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2022 DIGILAW 467 (TS)

Kandukari Somachary v. State Of Telangana

2022-07-21

CHILLAKUR SUMALATHA

body2022
JUDGMENT : 1. Heard the submission of Sri Dharmesh D.K.Jaiswal, learned counsel for the revision petitioner as well as the learned Assistant Public Prosecutor who is representing the respondent-State. 2. Challenge in this revision case is the judgment that is rendered by the Court of IV Additional District & Sessions Judge (Fast Track Court-III), Sathupally in Crl.A.No.43 of 2020, dated 15.02.2021. 3. The crux of the case as could be perceived through the contents of the charge sheet is that PW1 is the resident of Siddaram and is a businessman. On 06.07.2019, he closed his shop, returned home and kept a small bag containing Rs.95,000/- in the cupboard of the bed room which is located at the upstairs portion of his house and slept. At about 1:00AM on 07.07.2019, PW1 and his wife heard some sound and on that, they woke up and found one person running in the dark. They also found the grill of the window opened. On that, they raised cries. The brother of PW1, who was at the ground floor, approached them. They all found missing of Rs.95,000/-. It is the accused who entered into the house by removing the screws of the window grill and committed theft of the said amount. During the course of investigation, the accused was arrested and a sum of Rs.25,000/- was recovered from him. 4. The allegation of the prosecution is that, the accused committed offences punishable under Sections 457 and 380 of IPC. Subjecting the evidence of PWs 1 to 4, Exs.P1 to P4 and MO1 to scrutiny, the learned Judge of the trial Court came to a conclusion that the prosecution established the guilt of the accused beyond all reasonable doubt for the offences punishable under Sections 457 and 380 of IPC. The accused was accordingly convicted for the said offences and was sentenced to undergo rigorous imprisonment for a period of three years and to pay fine of Rs.10,000/- for the offences punishable under Section 457 IPC. The accused was also sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.10,000/- for the offence punishable under Section 380 IPC. 5. Aggrieved by the said judgment, the accused preferred appeal. The accused was also sentenced to undergo simple imprisonment for a period of three years and to pay fine of Rs.10,000/- for the offence punishable under Section 380 IPC. 5. Aggrieved by the said judgment, the accused preferred appeal. The Appellate Court i.e. the Court of IV Additional District & Sessions Judge (Fast Track Court-III), Sathupally, concurred with the findings of the trial Court as far as merits of the case are concerned. However, the Appellate Court ordered that both the sentences i.e. the sentence imposed under Section 457 IPC and the sentence imposed under Section 380 IPC shall run concurrently. Aggrieved by the findings given thus, the accused is before this Court. 6. Making his submission, the learned counsel for the petitioner/accused contended that the petitioner has not committed any offences what- so- ever and the prosecution miserably failed to establish the guilt of the petitioner beyond all reasonable doubt, but the trial Court as well as the Appellate Court failed to appreciate the lacunae in the case of the prosecution and thereby arrived at an unjust conclusion. The main ground urged by the learned counsel for the petitioner/accused during the course of his submission are three fold which are hereunder:- (i) Firstly, that there is delay of three days in giving complaint to the police. (ii) Secondly, that the alleged recovery is not proved beyond all reasonable doubt. (iii) Thirdly, the alleged confession that is given by the petitioner/accused is inadmissible and is hit by Section 27 of the Indian Evidence Act and therefore, the trial Court as well as the Appellate Court ought not to have relied upon such piece of confessional statement. 7. The learned counsel further submits that there are no ocular witnesses to the incident and the case is based on circumstantial evidence and if that being the situation, heavy responsibility vests upon the prosecution to connect each limb of the link, but it failed to do so. 8. Per contra, the submission of the learned Assistant Public Prosecutor is that a sum of Rs.25,000/- out of total sum of Rs.95,000/- was recovered from the possession of the accused and the accused has not given any explanation with regard to the possession of the said amount. Learned Assistant Public Prosecutor also contended that PW1 identified the accused before the Court and that itself is sufficient to convict him. 9. Learned Assistant Public Prosecutor also contended that PW1 identified the accused before the Court and that itself is sufficient to convict him. 9. The evidence of PW1 is that on 06.07.2019, in the midnight, one person entered into his house by opening the window and committed theft of Rs.95,000/-. He deposed that when they woke up and raised cries, the offender escaped. PW1 stated that he came to know that the offender is the accused herein and that he committed theft two or three times. PW1, during the course of giving evidence, stated that he can identify the accused. The Court recorded that the witness-PW1 identified the accused. PW1, during the course of cross-examination, admitted that when a person escapes, they would have the opportunity to see his back. However, PW1 volunteered that they saw the accused beside their bed clearly. How far the statement of PW1 is justifiable has to be seen by comparing with the report submitted by him before the Police. The said report is marked as Ex.P1. In Ex.P1, PW1 contended that on the date of incident, at about 1:00 AM, he heard a big noise and on that, himself and his wife woke up and found the person escaping and on that, they raised cries and his brother reached them and they found missing of Rs.95,000/-. He narrated that they suspected that it is the accused who committed theft. It is also narrated that as they were searching for him, there was delay. How PW1 came to conclusion that it is the accused who committed theft is neither narrated in Ex.P1 nor before the Court. Furthermore the fact that the accused was fond present beside their bed is not stated anywhere in Ex.P1. Admittedly, when the incident occurred on 06/07-07-2019, the complaint was given to Police on 09.07.2019. The reason as to why the complaint was not given to Police immediately is not convincing. As rightly submitted by the learned counsel for the petitioner/accused, PW1 had got the opportunity to search for the accused even after lodging a complaint. Why he did not do so is not mentioned anywhere. 10. As per the version of the prosecution, the accused was subsequently traced out and a sum of Rs.25,000/- was recovered from his possession. To establish the said fact, the prosecution produced the evidence of PW3. Why he did not do so is not mentioned anywhere. 10. As per the version of the prosecution, the accused was subsequently traced out and a sum of Rs.25,000/- was recovered from his possession. To establish the said fact, the prosecution produced the evidence of PW3. Even if it is believable that an amount of Rs.25,000/- was recovered from the possession of the accused, it does not mean that the said amount is out of the amount that stood missing from the house of PW1. Admittedly, there is no mention of at least the denomination in Ex.P1 complaint. Though, not the numbers of the notes, at least, the denomination ought to have been mentioned. Even, that was not done. Therefore, this Court does not understand as to how the trial Court as well as the Appellate Court came to conclusion that the sum of Rs.25,000/- that was allegedly recovered from the possession of the petitioner/accused is the amount that belongs to PW1. Also, as rightly submitted by the learned counsel for the petitioner/accused, the alleged confessional statement which is marked as Ex.P3, cannot form basis for convicting the petitioner/accused. 11. Law is well settled that such part of confessional statement which leads to recovery, can be relied upon by the Court to come to conclusion only in respect of the recovery of material object but not regarding the participation or guilt of the person from whom the material object was recovered. The confessional statement shall not be used for the purpose of convicting the accused basing on the admission of guilt. Admission of guilt before the person in authority is inadmissible in evidence as per Sections 24 to 27 of the Indian Evidence Act. Therefore, Ex.P3 cannot form basis for the Court to come to a conclusion that the petitioner/accused has committed the offence. That apart, even after apprehending the petitioner/accused, the prosecuting agency has not taken any steps for conducting any identification parade for identification of the petitioner/accused. Therefore, the identification of the petitioner/accused for the first time before the Court by PW1 on the date he gave evidence, ought not to have been relied upon by the trial Court. Without observing all these factors, the trial Court has convicted the accused and the Appellate Court has confirmed it. 12. Therefore, the identification of the petitioner/accused for the first time before the Court by PW1 on the date he gave evidence, ought not to have been relied upon by the trial Court. Without observing all these factors, the trial Court has convicted the accused and the Appellate Court has confirmed it. 12. Having regard to the aforementioned lacunae in the case of the prosecution, this Court is of the view that the sentence imposed is unsustainable. Therefore, this Court considers desirable to allow this Criminal Petition. 13. Resultantly, the Criminal Petition is allowed. The judgment of the Court of Judicial Magistrate of First Class, Sathupalli, in CC.No.761 of 2019, which is confirmed by the Court of IV Additional District & Sessions Judge (FTCIII), Sathupally, in Crl.A.No.43 of 2020, is set-aside. The petitioner/accused is thereby acquitted of the charges levelled. The petitioner/accused is directed to be set at liberty forthwith if he is not required in any other cases. The fine amount if any paid shall be refunded. 14. As a sequel thereto, miscellaneous petitions pending, if any, shall stand closed.