IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 17.07.2008 CORAM THE HONOURABLE MR.JUSTICE T. SUDANTHIRAM Criminal Appeal No.451 of 1997 State by Public Prosecutor High Court, Madras. .. Appellant Versus 1. Kolanjiappan 2. Uthirakounder 3. Kolanji 4. Balaraman 5. Panchayathan 6. Ayyah @ Aathur Kanniyan .. Respondents Criminal Appeal filed against the Judgment in C.C.No.718 of 1995 dated 16.08.1996, passed by the Judicial Magistrate, Vridhachalam in C.C.No.718 of 1995. For Appellant : Mr.N.Kumanan Government Advocate (Criminal side) For Respondents : Mr.S.Saravanakumar for R.2 and R.5 JUDGMENT The State has preferred this appeal against the judgment passed by the learned Judicial Magistrate, Vridhachalam in C.C.No.718 of 1995 acquitting the accused Nos.1 to 6 from the charges under Sections 457 and 380 r/w 34 IPC. 2. The learned Government Advocate submits that out of the six respondents/accused Nos.1 to 6 only the 2nd and 5th respondents are alive and all the other respondents 1, 3, 4 and 6 have died. The charges against the accused are that on 05-06-1995 in the night hours the accused break opened the lock, entered into the Arulmighu Vishvaneswarar Temple in Nallur Village and committed theft of seven Panchaloga Swamy idols and taken them in a van TN31-X-1873. https://hcservices.ecourts.gov.in/hcservices/ 3. The case of the prosecution in brief is that P.W.1, who is the writer in the Temple, having noticed that the locks of the Temple being broken, went and saw inside and found that in 25 idols, 7 idols and valampuri sangu were missing. He gave a complaint Ex-P1 on 06-06-1995. P.W.17, the Inspector of Police at Veppur Police Station on receiving the complaint, Ex-P1, registered a case in Crime No.238 of 1995 for the offences under Section 437 and 380 IPC and prepared the First Information Report. He went to the scene of occurrence and prepared plan and observation mahazars and examined the witness. P.W.18, the Inspector of Police, CBCID Preventive Wing of Idol theft, on getting some information went near the Santhosh Kumar Palace Theatre and was keeping a watch on 28-09-1985 at 9:00a.m. At about 10:30 a.m., he saw the second accused Uthira gounder coming on the way carrying an Yellow colour bag. In the presence of P.W.4 and another witness on examining the bag he found an idol in the bag and arrested the second accused. At about 11:15 a.m., the second accused gave a voluntary confession, Ex-P3. He brought the accused to the Veppur Police Station and registered a case in C.C.NO.898 of 1995 under Section 41(d) and 102 Cr.P.C. He registered an FIR, Ex-P33. On the basis of the confession given by the second accused, he was taken to a field at Veeramangalam and four more idols were recovered under Ex-P5 which was hidden in the earth on 29-09-1985. He also arrested the sixth accused and recovered the knife, M.O.2, with the sixth accused admitted to stabbing. He also recorded a confessional statement given by the sixth accused and on that basis had recovered another idol under Ex-P8. The idols were identified by the Personnel belonging to the Viswaneswarar Temple. They also recorded the statements and subsequently arrested the accused A1, A3 to A5 on 10- 10-1995 and also recorded the confessional statement of those accused. On the basis of the confession given by the first accused, he recovered the Mahindra Van TN 31-X-1873 and also recovered Sarigai pavadai on the basis of the confession given by Ex-P4. He recovered two Navtal locks on the basis of the confession given by A5 and two more locks on the basis of the confession given by A3. He also came to know that one of the idol was found and it was in custody of Ulundurpet Police Station and a case was also registered on 27-10-1995 in Crime No.1074 of 1995 under Section 102 Cr.P.C. P.W.13, the Tahsildar of Ulundurpet was keeping in his custody one Amman idol which was recovered under Crime No.1074 of 1995 under Section 102 Cr.P.C. On the request given by P.W.18, he handed over the idol to P.W.18. P.W.15 on examining the seven idols and also comparing them with those photos of the idols, he identified them that those idols belonged to Nallur Viswaneswarar Temple. After completing the investigation, P.W.18 laid the final report against the eight accused. Among them A7 and A8 were absconding and subsequently A7 had surrendered before the Court and the case against them was tried separately. https://hcservices.ecourts.gov.in/hcservices/ 4. The prosecution has examined 18 witnesses, marked 34 exhibits produced 30 M.Os. and the defence had examined 3 witnesses and produced five defence witnesses. 5. The accused were questioned with regard to the incriminating circumstances and have denied the same. The Trial Court after considering the evidence acquitted all the accused. The Trial Court has disbelieved the Mahazar witness for the recovery of the idols. 6. The learned Government Advocate submitted that since only the 2nd and 5th accused alone are available now, he is confining his arguments only to those two respondents. The learned Government Advocate submitted that though M.Os.1 to 5, idols have been recovered from the second accused, which is a clinching evidence against the second accused, the Trial Court had acquitted him on flimsy reasons. P.W.4 was disbelieved by the Trial Court merely for the reason that he was employed in a Temple. The learned Government Advocate further submitted that two Navtal locks were recovered from the fifth accused and those locks have also been identified by the witnesses as belonging to the Temple. 7. The learned counsel for the accused 2 and 5 submitted that the Trial Court after elaborately discussing the evidence of P.Ws.4 and 18 disbelieved the recovery of idols from the 2nd accused. The learned counsel further submitted that the P.W.4, mahazar witness had deposed falsely that he was not employed in the Temple, but according to P.W.18, P.W.4 was employed in the Temple and therefore, P.W.4 is an interested witness and his confession regarding the recovery of the idols from the sugarcane field was false, which was actually recovered from the mud near the well. The learned counsel further pointed out that the seven idols which were taken from the Temple were taken along with the Peedam, but in the idols recovered there was no Peedam. The learned counsel vehemently submitted that this being an appeal against acquittal, the Court should not interfere easily. 8. This Court considered the submissions made by both the parties and also perused the evidence. As per Ex-P1, 7 idols and one Valanpuri Sangu were said to have been stolen from the Temple and out of them M.Os.1 to 7 idols have been recovered in the case and according to the prosecution, one idol was found unclaimed within the limits of Ulundurpet Police Station, i.e., M.O.7. One another idol, M.O.6 is said to have been recovered from the sixth accused. As far as the idols M.Os.1 to 5 are concerned, the second accused was found with possession of one of the idol and other four idols were concealed in the field. At the time of arrest of the second accused, one idol was recovered and the other idols were recovered on the https://hcservices.ecourts.gov.in/hcservices/ basis of his confession. In respect of the recovery of idols M.Os.1 to 5, P.W.4, the Mahazar witness and P.W.18, the concerned officer, who recovered the idols have given the evidence. Though the Trial court has given some reasons to reject the evidence of P.W.4 has not given any reasons for rejecting the evidence of P.W.18, the Police Officer. It cannot be said in this case that the properties were planted by the Officers. These are antique properties which are rarely available. Especially M.Os.1 to 7 have been identified by the concerned witnesses that they were belonging to the Temple. While so, the properties-idols, which have been shown in Ex-P1 have come to the hands of the Police. If that be the case, it is for the Police Officer only to give evidence as to how he recovered those idols. Under such circumstances, when P.W.18 says that he recovered the idols M.Os. 1 to 5 from A2, there is no reason to reject the evidence. The Trial Court rejected the evidence of P.W.4, the Mahazar witness only for the reason that he had denied the fact that he was employed in the Temple. But P.W.14 had admitted that P.W.4 is a part-time clerk to the Nallur Viswaneswarar Temple just because P.W.4 had denied the fact that he was not employed in Temple, the Trial Court held that the person is false in all aspects. P.W.4 is an independent witness and he had no animosity against the accused. Even otherwise, the evidence of P.W.18 alone can be accepted with regard to the recovery of the idols from A2. 9. As far as the fifth accused is concerned, it is stated that only two locks were recovered from him and though the witness has identified that the locks were belonging to the Temple, it is insufficient to decide that the locks are temple locks and therefore, the accused is guilty of the theft and thereby, to convict the fifth accused. Therefore, the acquittal made by the Trial Court is confirmed. 10. As far as the second accused is concerned, recovery of idols from second accused being proved, he has to be convicted. In an appeal against acquittal, if two views are possible, the Trial Court having taken a view in favour of the accused, the Appellate Court cannot interfere unless and otherwise, it is found perverse. But in the case on hand, since the recovery is established and the possession of idol with him being established and as there is no other evidence to connect him with the break opening of the Temple and entering into it for committing theft, he would be convicted under Section 411 IPC. In the absence of any explanation from the second accused for being in possession of those antique valued properties, he has to be held under Section 411 IPC. 11. With regard to the sentence, the learned counsel for the accused prays for leniency and also states that the second accused is at present the President of the Village Panchayat, Pugaipatti and the https://hcservices.ecourts.gov.in/hcservices/ occurrence had taken place in the year 1995 and he has no other bad antecedent either before this case or after the case and that the petitioner has been already in jail for more than 45 days. 12. This Court has to question the accused before sentencing him to imprisonment for a certain period. But since the counsel for the accused prays for leniency and also says that he will be satisfied if the accused is sentenced with the period already undergone, the learned Government Advocate was also heard with regard to the question of sentence and as he had no serious objection, the second accused/ second respondent alone is convicted under Section 411 IPC and sentenced to the period already undergone. 13. The appeal is allowed in respect of the second accused alone. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar glp To 1. State by Public Prosecutor High Court, Madras 2. Mr.N.Kumanan, Government Advocate (Criminal side) +1 cc to Mr.S.Saravanakumar, Advocate, SR.No.38070 Criminal Appeal No.451 of 1997 KA (CO) SMK/05.08.08 https://hcservices.ecourts.gov.in/hcservices/