Palivela Nageshwar Rao And Two v. State of Andhra Pradesh
2023-07-11
VENKATA JYOTHIRMAI PRATAPA
body2023
DigiLaw.ai
JUDGMENT VENKATA JYOTHIRMAI PRATAPA, J. - This Criminal Revision Case is preferred against the concurrent judgments of conviction and sentence passed in C.C. No.20 of 2006 dtd. 17/10/2006 on the file of the Chief Judicial Magistrate (Principal Assistant Sessions Judge), Rajahmundry, (in short, trial Court) confirmed in Criminal Appeal No.261 of 2006 dtd. 25/6/2009 on the file of the IV Additional Sessions Judge, East Godavari District, Kakinada (in short, appellate Court). 2. The gravamen of the charge against the Accused Nos.1 to 3 is for the offence punishable under Sec. 8(b) of Andhra Pradesh Prohibition Act (in short 'A.P.P. Act'), 1995, and they were convicted and sentenced to undergo simple imprisonment for a period of 6 months and pay fine of Rs.10, 000.00 and in default of payment of fine, the accused shall undergo simple imprisonment for a period of 3 months each. The Revision Petitioners herein were the accused and respondent herein was the complainant before the trial Court. For the sake of convenience, the parties hereinafter will be referred to as they arrayed before the trial Court. 3. The gist of the prosecution case is that, a. On 13/3/2001, PW.1 - Sub-Inspector of Police, Prohibition and Excise, Kakinada along with his staff conducted a raid at about 11.40 A.M. near Eluru canal bund and found the Accused Nos.1 to 3 carrying black plastic cans containing 5 litres of I.D. liquor in each can. On enquiry, the accused confessed the address particulars, where the police officials found 16 plastic drums with about 1500 litres of F.J. Wash. The Sub-Inspector of Police could not secure mediators and seized the I.D. liquor cans and F.J. Wash. He drew samples of about 100 ml each from the I.D. liquor cans and 650 ml of F.J. wash from the entire 1500 litres F.J. Wash and the balance F.J. Wash was destroyed by the police officials. They seized the stock under a special report. b. Basing on the said report vide Ex.P1, PW.3 - Sub-Inspector of Police registered the crime vide Ex.P2 for the offence punishable under Sec. 8(e) r/w.7(A) of A.P.P. Act. PW.3 laid charge sheet against the accused after receiving the analysis report, vide Exs.P4 and P5. To substantiate their case, PWs.1 to 3 were examined and Exs.P1 to P6 were marked and MOs.1 to 4 were placed before the trial Court. The defence is of total denial. 4.
PW.3 laid charge sheet against the accused after receiving the analysis report, vide Exs.P4 and P5. To substantiate their case, PWs.1 to 3 were examined and Exs.P1 to P6 were marked and MOs.1 to 4 were placed before the trial Court. The defence is of total denial. 4. The learned trial Judge, on appreciation of the evidence on record, after hearing both the learned counsel, found the accused guilty for the offence punishable under Sec. 8(b) of A.P.P. Act and sentenced them as referred supra. Though the accused preferred the appeal against the impugned judgment of the trial Court, appeal was dismissed confirming the judgment of the trial Court. 5. Feeling aggrieved and dissatisfied with the concurrent judgments, A1 to A3 brought the matters before this Court in revision saying that, though the prosecution failed to prove the ingredients of the offence punishable under Sec. 8(b) of A.P.P. Act, learned trial Judge convicted the accused basing on the interested testimony of PWs.1 to 3 though there are discrepancies in the evidence relating to the factum of the seizure of the property from the possession of the accused and that the learned Judge ignoring such glaring discrepancies erroneously convicted the accused. 6. Heard Sri P.Chethan, Advocate representing on behalf of Sri V.Sai Kumar, learned counsel for the revision petitioners and the learned Public Prosecutor. 7. Perused the material on record. 8. Now the point that would emerge for determination in this revision is, Whether the Courts below exercised the jurisdiction erroneously or failed to exercise the jurisdiction? If so, the impugned judgment of conviction and sentence passed against the accused Nos.1 to 3 is erroneous or any interference is warranted in the revision ? Determination by the Court 9. This Court while sitting in a revision cannot appreciate the evidence and interfere in the concurrent judgments of the trial Court as well as the appellate Court just because there is a possibility of another view. The scope of the revisional Court to interfere in the impugned judgments is very narrow. The Court has to exercise the said jurisdiction in revision sparingly only to avoid miscarriage of justice. In Amit Kapoor Vs. Ramesh Chander, (2012) 9 SCC 460 . the Hon'ble Supreme Court while identifying contours of revisional jurisdiction held thus; "12......The object of this provision is to set right a patent defect or an error of jurisdiction or law.
The Court has to exercise the said jurisdiction in revision sparingly only to avoid miscarriage of justice. In Amit Kapoor Vs. Ramesh Chander, (2012) 9 SCC 460 . the Hon'ble Supreme Court while identifying contours of revisional jurisdiction held thus; "12......The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this Court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits. 13. Another well-accepted norm is that the revisional jurisdiction of the higher court is a very limited one and cannot be exercised in a routine manner. One of the inbuilt restrictions is that it should not be against an interim or interlocutory order. The Court has to keep in mind that the exercise of revisional jurisdiction itself should not lead to injustice ex facie." 10. The case projected by the prosecution is that on the date of raid, PWs.1 and 2 visited Eluru canal bund and found A1 to A3 carrying three black plastic tins of 10 litres capacity. The evidence further shows three tins which alleged to have been in possession of A1 to A3 contains 5 litres of I.D. Arrack. There is no hard and fast rule that the evidence of either police officials or excise officials, cannot be believed unless it is corroborated by any independent unbiased witness. Truthfulness is the only test to rely on the evidence of any witness. PW.1 says, he does not remember the place of occurrence and its direction to the Eluru canal bund. PWs.1 and 2 are the only witnesses to prove the seizure of I.D. liquor from the possession of A1 to A3.
Truthfulness is the only test to rely on the evidence of any witness. PW.1 says, he does not remember the place of occurrence and its direction to the Eluru canal bund. PWs.1 and 2 are the only witnesses to prove the seizure of I.D. liquor from the possession of A1 to A3. Out of that, PW.1 says they have started at 8.00 A.M. in the morning but PW.2 says it is 9.00 A.M. Admittedly, the place of offence is situated within the distance of 1 or 1 1/2 Kms from the village. Though PWs.1 and 2 to justify their acts of reporting the matter by taking aid of special report saying that in spite of their efforts, none turned up to act as independent mediators, no iota of document is placed on record to show their efforts, to secure the presence of independent mediators. 11. Village Revenue Officers and Village Assistants are available even in a small village. No notice has been issued to any witness in writing calling them to act as mediators. PWs.1 and 2 never claimed that despite their efforts to secure the persons who are the Government servants available in the village they were reluctant to act as mediators. They have not even named any particular person who rejected their request to act as mediators. 12. Needless to say that the testimony of the police officer if it is found trustworthy, it cannot be rejected merely on the ground that he is interested witness. The Hon'ble Apex Court in Md. Jabbar Ali and Others v. The State of Assam, (2022) 15 S.C.R. 773 . was posed with a situation where conviction which depended on the witness who were related to each other was challenged. The Hon'ble Supreme Court having noted that merely because the witnesses are related/interested/partisan, their testimonies cannot be disregarded, however it must be scrutinized with a greater degree of care and circumspection and on labelling as to whether the discrepancies, if found, are whether material or insignificant. At para 49, it was observed as follows; "49. In Raju alias Balachandran and Others v. State of Tamil Nadu, (2012) 12 SCC 701 . this Court observed: "29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined.
At para 49, it was observed as follows; "49. In Raju alias Balachandran and Others v. State of Tamil Nadu, (2012) 12 SCC 701 . this Court observed: "29. The sum and substance is that the evidence of a related or interested witness should be meticulously and carefully examined. In a case where the related and interested witness may have some enmity with the assailant, the bar would need to be raised and the evidence of the witness would have to be examined by applying a standard of discerning scrutiny. However, this is only a rule of prudence and not one of law, as held in Dalip Singh [ AIR 1953 SC 364 ] and pithily reiterated in Sarwan Singh [ (1976) 4 SCC 369 ] in the following words: (Sarwan Singh case [ (1976) 4 SCC 369 , p. 376, para 10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinized with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration." 13. In absence of any independent mediators in the present case, in the light of the discrepancies pointed out, believing the evidence of PWs.1 and 2 by convicting the accused is unwarranted. The analysis report would show, it is I.D. liquor but not Arrack. To attract offence punishable under Sec. 8(b) of A.P.P. Act, the possession itself is sufficient. Hence, the initial burden is on the prosecution to prove the possession of that liquor with the accused beyond all reasonable doubt. When the case relied on the special report and conviction is based on the evidence of police officials that evidence should pass the test of truth and the said evidence should not suffer from any vices like inconsistency, improbability, discrepancies etc. The evidence of PWs.1 and 2 that they failed to secure punch witnesses in the vicinity of the alleged place of occurrence is improbable to believe. Considering the aforementioned premises, the concurrent judgments of the trial Court as well as the appellate Court brook interference of this Court in revision. 14. In the result, the Criminal Revision Case is allowed.
The evidence of PWs.1 and 2 that they failed to secure punch witnesses in the vicinity of the alleged place of occurrence is improbable to believe. Considering the aforementioned premises, the concurrent judgments of the trial Court as well as the appellate Court brook interference of this Court in revision. 14. In the result, the Criminal Revision Case is allowed. The impugned judgments in C.C. No.20 of 2006 on the file of Chief Judicial Magistrate (Principal Assistant Sessions Judge), Rajahmundry and C.A. No.261 of 2006 on the file of IV Additional Sessions Judge, East Godavari, Kakinada are hereby set aside. The accused Nos.1 to 3 are entitled to get back their fine amounts if any paid before the trial Court. As a sequel thereto, miscellaneous petitions, if any, pending shall stands closed.