V. Thirumalaiah, Vs the State of Ap Rep by Its Pp Hyd.

of Code of Criminal Procedure, 1973 (for short ‘the Cr.P.C.’) against the Judgment dated 25.07.2008 passed in Crl.A. No. 38 of 2007, on the file of the learned II Additional District Judge & Sessions Judge, Tirupati, Chittoor District, confirming the Judgment in C.C.No.523 of 2002 on the file of II Judicial First Class Magistrate, Tirupati, Chittoor District.

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Dr.YLR, J Crl.R.C.No.352 of 2009 Dated: 13.03.2025

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Heard Sri J.Ugranarasimha, learned counsel for the Revision Petitioner

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and Ms.Akhila Naidu, learned Assistant Public Prosecutor appearing for respondent-State.

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Sri J.Ugranarasimha, learned counsel for the petitioner submits that material objects were not belonged to Tirumala Tirupati Devasthanam (for short ‘T.T.D’); evidence of PW3 was also overlooked by the learned Courts below; M.Os 1 to 5 do not contain any specific labels showing that they belonged to ‘T.T.D’; a suspicion can never become a substitute for proof. The case is hit by Section 162 of ‘the Cr.P.C’, for seizing the material objects and recording the statements even before the registering of F.I.R. and no credible independent witnesses were examined by the prosecution to prove the guilt of the petitioner and urged to allow this Criminal Revision Case.

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Per Contra, Ms.Akhila, learned Assistant Public Prosecutor argued that the prosecution proved the guilt of the accused beyond all reasonable doubt and therefore she prays to dismiss the petition as re-appreciation of evidence of prosecution witnesses is impermissible in the present Revision case.

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Thoughtful consideration is bestowed on the arguments advanced by

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the learned counsels on both sides. Perused the record.

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Now the point for consideration is:

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“Whether the Judgment dated 25.07.2008 passed in Crl.A. No. 38 of 2007, on the file of the learned II Additional District Judge & Sessions Judge, Tirupati, Chittoor District, is correct,

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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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In the connection, it is apposite to refer the Judgment of the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar¹ wherein at

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Paragraph Nos.12 & 13 it is held as under:

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“12. … We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating 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 into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional Court, prohibiting it from convert a 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 could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the method of ordering a re-trial. It is well settled by a catena of decisions of this Court that the High 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 High 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.

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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 exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.”

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1(2002) 6 SCC 650

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Dr.YLR, J Crl.R.C.No.352 of 2009 Dated: 13.03.2025

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8. The Hon’ble Supreme Court in D Stephens v Nosibolla² 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.P.C., is not to be lightly exercised, when it is invoked by a private complainant against an order of acquittal, against which the Govt. has no 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 AP³ , at

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Paragraph No.7 held as under:

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“7. 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 defect in the procedure or there is a manifest error on a point of law and consequently there has been a flagrant miscarriage of justice. Subsection (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 acquittal in revision and it is only in exceptional cases that this power should be exercised. It is not possible to lay down the criteria for determining such exceptional cases which would cover all contingencies. We may, however, indicate some cases of this kind which would in our opinion justify the High Court in interfering with a finding of acquittal in revision. These cases may be: where the trial court has no

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2AIR 1951 SC 196

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3AIR 1962 SC 1788

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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 inadmissible, or where material evidence 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 the law. These and other cases of similar nature can properly be held to be cases of 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 indirectly what it could not do directly in view of the provisions of 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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To prove the guilt of the petitioner, the prosecution got examined P.Ws.1 to 5, Ex.P1 to P6 and M.Os 1 to 5. The evidence of the prosecution witnesses can’t be re-appreciated in this Revision case as per the Judgments of Hon’ble Apex Court in Bindeshwari Prasad Singh, D.Stephen and Chinnaswami Reddy . There are no material irregularities based on which this Court can interfere with the concurrent findings given by the learned Courts below. Witnesses of the prosecution categorically deposed that the petitioner and other accused were found in the possession of the material objects. P.Ws1 and 2 and other witnesses deposed that the material objects belong to ‘T.T.D.’

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A stray admission of P.W.3 that he could not say that material objects belong to ‘T.T.D’ cannot be given much important and significance. Mere allegation of animosity in between the police and the petitioner and other accused is not a ground to disbelieve the evidence of the prosecution.

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Dr.YLR, J Crl.R.C.No.352 of 2009 Dated: 13.03.2025

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With regard to the contention that statements of witnesses were recorded under Section 161 of ‘the Cr.P.C’ sans registering the crime, as such they are hit by Section 162 of ‘the Cr.P.C.’, concerned, P.W.1 on receipt of credible information proceeded to the spot and found accused No.1 with M.Os 1 to 3 and waited till arrival of accused Nos.2 and 3. In their possession M.O.4 was found and later proceeded to the house of accused No.4, who produced M.O.5 and the same was seized under Ex.P3.

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P.W.1 produced accused Nos.1 to 4 along with M.Os.1 to 5 and Ex.P1 to P3 before P.W.5, the Station House Officer concerned, who based on the report of P.W.1 registered the Crime No.94 of 2002 under Sections 41 and 102 of ‘the Cr.P.C.,’ vide Ex.P4. The learned Appellate Court observed at Para No.12 that P.W.1 had not recorded the statements of P.Ws 2 to 4 under Section 161 of ‘the Cr.P.C.’ Recording of statements under Section 161 of ‘the Cr.P.C’, would arise only after registration of the Crime by the Police Officer authorized in that behalf to do so. Even if no statements are recorded styling under Section 161 of ‘the Cr.P.C’, cannot be taken as statements recorded under Section 161 Cr.P.C. even if such statement contains the signatures of the accused, it is not hit by Section 161 of ‘the Cr.P.C’ inasmuch as there was no prior registration of crime. No prejudice was shown to have been caused to the petitioner. The learned Trial Court and the learned Appellate Court appraised the evidence on correct perspective and found the petitioner guilty. This Court cannot reappraise the evidence of the prosecution witness like a

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second Appellate Court as per the Judgments of Hon’ble Apex Court in Bindeshwari Prasad Singh, D.Stephen and Chinnaswami Reddy case. After perusal of the material on record and considering the submissions of the learned counsel for both sides, this Court found that there are no material irregularities in conducting of the case and also no perverse findings recorded.

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There was no misreading of the evidence in finding the revisionist guilty by the trial court and the Appellate Court. There are no perverse findings. The learned Trial Court and the Appellate Court had rightly appreciated the evidence and found the revisionist guilty for the offence charged. There are no grounds to interfere with the conviction.

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The Revision was filed challenging the conviction and imposition of fine of Rs.2,000/- which the Revisionist had already paid at the time of preferring the appeal. The learned Trial Court imposed one year sentence and fine of Rs.2,000/- whereas the learned Appellate Court reduced the sentence of imprisonment to the sentence already the petitioner had undergone and imposed Rs.2,000/-. Therefore, this Court opines that there are no grounds to interfere with the findings of the learned Courts below.

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In the result, the Criminal Revision Case is dismissed. No order as to costs.

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Dr.YLR, J Crl.R.C.No.352 of 2009 Dated: 13.03.2025

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As a sequel, miscellaneous petitions pending, if any, shall stand closed.

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________________________ Dr. Y. LAKSHMANA RAO, J

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Dated: 13.03.2025 M K K

V. Thirumalaiah, v. the State of Ap Rep by Its Pp Hyd.

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V. Thirumalaiah, v. the State of Ap Rep by Its Pp Hyd.

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