State vs M.R. Moorthi and others

Krishnaswamy Reddy, J.—This petition has been filed by the State for the issue of certificate for preferring an appeal to the Supreme Court of India against the judgment of this Court in C.A. Nos. 780 to 784, 830, and 833 of 1970 and 79 and 380 of 1971 under Article 134(1)(c) of the Constitution.

I have given my reasons for acquitting accused 1 to 4, 8, 23, 24 and 30 and confirming the conviction of accused 5, 6, 7, 9, 10 and 11 and reducing the sentence of imprisonment imposed on them to R.I. for two years each and for dismissing the State appeal (C.A. No. 380 of 1971) against accused 34 and 35 in my exhaustive judgment. I do not, therefore, think it necessary to reiterate the reasons given by me again.

The State has submitted several grounds for the issue of certificate. The learned Counsel appearing for the accused filed their counters.

The learned Advocate General has pointedly drawn my attention to grounds Nos. 24 and 25 in the memorandum of Grounds filed by the State. They are as follows:

The learned Judge having observed if these accused were prosecuted for receiving stolen properties or for assisting in the disposal of the stolen property, the prosecution might have probably succeeded'' ought to have convicted these accused 1, 2, 3, 4 and 8 u/s 413 I.P.C. or Section 411 I.P.C. maintaining the sentence.

Having expressed an opinion about the offence for which accused 1, 2, 3, 4 and 8 could have been charged, the learned Judge ought to have accepted the submission of the prosecution that in the alternative the Court can by virtue of Section 236 and 237 Code of Criminal Procedure alter the charge from Section 401 I.P.C. to Section 411 or 413 I.P.C. and maintained the sentence.

In support of these two grounds, my attention was drawn to the observation made by me in page 155 of the copy of the judgment, which is as follows:

...I have already stated on more than one occasion that these three (thefts from the temples at Mettupalayam, Kiluvathur and Karuveli) were not committed by an organised gang and that therefore, the persons who were responsible for these thefts and even the persons who purchased the properties concerned in these thefts could not be considered as members of the gang which was committing the other thefts in this case. On this point alone, all persons concerned in these thefts could be exonerated though it is unfortunate that such persons are to be exonerated on this simple ground that the prosecution could have successfully proceeded against such of those persons who were involved in these thefts either as thieves or receivers of stolen properties separately in a separate trial....

These observations were made while discussing the evidence against A. 20. On these observations, it is submitted that the Court should have convicted the accused concerned in the thefts u/s 411 or Section 413 I.P.C. as the case may be. This is only an observation made by me to emphasise the fact that the prosecution has failed to bring home the guilt against the concerned accused u/s 401 I.P.C. and this observation has been made in the context that the concerned three thefts were not proved to have been committed by an organised gang.

In respect of those three thefts, I have given my findings as follows:

(1) Mettupalayam theft. (Thiruthuraipoondi Police Station crime No. 144 of 1966--vide page 109 of the copy of the judgment).

...Therefore, I am of the view, on the shabby discrepant evidence and the probabilities of the case that the prosecution has not proved that there was a theft in this temple and that the idols identified by P.W. 83 are those idols stolen from that temple.... (Vide page 114).

I have made this observation after having perused the entire evidence in respect of this theft.

(2) Kiluvathur theft: (Perugavalanthun Police Station--Crime No. 30 of 1966--Vide. Page 116 of the Copy of the judgment):

...I am satisfied that M.Os. 26 and 27 are the idols removed from this temple and the theft has been committed by the local persons and that this theft cannot be connected with the other thefts.... (Vide page 119)

I have made the observation in respect of this theft that this was not committed by the organised gang.

(3) Karuveli theft: (Palayaur police Station--Crime No. 81 of 1966--vide page 119 of the copy of the judgment).

...There is no direct evidence about this theft, but it is the prosecution case that in this theft, accused 24 to 29 are concerned as thieves. Again, it has to be noted here that these persons belong to the same village where the temple is situate. They are not professional thieves. They had no bad antecedents. They were not concerned with any other theft other than this theft and I can straightaway say that this theft also was a casual theft committed by the local persons as there was a demand for the idols and as they were fetching a good price. I am of the view that because of this, the local persons were tempted to remove the idols from the temples wherever there was no protection. Though I am satisfied that there was a theft of the idols, yet, I am of the view that this theft was unconnected with the thefts committed by an organised gang.... (vide pages 120 and 121).

I have also observed in giving an overall picture of the alleged thefts in these three temples as follows:

...In respect of the thefts mentioned above, namely: the thefts in the temples at Mettupalayam, Kiluvathur and Karuveli, I am of the view that they were casual thefts committed by the respective villagers, where temples are situate, probably tempted by the fact that there was a good demand for the idols and, therefore, these thefts were not committed by the organised gang and they have to be excluded from the other thefts where there is evidence, which I have already discussed, that they must have been committed by one and the same gang.... I have included the theft in the temple at Mettupalayalam also as if the theft was committed there, only an assumption. I have clearly given my finding that I am not satisfied that there was a theft of the idols identified by P.W. 83 and that those idols belonged to the temple....

(vide pages 121 and 122).

I have nowhere found in my judgment, on the evidence available in the case, that the accused who were acquitted were receivers of stolen properties. I have discussed the evidence against each of the accused and as such, the question that is raised in grounds Nos. 24 and 25 that such of those accused who were acquitted could have been convicted alternatively u/s 411 or Section 413 I.P.C. does not arise at all.

As far as accused-1, M.R. Moorthi is concerned, I have exonerated him completely of any knowledge that the idols which were being purchased by accused 2, 3 and 4 on behalf of Coronet company were stolen property. I have given my reasons therefore in pages 133 to 133 and 140 and 141 of the certified copy of the judgment. I have given the following finding in respect of accused-1 in page 135 of the copy of judgment:

...so far as accused-1 is concerned, excepting that he is the Managing Director of the Coronet Company and that he had the benefit of all the purchases of the idols, we do not have any acceptable evidence in this case that he was directly concerned with the purchase of the idols or with the thieves. The prosecution has sought to let in some evidence against this accused, both about his having purchased the idols and about his association with the thieves, and in my opinion, it has miserably failed....

Regarding accused-2, I have already observed that the observations relied upon by the learned Advocate General were made while discussing the evidence against him. Even as against this accused, I have given a clear finding in page 158 of the copy of my judgment, which is as follows:

Even if this evidence is true, this may throw a suspicion that accused-2 might have known that the idols which he was purchasing were not the idols legitimately obtained; but this conduct does not necessarily show that he must have known that the properties which he was purchasing were stolen or even if that were true by merely purchasing stolen properties, he does not become a member of the gang of thieves.

As far as accused 3 and 4 are concerned, I have made this observation in page 163 of the copy of my judgment:

...Though there is a strong suspicion that accused 3 and 4 while acting as Commission Agents of Coronet Company would have had the occasion and opportunity to know that the idols which they were purchasing were not procured by legitimate means, yet, it cannot be said that they identified themselves with the gang of thieves on the evidence available in this case.

Even in respect of accused-8 I have stated in page 114 of the copy of my judgment, which is as follows:

...The overall picture, so far as this accused is concerned is that he was securing idols from the local persons and selling them to others including the Coronet Company. He is in the same position as accused 3 and 4, in contacting the persons who were in possession of the idols for the purpose of selling the same for profit I have already observed that this accused was concerned with the disposal of the idols alleged to have been stolen from the three temples, namely at Mettupalayam, Karuveli, Kiluvarhur I have held that the prosecution has not proved beyond reasonable doubt there was a theft in Mettupalayam and, therefore, the idols which were said to have been recovered from Coronet Company as the idols stolen from that temple could not be taken as stolen properties....

Thus, there is no finding that any one of the accused whom I acquitted was the receiver of stolen property. Therefore, the point raised by the learned Advocate-General in grounds Nos. 24 and 25 does not arise at all.

In the result, I am of the view that no question of law nor public importance is involved in this case. Leave refused.

This petition is dismissed.