Allowed

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

Telangana HC3 Dec 2014CRLRC/1493/2007

Case brief

AI extract

What is this about?

This Court acquitted three accused of receiving stolen property under Section 411 IPC, holding that the prosecution failed to prove the seized gold ornaments were stolen articles from the victim's house, as there was no match between the stolen list and the seized items.

What did the court decide?

The impugned judgment is set aside. Accused A2, A3, and A4 are acquitted of the offence under Section 411 IPC. Bail bonds are cancelled after due time.

K.Narasimha Chary, (a-2), Vs The State of Andhra… — Cheating and Forgery | Telangana HC (2014)

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THE HON’BLE SRI JUSTICE M.SEETHARAMA MURTI

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CRIMINAL REVISION CASE No.1493 OF 2007

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ORDER:

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This Criminal Revision Case under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’) by the petitioners/A2 to A4 is directed against the judgment dated 21.08.2007 in Criminal Appeal No.320/2006 passed by the learned Special Judge for trial of offences under SCs & STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad whereby the learned Additional Sessions Judge, while confirming the conviction of the said accused recorded in C.C. No.734/2004 by the trial Court, had reduced the sentence of rigorous imprisonment of three years to one year rigorous imprisonment for the offence punishable under Section 411 of the Indian Penal Code (for short, ‘the IPC’) with which the accused are respectively charged, while maintaining the order in regard to return of the property

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2. I have heard the submissions of the learned counsel for the petitioners/A2 to A4 and of the learned Public Prosecutor representing the respondent-State. I have carefully perused the material record.

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3. Now the points for consideration are -

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(1) Whether the prosecution could bring home the guilt of A2 to A4, beyond reasonable doubt, for the offence punishable under Section 411 of the IPC with which the accused are respectively charged?

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(2) Whether the petitioners/A2 to A4 have made out valid and sufficient grounds for their acquittal and for setting aside the judgment impugned?

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4. POINTS:

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4. (a) The gravemen of the charge and the relevant facts of the

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prosecution case may be stated, in brief, are as follows: ‘PW1, J.Srinivasa Rao lodged a report on 25.11.2003 at about 12.30 PM with the Station House Officer, Kharkana Police Station. In his said report, he had stated that his wife Suguna left the house for collecting flowers by leaving the front door open and that she had returned after about ten minutes and became busy in the household work and that he had got up about 6.00 AM and went inside the bed room and had found there that all the jewellery boxes kept open were on the cot and that the doors of the almirah were also open and that on enquiries with his wife and on verification along with his wife, they had found that (i) one gold necklace-80 grams, (ii) one small gold necklace-20 grams, (iii) two kasikaya gundulu-100 grams, (iv) four big gold bangles and four small gold bangles-100 grams, (v) one gold watch-20 grams, (vi) three gold chains-35 grams, (vii) one gold bracelet-8 grams, (viii) four gold lockets-30 grams, (ix) eight pairs of duddulu-45 grams, (x) three gold rings-15 grams, (xi) one pagadala chain-20 grams, (xii) black beeds chain-20 grams, (xiii) cash approximately Rs.20,000/-, (xiv) one jointed gold chain-30 grams, (xv) two gold bangles-10 grams and (xvi) two black beeds chain-20 grams were stolen. On the basis of the said report, the case in Cr.No.224/2003 was registered for the offences punishable under Sections 457 and 380 of the IPC. During the course of investigation done by PW5-the Inspector of Police, A1 was arrested on 03.02.2004 at about 16.30 hours in connection with Cr.No.11/2004 while he was disposing of the stolen property in that case. On his confession recorded in the presence of panchas, the stolen properties were seized from PW4 under a cover of Seizure Memo dated 09.02.2004. The said properties are (i) one gold necklace big–45 grams (ii) one gold necklace small-19.040 grams, (iii) kasikaya gundu chain in double rows-2 nos.-42 grams (iv) three gold chains–29.200 grams (v) gold bracelet–7.590 grams (vi) five pairs of ear tops-12.490 grams (vii) pagadala gold chain-20.440 grams (viii) three gold lockets (ix) two big bangles and (x) two small bangles. Further, two plain gold bangles weighing 20 grams belonging to

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PW1 were seized from A2 on 04.02.2004 at 09.00 hours under the cover of Seizure Memo drafted in the presence of panchas. Further, one gold pendent-8 grams was seized from the possession of A3 on 04.02.2004 at 09.30 hours in the presence of panchas under the cover of Seizure Memo. Further, two gold black beads bangles-20 grams were seized from A4 on 04.02.2004 at 09.30 hours at his residence under the cover of Seizure Memo drafted in the presence of panchas. A1 during the course of his confession had stated that A2 to A4 used to encourage him to commit big offences and bring more gold. A2 to A4 were arrested on 04.02.2004 and orders of judicial remand were obtained. Later they were taken into police custody on 05.02.2004 and after recovery of property at their instance and on their confessions the charge sheet was laid after completion of the investigation. The learned XI Additional Chief Metropolitan Magistrate, Secunderabad took cognizance for the offence under Section 411 of the IPC against A2 to A4 and they were tried for the said offence with which they are respectively charged. After full-fledged trial, the trial Court found the accused guilty of the said offence and imposed a substantive sentence of rigorous imprisonment of three years each for the offence punishable under Section 411 of the IPC with which the said accused are respectively charged. As already noted, the appellate Court while dismissing the appeal and confirming the conviction, had reduced the said sentence to one year rigorous imprisonment each. Therefore, the aggrieved accused are before this Court.

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4. (b) At the time of hearing, the learned counsel for the petitioners/A2 to A4 (‘A2 to A4’, for brevity) had submitted that in the report lodged by PW1, there is no mention of plain gold bangles- 20 grams, one gold pendent-8 grams and two black beads bangles-20 grams, which were said to have been seized from the possession of A2 to A4 not only on their alleged confessions but also on the confession of A1 that he had sold the same to A2 to A4. Therefore, he pleaded that the prosecution

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evidence is not sufficient to base convictions against A2 to A4 and that the prosecution had failed to prove its case beyond reasonable doubt. On the other hand, the learned Public Prosecutor, placing reliance on the evidence of the Investigating Officer and the evidence of PW1, had urged that the prosecution by examining the material witnesses had proved its case beyond reasonable doubt and that both the Courts below have recorded concurrent findings of fact and that there is no merit in the Criminal Revision Case.

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4. (c) To examine the question as to whether the prosecution could bring home the guilt of the accused for the offences with which they are charged, it is necessary to examine the evidence brought on record during the course of the trial. PW1 spoke about the incident of theft in his house that had occurred on the morning of 25.11.2003 and his lodging exhibit-P1 report dated 25.11.2003 with the police and taking interim custody of the 13 items of stolen property, which were said to have been recovered during the course of investigation. Though the articles were not exhibited, the photographs of the alleged stolen and recovered articles were exhibited as MOs 1 to 13 in his evidence. PW2, who is a car mechanic and who was said to have acted as pancha on the summoning of the police had deposed that when he was summoned by the police about two years prior to his giving evidence, he had found A1 in the police station and that at that time A1 had confessed about various offences and that the Police had seized silver and gold ornaments under a cover of panchanama that was attested by him. The relevant portion of the said panchanama dated 03.02.2004 was exhibited as exhibit P2. In his cross examination, it was elicited that all the stolen articles were on the table of the Sub Inspector of Police and that he cannot say the description of the stolen property which was kept on the table. PW3 is a pawnbroker. According to him, he was called by the police about two years prior to his giving evidence but he has not seen A2 to A4 and that the police had obtained his signatures on white papers and that he does not know the

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facts of the case. Therefore, this witness did not support the case of the prosecution. He denied the suggestions given by the learned Prosecutor to the effect that he had witnessed A2 to A4 making confessional statements and the recoveries of stolen articles made pursuant to the confessions of A2 to A4. PW4-Kishore Kumar Santal is said to be a pawnbroker having his shop at Pot Market, Secunderabad. He had testified that in the month of February 2004 A1 came to his shop and had requested for pledging of gold ornaments in total 8 items including gold necklace, one long necklace one pair of bangles, one pair of small bangles, gundlu chain with two rows, one gold bracelet, one pagadala mala, five paris of ear tops, three lockets and three gold chains and that at that time A1 had represented that money is required to provide treatment to his wife and that believing the statement of A1 he had paid Rs.45,000/and had accepted the gold ornaments and that after one month Police came along with A1 and informed him that the said properties are stolen properties and that the police had seized the same under the cover of a seizure report and had also recorded his statement. Thus, this witness spoke nothing about A2 to A4. PW5 was the Inspector of Police at the relevant time. According to him, he had received exhibit P1 report from PW1 and had registered the subject crime and took up investigation and that he had recorded the statement of some of the witnesses and had held an identification parade for the seized property. In his evidence, exhibit P4 – Seizure report dated 04.02.2004 and exhibit P5 – another set of seizure reports dated 06.04.2003, 25.11.2003 and 15.06.2003 are exhibited. Coming to the relevant evidence relating to the subject crime his evidence which is of relevance is as follows: ‘After the arrest of A1, he had lead him and the panchas to the house of A2. There they had found A2 to A4. Pursuant to the confessions made by the said accused-A2 to A4, he had seized two plain gold bangles-20 grams from the possession of A2, two black beads gold bangles - 20 grams from the possession of A4 and one gold pendent-8 grams from the possession of A3 all concerned to the

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subject case in Cr.No.224/2003 and that he had arrested A2 to A4 and had obtained orders of remand of the said accused.

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4. (d) To show the complicity of A2 to A4 in this case for the offence under Section 411 of IPC, the prosecution relies upon the recoveries/seizures of one item each of gold ornament from A2 to A4 pursuant not only to their respective confessions but also pursuant to the confession of A1 that he had sold gold ornaments to them. The prosecution, therefore, is required to prove that the articles, which were allegedly seized from A2 to A4, are the subject matters of thefts. Therefore, it is necessary to see as to whether the said items viz., two plain gold bangles-20 grams, one gold pendent-8 grams and two black beads gold bangles-20 grams respectively said to have been seized/recovered from A2 to A4 pursuant to their alleged confessional statements are the subject matters of theft. Even as per the prosecution case, the details of stolen articles from the house of PW1 are as follows:

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1) one gold necklace-80 grams,

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2) one small gold necklace-20 grams,

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3) two kasikaya gundulu-100 grams,

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4) four big gold bangles and four small gold bangles-100 grams,

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5) one gold watch-20 grams,

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6) three gold chains-35 grams,

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7) one gold bracelet-8 grams,

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8) four gold lockets-30 grams,

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9) eight pairs of duddulu-45 grams,

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10) three gold rings-15 grams,

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11) one pagadala chain-20 grams,

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12) black beads chain-20 grams,

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13) cash approximately Rs.20,000/-,

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14) one jointed gold chain-30 grams,

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15) two gold bangles-10 grams, and 16) two black beads chain-20 grams

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The plain reading of these stolen articles would show that the three items before mentioned which were allegedly seized/recovered at the instance of A2 to A4 are not the subject matter of theft as per the version of PW1 from

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whose house the articles were committed theft of. Therefore, when the theft of the very items seized from A2 to A4, is not proved, the question of charging A2 to A4 for the offences of receiving stolen properties does not arise. Thus, on a careful analysis of the evidence on record, this Court is of the well considered view that the prosecution could not bring home the guilt of the accused beyond reasonable doubt and as required under law and therefore, the accused are entitled to an acquittal. The Courts below have failed to take note of the fact that the gold articles allegedly seized/recovered at the instance of A2 to A4 are not proved to be subject matter of theft and therefore, erred in recording a finding that they are guilty of the offence punishable under Section 411 of IPC. The Court below placed reliance on identification parade of the property conducted by the police and held that A2 to A4 were in possession of stolen property knowing that it was stolen property, ignoring the fact that none of the gold articles said to have been stolen from the house of PW1 do not correspond to the gold articles said to have been seized/recovered at the instance of A2 to A4. It is also pertinent to note that the incriminating material objects are not marked. Therefore, as rightly contended the judgment of the Court below is unsustainable under facts and law.

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4. (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 2 to 4 are entitled to an acquittal. The points are accordingly answered.

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5. In the result, the Criminal Revision Case is allowed and the impugned judgment confirming the judgment of the trial Court finding the accused respectively guilty of the offence punishable under Section 411 of IPC is set aside. The accused 2 to 4 are acquitted of the said offence. The bail bonds of the accused 2 to 4 shall stand cancelled after further appeal/revision time is over.

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Miscellaneous petitions pending, if any, in this Criminal

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Revision Case shall stand closed.

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____________________________ M.SEETHARAMA MURTI, J

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Date: 03.12.2014 MVA

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

Case brief

What is this about?

What did the court decide?

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

Case brief

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