Pentapati Veerababu vs State of A.P.

This Criminal Revision Case is directed against the judgment in Criminal Appeal No.280/93 on the file of First Additional Sessions Judge, Rajahmundry, dt.5-2-1996 confirming the conviction u/s 411 IPC and sentence of rigorous imprisonment of 1 1/2 of years and fine of Rs. 1,0(XV- in default simple imprisonment for four months passed against the revision-petitioner herein in C.C.No.80/93 on the file of Judicial First Class Magistrate, Alamuru, dtl5-ll-1993.

The prosecution case in brief is that the Revision-Petitioner was employed in the shop of Sri Shanihi Textiles of P.W.I on weekly wage basis. On 5-6-1993, P.W.I kept a cash bundle of Rs. 15,0007- in a wooden cash-box while his father had kept another currency bundle of Rs.85,0007- in another cash box and they closed the shop at about 1.30p.m. and locked the doors and went away. On6-6-1993 at about 7.00 am. P.W.I came to the shop, opened it as usual and noticed that the cash bundle of Rs.15,0007-was missing from the cash box and thereupon, he went to the Police Station and lodged a report on the same day at about 10.00 am. A case in Crime No. 115/93 u/s 380 I.P.C. was registered and investigated by P.W.3. The father of P.W. 1 happened to go to Madras and he returned on 9-6-1993 at 10.00 am. and opened the second cash box and found that the bundle of Rs. 85,0007- was missing and thereupon P.W.I again went to the Police Station on 9-6-1993 and presented a reportofmissingofRs.85,000/-. P.W.4tookup the investigation and arrested the revision-petitioner on 9-6-1993 at about 4.00 p.m. at Gangalakurru village at the house of this father. He was interrogated in the presence of mediators, P, W.2 and another and he gave a statement and thereafter he led the police and panchas to the house of his brother-in-law by name Kolaraju and he dug the floor under a mat and took out a gunny bag. He then opened the gunny bag and took out a pillow cover wherein cash bundles, M.Os.l to 11 and pillow cover-M.O.I 2 wereseid by P.W. 4, Inspector of Police in the presence of mediators. After completing the investigation, a charge-sheet has been filed against the revision petitioner.

During the trial, the prosecution examined P.W.I, T. Purukshukani, the defacto complainant, P.W.2, Ganisetly Anjaneyulu, mediator, P.W.3, S.P.V.S. Kumar, Sub-Inspector of Police, P.W.4, V.Satyakumar, Inspector of Police and got Exs:P.l to P.7 and M.Os.l to 13 marked. The revision-petitioner denied the entire prosecution evidence and he finally stated that there are fourteen workers in the shop of P.W.I and that P.W.I is not paying their wages regularly and hence he is organising a common platform for all the workers for the purpose of protecting their rights and hence P.W. 1 foisted a false case. He examined his Brother-in-law by name Kolamju as D.W.I and got his ration card marked as Ex:D.l. The learned magistrate scrutinised the above oral and documentary evidence and held that the prosecution is able to establish that a thief of Rs. 1,00,000/- had occurred in the shop of P.W.I and that M.Os.l to II comprising of cash bundles of Rs. 1,00,0007- is the theft property belonging to P.W. 1 and that the same has been found in possession of the revision-petitioner and hence he is liable u/s 4111.P.C. and accordingly the learned Magistrate convicted him u/s 411 I.P.C. and sentenced him to undergo rigorous imprisonment for 1 1/2 year and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for four months. The revision-petitioner challenged the above conviction and sentence before the learned First Additional Sessions Judge Rajahmundry, in Criminal Appeal No.280/93, but the same has been dismissed and consequently the conviction and sentence passed by the learned Magistrate are confirmed. Aggrieved by the conviction and sentence as confirmed by the learned First Additional Sessions Judge, Rajahmundry, he preferred this Revision Case.

Smt.S.R.S.Ratnam, Advocate, representing Sri M.Sivananda Kumar, learned Counsel for the revision-petitioner strenuously contented that father of P.W.I who is said to have kept the cash of Rs.85,000/- hi the second cash box is not examined and that there are several discrepancies in the prosecution evidence, the benefit of which should go to the revision-petitioner. She further contended that the place where M.Os.l to 12 are said to have been concealed and recovered does not belong to the revision-petitioner and hence no presumption u/s 114(a) of the Evidence Act would arise. It is also contended that there is no proper identification of M.Os.l to 11. The stamp'' SST'' which is said to have been found on the bundles is not mentioned either in the F.I.R.or any other in vestigation record. Thus, she contended that the revision-petitioner may be acquitted. She also contended that the revision-petitioner is entitled for return of Rs. 1,00,0007- which was recovered from him as the prosecution miserably failed to establish his guilt.

Sri Venkatesh, learned Counsel representing the learned Public Prosecutor has taken me through the entire record and contended that there is legal and acceptable evidence to establish all the ingredients of Section 411 I.P.C. and hence the conviction is sustainable. He met the contentions of Smt. Ratnam stating that father of P.W. 1 has not been examined as his testimony would have been a repetition of the evidence of P.W.I. He then argued that the place where the stolen property was concealed was within the exclusive knowledge of the revision-petitioner and it was he who led the police party to that place and that he himself dug out the floor and got the entire booty recovered. According to him, the recovery is admissible both u/s 27 and Section 8 of the Evidence Act. Thus, he argued that the revision petition is devoid of any merit .

I carefully considered the rival contentions. At the very outset, I may refer to Ex:P.2, accounts book containing the entries relating to the cash of Rs. 85,0007-. Although the account book has been marked through P.W.I it has not been put to the revision-petitioner-accused in 313 examination and he has not been given an opportunity to meet that part of evidence and hence the same is eschewed from consideration.

The oral evidence of P. W. I together with his own report, Ex:P.l is in my view sufficient to show that there was theft in the shop of P.W. 1. The revision-petitioner is no other than an employee of the shop and hence he is supposed to know the place where the cash is secured by P.W. 1 and his father. He is also supposed to know about the keys which are used for opening the cash boxes etc. Both the Courts below have accepted the testimony of P.W. 1 and recorded a concurrent finding that the prosecution has established that theft had taken place in the shop of P.W. 1. I am unable to take a different view of the above evidence.

P.W.2 is a neighbouring shop-keeper and he also lent support to the evidence of P.W. 1 regarding the occurrence and then he is the mediator for the confessional statement and recovery of the cash. A perusal of the evidence of P.W.2 and 4 on one hand and the relevant panchanama, Ex:P,5 on the other would go to show that the revision-petitioner himself led the police party and P.W.2 to the house of D.W. 1 and he dug out the floor under a mat and removed the gunny bag. When the gunny bag was opened a pillow cover containing cash bundles which are marked as M.Os.l to 11 were found. On being counted the bundles were found to be Rs. 1,00,0007- and they contained stamp or ''SST'' denoting ''Sri Shanthi Textiles'', which is the name of the shop of P.W.I, They were identified by P.W. 1 at an identification parade held by P.W.4. Ex:".6 is the identification report. While the prosecution is contending that the link between the revision-petitioner and the stolen property is established by the above recovery, Smi. Ratnam contended that the above place does not belong to the revision-petitioner. It is true that D.W.I, Kolaraju who is related to the revision-petitioner as brother-in-law is residing in that house. He also produced Ex;D.l, ration card in support of that plea but that does not mean that the revision-petitioner can be absolved of the liability on that ground alone. When the police spotted him at his father''s house, he tried to escape. Evidently, that was the first sign of guilty conduct. He was apprehended and upon interrogation by P.W. 4, he himself gave the statement and led the police party and mediators to the house of D.W.I from where M.Os.l to 11 theft property was recovered. It is the special knowledge of the revision-petitioner that is a relevant consideration and it is his conduct in leading the police and mediators to that place that incriminates him. In my view, both the Courts below have taken the correct view of the evidence on record and held that the recovery of the stolen properly- M,Os.l to 11 has been satisfactorily established by the prosecution.

The learned Magistrate has disbelieved the version of the revision-petitioner that the case is foisted against him as he was organising all the workers on a common platform for the purpose of reddressal of their grievances. It is held that no one would risk as huge a sum as Rs. 1,00,000/- for the purpose of foisting the case against anyone. I am also of the view that the case does not appear to have been foisted against the revision-petitioner.

Hence, I have no hesitation to confirm the conviction and sentence passed against the revision petitioner. The Revision Case is accordingly dismissed.