THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1241 of 2004 ORDER: 1. This Criminal Revision Case is directed against the judgment dated 28.04.2004 passed in Criminal Appeal No. 275 of 2001 on the file of the Special Sessions Judge- cum-IV Additional Sessions Judge, Tirupati, whereunder and whereby the conviction and sentence recorded in the judgment dated 27.11.2001 in C.C. No.2 of 2001 on the file of the Judicial Magistrate of First Class, Srikalahasthi, against the petitioner/A.1 for the offence punishable under Section 411 of the Indian Penal Code, 1860 (for short, ‘IPC’), were confirmed. 2. The prosecution laid charge sheet against two accused alleging that A.1 and A.2, who are residents of Mamidigunta village, Thottambedu mandal, are closely associated with each other involving in criminal activities. On the intervening night of 29/30.05.2000, while the inmates were sleeping in the premises of rice mill, some unknown offenders gained entry into the house of P.W.1 in Kalathur village by removing the hasp of the threshold of the door and opened steel almyrah with its keys, which were available nearby, and committed theft of gold jewels and sarees, worth about Rs.19,500/-. On the complaint lodged by P.W.1, case in crime no.17 of 2000 was registered. During the course of investigation, on 30.10.2000 at about 3.30 PM, A.1 was arrested by P.W.4, and basing on his confession, the stolen property was recovered from his possession under cover of mahazar in the presence of mediators. A.1 confessed that he along with A.2 committed theft in the house of P.W.1, sold away some jewels at RTC bus stand, Venkatagiri and spent the amount. Further, on 31.10.2000 at 6.00 PM, A.1 took them to his house at Mamidigunta and produced 16 sarees concerned in this case and the same were seized under cover of mahazar. On 1.11.2000, identification test was conducted by P.W.3-Village Administrative Officer in which P.W.1 identified the seized property as his property. After completion of investigation, the charge sheet was laid. 3. The trial court, after examination of the accused under Section 239 Cr.P.C., framed charges for the offences punishable under Sections 457 and 380 I.P.C. against A.1 and A.2. When the charges were read over and explained to the accused in telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 4 and got marked Exs.P1 to P5 besides case properties M.Os. 1 to 11. 5. After closure of the prosecution side evidence, the accused were examined under Section 313 Cr.P.C. and they denied the incriminating material appearing against them in the evidence of prosecution witnesses. No oral or documentary evidence was adduced on behalf of accused. 6. The trial Court, accepting the evidence of prosecution witnesses, found A.1 guilty of the offence punishable under Section 411 I.P.C., accordingly convicted and sentenced him to undergo rigorous imprisonment for a period of two years, while acquitting A.1 and A.2 of the offences punishable under Sections 457 and 380 I.P.C. On appeal by A.1, the appellate court dismissed the appeal confirming the conviction and sentence recorded by the trial Court. Challenging the same, the present revision case is preferred by petitioner/A.1. 7. Now, the point for determination is whether the judgments of the courts below is correct, legal and proper ? 8. The learned counsel for the revision petitioner/A.1 contended that P.W.2, who is an independent mediator, is not resident of the locality where search and seizure were effected and he is interested in the case of defacto complainant, and so, no reliance can be placed upon his evidence; that, there are contradictions in the evidence of prosecution witnesses and hence, no reliance can be placed upon their evidence also. Hence, he prays to set aside the conviction and sentence recorded against the petitioner/A.1. 9. On the other hand, the learned counsel representing the Public Prosecutor opposed the same and contended that the evidence of P.W.2, coupled with the evidence of P.W.4, it is clear that M.Os. 1 to 11 were seized from the possession of the accused under Exs.P2 and P3, and the petitioner/A.1 has not accounted for the possession of the stolen property; that both the courts below, upon consideration on the evidence on record, rightly convicted and sentenced the petitioner/A.1 and the said concurrent findings need not be interfered with, as none of the findings is shown to be perverse or contrary. Hence, she prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that, revisional powers of this court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings of the courts below are shown to be illegal or improper or perverse, normally this Court will not interfere with the same. 11. There is no direct evidence to show that the petitioner/A.1 committed theft of gold and other articles from the house of P.W.1 on the intervening night of 29/30.05.2000. During the course of investigation, police arrested the petitioner/A.1 on 31.10.2000 at about 3.30 PM in the presence of P.W.2 and recovered M.Os. 1 to 10-gold jewels from his possession. No doubt, P.W.2 is resident of village of P.W.1. But, that does not mean that his evidence has to be disbelieved on that ground. Sub- section (4) of Section 100 Cr.P.C. contemplates that whenever search is effected, two or more independent and respectable inhabitants of the locality are to be followed. But, in this case, such procedure has not been followed by the police. P.W.2 followed P.W.4-police officer long distance at the time of arrest of petitioner/A.1 and recovery of M.Os.1 to 10. 12. Even assuming for a moment that search conducted by P.W.4 is illegal, but seizure of the articles would not in any way be affected. The evidence of P.Ws. 2 and 4 coupled with the recitals in Ex.P2-mahazarnama, it is clear that M.Os. 1 to 10 were seized from the possession of the accused. They were identified by P.W.1 as belong to him. Even the accused did not claim that those properties were belonging to him. When once the prosecution established its case about possession of stolen articles M.Os.1 to 10 with the petitioner/A.1, the burden shifts on to the accused to account for the same as required under Section 114 (a) of the Indian Evidence Act, 1872. But, the petitioner/A.1 has not discharged the burden placed on him to account for the properties found in his possession. Therefore, the presumption under Section 114 (a) of the Act can be drawn in this case. If it is drawn, the petitioner is either a thief or receiver of stolen property. Therefore, accepting the evidence of P.Ws.2 and 4, coupled with recitals in Ex.P2, the trial Court as well as the appellate Court rightly found the petitioner/A.1 guilty. None of the findings is shown to be illegal or improper or incorrect. Hence, there are no grounds to interfere with the conviction recorded by the courts below. 13. With regard to sentence, the petitioner/A.1 is aged about 30 years. During pendency of the revision case, he has not involved in any other case similar to the present one. The case is pending for the last about 10 years. He has been attending the trial court as well as the appellate court. In view of the facts and circumstances, it is a fit case to reduce the sentence of imprisonment. 14. In the result, the conviction recorded by the courts below against the petitioner/A.1 for the offence punishable under Section 411 I.P.C. is confirmed, but the sentence of imprisonment is reduced from rigorous imprisonment for two years to rigorous imprisonment for one year. The period of detention underwent by the petitioner/A.1 during investigation, trial and after conviction shall be given set off under Section 428 Cr.P.C. 15. With the above modification, the Criminal Revision Case is dismissed. ------------------------- (K.C.Bhanu, J.) 01.07.2010 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1241 of 2004 01.07.2010 THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No. 1241 of 2004 Date: 01.07.2010 Between: Podili Mohan, s/o. Subbaiah …Petitioner/A.1 And State of A.P., rep. by the Public Prosecutor, High Court of A.P., Hyderabad. …Respondent