIMINAL REVISION CASE No.279 of 2021

Dt.21.07.2022.

Dr.CSL,J Crl.RC.No.279 of 2021

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