(Prayer: Criminal Revision Case filed under Section 397 read with 401 Cr.P.C. praying to set aside the judgment dated 09.03.2016 in Crl.A.No.40 of 2015 on the file of the learned I Additional District and Sessions Judge, Coimbatore, confirming the judgment dated 29.01.2015 in C.C.No.642 of 2012 on the file of the learned Judicial Magistrate No.VI, Coimbatore.)
1. The judgment dated 09.03.2016 passed by the learned I Additional District and Sessions Judge, Coimbatore in Crl.A.No.40 of 2015 upholding and confirming the judgment dated 29.01.2015 passed by the learned Judicial Magistrate No.VI, Coimbatore in CC.No.642 of 2012, convicting the petitioner for the offence under Section 379 I.P.C. and thereby sentencing him to undergo three years rigorous imprisonment, has been questioned in this Criminal Revision, at the instance of the petitioner / accused.
2. Briefly stated the prosecution case is that on 13.09.2012 at about 08.00 pm, P.W.1/complainant along with her son and P.W.2/wife of the complainant’s brother had boarded the Train going to Nagercoil at Coimbatore Railway Station; they were allotted with seats bearing Nos.35, 38 and 40 in S4 coach of Covai-Nagercoil Express Train No.16610; as soon as they sat down, P.W.2 went to toilet and her son was lying on his berth and P.W.1 took the water bottle from her handbag and kept it in the seat, but it fell down; when she bent down to take the same, a person had taken her handbag and ran away from the train; on seeing the missing of her handbag, P.W.1 asked the other passengers, who replied that they did not know about the same; she got down from the coach and saw a person wearing blue and red colour ‘T’ shirt running in the platform carrying her handbag; immediately, she shouted ‘thief’, ‘thief’; on hearing the same, the railway police tried to catch him, but the accused escaped; and thereafter, P.W.1 and P.W.2 got down from the train and went to Coimbatore Railway police station, where P.W.1 lodged Ex.P1 complaint, with regard to theft of her handbag (MO1), which contains a leap phone (MO2), SBI Bank ATM card (MO3) and cash of Rs.10,200/- (MO4). P.W.6/Sub Inspector of Police, received the said complaint and registered it as Ex.P4 FIR No.1764/2012 and informed the same to all the police officers, who were on beat duty. On the same day night, P.W.3/Coimbatore Railway Police, who was on his way to home at Tiruppur, was travelling in Kerala Express which was coming from Tiruvananthapuram to New Delhi; P.W.4/Tiruppur Railway Police was also travelling along with him; at that time, a passenger informed to P.W.4 that one person was having ladies handbag and counting money and he was doing the same in a suspicious manner; on such information, P.W.3 and P.W.4 went and enquired the said person, who was having ladies handbag and money in his hand; the said person initially gave an evasive answer, but later accepted his guilt; P.W.3 and P.W.4 along with accused, got down from the train at Tiruppur Station; after knowing the complaint of missing a handbag, they brought the said person to the Coimbatore Railway Station, where, P.W.1 identified the said person as accused, who ran away stealing her handbag. P.W.1 conducted enquiry with the accused, who initially gave contradictory statements and later, admitted his guilt of theft of handbag and gave his confession statement; based on Ex.P2 admissible portion of confession statement of the accused, P.W.6 arrested the accused and recovered MO1 to MO4 material objects under Ex.P3 seizure mahazar in the presence of the witnesses P.W.5/Selvaraj and one Muhammed Ali and thereafter, remanded the accused to judicial custody. After completion of the investigation, PW6 filed charge sheet against the accused for the offence under Section 379 IPC, which culminated in CC No.642 of 2012 on the file of the learned Judicial Magistrate No.VI, Coimbatore.
3. When the trial Court questioned the petitioner in respect of the incriminating materials found against him, he pleaded not guilty of the offence and claimed to be tried.
4. The prosecution, in order to bring home the guilt of the accused, examined six witnesses as P.W.1 to P.W.6 and marked five documents as Exs.P1 to P5, besides MO1 to MO4 materials objects. On the side of the defence, no one was examined and no document was marked.
5. The trial Court, upon appraisal of the evidence available on record, found the petitioner / accused guilty of the offence under Section 379 IPC and convicted for the same and sentenced him to undergo rigorous imprisonment for three years. Aggrieved over the same, the petitioner preferred an appeal in Crl.A.No.40 of 2015 before the learned I Additional District and Sessions Judge, Coimbatore, which ended in dismissal. Challenging the same, the petitioner is before this Court with this Criminal Revision.
6. Assailing the impugned judgments, the learned Counsel appearing for the petitioner has forcefully submitted that both the Courts below, i.e., the trial court as well as the appellate court committed a grave error of law in convicting and sentencing the petitioner under Section 379 IPC, in the absence of any concrete evidence. According to the learned counsel, the evidence adduced on the side of the prosecution is not cogent and convincing, and that any amount of confessional statement as to the recovery of the stolen properties, cannot be taken as the basis to order conviction. The learned counsel further submitted that the prosecution has not proved its case beyond reasonable doubt, as there are serious contradictions and discrepancies in the evidence and the materials adduced by them, with regard to the identification of the accused by PW1 and arrest of the accused by PW6. That apart, the prosecution has not produced the reservation ticket of P.W.1. Thus, the learned counsel contended that the accused is innocent of the guilt; and he has been falsely implicated in this case; and as such, he is entitled to be acquitted.
7. Mr.K.Prabhakar, learned Additional Public Prosecutor appearing for the respondent has made his submissions supporting the judgments of the Courts below. According to him, the conviction and sentence of the accused of the offence punishable under Sections 379 IPC is correct, as the accused has committed the offence of theft. He further contended that P.W.1 has identified the accused and also the stolen articles recovered from him and there is no lapse on the part of the prosecution in establishing the guilt of the accused and the contradictions and discrepancies pointed out, on the side of the accused, are in no way vitiating the prosecution case. Thus, according to the learned Additional Public Prosecutor, no interference is required at the hands of this Court.
8. This Court has considered the submissions made by the learned counsel for the petitioner and the learned Additional Public Prosecutor for the State and also perused the records.
9. The criminal law was set in motion based on the complaint lodged by P.W.1/complainant, as if her handbag containing a leap phone, SBI Bank ATM card and cash of Rs.10,200/- was stolen by a person, who subsequently was identified by her as the accused / petitioner. The said complaint was registered as FIR No.1764 of 2012. After investigation, charge sheet was filed by P.W.6/Investigating Officer and the same was taken on file as CC No.642/2012, which ended in conviction and sentence against the petitioner for the offence under Section 379 IPC. Challenging the same, the petitioner preferred Crl.A.No.40 of 2015, which was dismissed by the Appellate Court. Hence, the present Criminal Revision by the petitioner.
10. It is settled law that the prosecution needs to establish the following essential factors, to prove the alleged offence punishable under section 379 IPC:
(1) That the accused had dishonestly taken the property.
(2) That the property was movable.
(3) That the property was taken out of the possession of another person/complainant.
(4) That it was taken without the consent of that person/ complainant.
(5) That there must be some moving of the property in order to accomplish the taking of it.
11. In the light of the aforesaid principle, this Court would like to examine the materials and evidence adduced on the side of the prosecution. P.W.1/complainant has deposed in her evidence that after getting an admission in a College at Coimbatore to her younger son, on 13.09.2012 at about 08.00 pm, she along with her son and P.W.2/sister-in-law had boarded the Train going to Nagercoil in S4 coach and they were reserved with the seats bearing nos.35, 38 and 40; as soon as they boarded, P.W.2 went to toilet and her son was lying on the berth and P.W.1 sat down on the seat and took the water bottle from her handbag and kept it on the seat, but it fell down; after taking the waterbottle, she found missing of her handbag; she enquired the other passengers, who replied that they did not know about the same; immediately, she got down from the train and saw a boy aged about 35 years running carrying handbag; on seeing the same, she shouted ‘thief’, ‘thief’; upon hearing her sound, the railway police ran and tried to catch that boy, but the accused escaped; thereafter, PW1 got down from the train along with luggage and went to the Coimbatore Railway Police Station and lodged Ex.P1 complaint in this regard. P.W.1 has further deposed that at about 10.30pm on the same day, when they were in the Coimbatore Bus Stand, PW1 was informed and asked to identify a person, who was caught and in the custody of Tiruppur Railway police station; at about 11.00pm, the accused came at Coimbatore Railway Station, where P.W.1 identified him as accused and the materials recovered from him as that of her stolen articles; thereafter, PW1 got the stolen articles through process of court.
12. The deposition of P.W.2/who is the wife of complainant’s brother, is in same lines as that of P.W.1.
13. P.W.3 / Coimbatore Railway Police, has asserted in his evidence that on 13.09.2012, at 8.00pm, he came to know about the information relating to theft of handbag at Coimbatore Railway Station; after finishing his duty, he was travelling in a Kerala Express for going to home at Tiruppur; at that time, P.W.4/Tiruppur Railway Police, who was in Civil Uniform, was also travelling in the said compartment; while so, a passenger came and informed to P.W.4 that on a suspicious manner, a boy was carrying a ladies handbag and counting money; on such information, P.W.3 and P.W.4 went and enquired the said boy, who said that his name was Thirumurthi and gave evasive statements; subsequently, they brought the said boy to Tiruppur Railway Station and thereafter, to Coimbatore Railway Station, in connection with the case of theft of handbag and handed over him to P.W.6/Sub Inspector of Police/IO.
14. The evidence of P.W.3 was corroborated by P.W.4, in his deposition.
15. P.W.5 / Selvaraj, who was working in Railway Catering Canteen, has deposed to support the case of the prosecution. In his evidence, he admitted the signature found in the confession statement given by the accused and also in the seizure mahazar with regard to the stolen articles recovered from the accused, as that of him.
16. P.W.6/Investigating officer has stated in her evidence that on 13.9.2012 at about 8.30pm, P.W.1/complainant came to the police station and lodged Ex.P1 complaint, which was received and registered as Ex.P4 FIR; on the same day, P.W.6 gave information about the theft of handbag to all the police officers, who were at beat duty; on such information, P.W.3 contacted P.W.6 and informed that while returning to home, after finising his duty, in Kerala Express, he saw a boy carrying ladies handbag and P.W.4/Tiruppur Railway Police, was also with him; as per the instructions of P.W.6, at about 11.00pm, P.W.3 and P.W.4 brought the accused to Coimbatore Railway Station, where P.W.6 was waiting along with P.W.1/complainant; upon identification of the accused by P.W.1, P.W.6 enquired the accused, who initially gave contradictory statements and later, admitted his guilt that he took the handbag in 35th coach of Nagercoil Express and escaped to Kanyakumari Express standing in Platform No.3; she obtained confession statement and recovered the stolen handbag consisting of Rs.500/- notes numbering 19 and Rs.100/- notes numbering 7, totaling Rs.10,200/-, Le Phone and SBI ATM card from him in the presence of independent witnesses i.e., P.W.5/selvaraj and Muhammed Ali; thereafter, she arrested the accused and remanded to judicial custody; and upon completion of investigation, P.W.6 filed charge sheet before the jurisdictional Magistrate Court.
17. On a careful scrutiny of the evidence and materials available on record, it is manifest that there are consistent and cogent evidence given by the witnesses in connecting the accused to the offence alleged against him. There is no artificiality in the evidence of prosecution side witnesses. Further, the accused made voluntary confession statement before the Investigating officer, about the commission of the crime and the stolen articles were also recovered from him. For better appreciation, Ex.P2 - admissible portion of the confession statement of the accused is extracted hereunder:
That apart, the evidence of P.W.5/independent mahazar witness would very well support the case of the prosecution about the voluntary confession statement of the accused and recovery of stolen articles from him.
18. Though the learned counsel for the petitioner vehemently contended that there are contradictions and discrepancies in the evidence of witnesses with regard to identification of the accused by PW1 and the arrest of the accused by P.W.6. and P.W.1 has not produced the reservation ticket to prove her case that the accused had stolen her handbag in the train, this Court is not inclined to accept the same as the discrepancies and contradictions as pointed out, are trivial and negligible. The witnesses discharged their burden by giving correct version. If the version of each of the witnesses is read impartially, the ultimate conclusion that can be drawn is the accused committed the offence of theft. The links required to connect the accused to the offence alleged against him are present and they point the accusing finger towards the accused. Nothing has been elicited to discredit the evidence of the witnesses. Nowhere it is stated that the evidence given by the witnesses is false. On the other hand, the evidence is strong enough to believe the story putforth by the prosecution to record conviction of the offence alleged against the accused.
19. This Court is very well aware that when the case is completely based on circumstantial evidence, they should be free from artificiality, and they should suggest only one conclusion i.e., the involvement of the accused in the crime alleged against him. A slightest doubt as to the involvement of the accused in the crime alleged against him, entails the benefit of doubt in his favour. At the same time, it is not the law that whenever there is a discrepancy, invariably its benefit has to go to the accused. Only in the case of major discrepancies, which make the prosecution case absolutely unacceptable, such a benefit can go to an accused, but if the discrepancies are only minor in nature, no fatality can be attached to it. In A. Shankar vs. State of Karnataka [2011 (6) SCC 279], the Supreme Court made the following observations in this regard:
‘‘17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. -Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.- Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. -Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.- The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution’s case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280].
20. Similarly, in Sucha Singh & Anr. v. State of Punjab [(2003) 7 SCC 643], the Supreme Court held as follows:
-20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh & Ors. (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued th
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at it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC 1091). Vague hunches cannot take place of judicial evaluation. ‘A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties.’ (Per Viscount Simen in Stirland v. Director of Public Prosecutor 91944 AC (PC 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth.- 21. In view of the above, if the deposition of all the witnesses is read together, it is found that the prosecution has been able to prove its case beyond doubt. Statement of victim has its own sanctity. Nothing has come on record as to why the accused would be falsely implicated by the victim. The accused in his confession statement, admitted his guilt of theft. The stolen articles were recovered from the accused and the same were identified by the victim. There is thus, no reason to disbelieve the case of the prosecution. All the ingredients of the offence under Section 379 IPC are fulfilled. Therefore, the trial Court has rightly convicted the petitioner / accused for the same and sentenced him to undergo three years rigorous imprisonment. The said finding was also affirmed by the Appellate Court. Hence, this Court does not find any good reason to disagree with the findings so rendered by the Courts below. 22. In fine, this Criminal Revision fails and is accordingly, dismissed. The trial Court is directed to secure the accused and commit him in prison to undergo the remaining period of sentence, if any.