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IN THE COURT OF SPECIAL JUDGE FOR TRIAL OF OFFENCES UNDER
S.Cs. AND S.Ts. (POA) ACT-CUM-V ADDL. SESSIONS JUDGE, NELLORE
Present: Smt. I. Sailaja Devi
Special Judge for trial of offences under S.Cs and S.Ts (POA) Act
-cum-V Additional Sessions Judge
Monday, this the 24th day of June, 2019
CRIMINAL APPEAL No. 99 of 2017
From what Court the Appeal is :: Special Judicial Magistrate of I
preferred Class for Railways, Nellore.
Number of Case in that Court :: C.C.No.315 of 2015
Number of Appeal in this Court :: Criminal Appeal No.99 of 2017
Name and Address of the ::
Bachu Hari babu Reddy,
Appellant/Accused
Son of Nageswara Reddy, aged
about 29 years, Native of
Chowtapalli village, Proddatur
mandal, YSR Kadapa district
Name & Address of the :: State: Sub-Inspector of Police,
respondent/complainant Krishnapatnam P.S.
The sentence and Section of Law :: Accused is found guilty for the
under which the accused was offence under section 411 IPC
convicted/acquitted in the lower and sentenced to suffer rigorous
Court imprisonment for 6 months and
to pay a fine of Rs.1,000/- in
default he has to suffer simple
imprisonment for one month.
Whether confirmed, modified or :: Modified
reversed. If modified, the In the result, the
Modification thereof finding of conviction recorded
by the trial court against the
appellant/accused under
Section 411 of IPC is partly
upheld modifying the
sentence of imprisonment to
three[3] months year as
against six months under
Section 411 IPC and leaving
the fine amount intact.
Date of Presentation :: 8.3.2017
Date of Filing :: 8.3.2017
Bail bond if the appellant is on bail :: --
Hearing :: 6.6.2019
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Judgment :: 24.6.2019
This case coming on 6.6.2019 for final hearing before me in the
presence of Sri C.V.Rathnam, Advocate for the appellant and
Smt.S.Bharathi, Additional Public Prosecutor for respondent and the
matter having stood-over for consideration till to-day, this Court
delivered the following:
JUDGMENT
1. This Criminal Appeal is preferred under Sec.374(3) of Cr.P.C.
against the judgment of conviction and sentence dated 27.2.2017
passed in C.C.No.315/2015 by the learned Special Judicial Magistrate of
I Class for Railways, Nellore for the offences under Section 411 of IPC.
2. The accused before the Trial Court is the present Appellant and
the complainant before the Court below is the present respondent and
the parties are referred in this judgment as they arrayed before the
Court below for the sake of convenience.
3. The case of prosecution is briefed as follows:-
(i) On 4.11.2015 morning L.W.3/Ramesh Reddy, Branch manager
of Trans India Logistics and Trading Company, Krishnapatnam office,
located in room No.118 of Trade Transport Terminal Building,
Krishnapatnam Port deployed duty to L.Ws. 1 and 2/Rachakunta Siva
Ramakrishna, Mannem Sudhakar Reddy to perform duty from 09.00
hours on 4.11.2015 to 09.00 hours on 5.11.2015. Accordingly L.Ws. 1
and 2/ Rachakunta Siva Ramakrishna, Mannem Sudhakar Reddy took
charge of duty at 09.00 hours on 4.11.2015 and at that time
L.W.3/Ramesh Reddy had given Rs.4,00,000/- to L.W.1/Rachakunta Siva
Ramakrishna to give advances to the lorry drivers. Out of total amount,
Rs.1,50,000/- in three bundles all 500 rupees in denomination wrapped
in their office letter head and kept in maroon colour cash bag for the
purpose the said amount has to be given to single party. L.W.1/
Rachakunta Siva Ramakrishna had given Rs.30,000/- to lorry drivers as
an advance on 4.11.2015 after his assuming charge of duty and
remaining cash Rs.3,70,000/- is in his table drawer including
Rs.1,50,000/- which kept in cash bag separately. While performing duty
on 5.11.2015 at 01.30 hours L.W.1 felt tiredness, then he locked his
table drawer in which cash Rs.3,70,000/- being kept and went into SLNL
Transport office located at room No.118 besides to their office room and
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slept there for one hour by keeping his table drawer keys in his pant
pocket. At that time L.W.2/Mannem Sudhakar Reddy was present in their
office room and attending computer work. While L.W.1/ Rachakunta Siva
Ramakrishna was sleeping in office room of SLNL Transport, accused who
is cashier of the said office was present in his office. While L.W.1/
Rachakunta Siva Ramakrishna was in deep sleep in office room of
accused, he took the table drawer keys from the pant pocket of L.W.1/
Rachakunta Siva Ramakrishna stealthily, went into L.W.1 office at about
02.00 hours and at that time L.W.2/Mannem Sudhakar Reddy taking bills
by sitting before computer. Then the accused sat on L.W.1/ Rachakunta
Siva Ramakrishna chair located behind L.W.2/Mannem Sudhakar Reddy
seat and acted as he was watching system. Accused noticed that L.W.2
busily engaged in his work, taking the same as an advantage, he
opened the table drawer of L.W.1/ Rachakunta Siva Ramakrishna with
the keys and committed theft without making noise and committed theft
of cash bag containing cash of Rs.1,50,000/- again he locked the table
drawer and left the office room without notice of L.W.2 and returned to
his office and kept the keys of L.W.1 in his pant packet.
L.W.4/Nagalarapu Vijaya Kumar witnessed the accused while he was
doing something at table drawer of L.W.1. At about 02.30 hours, L.W.1
woke up, returned to his office room, perused his table drawer and found
cash bag containing cash of Rs.1,50,000/- was missing. Then he
enquired with L.Ws. 2 and 4 and ascertained that the accused visited his
office and opened his table drawer. Then immediately, L.Ws. 1 and 2
went to the office of accused and confronted him about the missing cash
bag but the accused denied his knowledge. L.W.1 informed the matter
over phone to L.W.3 who in turn visited their office and after ascertaining
the things happened he advised L.W.1 to lodge police complaint.
3. Basing on the complaint of L.W.1/ Rachakunta Siva
Ramakrishna, police registered a case in Crime No.87/2015 under
Sections 380, 379 of IPC, that on completion of investigation charge
sheet was filed into Court against the accused under Secs.380 and 379
of IPC.
4. On making appearance of the accused before the Trial Court, the
learned Special Judicial Magistrate of I Class for Railways, Nellore on
compliance of 207 Cr.P.C. examined the accused under Sec.239 Cr. P. C.,
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and framed charges under sections 380, 379 or 411 IPC for which,
accused pleaded not guilty and claimed to be tried.
5. To prove its case, prosecution examined P.Ws.1 to 8 and got
exhibited Exs.P-1 to P-7. M.Os. 1to 3.
6. On closure of prosecution evidence, the accused was examined
under Sec.313 Cr. P. C. and he denied the incriminating material in the
evidence of prosecution witnesses. No witnesses are examined and no
documents are marked on behalf of the accused.
7. Upon perusal of the record and arguments advance on both
sides, the Trial Court found accused guilty for the offence under Section
411of IPC and convicted him under Sec.248(2) Cr.P.C. The accused is
found not guilty for the offence under section 380, 379 IPC and he is
acquitted under section 248[1] Cr.P.C.
8. Aggrieved by the conviction and sentence passed by Special
Judicial Magistrate of I Class for Railways, Nellore, accused/appellant
preferred the present appeal mainly contending that the Judgment of the
Trial Court is contrary to law, weight of evidence and probabilities of the
case, that the Trial Court failed to consider the evidence of PW-1, P.W.6
and that the trial court went wrong in convicting the appellant. The trial
court failed to weigh the evidences of prosecution witnesses and failed
to consider the version of appellant, the trial court failed to weigh the
evidence of P.W.8, who is Investigating Officer and prays this Court to
allow the appeal by setting aside the judgment of the trial Court, in the
interest of justice.
9. Arguments heard on either side. The learned counsel for the
appellant reiterated all the points that are urged in the grounds of
appeal during the course of his arguments.
10. The Addl. Public Prosecutor for the respondent argued in
support of the judgment passed by Trial Court and further submitted that
there are no merits in the appeal and appeal is liable to be dismissed.
11. Upon considering arguments advanced on both sides and the
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material placed before this Court, it is felt that the following points would
germane for consideration in this criminal appeal:
1. Whether the prosecution could bring home the guilt of the
accused for the offence under Section 411 of IPC ?
2. Whether the judgment of conviction and sentence passed by the
Trial Court dated 315/2015 dated 27.2.2017 is sustainable
under law?
12. Point No.1:-
The charges leveled against the accused is Sections 380 and 379
alternatively under section 411 of I.P.C. To substantiate the case of the
prosecution, he got examined P.W.1 who is defacto complainant, P.W.2
who is supervisor and eye-witness to the incident. P.W.3 who is vehicle
owner, P.W.4 who is another complainant in crime No. 88/2015. P.W.5 is
owner of the vehicle. P.W.6 who is V.R.O and mediator for confession,
seizure of the property. P.W.7 and 8 are Investigating Officers. Basing on
the evidences of P.Ws. 1 to 8 witnesses, the lower court acquitted the
accused for the offence under sections 380 and 379 IPC and convicted
the accused for the offence under section 411 IPC.
13. P.W.1 who is the complainant stated in his evidence that he
kept Rs.1,50,000/- cash in office table drawer and as he was tired he
went into SLNL Transport office, TTT Building located at room No.118
besides to their office room and took rest by keeping his table drawer
keys in his pant pocket at 1.30 a.m between 4.11.2015 and 5.11.2015.
At about 2.30 a.m he woke up and found his drawer keys were on the
floor. On that he went to the room No.119 in which he kept amount in
maroon bag by wrapping with letter head papers of the company and
found missing of Rs.1,50,000/- along with bag. Then he asked P.W.2 who
is working before his computer and he stated that the accused who is
Cashier of the neighbouring transport office came to the room and sat in
the seat of P.W.1 and operated the system and thereafter he went away
and P.W.2 further stated that at the time of operating computer by the
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accused P.W.4 also came to room No.119 for stappler and took it. But
he did not directly state that he saw the accused taking the amount from
the drawer. However, except the accused no other person came to the
office.
14. P.W.4 who is another complainant stated in his evidence that
he kept his motor cycle in TTT building and on that next day he found it
was missing and he came to know about theft of cash in Indian Logistic
Trading company then he came to the conclusion that motor cycle was
also committed theft by the accused. So, it is only a suspicion. So, the
evidence of P.Ws. 1 and 4 reveals that they did not directly witness the
incident. As such, the lower court rightly come to the conclusion that
the prosecution failed to prove committing of theft by the accused. So,
he is acquitted for the offence under sections 380 and 379 IPC.
15. In respect of Section 411 IPC the ingredients of Section 411
IPC are as follows:
411. Dishonestly receiving stolen property.—Whoever
dishonestly receives or retains any stolen property, knowing or
having reason to believe the same to be stolen property, shall be
punished with imprisonment of either description for a term which
may extend to three years, or with fine, or with both.
16. If anybody is in possession of stolen property, knowingly that
property was stolen property, that person is liable for conviction under
Section 411 IPC. In the instant case on hand, to prove the possession of
the stolen property by the accused, the prosecution got examined
P.W.6 who is V.R.O, who categorically stated that on 10.11.2015, while
he was present in his house P.W.8 called him and requested him to act
as mediator, on that he along with L.W.10 went to R.T.C bus stand on two
wheelers. On observing the police, accused tried to escape from the
main gate, police caught hold him on that the accused confessed about
committing of theft of Rs.1,50,000/- and also motor cycle. The accused
produced money from his inside of the pant kept in a maroon colour bag
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and receipt of the scooter stand in token of his scooter and the police
seized the vehicle Hero Honda Glamour under the cover of mediators
report. No doubt the confession before the police is not admissible in
evidence. But the confession which leads to recovery is admissible
under Section 27 of the Indian Evidence Act. In this case, basing on the
confession of the accused, police recovered M.O.1 cash, M.O.2 maroon
colour bag, MO.3 two letter heads and also motor cycle under cover of
confession and recovery panchanama under Ex.P.4.
17. The learned counsel for accused argued that there were
monetary disputes between P.W.1 and accused, taking advantage of
those disputes, P.W.1 lodged false complaint against the accused. No
evidence was produced by the accused regarding that aspect. Apart
from that, since the accused is working in neighbouring office of P.W.1,
he came to the office room of P.W.1 just prior to the incident and further
more stolen property was also recovered from the possession of accused
intact and same was missing property of P.Ws.1 and 4.
18. In general, immediately after theft, if anybody found in
possession of the stolen property, it is his duty to explain how stolen
property came into his possession. If he is unable to prove the said fact,
it is presumed that the said property is stolen property. So, it proves the
ingredients of Section 411 IPC.
19. The main ground urged by the accused is that trial court
failed to weigh the evidence of P.W.6 and that trial court went wrong in
convicting the appellant because in the evidence of P.W.6 he
categorically deposed that he was proceeding to R.T.C bus stand at
Nellore on two wheelers, whereas P.W.8 who is Investigating Officer
deposed that they proceeded to R.T.C. bus stand in two cars. So, there
is contradiction. As such, the evidence of P.W.6 cannot be taken into
consideration. No doubt P.W.8 stated in his evidence that they went to
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Nellore bus stand in jeep not in two wheelers. However, all of them
went to Nellore bus stand is proved by the prosecution. So, it cannot be
looked into.
20. Another ground raised by the accused is that as per the
evidence of P.W.1 at the time of property identification parade, three
bags and letter pad shown to him out of them he identified the bag.
During the course of his cross-examination he stated that there are four
bags in different colours. So, it is also a contradiction and it can be
taken into consideration. But admittedly P.W.1 identified his bag in the
presence of P.W.6 and L.W.11. So, this argument is also no way helpful
to the accused case.
21. Another contention of accused is that at the time of seizure
of property along with M.O.s. 1 to 3, police also seized parking slip
belongs to the motor cycle in Crime No. 80/2015 of Krishnapatnam P.S
that parking slip is not marked by the prosecution and the prosecution
also failed to examine the owner of the parking place. Admittedly, the
vehicle was seized from the possession of the accused though parking
slip was not marked. It is also admitted fact that there are no disputes
between P.W.6 with the accused. So, there is no necessity for P.W.6 to
depose against the accused. For that the learned counsel for accused
argued that P.W.6 is V.RO and he is having cordial relationship with the
police and they obtained signatures of V.R.O in the police station and
no confession, no possession of the property from the accused was
done, but nothing was elicited during the course of cross-examination of
P.W.6 though he is having cordial relationship with police, basing on that
ground the evidence of P.W.6 cannot be thrown out. So, his evidence
can be taken into consideration and the conviction of the lower court is
proper. But, considering the facts and circumstances of the case, in my
humble opinion, the sentence is liable to be modified. The conviction of
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six months is reduced to three months and in respect of fine is intact.
The point is answered accordingly.
POINT No.2 :
22. In the result, the finding of conviction recorded by the trial
court against the appellant/accused under Section 411 of IPC is partly
upheld modifying the sentence of imprisonment to three[3] months as
against six months under Section 411 IPC and leaving the fine amount
intact.
Typed to my dictation, corrected and pronounced by me in the
Open Court on this the 24th day of June, 2019.
Sd/- Smt.I. Sailaja Devi
Special Judge for trial of offences
under S.Cs and S.Ts (POA) Act
-cum-V Additional Sessions Judge,
Nellore.
