THE HON’BLE SRI JUSTICE K.SURENDER CRIMINAL REVISION CASE No.478 OF 2010

ORDER:

The present Criminal Revision Case is filed aggrieved by the judgment dated 05.03.2010 in Criminal Appeal No. 14 of 2009 on the file of the learned Metropolitan Sessions Judge, Hyderabad (for short, “the appellate Court”) confirming the judgment, dated 24.12.2008 in C.C.No. 123 of 2007 on the file of learned XII Additional Chief Metropolitan Magistrate at Hyderabad (for short, “the trial Court”).

2. Briefly, the case against the accused is that PW-1 is the owner of Maruti Swift Car bearing No.AP-9BC-5577. He gave an advertisement in the newspaper that he intends to sell the said car. Accordingly, the accused and another person approached PW-1 on 31.01.2007 at 8.30 pm and informed that they were ready to pay an amount of Rs.3.8 lakhs for the said car which was intended for sale by PW-1. However, both of them wanted to take a test drive. Accordingly, PW-1 asked his office boy to sit in the car when the car is taken for a test drive by the accused. However, the vehicle was taken for test drive and in the meanwhile, the accused forced the office boy to get down from the vehicle and took away the vehicle.

3. The trial Court having examined PWs.1 to 7 and marking Exs.P1 to P5 on behalf of the prosecution and found that M.O.1/Swift Car which was recovered was subject to theft by the accused. The trial Court convicted the accused for the offence under Section 382 of IPC. Section 382 of IPC reads as under:-

“Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.”

4. However, on appeal, the appellate Court found that the offence committed by the accused does not fall under Section 382 of IPC. Theft was punishable under Section 379 of IPC, accordingly, the accused was acquitted for the offence under Section 382 of IPC and convicted under Section 379 of IPC. The appellate Court deemed it appropriate to confirm the sentence the accused for six (06) months under Section 379 IPC.

5. Learned counsel for the revision petitioner would submit that Section 379 of IPC is not a lesser offence to Section 382 IPC though theft is common. The factum of preparing to cause death or hurt or restraint or keeping any person under any fear of hurt has to be established by the prosecution. When the very genesis of the prosecution case was disbelieved by the appellate Court, the appellate Court ought to have acquitted the accused. Both the Courts committed an error in convicting the accused for the offence under Section 379 of IPC.

6. On the other hand, learned counsel appearing for the Public Prosecutor has supported the findings of the appellate Court.

7. It is the case of PWs.1 and 2 that the accused and another person approached PW.1 for the purpose of purchasing his car. On the pretext of going for a test drive, the vehicle was taken away. The said act of the accused clearly makes an offence of theft punishable under Section 379 of IPC.

8. The incident is of the year 2007 and nearly 17 years have passed since. There is nothing on record to disbelieve the version of PWs.1 and 2. However, this Court deems it appropriate to reduce the sentence of imprisonment to the period already undergone.

9. In the result, the Criminal Revision Case is partly allowed.

There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

No costs.

______________ K.SURENDER Date: 28.02.2024 ktm/nds