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Judgment
M. Karpagavinaayagam, J.—R. Thangavel, who was arrayed as A2 in a case tried for the offence under S.4201.P.C., is the petitioner herein.
Along with Al, the petitioner was convicted and sentenced for the said offence to undergo R.I. for two years and to pay a fine of Rs.2,500/- each, in default, to undergo R.I. for three months, by the learned Chief Judicial Magistrate, Trichirapalli. In the appeal before the II Additional Sessions Judge, Trichirapalli, the conviction and sentence imposed upon the petitioner were confirmed and Al was acquitted. Hence this revision.
The factual matrix are these :-
One Ramanujam, Al in this case, was the owner of the Revathi Photo Studio at Sriran-gam. The petitioner Thangavel, A2, who is the dealer in antiques at Madras is his close friend. Both Al and A2 during the month of March 1987 went to Andal Sannathi in Srirangam temple and met P.W. 1 Rangaraja Iyengar, who was in charge of maintenance of Andal Sannathi. Both of them falsely represented, posing themselves as devotees of Andal and made P.W.I to believe that both of them would do repair works of 30 art paintings of Andal Thiruppavai Pasurangal available at Sannathi as their By such false representation they induced P.W.I to deliver the said 30 art paintings to their custody. Having obtained these art paintings on making such false representation, the petitioner (A2) sold 12 out of them to P.W.7 Deenadayalan, antique dealer at Madras, for Rs.36,000/- after preparing duplicate for the same for substitution.
On 26.7.1987 at about 10.00 a.m., on receipt of reliable information that the petitioner, A2, was in possession of stolen antiques. P.W. 13, the Inspector of Police (Idol theft case Wing) sent advanced intimation Ex.P13 to the Additional Chief Metropolitan Magistrate. Thereafter, he along with other police personnel and mahazar witness P.W. 12 Sekar went to Nainiappan Maistry Street, Madras and searched the shop of the petitioner. The search list is Ex.Pl 1. During the course of search, P.w.13 recovered eight paintings M.Os.2,3,4,6,7,9,10 and 12 from the shop after recording confession statement from the petitioner. The admissible portion is Ex.P12.
Thereafter, the case was registered in Crime No. 16/87 under S.41(2) read with 102 Cr.P.C. The F.I.R. is Ex.P14. In pursuance of the confession, in order to recover the remaining stolen antiques, P.W. 13 and others went along with the petitioner, who pointed out Aparna Art Gallery in Bava Rowdier Road, whose proprietor is P.W.7 Deenadayalan. The petitioner, A2, pointed out P.W.7 to whom he sold the other antiques, P.W.7 admitted the same and handed over 12 Andal Pasuram paintings, M.Os. 1,5,8,11,13,19,20,22,25,27, 28 and 29. These were recovered under mahazar Ex.P6 attested by P.W. 12 and others.
On the information given by A2 that other 10 paintings are available with Al at Srirangam, on 28.7.1987 P.W. 13 and others came to Al''s Revathi Photo Studio and interrogated him. On his arrest, he gave a confession. The admissible portion is Ex.P9. Thereafter, he took the police party to his house and took out 10 paintings M.Os.14,15,16,17, 18,21,23,24,26 and 30. Along with them the duplicate pictures, frames, etc. were recovered. The mahazar is Ex.P. 10, attested by P.W. 10.
On 4.8.1987, P.W. 13 examined P.W.I and P.W.3. P.W.I stated that he was given Rs.3,000/- by A2 in order to do the.repairing works in Andal Sannathi. P.W.3 would state that he was given Rs. 10,000/- by A2 requesting to spend the same for Samrokshanam after finishing the repairing works of 30 art paintings entrusted to him. The said Rs. 10,000/- was recovered under mahazar Ex.P5. He examined P.Ws.4 and 5 who are the Executive Officers of the temple.
P.Ws. 1, 3, 4 and 5 identified the 30 art paintings as they belong to the temple. P.W. 14, on 28.8.1987 took up investigation. He obtained Ex.P3, copy of the Register from the Executive Officer of the temple. This E)x.P3 would show mat these 30 art paintings were donated on 5.12.1903 by Sowrangaiah Chettiar of Chenna Pattanam. After investigation, P.W.14 filed a charge-sheet on 10.11.1988 against Al and A2.
To establish the case of the prosecution, they examined 14 witnesses, filed 14 exhibits and marked M.Os.1 to 37 series. On behalf of the defence, Exs.Dl and D2 were marked.
After trial, the trial Court convicted both the accused for the offence under S.420 I.P.C. and sentenced them as referred to above.
Both the accused filed an appeal before the Sessions Court. Though the lower appellate Court confirmed the conviction imposed upon the petitioner, A2, acquitted Al mainly on the ground that Al, the owner of the Photo Studio situated just opposite to the temple, simply introduced A2 to P.W.I and that he did not make any false representation and the said representation, which induced P.W.I to part with 30 Art Paintings, was made only by A2. As against the confirmation of the conviction on A2, the present revision.
Mr. N.Natarajan, the senior counsel appearing for the petitioner, would press into service the following contentions:-
P. W. 1 and P.W.3 have actually participated in the alleged crime. So, they are accomplice and their evidence should not be relied upon. The prosecution failed to establish the identity of the 30 Art Paintings, as there is no scientific test and there is no attempt to make a proper assessment of Antiques through Archaeological Department and the age of the paintings was not found out through proper investigation. With regard to the evidence in respect of the identity marks of 30 Art Paintings, there is vital variation between P.Ws.1 and 3. Both these witnesses would admit that there is no special marks in these art paintings. P.W.7 himself would admit that he purchased from the petitioner, A2, since it was stated to be the Antiques belonged to Udayarpalayam Mirasudar. But, there was no investigation on this aspect P.W.13, the investigating officer is the first informant in this case, From the beginning, the investigation made by P.W.13 was assisted by P.W.14. But, in the middle P.W.14 took charge and filed the charge sheet. Therefore, the investigation by P.W. 13 and P.W. 14 cannot be said to be a fair one, as they are the complainants as well as the investigating officers.
The learned Government Advocate, in support of the judgments of the Courts below, would repel the submissions made by the counsel for the petitioner, by pointing out various reasonings given in the judgments and contend that there is no case made out for interference in the revision.
I have given my anxious consideration to the respective submissions made on either side. I have also carefully scrutinized the judgments of both the courts below under Revision and the case records.
Before launching discussion on the merits of this case, let me at the threshold go into the scope of the revision under Ss.397 and 401 Cr.P.C. in order to decide, how far, this Court under the revisional jurisdiction could interfere with the findings of facts and the conclusion on appreciation of materials arrived at by the trial Court as well as the lower appellate Court.
The scope of the jurisdiction of the Court in Revision on concurrent findings has been elaborately dealt with in the following decisions.
(1) Esakki Thevar v. State 1959 M.W.N. Cri. 136.
(2) Pranab Kumar Mitra v. West Bengal State 1959 M.W.N. Cri. 1.
(3) Raghavan Pillai Vs. Gourikutty Amma and Another,
(4) Durai v. State 1991 L.W. (Cri.) 61.
(5) Caetano Colaco v. Joao Rodrigues 1966 Cri. L.J. 1412.
(6) Mithlesh Kumari Vs. Bindhawasani and Another,
(7) Sudip Gosh v. State of Tripura 1994 (1) Crimes 706.
(8) Chandrabati Sharma v. State of West Bengal 1994 (3) Crimes 768.
(9 Om Pratap Singh Vs. State,
(10) Sushil Kumar Dutta Vs. The State,
(11) Bhanwarlal Vs. State of Rajasthan,
(12) Selvam/Lakshmanan/Kannaiyan v. State 1997(1) L.W.(Cri.) 386.
(13) Bakulabai v. Gangaram 1988 SCC (Cri.) 189.
(14) Kesuram v. Saraswathi and others 1996 (2) L.W. (Cri.) 727.
(15) Pathumma and another v. Muhammad 1986 SCC (Cri.) 212.
(16) Sheonandan Paswan v. State of Bihar 1987 SCC (Cri.) 82.
The gist of the guidelines and the principles to be taken note of, while dealing with the revisional jurisdiction, could be summarised as follows.
The scope of revisional jurisdiction is wide, in so far as, the High Court can consider the correctness, legality or propriety of any finding and as to the regularity of the proceedings of any inferior court. But, even so, this jurisdiction is not to be exercised in every case of impropriety or illegality, unless it caused failure of justice. As a broad proposition, it may be stated that the interference may be justified where:
(a) the decision is grossly erroneous;
(b) there is no compliance on the provisions of law;
(c) the finding of facts affecting the decision is not based on evidence;
(d) the material evidence of the parties has been overlooked;
(e) the judicial discretion is exercised arbitrarily or perversely.
The revisional power of this Court under Ss.397 and 401 Crl. P.C. is a kind of supervisory jurisdiction in order to prevent miscarriage of justice arising from the misconception of law. These two Sections do not confer unfettered jurisdiction of this Court on re-appraisal of evidence. It is only in rare and exceptional cases where mere is some manifest illegality or grave and serious miscarriage of justice, this Court could interfere with such findings of facts.
The High Court in its revisional jurisdiction is not justified in substituting its own view for that of the trial Court on question of fact on re-appreciation of evidence. While considering the legality, propriety or correctness on a finding or conclusion in the revisional jurisdiction, normally, the revising court does not dwell at length upon the facts on evidence. The Court of revision considers the materials only to satisfy itself about the correctness, legality and propriety of the finding and refrain from substituting its own conclusion or an elaborate consideration of evidence.
In the light of the above legal principles enunciated by this Court, other High Courts and the Apex Court, this Court is called upon to consider the question as to whether any case has been made out by the petitioner in this revision so that, me findings of facts recorded by both the Courts below could be interfered with.
The learned counsel for the petitioner while attacking the evidence of P.W.I and P.W.3 would strenuously contend that they have actually participated in the alleged crime, as such, they are accomplices and so, their evidence should not be relied upon. This submission in my view lacks substance.
The crime alleged in this case is getting me Antiques by false representation mat it would be handed over back to the temple after repairing, but selling the same to P. W.7. In this main part, it cannot be alleged that P. W. 1 and P.W.3 have participated. According to the evidence adduced by the prosecution, they simply handed over the antiques believing the representation made by A2, the petitioner herein, honing that they would be returned after repairing. In this background, it cannot be said that they are accomplices.
No doubt, P.W.I ought not to have handed'' over the 30 antiques to A2 on being introduced by Al who is running a photo studio just opposite to the temple without permission from the temple management. It is true that P.W.I handed over the antiques in violation of the rule relating to the temple administration. But it does not mean that he participated in the offence of cheating. The totality of the evidence let in by the prosecution before the court would show that P.W. 1 was the victim, as he was removed from his job, after the incident was brought to light.
Similarly, P.W.3 who is connected with the temple Samrokshanam believed the words of A2 and received Rs. 10,000/- for the purpose of performing the Samrokshanam, after the 30 paintings are handed back to the temple. In other words, if P.W. 1 and P.W.3 had known about the future plan of A2 of selling the same to the antique dealers, P.W 1 and P.W.3 would not have handed over the antiques M.O.s 1 to 30 to the petitioner A2. So to say, there is no material whatsoever, to show that they were party to the cheating. If that is so, P.W.3 would not have kept the said money of Rs. 10,000/- handed over by A2 all along with him. Therefore, P.W.I and P.W.3 would not be considered to be the accomplices. In this situation, their evidence can be accepted by this Court, if it is otherwise reliable.
Let us now see whether the evidence of P.W.I and P.W.3 would inspire confidence.
P.W. 1 was the Junior Engineer in the Highways Department, Government of Tamil Nadu. On deputation he was sent to Sri Ran-gam Temple in order to audit the accounts of the lands belonging to the endowment. Admittedly, during the relevant period P.W. 1 was the Pooja Paricharigar. The evidence of P.W. 2 Tmt Rajammal, P.W.4 Srinivasan Executive Officer of the temple and P.W. 5 the Manager of the temple would make it clear that P.W.I was incharge of Andal Sannadhi where these M.O.s 1 to 30, the art paintings, were kept in the Prakaram.
P.W.I would state that Al is having a photo studio in front of the temple. Al who used to perform Poojas and being a contractor for some temple work for a long time, came to the temple Sannadhi and introduced the petitioner A2 to him. On that day, A2 probably in order to gain confidence of P.W.I gave Rs.3,000/- to spend for Andal Sannadhi Thiru-pani. After some days, again Al and A2 came to the temple. This time, A2 requested to hand over the 30 Antiques kept in Andal Sannadhi Prakaram which became fade assuring that he would repair and give back the same after some days. Al who got long association with the temple, also would say that he would also help in the repairing work. So, only on the basis of this representation without knowing that the said representation was false, P.W.I handed over the same.
P.W.3 also would speak about the entrustment of the 30 Antiques to A2 for repairing. As indicated earlier, P.W.3 was made to believe mat the receipt of the Art Paintings by A2 was only for repairing and that Samrokshanam would be performed after repairing the same and on that basis he had also received Rs. 10,000/-from A2.
Thus, the evidence of P.W. 1 and P.W.3 on this aspect is clear and cogent. Merely because they did not obtain permission from the temple authority for doing so, the entire evidence of these witnesses, who have admitted their fault of not obtaining permission from the temple authority, cannot be rejected. Therefore, the reasonings given by the trial court and the lower appellate court for believing the evidence of P.W.I and P.W.3, in the light of the above observation, cannot be said to be improper.
The second aspect, as pointed out by the counsel for the petitioner, is the failure on the part of the prosecution to establish the identity of the MO.s 1 to 30 to show that they belong to the temple.
P.W. 13 and P.W. 14, the investigating officers would admit that there is no assessment of value of the Antiques by the Archaeological Department and also there is no scientific examination of the same with reference to the age of the paintings. In my view, both value assessment and scientific examination could have been done by the investigating agency in this case. But the failure to do so would not lead to the conclusion that the prosecution has failed to establish the identity of the paintings.
In fact, there are other sufficient materials available in this case to establish the same. According to prosecution, 8 M.O.s were recovered from A2,12 MO.s were recovered from P.W.7 and 10 M.O.s were recovered from Al. According to prosecution, all the witnesses connected with the temple administration, during the course of investigation, identified the M.O.s Besides this, P.W.I and P.W.3 would specifically give the particulars of the identity mark stating that in M.0.21, it is mentioned that 30 Art Paintings were donated by Sowran-gaiah Chettair Charities to the Andal Sanadhi on 5.12.1903. It is further mentioned in M.0.21 that the same 30 Art Paintings were renovated on 14.12.1956. This has been written in M.O.21 both in Tamil and Telugu. Apart from that, P.W.I while identifying M.O.I7, pointed out the fadeness in the paintings due to rains.
However, the suggestion made by the accused to the witnesses is that these writings found in M.O.21 were written subsequent to the recovery of the same in order to suit the convenience of the prosecution. According to prosecution, Ex.P-3, the document of the temple administration would show that the 30 Art Paintings were donated by the Sowrangaiah Chettair Charities on 5.12.1903. But, it is contended by the counsel for the petitioner that the details of these writings have not been mentioned in Ex.P-10 the recovery Mahazar. This submission may not be correct. Had it been later written in M.O.21, the words contained in Ex.P.3 to suit the prosecution case, the same thing would have been written in Ex.P-10 also.
Similarly, these wordings would have been made in other M.O.s as well. That apart, P.W. 1 and P.W.3 who were connected with the temple for long years and P.W.4 and P.W.5 who were the Executive Officers of the temple, emphatically in their deposition stated that they could identify the Art Paintings which were kept in the Piragaram of Andal Sanadhi for a long number of years, as they used to see them every now and then.
As held in State of Himachal Pradesh v. Om Prakash 1973 L.W. (Cri.) 161, the witnesses were competent to speak about their identity of the paintings, since they were maintained by them for a very long time, even if there was no identifiable marks.
This apart, as pointed by the learned Government Advocate, while cross-examining P.W.I, the suggestion put by the accused was denied by him. The same is as follows:
Similarly, the same suggestion was put to P.W.3 also. This is as follows:
By these suggestions, it is submitted by the Government Advocate that the accused virtually admitted that the M.O.s 1 to 30 belonged to the temple.
There is yet another aspect of the matter. The case of the petitioner as suggested by him to the witnesses that M.O.s 1 to 30 which belonged to him were recovered from him cm 26.7.87. According to P.W.7, he purchased 12 Art Paintings from the petitioner, since he told that the same was purchased from the Udayar-palayam Mirasudar. On the strength of this statement, the learned counsel for the petitioner would submit that the petitioner is the owner of all the M.O.s 1 to 30 and since it was purchased from Udayarpalayam Mirasudar and that if the investigation had been conducted on this aspect, the police would have found out the truth. This submission also does not merit acceptance.
As a matter of fact, a suggestion was put to P.W.I4, the investigating officer, by accused that in order to save P.W.7, a false statement was recorded by the police from P.W.7, as if, that he were told by the petitioner that the Art Paintings were purchased from Udayarpalayam Mirasudar.
Moreover, in the petition filed by A2 before the lower Court, Ex.D-1, for return of property, the petitioner mentioned that he purchased the same from Al Ramanujam of Sri-Rangam.
Furthermore, though the petitioner obtained an order from the Additional Chief Metropolitan Magistrate Court, Madras in his favour, on the application filed by the investigating officer, D2, the learned Magistrate directed the Art Paintings to be deposited in the lower Court, as it was stated that the charge-sheet had already been filed. Admittedly, there was no application for return of property by the petitioner either during the course of trial or at the conclusion of the trial under S.452 Cr.P.C. If really, as now put forward by the counsel for the petitioner, that the Art Paintings were purchased by him from the Udayarpalayam Mirasudar, the petitioner should have taken steps to produce materials to prove the same, since he claimed that the said property belonged to him. This was not done. In the light of the above factual situation, the case of the defence deserves outright rejection. Therefore, regarding identity, in my view, the evidence of P.W.s 1, 3, 4, and 5 would be sufficient, as found by both the courts below.
In this case, as referred to earlier, the recovery of 30 Art Paintings were made. The first recovery from A2 himself was made on 26.7.87. The second recovery from P.W.7 at his shop, on its being pointed by A2, was made on the same day. On the basis of the information given by A2, recovery was made from Al at Srirangam on 28.7.87. In this context, the evidence of P.W.7, who has no axe to grind against the petitioner, assumes very great significance. P.W.7 would state that he purchased 12 antiques from A2. Al would state in the statement under S.313 Cr.P.C. that 10 M.O.s were handed over by A2 for repairing. But the statement of A2, as a defence, is that all the 30 Antiques were recovered from him on the same day, that is, on 26.7.87. Had there been recovery of these 30 Antiques from A2 on the same day, i.e., on 26.7.87, there was no need for the investigating officer to send Form No.91 to the court showing that 8 antiques have been recovered from Al and 12 from P.W.7. It must be noted that not even a suggestion regarding any enmity or motive was made to the investigating officer.
In fact, but for A2 ''s information, PW 7 would not have been traced. Similarly, but for A2''s information, other 10 antiques would not have been recovered from Al at Srirangam. It shall also be noticed at this stage that till the recovery of these items, there was no complaint, whatsoever, either from P. W. 1 or from the temple authority. This would make it clear that P.W.I and P.W.3 were under the impression that the 30 Art Paintings would be returned after the repair work is over.
There is yet another aspect. The case of the A2, as stated earlier, is that all the 30 antiques were recovered from him on 26.7.87 and a false case has been foisted against him. During the course of investigation, the petitioner/A2 filed an application, Ex.D- 1, for return of the 30 antiques. In that petition, he stated that portion of the antiques were recovered from him on 26.7.87 and the other portion of the antiques were recovered from Al at Srirangam. He had mentioned in the said petition that the said antiques, which were recovered from him, were purchased from Al Ramanujam at Srirangam.
On the contrary, it is the case of the petitioner/A2, now put forward, that he purchased the said antiques from Udayarpalayam Mirasudar, as referred to in the statement of P.W.7 and that was not properly investigated by the investigating officer. Of course ,in criminal cases, there may be contradictory stand by the accused. But, in the peculiar facts of this case, especially, when the properties have been claimed by A2 as that of his own, the different stand taken by the petitioner at different stages would strengthen the prosecution case that M.Os. belong on the temple and that the same were recovered from three places only on the information given by A2.
Moreover, the evidence of P.W.7 and P.W.8, which was corroborated by the evidence of P.W.9, would go to show mat sale by A2 and receipt of sale consideration for the same was true. As a matter of fact, P.W.7 who has got a close and long association with the petitioner/A2 need not have to speak falsehood against the petitioner. Moreover, the petitioner did not put any suggestion to P.W.7 that mere was no recovery from P.W.7 on his being pointed out by A2 nor was any enmity suggested. Therefore, the prosecution, in my opinion, has established the evidence of recovery as well.
The next point urged by the counsel for the petitioner is about the illegality committed in the investigation, as the first informant and the investigating officer, who filed the charge-sheet, are the same. In support of his submission the learned counsel for the petitioner cited the following decisions.
(1) Megha Singh v. State of Haryana 1997 SCC (Cri.) 267; and
(2) State v. Krishnasami Iyer and others 1997(2) L.W. (Cri.) 751.
Both the decisions would say mat the complainant police officer should not carry on the investigation and file the Charge sheet, as the occasion would arise to suspect fair and impartial investigation.
In 1997 SCC (Cri.) 267 (supra), the Apex Court, while acquitting the accused in a TADA case, considering the case of the accused and disbelieving the evidence of witnesses, deprecated the practice of the first informant who registered the F.I.R. proceeding with the investigation himself.
In 1997(2) L.W. (Cri.) 751 (supra), this Court, on the strength of the above decision of the Apex Court, in a case of appeal against acquittal, would hold that it is not a matter of healthy practice and it would not be conducive to fair and impartial investigation for the complainant himself to be a investigating Officer. However, in this decision, it has been held that there is no specific statutory bar in the Criminal Procedure Code for the first informant himself being an investigating officer.
It is pointed out by the Government Advocate by citing 1991 L.W.(Cri) 534 (Ai-yyakannu Petitioner 2nd Accused) that merely because the investigation was carried on by the officer who registered the F.I.R. as the first informant, the entire case cannot be thrown out, in the absence of any motive.
In the light of the said submission, if we look at the case on hand, there is no difficulty in coming to the conclusion that merely because P.W.13 who registered the F.I.R. and conducted the investigation for some time upto a particular stage, cannot be said to be unfair and partial, inasmuch as the subsequent portion of the investigation was conducted by P. W. 14, who filed the charge-sheet in this case. No doubt, it is true thatP.W.14 assisted by P.W. 13 at the initial stage of the investigation, but that aspect may not cause any dent in the genuineness of the investigation, in the absence of any motive or prejudice, as the other materials would go to show that the effective investigation conducted in this case has unearthed the real state of affairs. In view of what is stated above, the petitioner fails on this ground as well.
As stated in the earlier paragraphs, tin-less I could identify some manifest illegality or grave and serious miscarriage of justice or perversity in the findings rendered by the Courts below, this Court could not interfere with the judgments of the Courts below. In view of the discussion made above, I do not find any such illegality resulting in the failure of justice in this case. On the other hand, I find that the reasonings given by the Courts below for coming to the said conclusion are on the basis of meticulous appreciation in the proper perspective.
The trial Court, at the conclusion, directed that out of the fine imposed upon the petitioner, a sum of Rs.2,500/- was to be given to the Srirangam Temple for the renovation of the Andal Sannadhi. It further directed that M.0.38 series, namely, Rs.10,000/- was to be confiscated to the State. In the facts and circumstances of the case, I deem it fit to direct that the M.0.38 series, namely, Rs. 10,000/-also be handed over to the Srirangam Temple for renovation work.
With this modification, the revision, which has no merits, is liable to be dismissed and accordingly, me same is dismissed. Consequently, no order is necessary in Crl.M.P.No.3499 of l998.
After the pronouncement of the judgment, the counsel for me petitioner would submit that out of two years of imprisonment imposed upon by the trial court, the lower appellate court, while confirming the conviction and sentence, referred to certain G.O.s under which the petitioner is entitled to remission for 11/2 years, and directed the petitioner to undergo imprisonment for the balance period of six months
Now, it is brought to the notice of this Court that subsequent to that, the Government has issued the following two G.O.s regarding remission of sentence, by which the remaining six months sentence would be covered in respect of the petitioner:
(1) G.O.Ms.No.1342 Home (Prison IV) Dept Dated 12.9.96 providing remission for 6 months; and
(2) G.O.Ms.No.1163 Home (Prison IV) Dept. Dated 12.8.97 providing remission for 4 1/2 months.
The Government Advocate also agrees with the same.
In view of the above circumstances and by virtue of the aforesaid G.O.s, the entire period of sentence has been covered. Therefore, the petitioner need not surrender before the trial court.