Mungara Kondala Rao Vs State of A.P

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 against the Judgment in Convicting the petitioner in Crl.A.No.172/2007 dt.25-052009 on the file of the 1st Addl. District & Session Judge, Krishna Machilipatnam Modifying the Trial Court Judgment in C.C No.158/2004 dt.17-12-2007 on the file of the Judicial 1st Class Magistrate Kaikaluru

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IA NO: 1 OF 2009(CRLRCMP 1151 OF 2009

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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 Judgment dt 20-05-2009 CrlA No.172/2007 dt 25-05-2009 on the file of the 1st Addl.District &

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CRL.R.C. No.847 of 2009

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Session Judge,Krishna Machilipatnam by enlarging the petitioner Accused No.1 on bail pending disposal of the above Revision case and pass

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IA NO: 1 OF 2025

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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 may be pleased to Recall the NonBailable Warrant issued against the Petitioner by Order dated 05-082025 in CrI.R.C.No.847/2009 of this Hon’ble Court pending disposal of main CrI.R.C. and pass

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Counsel for the Petitioner:

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NARASIMHA RAO GUDISEVA

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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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CRL.R.C. No.847 of 2009

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THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA

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CRIMINAL REVISION CASE No: 847 OF 2009

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ORDER:

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Instant criminal revision case has been preferred against judgment and order of conviction passed by learned Judicial Magistrate of First Class, Kaikalur, against present petitioner/A.1 in C.C.No.158 of 2004, which was confirmed in Criminal Appeal No.172 of 2007 on the file of I Additional Sessions Judge, Krishna, Machilipatnam.

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Learned trial court found the petitioner/ A.1 guilty for the offence punishable under Section 447 of Indian Penal Code, 1860 (for short, ‘ IPC’ ) and Section 3 of Prevention of Damage to Public Property Act, 1984 (for short, ‘ PDPP Act ’) and sentenced the petitioner to undergo rigorous imprisonment for six months and also to pay a fine of Rs.1,000/-. In appeal, learned appellate court acquitted the accused for the offence punishable under Section 447 of IPC, as no charge had been framed against the present petitioner/A.1 for the said offence and modified the sentence imposed for the offence under Section 3 of PDPP Act from rigorous imprisonment for six months to rigorous

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imprisonment for three months. Challenging the same, the present criminal revision case is filed.

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3. Brief facts of the case, in a nutshell, are as follows:

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a. Petitioner/A.1, along with A.2, in furtherance of their common intention, allegedly trespassed into the Kolleru Government Forest area comprising R.S.Nos.144, 156 and 158, measuring an extent of Ac.3.00 cents, situated at Rallakunta Tank of Vadlakutitippa Village and also into an extent of Ac.4.00 cents, situated at R.S.Nos.152 and 157 near the Circar Canal at Vadlakutitippa Village, and converted the said land into fish tanks, in violation of the government orders.

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b. P.W.3 forwarded the report of P.W.1 to Kaikaluru Rural Police Station on 07.06.2004, visited the scene of offence and found that the accused had unauthorisedly trespassed into the Kolleru Government Forest area and converted the government land into fish tanks by raising bunds on all sides of the tanks. On completion of investigation, a charge sheet has been submitted before the jurisdictional Magistrate.

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c. During trial, prosecution has examined as many as six witnesses and marked several documents as Ex.P.1 to

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Ex.P.7. However, no defence witnesses were examined and

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no material objects were seized. Pending disposal of the C.C., case against A.2 was abated on 14.02.2007

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d. Learned trial Court found the petitioner/A.1 guilty of the offence punishable under Section 447 of IPC and Section 3 of PDPP Act and sentenced them accordingly.

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e. On appeal, learned Sessions Judge acquitted the petitioner/

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A.1 for the offence punishable under Section 447 of IPC, however, convicted under Section 3 of PDPP Act and modified the sentence by reducing the term of rigorous imprisonment from six months to three months.

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4. SUBMISSIONS OF THE PETITIONER:

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a. Learned counsel for the petitioner submits that the order of conviction and sentence passed against present petitioner is improper and illegal. Learned trial court as well as learned appellate court failed to appreciate the statements of the prosecution witnesses, which are contradictory in nature. He further submits that, on the basis of such contradictory statements, evidence of the prosecution witnesses cannot be believed. There are lack of corroboration in the testimony of prosecution witnesses. Accordingly, recording of

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conviction and sentence of petitioner is illegal and liable to

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be set aside.

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5. SUBMISSIONS OF THE STATE:

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a. Learned Assistant Public Prosecutor opposed the criminal

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revision and submits that P.Ws.1 to 5 are the government officials who have specifically narrated the incident and that the allegations in the prosecution case has been sufficiently proved.

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b. He further submits that the evidence of P.W.2 itself would establish prosecution case. His evidence is not contradictory to the statements of the other witnesses. He further submits that P.W.2 was not at all cross-examined by the defence, rather the alleged contradiction in the statement of P.W.2 was never put to him or such contention was never raised either before learned trial court or learned appellate court. At this belated stage, such an argument cannot be entertained.

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c. Learned Assistant Public Prosecutor further argued that prosecution has successfully proved the charge against the petitioner beyond reasonable doubt. Hence, there is no merit in the instant revision.

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In reply, learned counsel for the petitioner submits that the prosecution case is not at all believable. According to the prosecution case, seven acres of Government land was converted into a fish pond. The evidence of P.Ws.1 and 2 shows that, on a particular day, some coolies were found digging the pond. He further submits that such a huge extent of land could not have been converted into a pond in a single day. Thus, according to petitioner, the prosecution case is doubtful.

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Heard learned counsel appearing for both parties and perused the entire material available on record.

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8. OBSERVATIONS OF THIS COURT:

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a. It appears that P.W.2 is a Village Servant. He deposed that on 07.06.2004, he noticed the petitioner/A.1 and A.2, along with some coolies, converting a portion of Government land in R.S.Nos.144, 152, 156, 157 and 158, forming part of an extent of Ac.7.00 cents, into a fish tank. Immediately, he informed the same to P.W.1.

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b. P.W.1 was the then Panchayat Secretary. After receiving the information, he immediately proceeded to the spot and found A.1 and A.2, along with other coolies, carrying on the work of digging a fish tank in the said Government land. At that time, A.1 and A.2 were advised not to continue the

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digging work. Later, he informed the same over telephone to the Mandal Revenue Officer and the Mandal Revenue Inspector, who were examined as P.Ws.3 and 4 respectively.

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c. P.Ws.3 and 4 also stated that they visited the spot and found the accused persons digging a fish tank near the Circar Canal at Vadlakutitippa Village. The evidence of P.W.4 also corroborates the said fact.

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d. To prove the prosecution case, it was the duty upon the prosecution to establish that the present petitioner, along with A.2, was engaged in digging a fish tank on Government land. It is not disputed in this case that the land where the digging was undertaken is Government land. Moreover, P.W.2, who was the first person to notice the alleged offence committed by A.1 and A.2, was not cross-examined.

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e. It has been vehemently argued by learned counsel for the petitioner that the statement of P.Ws. 1 and 2 is contradictory. I have perused the impugned judgment of learned appellate Court. In paragraph 18 of the impugned judgment, it was noted that ‘P.W.2 stated that when he visited the place of occurrence along with P.W.1, none was

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present there’, whereas at another stage, P.W.2 stated that he had noticed some coolies digging a fish tank in the Government area forming part of the Kolleru Government Forest area. P.W.2 further stated in his evidence that when he and P.W.1 visited the place, they saw the accused persons engaged in digging a fish tank on Government land. Relying on the aforesaid statements, learned counsel for the petitioner submits that the evidence of P.Ws.1 and 2 is contradictory. However, the statement of P.Ws.3 and 4, who are the Mandal Revenue Officer and the Mandal Revenue Inspector respectively, are consistent to the fact that accused persons are involved in the digging activity.

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f. In this particular case, the evidence of P.Ws.1 and 2 has

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been cited by learned counsel for the petitioner as contradictory. On a thorough reading of the examinationin-chief of P.Ws.1 and 2, it appears that P.W.1 stated that, upon receiving information, he proceeded to the spot and found both the accused persons engaged in the digging work. On the other hand, P.W.2 stated that when they reached to the spot along with P.W.1, no one was present there.

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g. The alleged contradiction in the statement of P.W.2 was never tested/ clarified or contradicted by putting him in cross-examination. On a thorough reading of the prosecution evidence, it appears that the testimony of the other witnesses sufficiently proves the involvement of A.1 and A.2 in the said activity. Though P.W.1 initially stated that he noticed some coolies involved in the digging work, he subsequently stated that the accused were engaged in the digging work. Thus, a thorough and plain reading of the evidence of P.W.2 indicates that the accused persons were engaged in the digging activity. The alleged contradiction, particularly when P.W.2 was not crossexamined on that aspect, cannot by itself destroy the prosecution case.

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h. It further appears to me that the defence has also not placed any material on record regarding its contention as to how the entire extent of seven acres of land could have been converted into a pond by A.1 and A.2 with the assistance of coolies. Moreover, there are no crossexamination as to how the entire extent of seven acres of land could have been converted into a pond without use of any material or machines or how many coolies were

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involved in such work, the extent of period during which the digging work was carried out. The witnesses remained unchallenged on these material aspects.

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i. The onus was initially upon the prosecution to prove that the accused persons were involved in the digging work over the Government land. The prosecution examined P.Ws.1 to 5 to establish that the accused persons were involved in digging the Government land and converting it into a fish tank. Their evidence on the material aspects was not effectively challenged either by cross-examination or by adducing contrary evidence. Hence, burden is shifted upon defence. Surprisingly, the defence has not discharged the burden upon him in this case though they had a duty therein.

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j. On that score, it appears that the evidence of P.W.2 is not wholly contradictory to the evidence of the other witnesses. Even assuming that there is a minor contradiction, the same cannot destroy the prosecution case in its entirety. In my view, the alleged contradiction in the statement of P.W.2 cannot be entertained at this stage, particularly when he was not cross-examined by the defence before learned trial Court on that particular point.

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k. At this juncture, I find no merit in the submissions of learned counsel for the petitioner. Accordingly, the instant Criminal Revision Case is devoid of merit. The order of conviction is hereby confirmed.

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l. At this stage, learned counsel for the petitioner submits that the present petitioner/A.1 is aged more than 65 years. The alleged offence was committed in the year 2004 and more than 20 years have elapsed since then. The petitioner, being an old aged person, has already undergone the ordeal of prolonged criminal proceedings for more than two decades, so leniency may be observed.

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m. Having heard learned counsel for both parties and considering the age of the present petitioner, it appears that the petitioner has been facing criminal litigation for more than 20 years. Moreover, the petitioner is an old aged person, in such age, it is not possible for the petitioner to serve out rigorous imprisonment.

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n. Accordingly, while confirming the conviction of the petitioner, the sentence of rigorous imprisonment for three months imposed by learned appellate Court is modified and reduced to the period of imprisonment already

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undergone by the petitioner during the course of

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investigation, trial and appeal of this case.

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o. The petitioner is further directed to pay a fine of Rs.5,000/before the learned trial Court within a period of four weeks from the date of this order.

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p. Accordingly, instant criminal revision case is disposed of with the above modification in the sentence.

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Pending miscellaneous applications, if any, shall stand closed.

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______________________ SUBHENDU SAMANTA, J

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Dt.07.07.2026 BV

Mungara Kondala Rao v. State of A.P

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Mungara Kondala Rao v. State of A.P

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