THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.899 of 2007 Date:05.08.2014 Between:
Papathoti Vijayakumar . Petitioner.
AND The Sub-Inspector of Police, Pathapatnam, and State rep. by Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.899 of 2007 ORDER:
This revision is preferred against judgment dated 03-07-2007 in Crl.A.No.123/2002 on the file of II Additional District & Sessions Judge (FTC), Srikakulam whereunder judgment dated 02-07-2002 in C.C.No.483/2001 on the file of Judicial First Class Magistrate, Pathapatnam was confirmed.
2. Brief facts leading to filing of this revision are as follows:- Sub-Inspector of Police, Pathapatnam filed charge sheet against petitioner and six others alleging that on the intervening night of 29/30-06-2001, a theft took place in Sri Nilakanteswara Swamy Temple of Kapugopalapuram in Pathapatnam Panchayat in which, one brass Nandi Idol, one brass Shiva Idol and one brass Parvathi Ammavaru Idol were stolen and on the report of Priest of Nilakantaeswara Swamy Temple, Police registered F.I.R and in the course of investigation, it came to light that prior to the offence, A1 to A6 visited the said temple twice and on instigation of A7, they committed theft. On 08-07-2001, police arrested A1 to A6 and recovered the property, and subsequently arrested A1 on 16-07-2001 and that all the accused are liable for punishment. On these allegations, trial Court examined six witnesses and marked nine documents on behalf of prosecution besides six material objects and no witnesses are examined and no documents are marked on behalf of accused. On an over all consideration of oral and documentary evidence, trial Court found A1 to A6 guilty for the offence under Sections 457 & 380 IPC and found A7 was guilty for the offence under Section 380 read with 109 IPC and sentenced A1 to A6 to suffer 18 months imprisonment with a fine of Rs.1,000/- and sentenced A7 to suffer 18 months imprisonment with a fine of Rs.1,000/-. Aggrieved by the same, A7 preferred appeal to the Court of Session, Srikakulam and II Additional District & Sessions (FTC), Srikakulam, on a reappraisal of evidence, confirmed the conviction and sentence. Aggrieved by which, A7 preferred present revision.
3. Heard both sides.
4. Main argument of the Advocate for revision petitioner is that there is no evidence of any kind against the revision petitioner for the alleged abetment or instigation and both trial Court and appellate Court only on the basis of admission of co-accused, convicted the revision petitioner and, therefore, both the Courts have committed error. He submitted that confessional statement of co-accused is not admissible under law and when there was no recovery in pursuance of the confession of this revision petitioner, relying on such confessional statement for convicting the revision petitioner is not permissible. He submitted that both the Courts erred in appreciating evidence and therefore, the conviction imposed against the revision petitioner is liable to be set aside. He lastly argued for any reason, his argument is not accepted, at least the sentence may be reduced by modifying it to the period already undergone. He submitted that the petitioner was in jail for about one month and the same may be treated as punishment. On the other hand, learned Public Prosecutor submitted that though trial Court relied on the confessional statement of revision petitioner, which is marked as Ex.P5, the appellate Court has set aside that finding to the extent of Ex.P5-document, but as there is other evidence i.e., evidence of P.W.4 and the investigating officer, the appellate Court confirmed the conviction against the revision petitioner and that there are no grounds to interfere with the concurrent findings.
5. Now the point that would arise for my consideration is whether judgments of the Courts below are legal, proper and correct?
6. Point:- According to prosecution, a theft took place on the intervening night of 29/30-06-2001 at Nilakanteswara Swamy Temple, where three Idols were stolen. According to prosecution, this revision petitioner is leader of the other accused-A1 to A6, who executed the work entrusted to them by A7 and on that ground, the petitioner i.e., A7 is charged with the offence of Section 380 read with 109 IPC. The only objection raised on behalf of the revision petitioner is that both the Courts have convicted the revision petitioner on the basis of confession of a co-accused, which is not permissible under law. But as seen from the evidence and the judgments of the Courts below, though trial Court relied on the confessional statement of the revision petitioner, which is marked as Ex.P5, the appellate Court discarded the same on the ground that it is hit by Section 25 of the Indian Evidence Act, but relying on the other evidence, the appellate Court confirmed the conviction. Out of six witnesses examined, P.W.1 is the Purohit of the Temple, P.W.2 is a servant of Nilakanteswara Swamy Temple, P.W.3 is a land owner adjacent to the temple, P.W.4 is a mediator for the arrest of A1 to A6 on 08-07-2001 and for arrest of the revision petitioner on 16-07-2001. P.W.5 is a Judicial First Class Magistrate, who conducted test identification parade for A1 to A6 and P.W.6 is the Investigating Officer. So far as revision petitioner is concerned, evidence of P.Ws.4 & 6 is material. P.W.4 clearly deposed about the arrest of revision petitioner on 16-07-2001 and in the cross-examination on behalf of revision petitioner, it was elicited from him that A7 was arrested near the river bank at Booragam, where Nandi Idol was recovered. Investigating officer has further supported and corroborated the version of P.W.4 with regard to arrest of A7. The charge against the revision petitioner is that he abetted or instigated A1 to A6 to commit the offence. Admittedly, this A7 is not a resident of Pathapatnam, where the offence took place. During cross-examination of P.W.6 on behalf of revision petitioner, it was suggested that A7 along with the other accused went to Pathapatnam for eking out his lively hood from which, it is clear that revision petitioner admitted that he had been to Pathapatnam along with the other accused. Even according to the own version of the revision petitioner, he is a resident of Kurnool.
In the confessional statements of A1 to A6, they have stated that they committed this offence at the instigation of this revision petitioner on the sharing basis of 1/3rd to A1 to A6 and 2/3rd to petitioner herein. When it was elicited during cross-examination of P.W.4, that this A7 was arrested at river bank, Booragam, where one of the stolen Idol was recovered and when from the own suggestion of revision petitioner, he went to Pathapatnam along with the other accused, these two circumstances strongly point towards the role of the revision petitioner in the commission of offence. For a charge of abetment, there may not be direct evidence and it has to be gathered from the circumstances. These two circumstances are very strong circumstances, which remained unrebutted. As rightly pointed out by learned Public Prosecutor though trial Court also relied on Ex.P5-confessional statement of revision petitioner, the appellate Court discarded it, but confirmed the conviction on the basis of other evidence. I do not find any wrong appreciation of evidence by appellate Court and that there are no incorrect findings in the judgments of the Courts below. The scope of revision is very limited and only in case of any illegality in the judgments of the Courts below, the revisional power has to be exercised. I do not find any illegality in the judgments of the trial Court and appellate Court, therefore, I am of the view that there are no grounds to interfere with the concurrent findings of both the Courts in respect of conviction.
7. Now coming to sentence part, Advocate for revision petitioner submitted that 18 months imprisonment is on higher side, particularly, when the revision petitioner is not among the accused, who committed theft in the temple, therefore, the same may be modified and reduced to the period already undergone. But as seen from the material, the petitioner is involved in a serious offence, particularly, committing theft of Idols in the Temple is a grave offence and such offences deserve deterrent punishment. Both trial Court and appellate Court have rightly exercised their judicial discretion in awarding the sentence and I do not find any compelling circumstances to interfere with the same.
8. For these reasons, it is held that there are no merits in the revision, therefore, the same is dismissed confirming the conviction and sentence.
9. The trial Court shall take steps for apprehension of accused for undergoing unexpired portion of the sentence.
10. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date: 05.08.2014 mrb