Pamidi Mahaboob Basha, Vs State of a.P., Rpe by Pp.

Revision filed under Section 397/401 of CrPC praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to aggrieved by the Judgment dt.22-72008 in Crl.A.No. 80/2007 of Sessions Judge, Ananthapur , confirm the Judgment, conviction and sentences passed by Judicial Magistrate of 1st Class, Dharmavaram in CC.No. 501/2002 dt.03.07.2007, the petitioner herein begs to present this Memorandum of Crl.RC.

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IA NO: 1 OF 2008(CRLRCMP 2169 OF 2008

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentences passed in Crl.A.No. 80/2007 of sessions Judge, Ananthapur, dt.22.07.2008 and release the petitioner on bail, pending Crl.RC.

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Counsel for the Petitioner:

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1.SRIDHAR TUMMALAPUDI

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Counsel for the Respondent:

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1.PUBLIC PROSECUTOR

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The Court made the following:

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O R D E R

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1. The Criminal Revision Case, under Section 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘Cr.P.C.’) is filed on behalf of the petitioner/A.1 assailing the Judgment dated 22.07.2008 passed in Crl.A.No.80 of 2007 on the file of the learned Sessions Judge, Ananthapur (for short, ‘1^st Appellate Court’), whereby the 1^st Appellate Court dismissing the appeal and confirmed the conviction and sentence imposed against the petitioner/A.1 for the offence under Section 379 of Indian Penal Code,1860 (for short, ‘IPC’) vide Judgment dated 03.07.2007 passed in C.C.No.501 of 2002 on the file of the learned Judicial Magistrate of First Class, Dharmavaram (for short, ‘the Trial Court’).

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2. The parties will hereinafter be referred to as arrayed in C.C.No.501 of 2002.

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3. The brief facts, of the case of the prosecution, are that:

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(a) On the night of 12/13-03-2002, A1 to A5 used a mini lorry (AP 02 U 2309) owned by A1 to steal AA conductors from the 33 KV power line (nonfunctional) at Kunuthur village. They cut lines between poles 57 and 65, bundled them into 14 loads, transported them to Anantapur, and stored them at the house of A1 and A6 with help from A6 and A7.The theft was reported by the ADE (Operations), AP Transco, and the case was registered accordingly.

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(b) On 18-03-2002 at 1:00 PM, the Inspector of Police, CCS Anantapur, along with his team and mediators, conducted a search at the godown of A1 and A6. A1 to A5 were found moving aluminium conductor

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bundles for loading into a mini lorry. Upon seeing the police, they attempted to flee but were detained. On interrogation, they confessed to stealing conductor wire from the 33 KV line at Junuthur village. Ten bundles were found in the compound, and A1 produced four more from inside the godown. All 14 bundles were weighed and seized under a panchanama. The A1 to A5 were arrested and remanded on 19.03.2002 after confirming case details from Pothukunta P.S. On 20.03.2002, the mini lorry (AP 02 U 2309) used in the offence was seized at Boyalapalli village. On 22.03.2002, ADE P.V. Ramesh identified the stolen conductor wire during a test identification in the presence of the Panchayat Secretary. Later, based on confession, two hammers and chisels used in the theft were seized from Maruthi Welding Works, Anantapur, in the presence of mediators.

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4. The learned Judicial Magistrate of First Class, Dharmavaram took cognizance against the accused A.1 to A.5 U/s 379 I.P.C. and against A.6 and A.7 U/s 414 I.P.C. The case against A.7 was abated vide docket orders dated 05.10.2004, basing on the death certificate filed by the police through A.P.P. the case was proceeded against A.1 to A.6 only.

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5. On appearance A.1 to A.6 were furnished with copies of documents as required U/s 207 Cr.P.C. A.1 to A.6 were examined U/s 239 Cr.P.C. which the denied the commission of offence. A charge U/s 379 1.P.C against A.1 to A.5 and U/s 414 I.P.C against A.6 was framed, read over and explained to them in Telugu to which they pleaded not guilty and claimed to be tried.

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6. During the course of trial, on behalf of the prosecution, P.Ws.1 to 6 were examined and Exs.P1 to P9 and M.Os.1 to 19 were marked. After closure of the evidence of prosecution, accused were examined under Section 313 of Cr.P.C. with reference to the criminating circumstances appearing in the evidence let in by the prosecution for which they denied the same, A.2 to A.5 reported that they have got defence evidence. A.6 reported that he has no defence evidence. On 24.04.2007, learned counsel for the accused filed a Memo stating that no defence evidence for accused and the said memo was

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recorded, and the defence evidence was closed, basing on the memo filed by the learned counsel for the accused.

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7. The trial Court on hearing both sides and on considering the oral as well as documentary evidence, found the A.6 not guilty for the offence under Section 414 of IPC and found the A.2 to A.5 not guilty for the offence under Section 379 of IPC and A.2 to A.6 were acquitted. However, A.1 found guilty for the offence under Section 379 of IPC and he was convicted and sentenced to suffer Rigorous Imprisonment for two years vide its Judgment, dated 03.07.2007 in C.C.No.501 of 2002.

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8. Felt aggrieved of the aforesaid conviction and sentence, the unsuccessful A.1 filed Criminal Appeal No.80 of 2007 before the 1^st Appellate Court and the 1^st Appellate Court dismissed the Criminal Appeal and confirmed the conviction and sentence imposed against the A.1. Felt aggrieved of the same, the unsuccessful appellant/A.1 filed the present Criminal Revision Case, challenging the judgment of the learned Sessions Judge in Criminal Appeal No.80 of 2007.

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9. Now, the point that arises for consideration is:

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(I) Whether the conviction recorded against accused under Sections 379 of IPC by the 1^st Appellate Court affirming the Trial Court’s judgment is sustainable in law?

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(II) Whether the sentence passed by the 1^st Appellate Court warrants any interference?

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POINTS NOs.I AND II :

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10. Learned counsel for the Petitioner/Accused No.1 submits that the 1^st Appellate Court erred in convicting Accused No.1 solely based on the statement made during the examination under Section 313 of the Cr.P.C. It is noteworthy that the trial court, relying on the same evidence on record, acquitted the other accused persons, namely Accused Nos.2 to 6. Both courts relied on the version put forth by Accused No.1 during the Section 313 Cr.P.C. examination to arrive at the conviction. Upon reviewing the Section 313

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Cr.P.C., examination of the revision petitioner/accused, it can be seen that the accused has not claimed ownership of the stolen property marked as M.Os.1 to 14.

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11. It is pertinent to extract the relevant portion of the Section 313 Cr.P.C. examination of Accused No.1, as reproduced in the trial court’s judgment, which is as follows:

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“21. xxx A.1 during his examination u/s.313 Cr.P.C. stated that A.6 is his younger brother, his father Basheer has been doing scrap iron business for the last 30 years in Sai Nagar at Anantapur and the CCS Inspector Nazeer Ahammed demanded Rs.40,000/- from his father from which his father could not pay and thereby he was brought to Police Station, CCS, but his brother filed a search warrant petition. His father purchased ASCR wire and he got bills. In spite of informing the same, S.I. filed this case against him”.

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12. The essence of Accused No.1’s statement indicates that his father purchased the wire, that his father harboured some enmity with Inspector of Police CCS, and that his brother filed the petition for a search warrant.

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13. It appears that Accused No.1’s father filed a petition before the trial court claiming ownership of the property. Learned counsel for the Petitioner/Accused No.1 emphasizes that only the father asserted a right over the property, not the accused himself. Even according to Accused No.1’s statement during the Section 313 Cr.P.C. examination, he did not claim any right over the property. Although Accused No.1 stated that his father had purchased certain property, he did not specifically assert that the alleged stolen property belonged to his father. Thus, there is no clear mention in the Section 313 Cr.P.C. examination that Accused No.1 claimed the stolen property marked in this case as his father’s. This version is vague and merely indicates that his father claimed certain ASCR wire property. Even if it is assumed that Accused No.1 claimed the stolen property as belonging to his father, and his version fails to be substantiated, this Court finds that, in the absence of any clinching evidence on record, the accused cannot be

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convicted solely based on such a statement made during the Section 313 Cr.P.C. examination.

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14. It is not the prosecution’s case that the said property was seized from the father of A.1. Rather, the prosecution contends that the property was seized from the possession of A.1 to A.5. It is brought to the Court’s attention that the mediators examined as P.Ws. 3 to 5, who were called to prove the alleged seizure, did not support the prosecution’s case. Based on such evidence, the trial Court acquitted the other accused, namely A.2 to A.6, but convicted A.1 by relying on his statement recorded under Section 313 of the Cr.P.C. The petitioner/A.1 has not claimed ownership of the stolen property seized from his possession.

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15. Learned counsel for the petitioner/A.1 relied on a decision reported in Darshan Singh vs. State of Punjab¹ , wherein the Hon’ble Apex Court held that:

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“ 33. It is trite law that the statement recorded u/s.313 Cr.P.C. cannot form the sole basis of conviction. Therefore, the presence of the appellant cannot be found solely based on his statement, notwithstanding the lack of independent evidence led by the prosecution. Further, this Court has previously considered the consequences when a particular defence plea was not taken by accused u/s.313 Cr.P.C. and held that mere omission to take a specific plea by accused when examined u/s.313 Cr.P.C., is not enough to denude him of his right if the same can be made out otherwise.”

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16. After a careful reading of the aforementioned decision, this Court finds that the observations therein are clearly applicable to the facts of the present case. Both the trial Court and the 1^st Appellate Court relied solely on the Section 313 Cr.P.C. examination of A.1. In the absence of any other evidence on record, and having acquitted the other accused, namely A.2 to A.6, the conviction of A.1 by the trial Court and the 1^st Appellate Court is not sustainable.

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17. In the facts and circumstances of the case, both the trial Court and the 1^st Appellate Court committed illegality and irregularity by convicting the

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1 2024 LiveLaw (SC) 13

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petitioner/A.1 solely on the basis of the vague version put forth by the accused during his Section 313 Cr.P.C. examination.

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18. In the result, the Criminal Revision is allowed . The conviction and sentence imposed on the petitioner/A.1 by the learned Judicial Magistrate of First Class, Dharmavaram, in judgment dated 03.07.2007 in C.C.No.501 of 2002, which was confirmed by the learned Sessions Judge, Anantapur, vide judgment dated 22.07.2008 in Crl.A.No.80 of 2007, stand set aside. Consequently, the petitioner/A.1 is acquitted and found not guilty of the offence under Section 379 of the IPC. The bail bonds executed by A.1 shall be discharged. The petitioner/A.1 shall be released forthwith, unless required in connection with any other case or crime.

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Miscellaneous applications pending, if any, shall stand closed.

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______________________________ JUSTICE T. MALLIKARJUNA RAO

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Date: 05.08.2025 MS

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THE HON’BLE SRI JUSTICE T. MALLIKARJUNA RAO

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CRIMINAL REVISION CASE No.1586 of 2008