K. Dhanalakshmi, Vs the State of Ap Rep by Its Pp Hyd., Thrgh Insp.

The State of Andhra Pradesh, Rep. by its Public Prosecutor, High Court of Andhra Pradesh, at Amaravati, through Inspector^ofPolice CCS, Chittoor District, in Crime No. 27,49, & 50 of 2005.

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...RESPONDENT/COMPLAINANT

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Revision filed under Section 397 & 401 of CrPC praying^that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to set-aside the Judgment passed in CrI.A.No. 42 of 2006, dt. 13-10-2008 on the file of the Dist. & Sessions Judge, Chittoor District and confirmed the Judgment in C.C.No.173/2005 dated 13/02/2006.

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Counsel for the Petitioner: SRI. T C KRISHNAN

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Counsel for the Respondents: PUBLIC PROSECUTOR

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No. 1580 of 2008

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JUDGMENT:

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Assailing the judgment dated 13.10.2008 in Crl.A.No.42 of 2006 on the file of the Court of learned Principal^Sessions Judge at Chittoor, confirming the conviction and sentence passed against the accused No.2 by the judgment dated 13.02.2006 in C.C.No.l73 of 2005 on the file of the Court of learned V Additional Judicial Magistrate of First Class at Chittoor, for the offences under Section 411 of Indian Penal Code (hereinafter referred to as “IPC”), the petitioner/accused No.2 filed the present criminal revision case under^Section397 r/w.401 of the Criminal Procedure Code, 1973.

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The revision case was admitted on 23.10.2008 and the sentence imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.2162 of 2008. 3. The shorn of necessary facts are that:

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i). On 02.02.2005 some unknown offenders entered into the Agastheeswaraswamy Temple by scaling over the wall and broke open the Hundies kept in-front of *S Vigneswaraswamy Temple and Subramanya Swamy

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Temple and committed theft of cash of Rs.400/-. Basing on the complaint of P.W.l, a case in Cr.No.27 of 2007 was registered by CCS Chittoor Police under Section⁴⁵⁷ and 380 or 411 and Section 457 and 380 r/w.511 of IPC and investigated into.

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ii). Four months prior to 25.03.2005, some unknown offenders entered into Omshakthi Mariyamma Temple situated on the tank bund of Ganganeri Cheruvu on Chittoor-Vellore road and attempted to commit theft^of cash from Hundi, but on hearing the shouting of the public, they left the place. Basing on the complaint given by P.W.2, a case in Cr.No.49 of 2005 was registered by the police under Section 379 r/w.511 of IPC and investigated into. hi). Two months prior to 25.03.2005, some unknown offenders committed theft of cash of Rs.750/- by break open the Hundi of Chowdeswari Temple and escaped with booty. Basing on the complaint given by P.W.3, a case in Cr.No.50 of 2005 registered by police for the offence under Section 457 and 380 of IPC and investigated into.

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iv). On 01.04.2005 at about 08.00 a.m., P.W.7 Inspector of Police, got arrested accused No.l in the presence^of mediators, he confessed about the above offences committed by him, produced the stolen properties from his house as well bushes in front of his house and some portion of property were pledged by his mother accused No.2. P.W.7 seized the said property under the cover^of Ex.P.4 mediators report.

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v). On the same day at about 11.00 a.m., accused No.l lead the police to the house Dr.No.4-351, Godugumur, Chittoor Municipal Limits, Chittoor, shown accused No.2, then she (accused No.2) admitted about the possession of stolen properties brought by her son (accused No.l), about her pledging three items of gold jewels to a pawn broker and she produced some of the stolen properties concerning to the above crimes. Then, P.W.7 seized the same under the cover of Ex.P.5 mediators report. In pursuance of their confession, police also seized some of the stolen property from the bushes at a distance of 40 feet to the northern side of their house under the cover of Ex.P.6 mediators report. Then both the accused lead the police to pawn broker, the^said

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pawn broker handed over the pledged gold jewels and they seized the same under the cover of Ex.P.7 mediators report.

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After completion of investigation, P.W.7 laid charge^sheet and the same was numbered as C.C.No.l73 of 2005 on the file of the Court of learned V Additional Judicial Magistrate^ofFirst Class at Chittoor, after full-fledged trial, found the accused Nos.l and 2 are guilty of the offence under Section 411 of IPC, vide judgment dated 13.02.2006, sentenced accused No.l to undergo rigorous imprisonment of three (3) years and to pay fine of Rs.lOO/-, in default to suffer simple imprisonment^ofone month as well sentenced accused No.2 to undergo rigorous imprisonment of six (6) months and to pay fine of Rs.lOO/-,ⁱⁿ default to suffer simple imprisonment of one month.

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Aggrieved by the same, the petitioners/accused Nos.l^and 2 preferred an appeal, vide Crl.A.No.42 of 2006, before the Court of learned Principal Sessions Judge at Chittoor^andthe same was partly allowed, yide judgment dated 13.10.2008, by confirming the conviction passed against the accused^Nos.1and 2, but reduced the sentence of imprisonment passed against the accused No. 1 to one year rigorous imprisonment from three (3) years only.

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Against the said judgment of the first Appellate Court,^the present criminal revision case was preferred by the petitioner/accused No.2.

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Heard Sri T.C.Krishnan, learned counsel for the petitioner/accused No.2 and Miss P.Akhila Naidu, learned counsel appearing for the respondent-State. 8. Now the point that arises for determination in this revision is “whether there is any manifest error of^{laworflagrant} miscarriage of justice in the findings recorded by^{theTrialCourt} as well first Appellate Court?”

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Sri T.C.Krishnan, learned counsel for the petitioner/accused No.2 submits that the prosecution^failedto prove the ingredients to constitute the offence under^Section 411 of IPC; that no independent witnesses of the said^locality, where the alleged recovery was made, was examined by the prosecution, which is fatal to the prosecution version;^thatthe petitioner was falsely implicated in this case; that the Trial Court as well Sessions Court failed to appreciate the^materialon record in a proper perspective, erroneously convicted the petitioner/accused No.2 for the said offence and the^same is liable to be set aside.

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Per contra, Miss P.Akhila Naidu, learned counsel appearing for the respondent-State submits that the testimony of prosecution witnesses corroborated with each other and categorically proved the offence against the petitioner; that P.Ws.4 and 5 are independent mediators and whose presence the recovery of stolen property was made by P.W.7 investigating officer based on the confession of accused, thereby, the recovery of same cannot be disbelieved; that the petitioner is having full of knowledge that the property seized from her possession^isa stolen property secured through her son (accused No.l) by theft; that the Courts below rightly appreciated the evidence^ofon record and convicted the petitioner for the said offence;^thatthe prosecution proved the guilt of the accused beyond all reasonable doubt by examining P.Ws.l to 7 and producing Exs.P. 1 to P.9, M.Os. 1 and 2, thereby, the present^revisionhas no merits.

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In view of the above rival contentions, this Court perused the material available on record. It is the specific^case of the prosecution that on the confession made by the accused No.l, police lead to the house D.No.4-341 by him, shown the petitioner/accused No.2, on interrogation in the presence of P.Ws.4 and 5 mediators accused No.2 confessed about the

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offence, she produced the stolen property from their^houseas well lead the police to the bushes at a distance of⁴⁰ feet and shown the property hidden in the bushes and then they (accused Nos.l and 2) lead them to Pawn Broker, where^she (accused No.2) pledged the stolen property and police^seizedthe same under the cover of Exs.P.4 to P.7 mediators reports. Thereby, no search was conducted and only on the confession^of accused, the seizure was taken place by the police in the presence of mediators. 12. P.Ws.4 and 5 can be called as independent mediatorsⁱⁿ view of their corroborated and consistent testimony^beforethe Court below. Furthermore, it is not the case of the petitioner that P.Ws.4 and 5 were deposed against her with any^oblique motive and implicate her in this case. As such, the^testimonyof P.Ws.4 and 5 can be believed. No incriminating material^was elicited during cross examination to discard their^testimony. 13. More so, it is a fact found from the record that on^the confession made by the accused, as well they lead the^policeto the different places where they concealed the stolen^property, the recovery was made. Thereby, the contention of the^petitioner that she was implicated in a false case is baseless^defenseand has no merits. Thus, M.Os.l and 2 satisfy the definition of

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stolen property in terms of Section 410 IPC and their recovery was made solely on the confession of the accused and they have knowledge that they are stolen properties. Furthermore, they failed to explain how she was coming to the possession of said stolen property and she has no knowledge that they^werestolen property. Thereby, it is categorically proved that the petitioner/accused No.2 was found in possession of stolen property with the knowledge that the same is a stolen property. 14. It is settled law as observed by the HonTole Supreme Court in State of Maharashtra v. Jagmohan Singh Kuldip Sing Anand}, that “in exercise of revisional powers,^thisCourt need not undertaken in-depth and minutest reexamination of entire evidence, when there is no error in the findings arrived by the Trial Court as well first Appellate Court”. 15. By taking into consideration of testimonies of prosecution witnesses coupled with Exs.P.l to P.9, the trial Court came to conclusion that prosecution proved the guilt of the petitioner/accused No.2 for the offence under Section 411 of IPC, which was affirmed by the first Appellate Court. 16. It is settled law that in view of the concurrent findings^on facts by the Courts below, this Court being Revisional Court^is

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(2004) 7 see 659

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not expected to set aside the same without any material of perversity or manifest error in the findings arrived^bytheCourts below. There is no material before this Court to discard the trustworthiness of prosecution witnesses and there is no material to disbelieve the contents of Exs.P. 1 to^P.9. 17. All these facts go to show that both the Courts below rightly came to conclusion that the accused No.2 found in possession of stolen property with full of knowledge^thatitsame is a stolen property and that there is no apparent^failureonthe part of the Courts below in appreciating the evidence^onrecord or to arrive at a conclusion that prosecution proved the guilt of the accused for the said offence. In these circumstances, this Court is of the considered opinion that there is no perversity or flaw in the findings recorded by both the Courts below in convicting the accused for the offence under Section^411ofIPC. 18. However, while arguing the matter, learned counsel for the petitioner/accused No.2 submits that the incident was occurred in the year 2005, petitioner is a women aged^about58 years, she is not a thief and there are mitigating^{circumstances} to reduce the sentence imposed against the petitioner by^the Courts below. He brought to the notice of this Court a judgment of the HonTDle Supreme Court in Nand Ballabh^Pant

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V. State (Union Territory of Delhi^, wherein the APEX Court considered the facts and reduced the period of sentence of imprisonment imposed on the appellate from two (2)^monthsto one (1) month rigorous imprisonment. 19. He also brought to the notice of this Court another judgment of Hon’ble Supreme Court in Jagdish Chander v. State of Delhi^, wherein also the APEX Court considered the relevant circumstances and reduced the sentence of imprisonment to that of already undergone, but increased^the sentence of fine from Rs.500/- to Rs.700/-.

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As well in Mohinder Singh v. State of Haryana^, the HonTDle Supreme Court held at paragraph No.2 that “they are not inclined to interfere on the merits of the case and at the same time, they cannot lose sight of fact that the occurrence took place more than a quarter of century back and^tosendthe accused in prison after 25 years, would be travesty of justice.”

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No doubt, in the present case also the incident was said to be happened in the year 2005 and by this time eighteen (18) years have already been lapsed.

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Having regard to the above discussion and in view of the above pronouncements of the HonlDle Supreme Court, this

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2 AIR 1977 SC 892 3 AIR 1973 SC 2127 '*2019(3) Crimes 89

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Court is of the considered opinion that the conviction is upheld, however, to meet the ends of justice, the sentence of imprisonment is modified to that of fine of Rs.9,000/for the offence under Section 411 of IPC. 23. In the result, the Criminal Revision Case is allowed in part, modifying the sentence of imprisonment imposed against the petitioner/accused No.2 to that of fine of Rs.9,000/(Rupees Nine Thousand Only), in default to suffer simple imprisonment of six (6) months, instead of six (6) months rigorous imprisonment, for the offence under Section 411 of IPC. The rest of the judgment dated 13.10.2008 in Crl.A.No.42 of 2006 on the file of the Court of learned Principal^Sessions Judge at Chittoor, shall stand confirmed. The petitioner/accused No.2 shall pay the said fine amount on or before 07.02.2025 before the Court of learned V Additional Judicial Magistrate of First Class at Chittoor, failing^whichthe Trial Court concerned shall take steps against the petitioner/accused No.l to enforce the punishment. Copy of this order shall be marked to the Trial Court concerned, for compliance.

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Interim orders granted earlier if any, stand vacated.

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As a sequel, miscellaneous applications pending, if any,

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shall stand closed.