THANGAVEL Vs. MUTHUSAMI

JUDGEMENT

(1.) THIS revision is directed against the Order of the learned Sessions Judge, Salem in Criminal Appeal No. 284 of 1985, dated 20. 7. 1988 setting aside the order of the trial Court, directing the return of the cash of Rs. 12,000 M. O. 3 series to P. W. 1 recovered from the first accused according to the prosecution as part of the money of Rs. 24,000 robbed from p. W. 1 at about 4. 30a. m. on 18. 8. 1992 by four accused among whom, one died during the investigation and the rest were acquitted after full trial. The learned trial Magistrate has held that the prosecution has failed to prove the guilt and complicity of the accused therein. While holding so, the trial Magistrate, directed that M. O. 3 series, a sum of rs. 12,000 claimed to have been recovered from the house of A-1 by P. W. 8, the investigating officer pursuant to the voluntary confession statement given by him, recorded under Sec. 27 of the Indian Evidence Act, to be returned to the first accused (A-1) namely the petitioner herein. But however, on appeal by P. W. 1 Muthusamy, the learned Sessions Judge, Salem , set aside and reversed the said finding and directed the return of M. O. 3 series to P. W. 1 instead of the first accused for the various reasonings given by him in the impugned judgment. Aggrieved at the impugned order rendered by the learned Sessions Judge, the lower appellate authority the present revision has been filed by the first accused by name Thangavel. 2. Mr. K. V. Sridharan, learned counsel appearing for the petitioner, contended that the impugned order is perverse and not legal in the sense that the appellate court is not the trial court which conducted the trial and recorded the evidence and that while reversing the order passed by the learned trial Magistrate, the lower appellate court, has exceeded its limit of jurisdiction and as a result of which it ought not to have reversed the finding in the context of Sec. 452,crl. P. C. Mr. S. Shanmugha-velayutham, learned Additional Public Prosecutor, supported the judgment rendered by the lower appellate court and contended that since Ex. P-1 was given by P. W. 1 claiming that during the occurrence, he and P. W. 2 Ramalingam were intercepted by all the accused including the revision petitioner, beaten away and the cash to the extent of Rs. 24,000 kept in a kakki cloth bag by P. W. 1 for the purpose of distributing the same to several of the milk suppliers, had been robbed by them and that subsequently, some of the accused were chased by the witnesses and that P. W. 8, the investigating officer arrested A-1, recorded his voluntary confession statement and pursuant thereof, recovered M. O. 3 series from him and since that aspect has not been considered by the learned trial Magistrate, the learned Sessions Judge, was perfectly justified in interfering with the said order passed by the learned trial Magistrate and that therefore, the impugned judgment cannot be inter-ferred with.

(2.) IN the context of the above rival contentions, the only question that has arisen for consideration before me, is whether the impugned judgment rendered by the lower appellate court is not legal, improper and perverse and liable to be interfered with in this revision"