Allowed

K.Narasimha Chary,(A-2) v. State of A.P.

Telangana HC3 Dec 2014CRLRC/1492/2007

Case brief

AI extract

What is this about?

In this criminal revision, the High Court set aside the lower court's conviction of a goldsmith for receiving stolen property. The Court held that the prosecution failed to prove recovery of the stolen item through a panchanama, and the sole witness to recovery did not support the case, warranting acquittal.

What did the court decide?

Impugned judgment set aside; accused acquitted of offence punishable under Section 411 IPC; bail bonds cancelled.

K.Narasimha Chary,(A-2) Vs State of A.P. — Cheating and Forgery | Telangana HC (2014)

¶1

THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

¶2

CRIMINAL REVISION CASE No.1492 OF 2007

¶3

ORDER:

¶4

This Criminal Revision Case under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) by the petitioner/A2 is directed against the judgment dated 21.08.2007 of the learned Special Judge for trial of offences under SCs & STs (POA) Actcum-VI Additional Metropolitan Sessions Judge, Secunderabad passed in Criminal Appeal No.318/2006 whereby the learned Additional Sessions Judge while dismissing the said appeal of the petitioner/A2 had confirmed the conviction for the offence punishable under Section 411 of the Indian Penal Code (for short, ‘the IPC’) as recorded by the trial Court in C.C.No.1258/2004 arising out of Cr. No.61/2003, but reduced the substantive sentence of rigorous imprisonment from three years to one year.

¶5

2. I have heard the submissions of the learned counsel for the petitioner/A2 and of the learned Public Prosecutor representing the respondent-State. I have carefully perused the material record.

¶6

3. The learned counsel for the petitioner/A2 would contend that the Courts below erred in convicting the petitioner/A2 for the offence punishable under Section 411 of IPC and that the ingredients which constitute the said offence are not made out by adducing legal and reliable evidence and that the Courts below had erred in placing reliance on the testimonies of the material witnesses and that the Courts below ought to have seen that there is no evidence in regard to the recovery of stolen property from the petitioner and that the panch witness did not support the case of the prosecution and that there is no identification of the material objects and that the A2 is a goldsmith and that there is no material to

¶7

record a conviction. On the other hand, the learned Public Prosecutor forcefully argued that the confessional statement of A2 that he had pledged the gold ornaments with various pawn brokers coupled with the evidence of PW8 that Kempula gold haram concerning crime No.61/2003 was recovered/seized from PW4, the receiver, is sufficient to bring home the guilt of the accused for the charge. In reply, the learned counsel for the petitioner/A2 had contended that without PW4 supporting the case of the prosecution in regard to the Kempula haram and without the said gold article being exhibited before the Court as a material object, it cannot be said that there is adequate evidence to sustain the charge.

¶8

4. Now the points for determination in the Criminal Revision

¶9

Case are:

¶10

(1) Whether the prosecution could bring home the guilt of A2, beyond reasonable doubt, for the offence punishable under Section 411 of the IPC?

¶11

(2) Whether the petitioner/A2 has made out valid and sufficient grounds for his acquittal and for setting aside the judgment impugned?

¶12

5. POINTS:

¶13

5. (a) The gravemen of the charge and the relevant facts of the prosecution case may be stated, in brief, as follows: ‘One K.Mohan (PW6K.Mohan Acharya) had lodged a report dated 06.04.2003 with the Station House Officer, Karkhana Police Station stating about the incident of theft that had occurred in his house in the early hours on 06.04.2003 and which was noticed by him at about 5.00 AM. On such noticing of the incident of theft and on verification he and his wife had found that certain gold articles weighing approximately 15 tolas and cash of Rs.10,000/- were missing. On the basis of the said report-exhibit P5, the case in crime no.61/2003 was registered by PW7 (the S.I. of Police) for the offences punishable

¶14

under Sections 457 and 380 of the Indian Penal Code (for short, ‘the IPC’) and exhibit P7-F.I.R was issued. PW8 – the Inspector of Police had taken up investigation and investigated into the crime. The articles committed theft of from the almirah in the house of PW6 as per the averments in the charge sheet are – (i) Kempula Haram with ear rings and jhumkas - 4 tolas (ii) plain necklace single line row with jumkas – 4 tolas (iii) pearls necklace of two rows with gold pathakam-3 tolas (iv) hand bracelet simham kadiyam-2 tolas (v) jada-billa - champa sawaralu-1 tola (vi) small chain with tiger nail studded-1 tola, of total worth of about Rs.35,000/-. Further, basing on the complaint lodged by PW1-K.M.Prabhu regarding theft on the night of 15.06.2003 by some unknown culprits in the house of PW2B.Pradeep Kumar, a case in Cr.No.118/2003 was registered. During the course of investigation, on 03.02.2004 at about 17.00 hours, A1 was arrested in connection with the case in Cr.No.11/2004 of the same police station. During interrogation, he had admitted commission of offences in various crimes including these crimes. As a result, PW8, the Inspector of Police, secured the presence of Panchas and recorded the detailed confession of A1 and had obtained orders of judicial remand. On the confession, the other accused 2 to 4 who were receivers of the stolen property were arrested on 04.02.2004. Subsequently, the police custody of the said accused was obtained and on the confession of the petitioner/A2 gold jewellery pertaining to the present Crime No.61/2003 was recovered along with pledged receipt etcetera from the shop of PW4Chandrakanth Surana in the presence of panchas and at the instance of A2 on 07.02.2004 at 11.00 hours. Subsequently, the charge sheet was laid in various crimes including the present crime and the learned XI Additional Chief Metropolitan Magistrate, Secunderabad has taken cognizance for the offence punishable under Section 411 of the IPC against the present accused. After full-fledged trial, the learned Magistrate found the petitioner/A2 guilty of the said offence with which he is charged and sentenced him to undergo rigorous imprisonment for a period of three

¶15

years for the said offence. As already noted, while dismissing the appeal, the learned Additional Sessions Judge had reduced the sentence of substantive imprisonment to one year of rigorous imprisonment.’

¶16

5. (b) Now, to examine as to whether the prosecution brought home the guilt of the accused as required under law, it is necessary to examine the facts pleaded in the prosecution case in juxtaposition with the evidence on record. PW1 on whose complaint the other case in Cr.No.118/2003 was registered had deposed about the incident of theft on 15.06.2003 morning in the house of his co-brother and his lodging a report with the Police about the lost of articles during the said incident of theft; and in his evidence exhibit P1-report dated 15.06.2003 was exhibited. PW2 is the co-brother of PW1. He had deposed about the incident of theft in his house during his visit to Tirupati and about his co-brother (PW1) lodging exhibit P1-report with the police in regard to the theft in his house. According to his evidence, he had further lodged exhibit P2-additional report dated 16.06.2003. In his evidence, the photographs of the stolen articles with negatives are exhibited as MOs 1 to 3 as it appears he has taken interim custody of those articles viz., one gold necklace with white stones weighing about 15 gms, one pair of white stones studded ear tops and one Lord Venkateshwara locket. The evidence of PWs 1 and 2 in regard to the case in Cr.No.118/2003 is not relevant to the case of the present accused and the case in Cr.No.61/2003. PW3, who is car mechanic, is stated to be a Panch witness. According to him, about two years prior to his giving evidence before the trial Court, the Police of Karkhana summoned him and that at that time he had noticed that A1 was in the police station and that the accused had confessed about the various offences earlier committed by him and that the police had seized silver and gold ornaments under the cover of a panchanama, which was attested by him. In the cross examination of this witness, it was elicited that all the stolen articles were on the table of the Sub Inspector of Police and that he

¶17

cannot say the description of the stolen property that was kept on the table of the Police Officer. Be that as it may.

¶18

5. (c) As according to the gravemen of the charge, A2 having received the stolen property from A1 had pledged it with PW4Chandrakanth Surana and the same was recovered by the police from the said witness, the evidence of PW4 assumes importance. PW4 had testified as follows: ‘He is doing money lending business in Sardar Bazar, Bollaram. He knows A2 and his two sons (A3 and A4) and that in the year 2003, A4 (Murali S/o Narasimha Chary-A2) came to his shop and pledged one gold necklace, one pearl necklace and one gold chain and that he had paid Rs.20,500/- for the pledged ornaments and that in the said month the said Murali had paid the amounts and got released the said articles and that again A2 came to his shop and pledged one gold necklace of about 3 tolas and he had paid Rs.10,000/- to A2. In the month of February 2004, Police came along with A2 and had informed that it is stolen property. Police had verified his records and seized the said gold ornaments from his shop and had recorded his statement.’ In his evidence, exhibit P4receipt dated 26.06.2003 was exhibited. In his cross examination, it is elicited that A2 is a retired railway employee and that A2 and his two sons are goldsmiths by profession and that police have not prepared any panchanama when police came along with A2 to his shop. Thus this witness does not speak of the fact that the Kempulaharam was recovered from him (PW4) under the cover of panchanama. PW5-Nirmal Jain Suranana, who is also a businessmen dealing in Pawn broking at Sardar Bazar, Bolaram testified that A2 came to his shop in April 2002 and sold gold ornaments viz., one stone gold necklace, one ear top, one gold locket of 0.5 gms and he had paid Rs.5,000/- to him and that on 16.02.2004 Kharkhana Police came to his shop and had made enquiries and that at that time he had informed the facts to the police and that the police had examined him and recorded his statement. PW6-K.Mohan Acharya

¶19

deposed that on his report under exhibit P5 dated 06.04.2003 the subject crime was registered. He spoke about the incident of theft in his house and that he had lost gold ornaments and cash of Rs.10.000/- in the said incident of theft. PW7 is the Sub-Inspector of Police who had received the report from PW6 and registered the subject crime No.61/2003 and had issued exhibit P7-FIR. PW8 who is the Inspector of Police at the relevant time had investigated into the case and laid the charge sheet. He spoke about the details of investigation into various crimes including the subject crime. Coming to the present crime, his evidence is that having arrested A2 he had interrogated him in the presence of Panchas and that pursuant to the confessional statement of A2 he had seized one Kempulaharam which is concerned in the subject crime No.61/2003 from PW4Chadrakanth Suranana, who is said to be the receiver of the said item of article of theft and that he had also seized pawn receipt bearing No.17019 from the said Chadrakanth Suranana. The cross examination of this witness on the relevant aspect proceeded on the line that A1 had not sold or handed over any gold ornaments to A2 to A4 and that A2 to A4 did not make any confessions which led to recovery of the gold ornaments. I have thus carefully analysed the evidence.

¶20

5. (d) The case of the prosecution in regard to the complicity of the accused in the subject crime i.e., Cr.No.61/2003 is based on recovery of one Kempula gold haram pertaining to this crime pursuant to the confession of A2 from the shop of PW4-Chandrakanth Surana. As already noted, the said witness PW4 in his entire evidence did not speak of seizure of Kempula haram from his shop at the time when the Police came along with A2 to his shop in February 2004. Though PW8, the Investigating Officer, had stated in his evidence that Kempula gold haram concerned in Cr.No.61/2003 was recovered from one Chadrakanth Suranana-PW4 with whom A2 had allegedly pledged the said article, as already noted, PW4 did not speak of the seizure of any such Kempula

¶21

haram from him in his evidence and had also stated that no panchanama was drafted in his shop when the Police Officer concerned came to his shop along with A2. Therefore, in the absence of proof of recovery/seizure of the Kempula haram concerned in Crime No.61/2003 from PW4, and when PW4 did not support the case of the prosecution, it follows that the prosecution could not bring home the charge against A2 for the alleged offence. Added to this, the Kempula haram was not exhibited as a material object. The evidence of PW5 shows that A2 had sold some gold ornaments to him in April 2002 whereas the incident of theft in this crime was said to have occurred on 06.04.2003. Therefore, from the evidence brought on record, it is manifest that the accused/A2 is entitled to a reasonable benefit of doubt and is therefore, entitled to be acquitted in the present case. I have gone through the judgment impugned. The learned Judge based conviction as Kempula Haram was given interim custody to PW6 and the said fact is not denied by the accused and that the negligence on the part of prosecution in not marking the properties before the trial Court is not a ground to disbelieve the prosecution case. The accused is not claiming the property as his and he is also stating that he is not aware of any theft to have been committed in the house of PW6. His only defence is that he is unconcerned with the crime. To show the complicity of the accused, the only link evidence is recovery of Kempula haram from PW4-a pawn broker as per the case of the prosecution. As already noted, the said evidence is not forthcoming to show the complicity of the accused. Therefore, as rightly contended the judgment of the Court below is unsustainable under facts and in law.

¶22

5. (e) Therefore, having regard to the entire evidence on record which is analysed, this Court is satisfied that there is merit in this Criminal Revision Case and that the accused is entitled to an acquittal. The points are accordingly answered.

¶23

6. In the result, the Criminal Revision Case is allowed and the

¶24

impugned judgment confirming the judgment of the trial Court finding the accused/A2 guilty of the offence punishable under Section 411 of IPC is set aside. The accused/A2 is acquitted of the said offence. The bail bonds of the accused shall stand cancelled after further appeal/revision time is over.

¶25

Miscellaneous petitions pending, if any, in this Criminal Revision Case shall stand closed.

¶26

____________________________ M.SEETHARAMA MURTI, J

¶27

Date: 03.12.2014 MVA

K.Narasimha Chary,(A-2) v. State of A.P.

Case brief

What is this about?

What did the court decide?

K.Narasimha Chary,(A-2) v. State of A.P.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sura Venkata Ramanamma Vs Soda Venkateswara Achari

Kavvampelli Mallesham Alias Mallaiah, Vs The State of Andhra Pradesh

Bandi Prabhakar, Vs The State of Andhra Pradesh

K.Narasimha Chary, (a-2), Vs The State of Andhra Pradesh

G.Eswaramma Vs The State of A.P.

M.a.Saleem Vs The State of Ap.