Bhagyamma @ Radha @ Lakshamma vs State

V. Jagannathan, J.—This revision petition under Sections 397 read with 401 of the Code of Criminal Procedure is by the accused, who has been convicted for the offence punishable u/s 369 of the I.P.C. and sentenced to undergo S.I. for one year with fine of Rs. 5,000/- and in default of payment of fine, to undergo further three months imprisonment The judgment of the trial court was confirmed by the lower appellate court by dismissing the criminal appeal filed by the Petitioner.

The case of the prosecution, in short, is that, two months prior to 2.4.2002, at about 9.00 a.m., C. Ws.2 and 3, being daughters of P.W.1 Hemalatha, were going to the school near Venus Breweries, situate at 7th Cross, Magadi Read, within the limits of K.P. Agrahara Police Station. At that time, the Petitioner herein kidnapped the two girls i.e., P.W.2 Anusha and. P.W.3 Monisha, and took them to the roadside and robbed one pair of gold ear stud weighing two grams and one pair of silver chain from P.W.2 and likewise, she also robed one gold star ear stud and one pair of silver neck chain from P.W.3. Following the complaint lodged, the police took up investigation, which included recording of the voluntary statement of the Petitioner, recovery of the stolen gold and silver ornaments under a mahazar and filing of the charge sheet.

Pleading not guilty of the charge, the prosecution was called upon to prove its case and accordingly, P. Ws.1 to 6 were examined apart from five documents being marked in the evidence. The statement of the accused was recorded and it was one of mere denial of the prosecution case and the accused also chose to lead no evidence in her defence.

The learned trial judge, after appreciating the evidence on record, held that the prosecution has proved its case through P. Ws.2 and 3, who are the material witnesses, eye-witnesses as well as the victims of the act of the Petitioner herein. The evidence of P.W.1 complainant supported the eye-witness account of the incident and, therefore, the trial court accepted the prosecution case, though there were certain infirmities like delay in lodging the complaint and the material objects being not: produced before the trial court. The Petitioner was convicted and sentenced as aforesaid.

The lower appellate court concurred with the trial court on all aspects of the matter and dismissed the appeal preferred by the Petitioner.

The main ground put forward by the Petitioner''s counsel is that, there is delay in lodging of the complaint inasmuch as the incident was said to have taken place on 23.1.2002, but the complaint was lodged only on. 2.4.2002 and secondly, the material objects were not recovered nor produced before the court and so also the mahazar in respect of the same. Under these circumstances, the infirmities in the prosecution case should have weighed in favour of the Petitioner rather than in prosecution''s favour. Hence, the learned Counsel submitted that the judgments of the courts below require to be set, aside by acquitting the Petitioner.

On the other hand, the submission of the learned Government Pleader for the State is that, both the courts have considered the evidence of the material witnesses in proper perspective and have found that the testimony of P. Ws.2 and 3 was found to be convincing, cogent and satisfactory. Under these circumstances, certain defects in the prosecution case, which were referred to by the Petitioner''s counsel cannot be given undue importance as those defects do not affect the core of the prosecution case. Therefore, the petition be dismissed.

in the light of the aforesaid submissions made and after going through the judgments of the ''courts below, I find that the trial court as well as the appellate court have found that the testimony of P. Ws.2 and 3 inspire confidence to accept the same apart from the fact that P.W.2 was aged 12 years and P.W.3 was aged 10 years and both of them stood the test of the cross-examination and no damage has been done to their evidence. The evidence of these two witnesses is also crystal clear and it shows that the Petitioner kidnapped them and robbed the gold and silver ornaments worn by them. Though these two witnesses are child witnesses, the court also went on to note that there is no ill will between P. Ws.2 and 3 and the accused Petitioner.

The evidence of P.W.1. Hemalatha, mother of the two child witnesses, was also found to be corroborating the testimony of the material witnesses. As far as the delay in lodging the complaint is concerned, it has been noted by the appellate court that, explanation has been offered by P.W.1 stating that the delay was due to the fact that the complainant was hoping that the stolen goods would be returned to her and as there was no indication of the stolen ornaments being returned, she than lodged the complaint. This shows that the complaint, though was lodged belatedly, does not suffer from any infirmity so as to take the view that the complainant was marking time so as to falsely rope in the Petitioner.

As far as the lapses in the investigation is concerned, the Apex Court has held in the case of Dhanaj Singh v. State of Punjab, reported in 2004 SCC 851, thus:

Even if the investigation is defective, that pales into insignificance when ocular testimony is found credible and cogent. In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.

Thus, it is clear that lapses in the investigation cannot be given undue importance to discard the otherwise convincing and reliable testimony of the material witnesses. It is only where the lapses in the investigation go to the root of the case that the said infirmities can be given due weight.

In the instant case, the defects pointed out by the Petitioner''s counsel do not affect the core of the testimony of P. Ws.2 and 3. There is a ring of truth in the testimony of P. Ws.2 and 3 supported by P.W.1 and the I.O. and, as such, the infirmities referred to by the Petitioner''s counsel are insignificant and will have to be ignored.

For the above reasons, the conviction of the Petitioner for the offence punishable u/s 369 of the I.P.C. does not require any interference. As far as the sentence is concerned, the trial court has sentenced the Petitioner to one year imprisonment and to pay fine of Rs. 5,000/-.

The submission of the Petitioner''s counsel is that, the Petitioner has undergone some period in custody and that may he held to be sufficient sentence. For this, the submission of the learned Government Pleader for the State is that, the sentence for the aforesaid offence is upto a maximum of seven years and with fine and having regard to the offence that is proved against the Petitioner, the sentence imposed by the trial court is also just and proper.

Thus, having heard both sides in respect of the sentence, I am of the view that the sentence can be reduced to six months imprisonment and, at the same time, the fine amount will have to be increased to Rs. 20,000/- instead of Rs. 5,000/- and in default of payment of fine, default sentence of one month would he sufficient.

The revision petition, therefore, stands allowed in part to the extent of the sentence being modified as above.