THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.1420 of 2004 JUDGMENT: This Criminal Revision Case filed under Sections 397 and 401 Cr.P.C., is directed against judgment dated 03.12.2003 passed in Crl.A.No.153 of 2001 by the learned II-Additional Sessions Judge, Proddatur, wherein and whereby conviction and sentence imposed against the petitioners/A-1 & A-2 (for short the accused) by the I- Additional Judicial Magistrate of First Class, Proddatur, in C.C.No.833 of 2000 dated 18.07.2001 were confirmed. The case of the prosecution, succinctly, is as follows:- On 28.11.2000 at 1.00 p.m., A-1 and A-2 in the case approached Pw.1-B.Veerabhadraiah, who was standing in front of RTC bus stand entrance gate, and asked him to purchase sarees and took him to Mandi complex road on the pretext of showing sarees and took two gold rings from him and ran away, and subsequently, PW.1 lodged a report and the same was registered as Crime No.107 of 2000 on the file of Proddutur II Town P.S. against the accused. After completing the investigation of the case, charge sheet was laid before the learned I Additional Judicial Magistrate of First Class, Proddatur, who had registered the case as CC.No.833 of 2000 against A-1 & A-2, for the offence punishable under Section 411 IPC. Charges under Sections 379 and 411 IPC were framed against the accused and read over and explained to A1 & A2 for which they pleaded not guilty and claimed to be tried. To substantiate its case, the prosecution examined P.Ws.1 to 3 and marked Exs.P1 to P4 and M.Os.1 to 3. On behalf of defence, none were examined and no documents were marked. On the consideration of the entire oral and documentary evidence, the trial Court found A1 & A2 not guilty of the offence punishable under Section 379 IPC, but however found them guilty of committing the offence punishable under Section 411 IPC and, accordingly convicted and sentenced them to undergo Simple Imprisonment for a period of six months for that offence, whereas assailing the same, A-1 & A-2 preferred Crl.A.No.153 of 2001 before the II-Additional Sessions Judge, Kadapa at Proddatur, who, after considering the matter, confirmed the conviction and sentence imposed by the trial court by his judgment dated 03.12.2003 and aggrieved thereby, A-1 & A-2 have preferred the present Civil Revision Case. Learned counsel for A-1 & A-2 has contended that PW.1 clearly admitted that the case properties i.e., M.Os.1 and 2 were given to A1 & A2 voluntarily and, therefore, the question of theft under Section 379 IPC does not arise. Learned counsel has further contended that the trial Court, while holding that no offence under Section 379 IPC or no offence of extortion under Section 383 IPC was made out, surprisingly convicted and sentenced A1 & A2 for the offence punishable under Section 411 IPC, which were also erroneously confirmed by the appellate court, and hence, A1 & A2 are liable to be set aside. It is further the contention of learned counsel for the petitioner that the case properties marked as M.Os.1 and 2 were already returned to PW.1 for interim custody and cash of Rs.240/- marked as M.O.3 recovered from A-1 was directed to be returned to A-1 by the trial Court. Learned Additional Public Prosecutor has opposed the Revision Case. The point for consideration is whether the conviction and sentence imposed by the trial Court and confirmed by the appellate Court are liable to be set aside or sustainable? POINT: I have gone through the record. PW.1/defacto- complainant clearly admitted that he voluntarily gave M.Os.1 and 2 to the accused in exchange of two sarees purchased by him, whereby the trial Court and the appellate Court observed that the ingredients of Section 379 or 383 IPC were not established. Section 379 IPC reads as follows: “Punishment for theft:- Whoever commits theft, shall be punished with imprisonment of either description for a term which may extent to three years or with fine, or with both.” In order to establish the offence punishable under Section 379 IPC in this case, there must be evidence of taking away of the properties dishonestly by the accused out of the possession of PW.1 and without P.W.1’s consent. When admittedly PW.1 gave the properties to the accused voluntarily, then the question of establishing the ingredients of Section 379 IPC read with Section 378 IPC does not arise. Further, in order to establish the offence punishable under Section 411 IPC, it has to be proved that there was theft of properties and the accused came into possession of those properties and they failed to give proper explanation as to how they came into possession of the properties. In this case, when the very question of commission of theft does not arise as PW.1 himself admitted that he voluntarily gave M.Os.1 and 2 to the accused, it cannot be said that somebody committed theft of the properties and the accused came into possession of those properties and he failed to give proper explanation to the concerned, consequently, the charge under Section 411 IPC is also not established. The accused are not claiming M.Os.1 and 2, whereas cash of Rs.240/- marked as M.O.3, belonged to A-1, was already directed to be paid to A-1 by the trial Court. In these circumstances, the question of producing the properties before the Court does not arise. For the foregoing reasons, I am clearly of the opinion that the conviction and sentence recorded by the Courts below are erroneous and are liable to be set aside and, accordingly, the point is answered. In the result, the Criminal Revision Case is allowed and the conviction and sentence recorded by the Courts below are set aside and the bail bonds and the sureties of the accused stand cancelled and the defacto-complainant and A-1 can retain the properties respectively. __________________________________ JUSTICE G.KRISHNA MOHAN REDDY 14.07.2011 v v