Kolipaka Venkateswara Rao @ Babji, Guntur Dist. Vs the State of a.P., Rep. by P.P., Hyderabad.

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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MONDAY. THE SIXTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY FIVE

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

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CRIMINAL REVISION CASE No.1136 of 2010

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Revision filed under Sections 397 & 401 of Cr.P.C, against the Orders dated 08-06-2010 made in CrI.A. No.248 of 2006 on the file of the court of the Additional District & Sessions Judge (Fast Track Court), Krishna District, at Vijayawada confirming the sentence dated 07-11-2006^{madeinC.C.No.} 496 of 2003 on the file of the Chief Metropolitan Magistrate's Court, Vijayawada, Krishna District.

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Between:

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Kolipaka Venkateswara Rao @ Babji, S/o. Sayudulu, Aged^about35 years, R/o. Dachepalli, Guntur District.

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...Petitioner/Accused

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AND

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The State of A.P, Rep. by its Public Prosecutor, High^{CourtofAndhra} Pradesh, at Amaravati.

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...Respondent

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Counsel for the Petitioner : Sri G V S Mehar Kumar

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Counsel for the Respondent : Public Prosecutor

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The Court made the following:

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M ■■

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE No:1136 of 2010

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ORDER:

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The Revision has been preferred under Section 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’) challenging the judgment dated 08.06.2010 in Crl.A.No.248 of ;^006 on the file of the learned VIII Additional District & Sessions Judge (Fast Track Court), Krishna District at Vijayawada, confirming the judgment dated 07.11.2006 in C.C.No.496 of 2003 on the file of the learned Chief Metropolitan Magistrate, Vijayawada, whereby and whereunder the Petitioner/sole Accused was found guilty of the offence under Section 411 of the Indian Penal Code, 1860 (for short ‘the I.P.C.,’) and convicted under Section 248(2) of ‘the Cr.P.C.,’ and sentenced him to undergo rigorous imprisonment for a period of two years and also a fine of Rs.5,000/-, and in default of payment of fine, the Petitioner shall suffer simple imprisonment for a period of two months! 2. I have heard the arguments of the learned counsel for the revisionist and the learned Assistant Public Prosecutor. 3. Sri G.V.S.Mehar Kumar, learned Counsel for the Petitioner, while reiterating the grounds of the Revision, argued that there was no identification of property marked under Ex.M.O.Nos.1 to 5; the learned courts below failed to appreciate the admission of P.W.1 that there was no other person, when he identified the property in the Police Station and no proof to show that the property belongs to him; the Petitioner was wrongfully confined by the Police on 11.07.2003 at Vijayawada and his articles were taken away high handedly;

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Dr.YLRJf CrLR.C.No.1136of2010 Dated 16.06.2025

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he also claimed some articles by filing return of property petition; to prove the said contentions, he himself was examined as D.W.1 and marked Ex.D1 and D2, which were fax messages sent by his wife to the Hon’ble Chief Justice, High Court of Andhra Pradesh at Hyderabad on 21.07.2003; to escape from the illegal detention of the Petitioner, the Police had registered three crimes with the same offence by mentioning' different dates, and one of three cases got acquitted and in the remaining two cases, the Petitioner got conviction, that itself shows that the Police had registered false cases against the Petitioner, and therefore, it is urged to allow the Criminal Revision Case by setting aside the impugned judgment passed by the learned Appellate Court and acquit the Petitioner.

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Alternatively, it is submitted that the petitioner was in incarceration for more than 19 days. The petition^’s right to speedy,^{disposalofthecriminal} revision case as guaranteed by Articl.e 21 of the Constitution of India is being infringed and urged to impose the sentence of imprisonment to which they had already undergone and to dispose of the revision case in the interest of justice. 5. Per contra, Ms. P. Akila Naidu, learned Assistant Public Prosecutor, vehemently argued that the learned Appellate Court having gone through the evidence of the prosecution witnesses and the judgment of the learned Trial Court rightly passed the judgment confirming tl^e conviction for the offence

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charged and urged to dismiss the revision case as there are no material irregularities, miscarriage of justice and misreading^{oftheevidence.} 6. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the petitioners 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.248 of 2006 dated 08.06.2010 passed by the learned VIII Additional District^and Sessions Judge (F.T.C) Krishna, Vijayawada, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities?^Andto what relief?”

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It is apposite to refer to the judgment of the Hon’ble^ApexCourt in Bindeshwari Prasad Singh v State of Bihar^ wherein^{atParagraphNo. 13} it is held as under:

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“13.... In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in the^exerciseof its revisional jurisdiction. It has repeatedly been^heldthatthe High Court should not re-appreciate the evidence to^reacha finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage^ofjustice, exercise of revisional jurisdiction in such cases is not warranted.”

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This Court, while exercising its jurisdiction under^{Section397readwith} Section 401 of ‘the Cr.P.C.,’ cannot invoke it’s revisional power as a Second Appellate Court and re-appreciation of evidence is^{notpossibleintherevision} case as laid down in the decision in Bindeshwari Prasad Singh. However,

1(2002) 6 see 650

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this Court is not denuded of its powers to examine whether judgments impugned are correct, legal and proper with respect to their findings, sentence or even judgment and there are any material irregularities. If there are manifest illegalities and interest of public justice requires interference for the correction of those manifest illegalities or to prevent a great miscarriage of justice, this Court is empowered to evaluate the evidence and analyze it and come to a conclusion.

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To prove the guilt of the Petitioner, the prosecution examined P.Ws.1 to 5, got marked Ex.P1 to P5 and M.Os.1 to 5. On behalf of the Respondent No.1. the prosecution examined D.W.1, got marked Ex.D.1 and D.2. P.W.1 deposed that his property was committed theft, whereupon he lodged Ex.P1 report with the Police. P.W.1 vehemently denied that M.Os.1 to 5 did not belong to him. The learned Trial Court held that P.W.1 while travelling along with his family in private travels bus bearing No.AP 13 T 6499 from Dilshuknagar to Vijayawada, P.W.1 kept his VIP brief case by the side of his seat which contained gold jewels Navaratnala necklace 24 grams, bracelet 15 grams, Pagadala Locket with chain 16 grams, pieces - 20 grams, stout bangles - 2 Nos. 24 grams, three pairs of bangles - 72 grams. Pearls chain 12 grams, Pattu Sarees, costly silk saries - 9 Nos. cash of Rs. 10,000/- all worth Rs. 1,00,000/-. P.W.1 identified M.Os.1 to 5.

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P.W.4, the Investigating Officer, deposed that on 05.03.2003 at about 03.30 p.m., he along with P.W.3 and L.W.7 seized 21 inches VIP brown colour

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with Olive Green colour cloth cover from the Petitioner under the cover of mahazar and the suitcase contained Hanuman Chalisa Book and inside of which address and the same that were mentioned. The Petitioner confessed the offence in other crimes also. The Petitioner lead the mediators and the Police to his house where P.W.5 seized gold ornaments^{fromthehouseofthe} Petitioner under the cover of a separate mahazar relating to the present crime. Evidence of P.Ws.3, 4 and 5 is crystal clear that the stolen property belonging to the de-facto complainant was recovered from the possession of the Petitioner under the cover of mahazarnamas. 12. P.W.S is the Revenue Official working as Village Administration^Officer whose duty is to assist the Police in recovering the stolen articles and arresting the accused for which the permission of his superior^{officerinailcasesisnot} required. The learned Trial Court also observed that^{therewasnodefectin} choosing the P.W.3 as mediator. The learned Trial Court rejected the contention of the learned Counsel for the Petitioner that the P.W.3 was a stock mediator. It is axiomatic from the evidence of P.Ws.3, 4 and 5 supported by Ex.P2 to P5 that the stolen property was recovered^{fromthePetitioner.} 13. It must be pointed out that no proof is filed by the^{Petitionerbeforethe} learned Trial Court or the learned Appellate Court^{thatheistheownerofthe} property, which was recovered and seized from his possession. Mere addressing fax messages to the Hon’ble Chief Justice is not sufficient to establish that the Petitioner is the owner of the property seized by the police

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during investigation. Had the Petitioner illegally detained by the Police, he would have filed appropriate complaint before the learned Magistrate for his grievance. Except the self-serving statement of the Petitioner as D.W.1 and Ex.D1 and D2 fax massages by his wife, there was no independent evidence adduced by the Petitioner to substantiate his contention that the property belongs to him. Simply because in one Calendar Case the Petitioner was acquitted, is not a ground to disbelieve the evidence of the witness of the prosecution. It is not prudent and proper to expect the de-facto complainant to establish that the property, which was in his possession, was committed theft, belongs to him. Mere non conduction of identification of property is not a ground to reject the case of the prosecution in toto. 14. Therefore, the learned Trial Court rightly found the Petitioner guilty of the offence punishable under Section 411 of ‘the I.P.C.’ The learned Appellate Court also confirmed the same stating that the property was^{recoveredfrom} the Petitioner at his instance. At this juncture of disposing the Criminal Revision Case, evidence of prosecution or the defence cannot be appreciated. This Court is not a second Appellate Court for re-appreciation of the evidence. There were no irregularities let alone material irregularities.^There was no miscarriage of justice. There was no misreading of evidence. Therefore, the conviction for the offence under Section 411 of ‘the I.P.C. shall be maintained.

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Regarding the sentence of two years rigorous imprisonment^andfineof Rs.5,000/imposed on the petitioner, the offence was taken place on 23.07.2003. Nearly 22 years have passed by. The Petitioner is aged about 58 years now, suffering from severe aliments due to post Covid-19 complications. The Petitioner was in incarceration for a period of 19 days as per the nominal rolls produced by the learned Assistant Public Prosecutor. There were no prior or subsequent adverse incidents reported against the Petitioner. Of course, the Petitioner was convicted and sentenced in another immediate subsequent crime or case.

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Indeed, the Hon’ble Apex Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar^ it is held that right to speedy trial which includes hearing of the Appeal and Revision is part of a fundamental right under Article 21 of the Constitution. 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 Bihar^. The right of speedy^{trialoftherevisionist} is being violated because of delay in disposal of the revision within a reasonable time.

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Considering the facts and circumstances of the case, the sentence of j rigorous imprisonment of two years is not proportionate to the gravity of the case. Further, the delay is also one of the grounds^{toreducethesentence.}

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2 AIR 1979 sc 1360 M1999)7SCC 604

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Rigorous imprisonment for one year would have met the ends of justice. However, the fine of Rs.5,000/- is required to be enhanced to Rs. 15,000/-.

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For the above reasons, this Criminal Revision Case is disposed of by confirming the conviction of the offence under Section 411 of ‘the I.P.C.,’ while reducing the sentence of rigorous imprisonment from two years to one-year and further enhancing the sentence of payment of fine of Rs.5,000/to Rs. 15,000/-. Rs.5,000/of fine was already paid by the Petitioner while preferring the Appeal. Therefore, the Petitioner shall pay a fine of Rs. 10,000/within two months from the date of receipt of copy of this order, failing which the Petitioner shall suffer six months rigorous imprisonment.

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The learned Chief Metropolitan Magistrate (Chief Judicial Magistrate), Vijayawada shall take required follow up steps for complying with the directions of this Court. The Petitioner shall pay the fine amounts imposed by this Court in this order within a period of two months from the date of receipt of copy of this order before the learned Trial Court. No order as to costs.

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

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closed.

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Sd/- V DIWAKAR DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER

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To

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