Possession of stolen property is sufficient for conviction under Section 411 IPC, even if major charges of theft are not proven.

ORDER:

The Revision has been preferred under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C ’) against the judgment dated 14.03.2007 in Crl.A.No.547 of 2004 on the file of the learned X Additional District and Sessions Judge (FTC), Guntur, confirming the judgment dated 23.11.2004 in C.C.No.94 of 2004 on the file of the learned I Additional Munsif Magistrate, Gurazala, finding the Revisionists guilty for the offence punishable under Section 380 of the Indian Penal Code, 1860 (for short ‘the I.P.C’) and sentencing him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- and, in default, to undergo simple imprisonment for a period of two months.

2. I have heard the arguments of the learned counsel for the Revisionists and the learned Assistant Public Prosecutor.

3. Sri Ismail, learned counsel for the Revisionists submit that the prosecution had not proved the guilt of the Revisionists for the offence under Sections 380, 457 of ‘the I.P.C.,’ inasmuch as there was no eyewitness to the alleged occurrence. P.Ws.5, 6 and 8 are interested witnesses; Ex.P1 had not given any particulars of the articles of gold and silver which was lost in the alleged theft. The alleged confession of A2 is not admissible in evidence. The test identification parade was not conducted by the learned Magistrate with articles of similar nature. Therefore, the conviction under Sections 457 and 380 of ‘the I.P.C.,’ are illegal as there was no evidence about the commission of the theft and requested to allow the revision. Alternately, it is prayed that the Revisionists had already undergone substantive period as remand prisoners or under trial prisoner or convict prisoner. Therefore, the Revisionists may be imposed the sentence which they had already undergone.

4. Per contra, Ms. P. Akila Naidu, learned Assistant Public Prosecutor argued that the prosecution proved the guilt of the Revisionists beyond all reasonable doubt. Even though there was no direct evidence to show that the Revisionists had gained entry into the shop of P.W.1 and committed theft of the property, the stolen property was recovered from the possession of the Revisionists. Therefore, they are liable for punishment even under Section 411 of ‘the I.P.C’. It is argued that there was no material irregularity and no miscarriage of justice was occasioned and urged to dismiss the revision.

5. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the Petitioner and the learned Assistant Public Prosecutor. I have perused the record.

6. Now the point for consideration is:

“Whether the judgment in Crl.A.No.547 of 2004 dated 14.03.2007, passed by the learned X Additional District and Sessions Judge (FTC), Guntur at Narasaraopet, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?”

7. This Court in S. Venkat Reddy v. State of A.P, [2004 (1) ALD (Crl.) 357 (AP)]., held at para No.3 as under:

“3. It is settled law that when a conviction is recorded by the Trial Judge and upheld by the first Appellate Court, re-appreciation of the evidence cannot be done unless there is miscarriage of justice.”

8. The Hon’ble Apex Court in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, [(2000) 7 SCC 569] at para No.21, 22 and 23 held as under:

“21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 CrPC. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. Ambika Yadav, [(2004) 7 SCC 665]. Theat was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

22. The revisional court is empo