Pichikuntla Subbaraydudu @ Praparayudu and 2 Others, Vs the State of a.P., Rep by Pp.

The revision has been preferred under Sections 397 and 401 of the Code of Criminal Procedure Code, 1973 (for brevity ‘the Cr.P.C.’) against the judgment in Crl.A.No.97 of 2006, dated 22.06.2009, whereunder the learned I Additional Sessions Judge, Anatapur, while partly allowing the appeal in favour of A4, confirmed the conviction against the petitioner Nos.1 to 3, who are A1 to A3, for the offence punishable under Section 3(a) of the Railway Properties (Unlawful Possession) Act, 1966 (for short ‘the Act’) and reduced the substantive sentence of simple imprisonment for one year to simple imprisonment for six months.

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The learned Special Judicial Magistrate of First Class, Railways, Guntakal, after elaborate trial found the petitioner Nos.1 to 3 guilty for the offence charged.

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Sri M. Ramalingeswara Reddy, the learned counsel for the petitioners, while reiterating the grounds of the revision, submitted that the learned Courts below failed to appreciate the evidence on correct prospective; independent witnesses did not support the case of the prosecution; the findings are on assumptions or presumptions; grossly erred in relying on the confessional statements made by the petitioners before the Railway Protection Force (RPF) Police; the property seized was not at all the railway property; the testimonies of P.Ws.3 and 4 being railway employees and interested witnesses is not sustainable; failure to secure and examine independent witnesses went to the

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root of the case; the seizer was not in accordance with the procedure contemplated under Section 100(4) of ‘the Cr.P.C’; and urged to allow the revision. Alternatively, it is submitted that the petitioner No.3 has been suffering from Paralysis and to that effect medical certificates are also filed. The petitioner Nos.1 and 2 are Coolies and they have unmarried daughters; the petitioner No.2 is suffering from night blindness. Nearly 23 years have passed by from the date of commission of the alleged offence; protracted litigation had caused a lot of metal agony to the petitioners and requested to modify to the sentence already undergone by the petitioners.

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Per contra , Mr K. Sandeep, learned Assistant Public Prosecutor vehemently argued that the prosecution had proved the guilty of the accused beyond all reasonable doubt. The evidence of eye-witnesses P.Ws-1, 7, 8 and 9 clearly show that the petitioners had indulged in commission of the offence charged. There were neither misreadings of the evidence nor perverse findings; there was no irregularity let alone material irregularity and both the Courts below concurrently held that the petitioners were guilty and urged to dismiss the revision.

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Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the Petitioner and the learned Assistant Public Prosecutor. I have perused the record.

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Now the point for consideration is:

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“Whether the judgment in Crl.A.No.97 of 2006 dated 22.06.2009, passed by the learned I Additional Sessions Judge, Ananthapur, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?”

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7. The Hon’ble Apex Court in State of Maharashtra v. Jagmohan Singh

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Kuldip Singh Anand¹ at para No.21, 22 and 23 held as under:

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“ 21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 CrPC. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. Ambika Yadav² . Theat was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

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22. The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may by,

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“for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”

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It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

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23. On this aspect, it is sufficient to refer to an rely on the decision of this Court in Duli Chand v. Delhi Admin³ in which it is observed thus: (SCC p.651, para 5)

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1 (2000) 7 SCC 569

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4 (2004) 7 SCC 665

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3 (1975) 4 SCC 649 : 1975 SCC (Cri) 663 : AIR 1975 SC 1960

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“The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate courts and that the finding of fact was not unreasonable or perverse.”

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To prove the guilty of the prosecution, the prosecution had examined P.Ws.1 to 12 and got marked Exs.P1 to 35 and MOs.1 to 8. It was clearly established that on 22-02-2002 a message was received from Homali Railway Station that two cable drums were committed theft. In that connection, complainant inspected the scene of offence and prepared observation panchanama and a case was registered, In the course of investigation on 19.03.2002 the complainant along with Sub-Inspector and Assistant SubInspector, Gooty and staff arrested A1 and A2 in the presence of mediators and interrogated them. They had admitted committing theft of two cable drums from Homali Railway Station, they burnt the cable to extract Copper and they sold the Copper wire to A3 who is a Merchant in iron scrap at Tadipatti. A1 and A2 had taken them and showed the place where the cable drums were burnt. A scene observation report was drafted. The burnt items were seized in the said place under the panchanama. Confessional statements of A1 and A2 were recorded. They were produced before Judicial Magistrate of First Class, Gooty who remanded them to judicial custody. The complainant took A1 and A2 to police custody from the court and also filed petition to issue search warrant to search the premises of A3 and accordingly obtained search

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warrant. He had taken A1 and A2 into police custody and they led him to the shop of A3 at Tadipatri. The search warrant was shown to him and shop was searched. They found 11 numbers Pendrol Clips and 4 numbers Liners. They also found 15 Kgs of copper wire. A3 voluntarily produced Rs.40,000/- being the sale proceeds for sale of a portion of Copper wire. The complainant seized all the items in the presence of mediators under a panchanama. A3 was arrested.

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With regard to the contention of the petitioners that the property was not railway property and the same is available in any established factories and there are no identifiable marks or the symbols that the property belongs to the railways, and hence, benefit of doubt could be given to the petitioners, P.W-8 who examined the property produced by the RPF post Gooty, the property is 140 Kgs of Iron Armor, 14 kgs of copper wire, six numbers of bolts, one drum clamp and 40 Kgs of Iron armor and he issued a certificate Ex.P.21 stating that the seized property belongs to the railways and it is not available in the open market. Similarly, P.W-9 being a Senior Section Engineer also testified that 2 numbers of AC 13 plates, 11 numbers of pendrol clips and 4 numbers of M.S. Liners and they belong to the Railways Department used in engineering works and he issued Ex.P.22. Nothing worth was elicited from the crossexaminations of P.Ws.8 and 9 to spurn their evidence. Based on the evidence of P.Ws.8 and 9 coupled with their certificates under Ex.P.21 and 22, the learned Courts below rightly held that the property belongs to the railways.

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Though the petitioners gave confessional statements before the RPF Police Officials, that cannot be inadmissible under Section 27 of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’) inasmuch as RPF Police Officers are not the police officers as per the decision of the Hon’ble Supreme Court in Balkishan A. Dedidayal v. State of Maharastra⁴ . When the petitioners, who were in possession of the railway property unauthorizedly and unlawfully, volunteer that the property was purchased, and it is admissible under Section 8(1) of ‘the Act’.

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P.W-1 testified that the petitioners/Accused No.1, 2 and 4 purchased the stolen property, the petitioners committed theft of the railway property and the petitioner No.3 purchased the same had been satisfactorily held proved. The statement made by one of the accused disclosing that the place where the other accused hid the property and leading to discovery is quite relevant under Section 27 of ‘the Evidence Act’. In the instant case also as per the confessional statement of A1 and A2 property under MOs.1 to 5 was seized, therefore, the same is relevant on under Section 27 of ‘the Evidence Act’. Through P.W-1 to 4 vide Exs.P.1 to 5 and 11, the prosecution had proved that MOs.1 to 7 were seized within one month of the incident from the possession of A1 to A3, thus the recovery of the property was proved.

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Albeit P.W-2 had not supported the case of the prosecution, he identified the signatures in Exs.P.16, 8 and 9 confessional statement of A1

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4 1980 CrlLJ 1424

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and A2 and identified signatures of Exs.P.5, 6 and 7 punchanama. He also testified that Panchanama was drafted at Homali Railway Station. Therefore, the evidence of P.W.2 is supporting with the evidence of P.W.1 about seizer of the property under Exs.P.5 to 7. MOs.No.2 to 4 were seized on the confessional statement of A1 and A2 and they led the complainant and mediators to the place where they had concealed the property and they also led to the shop of A3 and shown A3 to the mediator and P.W-1 stating that they had sold the burnt wire to A3. On a careful reading of the evidence of all prosecution witnesses and on perusal of exhibits and the findings recorded by the learned Trial Court and the Appellate Court, it can be safely concluded that there was neither misreading of the evidence nor any perverse findings nor there are no material irregularities committed by the Courts below.

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The Courts below rightly appreciated the evidence on correct prospective. Even though the independent witnesses, if any, had not supported the case of the prosecution, the official witnesses supported the case and their evidence was voluntary, trustworthy and inspiring the confidence of the Courts below. The findings are neither on assumption nor presumptions. As the Railway Police would not come under ‘the police’ as mentioned under Section 25 of ‘the Evidence Act’. The confessional statements recorded in the presence of the Railway Police are not hit by Section 27 of ‘the Evidence Act’. The argument that the property seized was not railway property was negated by the learned Courts below. The evidence

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of Railway Officials cannot be thrown away simply, just because they are officials of the Railways inasmuch as their evidence was inspiring confidence and trustworthy. Not securing and examining independent witnesses is not fatal to the case of the prosecution. The seizer does not suffer from any infirmity as per Section 100(4) of ‘the Cr.P.C’.

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The learned Trial Court and also Appellate Court rightly found the petitioners guilty for the offence charged. Hence, it can be concluded that the conviction is maintained. Coming to the quantum of sentence imposed by the learned Trial Court and also modified by the learned Appellate Court. Even though Section 8(1) of ‘the Act.,’ stipulates that minimum sentence has to be imposed, but upon sufficient reasons to be shown even lesser sentence can also be imposed.

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In this case the revision was filed in the 2009. The right to speedy trial is a fundamental right as per the decision of the Hon’ble Supreme Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar⁵ . This right includes speedy disposal of appeals. In addition to the appeals, the right to a speedy trial also includes criminal revisions as per the decision of the Hon’ble Apex Court in Rajdeo Sharma v. State of Bihar⁶ . In the facts and circumstances of the case interest of justice would be sub-served, if an order sentencing the petitioners to the imprisonment which they had already undergone, is imposed.

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5 AIR 1979 SC 1360

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6 2000 (1) BLJR 37

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The learned counsel for the petitioners submit that the petitioner No.3 has been suffering from Paralysis, to that effect he submitted medical proof. The petitioner Nos.1 and 2 are present before the Court they are feeble in their appearance suffering from malnutrition, they are aged about 50 and 55 years respectively. They submitted that they eking out their livelihood by doing cooli works whenever their health permits. They are blessed with three daughters each and they are unmarried. The petitioner No.2 submits that he has been suffering from night blindness and his wife has been suffering from low vision. The incident was taken place nearly 23 years ago. The petitioners were already in the incarceration for more than 25 days. The fine amount was paid. Material objects and the cost of the material object were recovered from respondent No.3.

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Keeping in view of obtaining peculiar circumstances of the case and prolonged trial and the enormous time for disposal of the revision case, ends of justice would be met if the sentence is modified to that of the sentence had already undergone by the petitioners. Accordingly, the revision case is partly allowed. There shall be no order as to costs.

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As a sequel, interlocutory applications, if any pending, shall stand closed.

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_________________________ Dr. Y. LAKSHMANA RAO, J

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Dt: 21.02.2025 KMS

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