* THE HONOURABLE SRI JUSTICE B.N. RAO NALLA + CRIMINAL REVISION CASE No.474 OF 2009 % Date: 13-10-2011 # Mutyala Satyavathi .. Revision Petitioner v. $ State of Andhra Pradesh, rep. by its Public Prosecutor, High Court of A.P., Hyderabad .. Respondent ! Counsel for the Petitioner : Sri T. Pradyumna Kumar Reddy ^ Counsel for the Respondent : Public Prosecutor < GIST: > HEAD NOTE: ? CASES REFERRED: C/15 THE HON'BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.474 OF 2009 JUDGMENT: This Criminal Revision Case is filed by the accused Smt. Mutyala Satyavathi assailing the judgment in Criminal Appeal No.3 of 2009 dated 27-02-2009 passed by the learned Metropolitan Sessions Judge – cum – I Additional District and Sessions Judge, Visakhapatnam, confirming the conviction and sentence passed against her in C.C. No.614 of 2005 dated 30-12-2008 by the learned Chief Metropolitan Magistrate, Visakhapatnam, for the offence under Section 411 IPC. 2. The case of the prosecution as unfolded from the charge sheet, in brief, is as under: (a) The revision petitioner – accused, who is resident of Anakapalli, is working as Sweeper in Bank of India, Extension Counter of Universal Public School, Town Kotha Road, Visakhapatnam. (b) LW.1, the Branch Manager of the State Bank of India, Extension Counter of Universal Public School (hereinafter referred to as “Bank”) lodged a report on 17-06-2005 stating that on 16-06-2005 LWs.2 and 3 - V. Ramakoti and Smt. B. Ratna Kusum, who are in- charge and in-charge cashier of the Bank respectively, after closing the banking transactions at 5-15 pm, put the cash of Rs.1,82,818-50 paise, including coins, in a suit case, locked the suit case, carried the same to the safe room (strong room) by the accused, put the suit case in the safe at 5-20 pm and after locking the grill gate and wooden doors, left the premises at 5-40 pm. While so, on 17-06-2005, LW.2 – V. Ramakoti gave keys of the grill doors to the accused to clean the strong room and thereafter at 10-00 am, LWs.2 and 3, Ramakoti and Ratna Kusum respectively, went into the strong room to takeout the cash and when they applied keys to the safe, it did not open and when they checked the handle it was found to be already opened along with suit case, missing of keys of the suit case and also the cash in it and the same was informed to LW.1, Branch Manager, by LW.2 Ramakoti. (c) The report of LW.1, Branch Manager of the Bank, was registered as a case in Crime No.32 of 2005 under Section 379 IPC and on 19-06-2005, arrested the accused at Anakapalle at her in-laws house in the presence of the mediators, recorded her confessional statement, seized cash of Rs.1,17,930/- from her and Rs.63,288-50 paise from her brother LW.6 - Sankar Rao at Payakaraopeta under the cover of mediators report and after completion of the investigation filed charge sheet and the same was taken on file as C.C. No.614 of 2005 for the offence under Section 411 IPC. 3. When the accused was examined under Section 239 Cr.P.C. for the charge framed against her under Section 411 IPC, she pleaded not guilty of the same. 4. To substantiate its case, the prosecution has got examined PWs.1 to 7 and got marked Exs.P-1 to P-5 and MO.1 cash. 5. When the accused was examined under Section 313 Cr.P.C., she denied the case of the prosecution, but no oral or documentary evidence was adduced. 6. The trail Court by appreciating the entire evidence and other material on record and relying on the oral evidence of PWs.1 to 7, Exs.P-1 to P-5 documents and MO.1 cash, found the accused guilty of the offence punishable under Section 411 IPC and sentenced her to undergo rigorous imprisonment for a period of two (2) years and to pay a fine of Rs.10,000/- and in default of payment of fine to suffer simple imprisonment for a period of two months. 7. Aggrieved by the conviction and sentence passed by the trial Court, accused preferred Criminal Appeal No.3 of 2009 before the learned Metropolitan Sessions Judge – cum – I Additional District and Sessions Judge, Visakhapatnam and the same was dismissed confirming the conviction and sentence passed against her for the offence under Section 411 IPC. Assailing the same, accused filed this revision. 8. Learned counsel for the accused contends that the learned Sessions Judge failed to see that the ingredients to constitute the offence under Section 411 IPC are not made out by the prosecution and the amount alleged to have seized from the possession of the accused and her brother was not tallied with the currency that was seized and that there is variance in the amount stolen and the amount seized. Further, LW.3 - Sankar Rao, who is brother of the accused and from whom part of the amount was alleged to have been recovered by the prosecution, is not arrayed as accused by the prosecution and there is no satisfactory explanation from the prosecution for the same and that though there is no corroboration to the evidence of PWs.4 and 6, the learned Sessions Judge erroneously placing reliance on their testimony confirmed the conviction and sentence of the accused for the offence under Section 411 IPC passed by the trial Court without any cogent reasons. Hence, the impugned judgment is unsustainable, as such, the same may be set aside. 9. The learned Public Prosecutor supported the impugned judgments contending that both the Courts below correctly appreciated the evidence and other material on record and concurrently found the accused guilty of the offence under Section 411 IPC and there are no grounds to interfere with the same by this Court, as such, the revision may be dismissed. 10. Now the only point that arises for consideration is whether the Courts below have committed any error or illegality in finding the accused guilty of the offence charged with? POINT: 11. In order to substantiate its case, prosecution has examined PWs.1 to 7. PW.1 Somendranadh Sinha is Branch Manager of the Bank, PW.2 Smt. B. Ratna Kusum is in-charge cashier of the Bank, PW.3 Yerramsetty Sankar Rao is brother of the accused, PW.4 G. Narayana Rao, who is correspondent of Universal Public School, is a mediator, PW.5 is the Sub-Inspector of Police, who received report from PW.1 and registered FIR, and PWs.6 and 7 are the investigating officers. 12. The evidence of PW.1 shows theft of Rs.1,81,218-50 paise from the safe of the Strong Room of the Bank as unfolded in his report lodged with the police. 13. The evidence of PW.2 is that on 16-06-2005, as usual, she along with LW.2 Ramakoti, who is in-charge of the Bank, kept the balance cash of Rs.1,81,218-50 paise in the suit case, locked it and kept the same in the safe of the Strong Room of the Bank at 5-20 PM and by putting the keys in her bag, kept the bag on the table, attended nature calls and thereafter took her bag and left the Bank premises. Further, on the following day i.e. on 17-06-2005, she came to the Bank at 10-00 AM, went inside the Strong Room along with LW.2 - Ramakoti and when they applied keys to the safe, it did not turn, and when they pushed the handle, surprisingly the door opened. Accused also came into the Strong Room, picked up the suit case and immediately dropped it saying that it is very light, due to which the suit case opened and they found that the entire amount kept in the suit case was missing except security deposit receipts. 14. PW.3, who is brother of the accused and from whom part of the stolen amount was recovered, turned hostile, as such, his evidence cannot be considered. 15. The evidence of PW.4 G. Narayana Rao, who acted as mediator, is that he is working as Correspondent in Universal Public School, near Town Kotha Road. On 19-06-2005, he was called by the Inspector of Police and when he went to One Town Police Station, he was requested by the police to act as mediator. Himself, Inspector of Police, Sub-Inspector of Police, three Constables and another went to Anakapalli in a Jeep to Vijayaramarajupeta up to the house of Mutyala Nookalamma, where the accused was present. On questioning, accused confessed about commission of theft from the safe locker of the Bank and giving part of the amount to her brother PW.3. Police seized more or less than Rs.1,17,000/- from the accused. The Bank serial numbers were verified and they were tallied with the amount seized from the accused. The said amount was seized under a cover of report – Ex.P-3 and obtained his signature thereon and also another mediator Narasimha Rao (LW.11). Then they left to Payakaraopeta along with the accused, who led them to Gollaveedhi up to the house of PW.3 and shown him. On questioning, PW.3 confessed about keeping of Rs.63,288-50 paise in his custody given by the accused and produced the same, then they verified the numbers and when they were tallied, seized the amount under the cover of Ex.P-4 mediators report. 16. The evidence of PW.5, Sub-Inspector of Police, shows his receiving report from PW.1, Branch Manager of the Bank, about theft of the amount from the Bank and his registering FIR under Ex.P-5 and his assistance in the investigation to PWs.6 and 7. 17. The evidence of PW.6 (Inspector of Police, CCS Team – II), investigating officer, is that on credible information, on 19-06-2005, he secured the presence of PW.4 and LW.8 (P. Lakshmi Narasimha Rao) to act as mediators, proceeded to Anakapalli University Public School along with his staff, where they found the accused and arrested her in the presence of the mediators and on questioning, she confessed about theft of the amount from the Bank and produced Rs.1,17,930/- from her house which he seized under Ex.P-3 mediators report and as she stated that she gave remaining amount to her brother PW.3, they proceeded to his house at Payakaraopet along with the accused and after examining him, he confessed and produced cash of Rs.66,288-50 paise which he seized under Ex.P-4 mediators report. 18. The evidence of PW.7 (Inspector of Police, Visakhapatnam), investigating officer, shows her verifying the entire case file and filing charge sheet. 19. A perusal of the evidence of PWs.4 and 6 clearly shows that the accused confessed that she has committed theft of Rs.1,81,218-50 paise from the safe locker of the Strong Room of the Bank and their recovering Rs.1,17,930/- from the possession of the accused i.e. from her house where she was present at the time of arrest and confession, and Rs.63,288-50 paise from the possession of PW.3, who is brother of the accused, at her instance at his residence at Payakaraopet under Exs.P-3 and P-4 mediators reports, totalling to Rs.1,81,218-50 paise, which was stolen by the accused, and the same is marked as MO-1. However, the contention of the learned counsel for the accused is that PWs.4 and 6 being official witnesses, they are highly interested one, as such, no reliance can be placed on their evidence. This contention of the learned counsel for the accused cannot be accepted since PW.4, who acted as mediator is an independent witness and he has neither personal enmity/grudge nor any pressure to say against the accused and falsely implicate her, a widow, in a case of this nature by putting her honour and livelihood at stake. Further, accused failed to offer any explanation as to how she is in possession of such a huge amount of Rs.1,17,930/-. Apart from this, recovery of remaining part amount of Rs.63,288-50 paise from the possession of PW.3, who is none other than the brother of the accused, at her instance, from his house at Payakaraopet is supported by the version of PW.3 himself in his statement under Section 161 Cr.P.C., though he turned hostile, and the same is supported by the evidence of PWs.4 and 6 as well coupled with Exs.P- 3 and P-4 mediators reports. Furthermore, it appears from the material on record that she is a habitual offender. 20. Coming to the question of variance in denomination of currency notes, in the cross-examination of PWs.4 and 6, no questions were put to them in that regard and nothing contrary is elicited with regard to confession of the accused, seizure of the amount from the possession of the accused and her brother - PW.3 as mentioned in Exs.P-3 and P-4 mediators reports, as such, as rightly observed by the learned District and Sessions Judge, at this stage, accused is not entitled to raise this question. 21. Coming to the question of not showing PW.3, who is brother of the accused and from whom part of the amount was recovered, as one of the accused, this Court is of the opinion that the same is not fatal to the case of the prosecution, since it appears that neither he (PW.3) has any dishonest intention in receiving the amount of Rs.63,288-50 paise given to him by the accused, who is his sister, nor he has knowledge that it was stolen property, as such, the prosecution did not array him as accused. Furthermore, the material on record, clearly establishes that it is the accused, who has stolen the amount in question from the Bank and that PW.3 has no access to do the same. 22. Thus, the entire material on record shows theft of Rs.1,81,218-50 paise from the safe in the Strong Room of the Bank, PW.1 giving report to the police on 17-06-2005 and the police seizing the stolen amount from the possession of the accused and PW.3 during the course of their investigation on 19-06-2005 etc. Hence, it can be said that accused has knowledge that the amount seized from her is stolen property and she is in possession of the same when the police arrested her. Thus, prosecution proved the ingredients of Section 411 IPC to connect the accused for the said charge. 23. For the aforesaid reasons, this Court is of the view that the Courts below rightly placing reliance on the evidence of PWs.1 and 2 in general and the evidence of PWs.4 and 5 in particular as the same is corroborating with Exs.P-3 and P-4 mediators report as well as MO.1 cash, found the accused guilty of the offence under Section 411 IPC. Hence, it can be said that the Courts below have not committed any error or illegality in finding the accused guilty of the offence charged with. Thus, there are no grounds to interfere with the impugned judgment, and therefore, the revision is liable to be dismissed. The point is accordingly answered. 24. Coming to the question of sentence, considering the facts that the accused is a widow, having children to maintain them who are totally dependent on her and she is the only bread winner of the family and that the entire amount stolen by her was recovered from her possession and also the fact that there are minor discrepancies in the case of the prosecution, this Court is of the opinion that modifying and reducing her sentence of imprisonment and fine would meet the ends of justice. Accordingly, the sentence of rigorous imprisonment for a period of two (2) years and fine of Rs.10,000/- for the offence under Section 411 IPC imposed on the accused by the Courts below is modified and reduced to simple imprisonment for a period of one (1) year and fine of Rs.1,000/- (Rupees one thousand only) and in default of payment of fine to suffer simple imprisonment for one (1) month. 25. With the above modification and reduction in sentence of imprisonment alone, the Criminal Revision Case is dismissed confirming the impugned judgment in Criminal Appeal No.3 of 2009 dated 27-02-2009 passed by the learned Metropolitan Sessions Judge – cum – I Additional District and Sessions Judge, Visakhapatnam. __________________ B.N. RAO NALLA, J Date:13-10-2011. PV