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G.Jayapal v. State of Tamilnadu - Crl. RC. No.591 of 2005  RD-TN 1916 (13 June 2007)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.06.2007
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Crl. R.C. No.591 of 2005
G.Jayapal .. Petitioner/Accused vs.
The State of Tamilnadu
rep by The Sub Inspector of Police,
Tirupathur .. Respondent/Complainant Prayer:
This Revision petition has been preferred against the judgment dated 4.10.2004 in C.A.No.61 of 2004 passed by the learned Principal Sessions Judge, Vellore, confirming the judgment in C.C.No.221 of 2001 on the file of the Judicial Magistrate No.II, Tirupathur. For Petitioner : Mr.V.Bhiman
For Respondent : Mr.V.R.Balasubramanian, Additional Public Prosecutor ORDER
This revision has been preferred against the judgment in C.A.NO.61 of 2004 on the file of the Principal Sessions Judge, Vellore, which had arisen out of the judgment in C.C.No.221 of 2004 on the file of the Judicial Magistrate No.II, Tirupathur. The accused, who is a Masalchi of the Court of Judicial Magistrate No.IV, Tirupathur, is the revision petitioner herein, who has been charged under Section 457(ii) and 380 IPC for having committed theft of Rs.5,000/-, being the fine amount collected and kept in the Court of Judicial Magistrate on 27.9.2001.
2.After taking cognizance of the offence, the learned Judicial Magistrate has issued summons to the accused and on his appearance, furnished copies under Section207 Cr.P.C, and when charges under Section 457(ii) and 380 IPC were framed and questioned, the accused pleaded not guilty.
3.On the side of the prosecution P.W.1 to P.W.9 were examined and Ex.P.1 to Ex.P.9 were marked.
4.P.W.1 is the complainant/Head Clerk in the Court of the Judicial Magistrate No.IV, Tirupathur. He would admit that the accused was working as masalchi in the Courts of the Judicial Magistrate Nos.I & IV, Tirupathur and that he was incharge watchman at the Court of Judicial Magistrate No.IV on 27.9.2001. According to P.W.1, the fine amount collected in the Court of Judicial Magistrate No.I, Tirupathur, on 27.9.2001 amounting to Rs.5,000/- was kept in a plastic cover placed in a box, was kept under lock and key in the wooden bureau in the office of the Judicial Magistrate No.IV, Tirupathur, in the night on 27.9.2001 and when he came on 28.9.2001 to the Court at about 9.30 am, he found the lock of the bureau, in which the said fine amount, was meddled with by some one and the screws of the lock were found in loose condition and when he opened the bureau, found the box in which Rs.5,000/- was kept, was missing and on suspicion on the accused he enquired about it, but he was informed that he was sent to bank for depositing the fine amount collected in the Court of the Judicial Magistrate No.I, Tirupathur and immediately he (P.W.1) proceeded to the State Bank of India along with P.W.3 and enquired the accused about the missing of the amount and after hesitation, the accused admitted his guilt and handed over Rs.5,000/- along with the plastic cover stolen by him from the Court and made a request to him (P.W.1), not to reveal the same to any body. P.W.1 thereafter returned to the Court and informed the Judicial Magistrate No.IV, Tirupathur, about the occurrence, who in turn had instructed him (P.W.1) to deposit the amount immediately with the Bank since it belongs to the Government. As per the instructions of the Judicial Magistrate, he (P.W.1) prepared a chellan and sent the amount to the Bank for depositing through Office Assistant Thirumathi.Muthama. Ex.P.1 is the receipt for having deposited Rs.5,000/- on 28.9.2001. Ex.P.2 is the complaint preferred by him with town police Tirupathur. He has identified the cash stolen from the Court as M.O.1.
5.P.W.2 is the then Judicial Magistrate No.IV, Tirupathur. According to him, when he came to the Court on 28.9.2001 at about 10.15 am, P.W.1, Head Clerk, made a complaint to him that the masalchi, who was the night watchman of the previous day in the Court, had committed theft of Rs.5,000/- and he (P.W.1) had recovered the same from the accused and that he (P.W.2) has instructed the Head Clerk to deposit the amount immediately with the bank since it belongs to the Government and that in the complaint preferred by the Head Clerk, he had made an endorsement-Ex.P.3.
6.P.W.3 has corroborated the evidence of P.W.1 regarding the recovery of amount from the accused at State Bank of India.
7.P.W.4 would also speak to the fact that P.W.1 had recovered Rs.5,000/- from the accused and that the police came to the Court on 29.9.2001 and prepared an observation mahazar Ex.P.3 in his presence.
8.P.W.5 is also another witness in Ex.P.4-Mahazar.
9.P.W.6-Muthama, is the Office Assistant, through whom the recovered amount of Rs.5,000/- from the accused, was sent to the Bank for deposit, as per the instructions of P.W.2-Judicial Magistrate No.IV, Tirupathur.
10.P.W.7 and P.W.9 are the witnesses in the confession statement of the accused Ex.P.8. P.W.7 had identified his signature in Ex.P.8 as Ex.P.5. P.W.9 has identified his signature in Ex.P.8 as Ex.P.10. But P.W.9 has not supported the case of the prosecution. Hence, P.W.9 was treated as hostile witness.
11.P.W.8 is the Investigating Officer in this case, who has registered the case on the basis of the complaint preferred by P.W.1 under Tirupathur Town Police Station Cr.No.596 of 2001 under Section 457 & 380 IPC. Copy of the FIR is Ex.P.6. He had visited the place of occurrence and prepared the observation mahazar and had drawn a rough sketch Ex.P.7 in the presence of the witnesses. He has arrested the accused on 8.10.2001 near the old bus stand Tirupathur and recorded the voluntary statement given by the accused in the presence of the witnesses under Ex.P.8. After examining the witnesses, he has recorded their statements and also recovered the chellan for the deposit of Rs.5,000/- with the State Bank of India under Ex.P.9- Form 95. After completing the investigation, he has filed the charge sheet against the accused.
12.When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., he denied his complicity with the crime. The accused has not examined any witness on his side.
13.After going through the evidence both oral and documentary let in before the trial Court, the learned trial Judge has come to the conclusion that the guilt against the accused under Section 457(ii) & 380 IPC has been proved beyond any reasonable doubt and accordingly convicted the accused under Section 457(ii) IPC and sentenced to undergo 3 months RI and slapped a fine of Rs.1,000/- with default sentence and also convicted the accused under section 380 IPC and sentenced to undergo 3 months RI and levied a fine of Rs.500/- with default.
14.Aggrieved by the findings of the learned trial Judge, the accused preferred an appeal before the Court of Sessions in C.A.No.61 of 2004 on the file of the Principal Sessions Judge, Vellore. The learned Sessions Judge, after meticulously going through the evidence available and also after giving due consideration for the submissions made by the learned counsel for the appellant as well as the learned Public Prosecutor for the respondent, has held that the prosecution has proved the guilt of the accused beyond any reasonable doubt and that since there is no reasoning to interfere with the findings of the learned trial Judge, has confirmed the findings of the learned Judicial Magistrate No.II, Tirupathur, in C.C.No.221 of 2001, thereby dismissing the appeal preferred by the accused, which necessitated the accused to knock at the doors of this Court.
15.Heard the learned counsel Mr.V.Bhiman appearing for the revision petitioner and the learned Additional Public Prosecutor Mr.V.R.Balasubramanian and considered their rival submissions.
16.Now the point for determination in this appeal is whether the guilt against the accused under Section 457(ii) & 380 IPC have been proved beyond any reasonable doubt or whether the Courts below have erroneously held that the accused is guilty under the above provisions of law?
17.The Point: 17(a) Admittedly P.W.1, P.W.2, P.W.3 & the accused were working in the Court of Judicial Magistrate No.IV, Tirupathur, at the time of occurrence. The accused is the masalchi of the Courts of Judicial Magistrate Nos.I & IV, Tirupathur. According to P.W.1-Head Clerk of the Judicial Magistrate No.IV, Tirupathur, on the date of occurrence the accused was the incharge watchman of the Court, since the regular watchman was on leave. According to him, the fine collected on the previous day ie., on 27.9.2001 amounting Rs.5,000/- was kept in the wooden bureau of the office of the Judicial Magistrate No.IV, Tirupathur, which was found missing on the following day ie., on 28.9.2001 at 9.30 am. On suspicion P.W.1 along with P.W.3 enquired the accused, who was deputed to deposit the fine amount collected on the previous day in the Court of Judicial Magistrate No.I, Tirupathur, to the bank. According to P.W.1 & P.W.3, the accused had admitted the guilt and handed over the amount of Rs.5,000/- stolen by him on the previous night from the office of the Judicial Magistrate No.IV, Tirupathur. Immediately after informing the same to P.W.2, Judicial Magistrate No.II, Tirupathur, a complaint was preferred by P.W.1 under Ex.P.2 with the police. 17(b) P.W.8, the Investigation Officer, after registering the complaint has followed the formalities and arrested the accused and recorded the confession statement of the accused under Ex.P.8 in the presence of P.Ws.7 & 9. There is absolutely no motive alleged against P.W.1 & P.W.3 to implicate this accused in this crime. Even when the incriminating circumstances were put to the accused under Section 313 Cr.P.C., also the accused has not attributed any motive against P.W.1 & P.W.3. 17(c) The learned counsel for the revision petitioner would contend that there is inordinate delay in preferring the FIR. But a perusal of Ex.P.2-complaint, will go to show that on the date of occurrence i.e., 28.9.2001 itself P.W.1 has preferred a complaint with the police through post, which was received by the Sub-Inspector of Police-P.W.8 on the next morning i.e., on 29.9.2001 and the FIR was registered on the same date. Under such circumstances, it cannot be said that there is an inordinate delay in preferring the complaint. Both the Courts below, after meticulously scanning the evidence, have come to the correct conclusion that the guilt of the accused under Section 457(ii) and 380 IPC have been proved beyond any reasonable doubt. I do not find any reason to interfere with the findings of the learned first appellate Judge. 17(d) At this juncture, the learned counsel for the revision petitioner would made an appeal to this Court that since the accused is only a masalchi and subsequent to the occurrence he has been dismissed from service, some leniency may be shown on the sentence. The learned Additional Public Prosecutor would also inform the Court that the accused was in jail during the period from 8.10.2001 to 12.11.2001 and after conviction from 11.4.2005 to 3.5.2005 and that he was in prison for more than 2 months whereas the sentence awarded to him was only 3 months.
17(e) Taking into consideration the fact that the accused, who was a masalchi of the Court of Judicial Magistrate No.IV, Tirupathur, and he was in incarceration for more than 2 months, I am of the view that sentence alone can be modified to that of the period already undergone. Point is answered accordingly.
18.In the result, the revision petition is dismissed confirming the conviction of the learned first appellate Court in C.A.No.61 of 2004 on the file of the Principal Sessions Judge, Vellore. The Sentence alone is modified to that of the period already undergone instead of 3 months each under Sections 457(ii) & 380 IPC. As far as the fine imposed by the Courts below in concerned the same is hereby confirmed. ssv
1. The Principal Sessions Judge,
2. The Judicial Magistrate No.II,
3. The Chief Judicial Magistrate,
4. The Inspector of Police,
Tirupathur Police Station,
5. The Public Prosecutor,
6. The Superintendent of Police,
Central Prison Vellore.
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