Mangapatnam Vara Prasad, Vs The State of Andhra Pradesh

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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TUESDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

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CRIMINAL REVISION CASE NOS: 1633.1634 AND 1636 OF 2008

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Crl.R.C, No: 1633 OF 2008

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Revision filed under Sectidn'397 & 401 of Cr.P.C., aggrieved by the Judgment passed by the learned^lj Additional Sessions^{Judge,Kadapaat} Proddatur dated 23.09.2008 in CrlANo. 207 of 2005.

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Between:

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Mangapatnam Vara Prasad, S/6: Kondaiah, Aged 29 years. Coolie, R/o. Yerraguntia Village, Kadapa District.

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...Petitioner/Accused

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AND

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The State of Andhra Pradesh, Represented by the Public Prosecutor; High Court of Andhra Pradesh, Hyderabad.

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...Respondent/Respondent

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Counsel for the Petitioner: Sri T Diiakar Reddy

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Counsel for the Respondent: Public Prosecutor

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'A-

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't

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HrLR C. No: 1634 OF 2008

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y-lv <*? Section 397 & 401 of Cr.P.C., aggrieved by the w lyisjon filed under learned If Additional Session Judge, Kadapa at Jli # passed by the Proddalur, dated 23.09.2008 in Crl;^iNo.208 of 2005.

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Between:

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Mangapatnam Vara Prasad, S/o Kondaiah, Aged 29 years Coolie, R/o Yerraguntia Village, Kadapa bistrict. (A-1)

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...Petitioner/Accused

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AND

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The State of Andhra PradesH,t; Represented by the Public^{Prosecutor^} High Court of Andhra Pradesh,' Hyderabad.

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...Respondent/Respondent

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Counsel for the Petitioner: Sri T Diwakar Reddy

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Counsel for the Respondent: Public Prosecutor

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CrI.R.C. No: 1636 OF 2008

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Revision filed under Section 397 & 401 of Cr.P.C.,^{aggrievedbythe} Judgment passed by the learned 11 Additional Sessions^{Judge,Kadapaat} Proddatur dated 30.09.2008 in CrI.A.Nb. 206 of 2005

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Between:

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Vara Prasad, S/o Kondaiah, Aged 29 years. Coolie, R/d Mangapatnam Yerraguntia Village, Kadapa DMrict.

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...Petitioner/Accused

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AND

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The State of Andhra Pradesh, Represented by the Public^Prosecutor j High Court of Andhra Pradesh, Hyderabad.

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...Respondent/Respondent

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Counsel for the Petitioner: Sri T Diwakar Reddy

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Counsel for the Respondent: Public Prosecutor

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The Court made the following:

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APHC010156312008

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction)

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[3521]

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TUESDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

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CRIMINAL REVISION CASE Nos: 1633.1634 and 1636 of 2008

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Between:

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Mangapatnam Vara Prasad ...PETITIONER

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AND

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The State Of Andhra Pradesh ...RESPONDENT

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Counsel for the Petitioner:

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1.P RAJANI REDDY

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Counsel for the Respondent:

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PUBLIC PROSECUTOR

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The Court made the following:

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

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CRIMINAL REVISION CASE NOs: 1633.1634 and 1636 of 2008

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COMMON ORDER:

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The Criminal Revision Case Nos. 1633, 1634 and 1636 of 2008 are heard and disposed of by way of this Common Order, since the petitioner in all the above three cases is one and the same, albeit the Calendar Cases are different, but on the file of the same Court.

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The Criminal Revision Case No. 1633 of 2008 has been preferred under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) challenging the judgment dated 23.09.2008 in Criminal Appeal No.207 of 2005 on the file of the learned II Additional Sessions Judge Kadapa at Proddatur, whereby and whereunder, the appeal^wasdismissed but the sentence of Rigorous Imprisonment was reduced from three (03) years to six (06) months. The learned I Additional Judicial Magistrate of 1 Class, Proddatur, in his judgment dated 11.07.2005 in C.C.No.52 of 2004 found the petitioner guilty of the offence punishable^{underSection411ofthe} Indian Penal Code, 1860 (for short ‘the I.P.C’) and convicted him under Section 248(2) of ‘the Cr.P.C.,’ and sentenced him to undergo Rigorous Imprisonment for three (03) years. 3. The Criminal Revision Case No. 1634 of 2008 has been filed challenging the judgment dated 23.09.2008 in Criminal Appeal No.208^{of2005onthefile} of the learned II Additional Sessions Judge, Kadapa at Proddatur, whereby and whereunder, the appeal was dismissed, but reduced the Rigorous

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Imprisonment of three (03) years to six (06) months. The learned I Additional Judicial Magistrate of I Class, Proddatur, in his judgment dated 11.07.2005 in C.C.No.56 of 2004 found the petitioner guilty for the offence punishable under Section 411 of ‘the I.P.C. ’ and convicted him under Section 248(2) of ‘the Cr.P.C.,’ and sentenced him to undergo Rigorous Imprisonment for three (03) years.

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The Criminal Revision Case No. 1636 of 2008 has been preferred challenging the judgment dated 30.09.2008 in Criminal Appeal No.206 of 2005 on the file of the learned II Additional Sessions Judge, Kadapa at Proddatur, whereby and whereunder, the appeal was dismissed, but the sentence of imprisonment of one year was reduced to nine (09) months. The learned I Additional Judicial Magistrate of I Class Proddatur, in his judgment dated 11.07.2005 in C.C.No.50 of 2004 found the petitioner guilty, for the offence under Section 411 of ‘the I.P.C. and convicted him under Section 248(2) 'the Cr.P.C.,' and sentenced him to undergo Rigorous Imprisonment for a period of one (01) year.

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I have heard the arguments of learned counsel and the learned Assistant Public Prosecutor.

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Sri. T.Diwakar Reddy, learned counsel for the petitioner while reiterating the grounds for the revision, submitted that the learned courts below wrongly relied on the evidence of PW.4, PW6 and PW.4 who is the stock witness in C.C.No.52 of 2004, C.C.No.56 of 2004 and C.C.No.50 of 2004 respectively. There are contradictions in the evidence of PWs.6 & 7; learned courts below

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failed to note that a false case was foisted against^{thepetitionerandurgedto} allow the revision cases as the prosecution failed^{toprovetheguiltofthe} petitioner beyond reasonable doubt. 7. Alternatively, it is submitted that the petitioner^{atthetimeofthealleged} offence was suffering from impoverishment and aged^{aboutonly29years,} The alleged offence was taken place in the year 2001 i.e. more than 24 years ago. The petitioner has been suffering from mental agony^andtrauma The because of the delayed disposal of the Criminal Revision Cases. petitioner has been suffering from health complications.^{Heneedstosupport} his family and children. Therefore, lenient view may^{beshowninreducingthe} sentence of imprisonment to which the petitioner has^{alreadyundergone.} 8. Ms. P.Akhila Naidu, learned Assistant Public Prosecutor,^submitsthat there was sufficient evidence available against the petitioner^{fortheoffences} the learned trial court and the appellate court had charged with. Therefore rightly found the petitioner guilty of the offence^{punishableunderSection411} no material of ‘the l.P.C’ and appropriately punished him. There are of the evidence and urged to dismiss the irregularities and misreading revision cases. 9. Thoughtful consideration is bestowed on the arguments^adducedbythe and the learned Assistant Public learned counsel for the petitioner Prosecutor. I have perused the entire record. 10. Now the point for consideration is;

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“Whether the judgments in CrI.A.Nos. 207, 208 and 206 of 2005, dated 23.09.2008 & 30.09.2008 passed by the learned II Additional Sessions Judge, Kadapa at Proddatu,r are 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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It is apposite to refer the judgment of Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar^ wherein at Paragraph Nos.12 &

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“12. ... We have carefully considered the material on record and we are satisfied that the High Court was not justifiedⁱⁿ re appreciating the evidence on record and coming to a different conclusion in a revision preferred by the information under Section 401 of the Code of Criminal Procedure, Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal^intooneof conviction. The aforesaid sub-section, which places a^limitation on the powers of the revisional Court, prohibiting it^fromconverta finding of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court^couldnot convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the method of ordering^are-trial. It is well settled by a catena of decisions of this Court that the Hiah Court will ordinarily not interfere in revision with an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or the prevention of gross miscarriage of justice. The Hiah Court will not be justified in interfering with an order of acquittal merely because the trial Court has taken a wrong view of the law or has erred In appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of circumstances in which exercise of revisional jurisdiction may be justified, but decisions of this Court have laid down the parameters of exercise of revisional jurisdiction by the High Court under Section 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. 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 Hiah Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the Hiah Court should not reappreciate the evidence to reach a finding different from the trial

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'(2002) 6 SCO 650

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in nr^u^ Court. In the absence of manifest illegality resiulfinq miscarriage of lustice, exercise of revisional iurisdintion in such cases IS not warranted ” ' ■

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The Hon’ble Supreme Court in D Stephens v Nosibolla^ at Paragraph

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No. 10 held as under:

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“The revisional jurisdiction conferred on the High Court under S. 439, Cr.PC., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Govt, has a right of appeal under S. 417. It could be exercised only in exceptional cases where the interests of public Justice require interference for the correction of a manifest illegality, or the prevention of a gross miscarriage of Justice. This Jurisdiction is not ordinarily invoked or used merely because the lower court has taken a wrong view of the law or mis-appreciated the evidence on record.”

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The Hon’ble Apex Court in K Chinnaswamy Reddy v State of AP^, at

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Paragraph No.7 held as under:

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“1. It is true that it is open to a High Court in revision to set aside an order of acquittal even at the instance of private parties, though the State may not have thought fit to appeal;^but this Jurisdiction should in our opinion be exercised by the High Court only in exceptional cases, when there Is some glaring^defectinthe procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of Justice. Sub section (4) of S. 439 forbids a High Court from converting a finding of acquittal into one of conviction and that makes it all the more Incumbent on the High Court to see that it does not, convert the finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot itself directly convert a finding of acquittal into a finding of conviction. This places limitations on the power of the High Court to set aside a finding of acquittalⁱⁿ revision and it is only in exceptional cases that this power should be oxercised. It Is not possible to lay down the chteria for determining such exceptional cases which would cover all contingencies.^We may howeve,r indicate some cases of this kind which would in our opinion Justify the High Court in interfering with a finding of acquittal

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^AIR1951 SC 196 =AIR1962 SCI 788

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in revision. These cases may be where the trial court has no jurisdiction to try the case but has still acquitted the accused or where the trial court has wrongly shut out evidence which the prosecution wished to produce, or where the appeal court has wrongly held evidence which was admitted by the trial court to be f ^^‘dence has been overlooked either by the trial court or by the appeal court, or where the acquittal IS based on a compounding of the offence, which is invalid under f/7e /avy r/7ese and other cases of similar nature can properly be exceptional nature, where the High Court can justifiably interfere with an order of acquittal; an in such a case it is obvious that It cannot be said that the High Court was doing '^directy '^hat it could not do directly in view of^{theprovisionsof S} 439 (4). We have, therefore, to see whether the order of the High Court setting aside the order of acquittal in this case can be upheld on these principles.

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Coming to the judgment in CC. No. 52 of 2004, the learned trial court examined PWs.1 to 7, marked Exhibits PI to P8 and M.O.Nos. 1 to 3 in support of the charge. PW1 and PW2 are the de-facto complainants. PW3 deposed that the accused came and pledged a gold ornament with him and raised a loan of Rs.22,000/- from him. PW4, the mediator had deposed about arrest of the petitioner and spoke about recovery of the stolen property from the possession of the other accused. PW5 deposed about registration of the case on the basis of complaints. PW6 deposed about registration of the case, after receipt of complaint from PW1. PW7 investigating officer testified about apprehending of petitioner, seizure of the stolen property and arrest of the accused, in a detailed manner. The prosecution case relied upon the evidence of PW4 and PW7.

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PW1 and PW2 did not speak about identity of the petitioner. The charge against the petitioner waT that he was in possession and jenjoyment of stolen

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property belonging to PW1 and PW2. PW1 and PW2 deposed about theft of their valuable property was taken place. These witnesses had identified the stolen property and took interim custody of them. Their evidence to these facts was not challenged. PW4 and PW7 are the material witnesses. PW4 admittedly had no enmity with the petitioner. There is no evidence about their prior acquaintance. PW7 was performing official duties in apprehending the petitioner and interrogating him. PW4 was claimed to have deposed in several cases, instituted by the police. That circumstance alone is not a disqualification to reject the testimony of PW4. Recovery of the stolen property from the possession of the petitioner is relevant under Section 27 of the Indian Evidence Act. Evidence of PW4 and 7 in material particulars corroborates with each other. The contention of the petitioner that he was implicated in the offence has no relevance in the light of the evidence of PW4 and PW7. 16. Merely because an official witness, who frequently^{cometothecourt} and gives evidence to support the case of the prosecution, cannot be branded as a stock witness because he was merely discharging^{hisdutiesunlessit} was established that his evidence was fraught with infirmities. Learned trial court on elaborate discussion of the evidence of the witnesses of prosecution and on careful examination of the Exhibits and material objects, came to correct conclusion that the prosecution proved the guilt of the petitioner beyond reasonable doubt. Learned appellate court also rightly came to the same conclusion and confirmed the judgment of the learned trial court. This Court while invoking powers under Sections 397 and 401 of ‘the Cr.P.C.,’ cannot re-

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appreciate the evidence by sitting as an appellate^{courtatsecondtime.} On careful perusal of the evidence of prosecution witnesses, it can be safely held that there are no material contradictions, which would smash the case of the prosecution. There are no material irregularities to disbelieve the version of the prosecution. There was no misreading of evidence. Learned courts below had come to correct conclusions by properly appreciating the evidence. Therefore, the conviction recorded for the offence under Section 411 of ‘the I.P.C. ’ shall be maintained. 17. With regard to the judgment in C.C.No.56 of 2004, to bring home the guilt of the petitioner, the prosecution examined PWs.1 to 9 and got marked Exhibits PI to P11 and Mos.1 to 4. PW1, PW2 and PW3 are the de-facto complainants. They had deposed loss of ornaments in the theft, later they identified the property, and took interim custody of^{theirstolenarticles.} PW4 deposed that petitioner pledged gold ornaments and raised loan. PW5 deposed about the investigation to certain extent. PW6 who is material witness deposed about arrest of the petitioner, on grilling by the police, lead to the recovery of some property from the possession of the petitioner under the cover of panchanama. This witness deposed to the recovery^ofthestolen property, in pursuance of the confession of the petitioner. PW7 is the investigation officer, who received the complaint, registered it as a case and recorded the statements of witnesses. PW9 deposed about the investigation conducted by him in detail.

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The case of the prosecution rests on PW6 and PW9. PW1 to PW3 did not speak to the identity of the petitioner. The identity of the petitioner and the involvement of the petitioner in the present offence had come from the evidence of PW6 and PW9. Evidence of these two witnesses corroborates each other. One of the accused was initially apprehended and interrogated. Some property was recovered from his possession. The said accused had confessed about the involvement of the other and thereupon he led the police to that petitioner. The second petitioner confessed the role of the third petitioner. The prosecution recovered the property from all the accused. It was contended that independent evidence was not adduced by the prosecution. PW6 is a panchayat secretary. A panchayat secretary is not part of the investigation machinery. He was under no obligation to corroborate the investigation officer. In addition, PW6 has no enmity with the petitioner. Therefore, on the ground that he was witness to the same facts in some other cases, cannot be held against this petitioner. Even in the absence of an independent witness, a confession leading to a discovery of fact, can be established by the prosecution.

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In regard to the judgment in C.C.No.50 of 2004, to bring home the guilt of the accused, the prosecution examined PWs.1 to 5 and got marked Exhibits PI to P8 and Mos.1 to 3. PW1 and PW2 are the victims of the theft. They deposed that motor cyclist snatched their gold ornaments, and that they gave complaint to the police. These people did not depose to the identity of the petitioner. However, PW2 was able to give the registration number of the

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motorcycle, on which the culprits had come and committed theft of the ornaments of PW.1 and another. PW3, the S.l of Police, deposed about receiving the complaint, registering it as a case, recording the statements of the victims and filing of charge-sheet. He accompanied the Inspector of Police at the time of arrest of the petitioner and seizure of the stolen property from their possession under panchanamas. PW4 deposed to^the arrest of the petitioner and seizure of the stolen articles from their possession, in pursuance of interrogation. This witness spoke about panchanamas drafted, covering the above facts and his attestation to same. PW5 deposed to the investigation of the offence. He deposed that he found the petitioner coming in motorcycle; he caught hold of them; he interrogated them; he found the stolen property; he seized the same under the cover of panchanamas and^{tothearrestofthe} petitioner. He also deposed to the arrest of another petitioner, in pursuance of the confession of A1 and A2. 20. The petitioner contended that no identification parade^was held to connect the petitioner with the alleged offence. Identification parade in this case has no relevance. The victims of the theft were not able to identify the petitioner. The complaint was to the effect that unknown people, riding on the motorcycle committed theft of the gold ornaments. Therefore,^{theidentification} parade of the petitioner has no relevance in this case. It is contended that the panch witness (PW4) is a stock witness, and therefore, his evidence should be discarded. It was suggested to PW4 that he was a stock witness to the police. It was not elicited from him, the number of the cases in which he figured as a

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witness to the police. In the absence of eliciting any useful information in that regard, the contention that he was a stock witness had no basis. 21. About the sentence that would be appropriate to impose on the petitioner at this juncture, the offences were taken place more than 24 years ago. Much water has been flown by now. The petitioner has been suffering from mental agony and trauma because of the delayed disposal of the revision cases. The right to a speedy trial is a fundamental right guaranteed under Article 21 of the Constitution of India. The right of 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 Bihai^. 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 Bihar^.

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As per the letter addressed by the Superintendent of Jail District Prison, Kadapa to this Court, it is submitted that either as remand prisoner, under-trial prisoner or conviction prisoner, the petitioner underwent imprisonment in several cases for seventy eight days (78). Aii these periods of imprisonment shall run concurrently as per the Section 427 of ‘the Cr.P.C.’ The petitioner has suffered mental agony because of the delayed disposal of the revision cases. The petitioner aiso submits that he has oid-aged parents wife and children

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“AIR 1979 SC 1360 ® 2000(1) BUR 37

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who are dependents on him and has been suffering from severe health complications due to post covid pandemic effect.

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In view of the above reasons, all the revision cases are disposed of confirming the convictions for the offence under Section 411 of ‘the I.P.C.,’ while reducing the sentences of imprisonments to which the petitioner had already undergone. No order as to costs.

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Consequently, miscellaneous applications, if any, pending shall stand

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closed.

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Sd/- U. SRIDEVI ASSISTANT REGISTRAR

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//TRUECOPY//

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To,

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SECTION OFFICER