G.Laxmi , vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 1534 Tel

     THE HONOURABLE SMT. JUSTICE P.SREE SUDHA


                  CRL.R.C.No. 820 of 2009
ORDER:

This Criminal Revision Case is directed against the

judgment of the learned Metropolitan Sessions Judge,

Hyderabad, in Crl.A.No.364 of 2008, dated 12.02.2009,

confirming the conviction and sentence of rigorous

imprisonment for a period of three years for the offence

punishable under Section 380 of I.P.C. imposed against the

revision petitioner/A-1 by the learned XI Additional Chief

Metropolitan Magistrate, Secunderabad, in C.C.No.180 of

2008 dated 17.06.2008.

2. It is the case of the prosecution that on 20.11.2007

when P.W.1 and his family members went out of the house

situate at SBH, Trimulgherry after locking the same and

returned to house and found removal of mesh of the door

and also inner hooks of the door being broke open and that

on verification they found theft of gold and several silver

articles weighing about 1000 grams and also 8 wrist watches

and basing on his complaint, police registered a case in

Crime No.211 of 2007 and took up investigation. It is

further stated that on 17.12.2007 at about 20.00 hours, P.W.2

lodged a complaint stating that on 30.11.2007 he along with

his family left for Delhi on official work after duly locking

the house at Plot No.8, Banjara Nagar. Trimlgherry and that

on 01.12.2007 he received a telephonic call from his

housekeeping lady about the theft in the house after

breaking open lock of the house and that on 17.12.2007 he

came to the house and found gold ornaments weighing

about 150 to 200 grams were stolen away and that basing on

his report, police registered a case in Crime No.225 of 2007.

During the course of investigation, P.W.6/Sub Inspector of

Police, Kulsumpura Police Station arrested the accused on

30.12.2007 and that in pursuance of statement given by A-1,

some of the stolen properties in the aforesaid two crimes

were recovered at her instance. Subsequently, A-1 was

produced before the Court for judicial custody and A-2 was

produced before the Juvenile Court as he is a juvenile.

Previously, A-1 was convicted and sentenced in

C.C.Nos.303 of 1999, 501 of 2000, 1658 of 2003, 1646 of 2003

and 2705 of 2003 by the II and VIII Metropolitan

Magistrates, Hyderabad, and thereby the accused is liable

for the offences punishable under Sections 454 and 380 read

with Section 75 I.P.C.

3. Charges under Sections 454 and 380 of I.P.C. were

framed against the revision petitioner/A-1 and she pleaded

not guilty and claimed to be tried. The prosecution, in

order to prove its case against the accused, examined P.Ws.1

to 7 and got marked Exs.P1 to P7 and M.Os.1 to 39. Neither

oral nor documentary evidence was adduced on behalf of

the accused.

4. On appraisal of entire evidence, both oral and

documentary, the trial Court found the revision

petitioner/A-1 guilty of the offence punishable under

Section 380 or 411 of I.P.C and accordingly convicted and

sentenced her to undergo rigorous imprisonment for a

period of three years for the said offence.

5. Aggrieved by the aforesaid conviction and sentence,

the revision petitioner/A-1 preferred Crl.A.No.364 of 2008

and by judgment dated 12.02.2009, the learned Metropolitan

Sessions Judge, Hyderabad, observed that the trial Court

did not give definite finding whether the evidence on

record proved an offence under Section 380 I.P.C. or an

offence under Section 411 I.P.C. and there is no prohibition

for framing of alternate charges, but certainly at the time of

final decision, the Court has to find either of the two

offences and not both the offences alternatively. The

learned Judge further observed that as per Section 114 (a) of

the Evidence Act, the prosecution has proved the offence

under Section 380 of I.P.C. and in fact, there was no charge

framed by the trial Court against A-1 for the offence under

Section 411 of I.P.C. Accordingly, the learned Judge held

that the prosecution has proved guilt of A-1 under Section

380 of I.P.C. and thereby confirmed the conviction and

sentence recorded by the trial Court for the said offence.

6. Aggrieved by the aforesaid conviction and sentence,

the revision petitioner/A-1 preferred this criminal revision,

inter alia, contending that there are no eyewitnesses to the

incident and the panch witnesses did not elicit anything

against the accused and moreover they did not identify the

accused and that they turned hostile to the case of the

prosecution. It is further contended that no identification

parade was conducted to identify the accused and that the

revision petitioner/A-1 was convicted only basing on the

evidence of the Investigating Officer and, therefore,

requested this Court to set aside the conviction and sentence

imposed against the revision petitioner/A-1.

7. Heard both sides and perused the entire material

available on record.

8. Admittedly, the revision petitioner/A-1 was a

habitual offender and she was involved in several cases of

theft as per the crime numbers mentioned above. At her

instance, ornaments were recovered from several

pawnbrokers. Both the Courts below discussed the

evidence at length. Though ornaments were recovered

from the possession of revision petitioner/A-1 and they

were seized at her instance from the pawnbrokers, as no

charge is framed for an offence punishable under Section

411 of I.P.C. separately, the appellate Court held that the

revision petitioner/A-1 is not liable to be punished for the

said offence. Therefore, this Court is not inclined to go into

the details regarding the said offence. A perusal of the

judgment of the trial Court shows that charges under

Sections 454 and 380 of I.P.C. were framed against the

revision petitioner/A-1, but there was no discussion

regarding Section 454 of I.P.C. The judgment of the trial

Court was not clear regarding the sentence portion. As the

said aspect was already observed by the appellate Court,

this Court is not inclined to go into the details of the same.

There is a concurrent finding of both the Courts regarding

the offence under Section 380 of I.P.C. No doubt, the

revision petitioner/A-1 is a woman aged about 37 years, but

she has committed theft in several houses and has been

involved in several criminal cases. The appellate Court also

held that when the panch witnesses turned hostile to the

prosecution, if it results in dismissal of the case itself, then it

gives a wrong signal to the society and hence they cannot be

decisive persons to direct final result in the criminal cases.

Thus, the said aspect of panch witnesses turning hostile was

already dealt with by the appellate Court. Therefore, there

is no interference warranted as far as conviction is

concerned, but with regard to the sentence of imprisonment

imposed against the revision petitioner/A-1 by the Courts

below for the offence punishable under Section 380 of I.P.C.,

this Court finds it just and reasonable to reduce the sentence

of rigorous imprisonment of three years to simple

imprisonment for a period of Six months.

9. The Criminal Revision Case is partly allowed and the

sentence of rigorous imprisonment of three years imposed

against the revision petitioner/A-1 by the Courts below is

reduced to simple imprisonment for a period of Six months.

The remand period, if any, shall be given set off Under

Section 428 of Cr.P.C.

Miscellaneous petitions, if any, pending, shall stand

closed.

________________________ JUSTICE P.SREE SUDHA

06.04.2023 Gsn.