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2023 DIGILAW 1654 (AP)

B. Narasimha Rao, Tuni v. G. S. Murthy, Kakinada

2023-12-29

V.SRINIVAS

body2023
ORDER : V.Srinivas, J. This Revision is filed by the petitioner/A1 aggrieved by the judgment dated 31.12.2010 in Crl.A.No.67 of 2009 passed by the learned II Additional District and Sessions Judge(Fast Track Court), Parvathipuram, Vizianagaram District, wherein the learned Judge has allowed the appeal insofar as A5 and A6 are concerned by acquitting them and dismissed the appeal insofar as A1 is concerned by confirming the conviction and sentence imposed against him for the offence punishable under Section 353 IPC, in the judgment dated 15.10.2009 in C.C.No.226 of 2007 passed by the learned Principal Junior Civil Judge, Parvathipuram. 2. The brief facts of the case are as follows: On 27.04.2007 at about 3.00 P.M, while conducting raids by the excise officials near Chinamerangi Village, they found that petitioner along with others were preparing illicit arrack in two vessels. When they tried to conduct raid, the said persons assaulted with sticks and knives by abusing in filthy language and obstructed them from discharging their official duties. On the report of PW1, a case in Crime No.8 of 2007 of Jiyyammavalasa police station was registered. After completion of investigation, charge sheet was laid. 3. During the course of trial, the prosecution examined PW1 to PW6 and marked Ex.P1 and Ex.P2. On behalf of the accused, no oral or documentary evidence was adduced. 4. The trial Court, vide judgment dated 31.12.2010, found A1 to A13 and A15 not guilty for the offences punishable under Sections 332 and 506(II) IPC and found A1, A5 and A6 guilty for the offence under Section 353 IPC and sentenced to undergo simple imprisonment for a period of six months each. 5. Being aggrieved by the said judgment, A1, A5 and A6 preferred an appeal in Crl.A.No.67 of 2009 before the learned II Additional District and Sessions Judge(Fast Track Court), Parvathipuram, Vizianagaram District, wherein the learned Judge has allowed the appeal insofar as A5 and A6 are concerned by acquitting them and dismissed the appeal insofar as A1 is concerned by confirming the conviction and sentence imposed against him for the offence punishable under Section 353 IPC, 6. Challenging the said conviction and sentence, this revision is preferred by the petitioner/A1. 7. Heard Sri A.Ravi Shankar, learned counsel for the petitioner, Sri Naidana Sravan Kumar, learned Special Assistant Public Prosecutor appearing for the 1st respondent-State. 8. Challenging the said conviction and sentence, this revision is preferred by the petitioner/A1. 7. Heard Sri A.Ravi Shankar, learned counsel for the petitioner, Sri Naidana Sravan Kumar, learned Special Assistant Public Prosecutor appearing for the 1st respondent-State. 8. Learned counsel for the revision petitioner submits that there is no corroboration in the evidence of PWs.1 to 3 and there are lot of discrepancies. There is no evidence to show that PW1 to PW3 were on official duty at the time of alleged incident. More so PW1 did not identify the accused, who were allegedly obstructed him while discharging duties. In EX.P1-report, it was mentioned that apart from 15 accused there were 25 unknown persons but no identification parde was conducted to identify them. 9. Learned Special Assistant Public Prosecutor submits that the evidence of PW1 to PW3 is clear that on 27.04.2007 at about 3.00 P.M. they went for raiding of excise cases and on reaching scene of offence near Chinamerangi village, observed preparation of distilled liquor and they tried to raid, 15 accused obstructed them with knives, sticks and in the meanwhile 50 to 60 people including women folk of the said village reached there and warned all the officials and when tried to arrest, there was scuffle between them, in which accused assaulted them. He further submits PW1 clearly stated that the accused attacked Head Constable, Ramarao-PW3 and torn his shirt. He further submits PW1 identified A1, who assaulted him besides he is a habitual offender. He also submits that evidence of PW1 cannot be doubted on any ground since he participated in the incident officially and his evidence is believable and reliable and cannot be discredited any iota of fact thereby, this Court warrants no interferance and prayed to dismiss the revision. 10. The point that arises for consideration in this revision is: "Whether there is any flaw in the findings recorded by the appellate court in confirming the conviction and sentence passed against the petitioner/A1?" 11. This Court perused the material on record. It is the case of prosecution that on 27.04.2007 at 3.00 P.M. PWs.1 to 3 along with others, in the process of raiding of excise cases, reached Chinamerangi village and on observing some smoke, they reached the scene of offence and found that there was a preparation of distilled liquor in two burning stills. The 15 persons holding sticks and knives prevented them. The 15 persons holding sticks and knives prevented them. One of the accused caught hold the neck of PW1 and another accused beat him and pushed down and all the said persons attacked him. PW1 identified A1. PW2 is another Prohibition and Excise Sub-Inspector, Bobbili also stated in the same lines. He also stated that the accused torn the shirt of the Head Constable. PW3, Head Constable also supported the version of PWs.1 and 2. He stated that A5 and A6 torn his shirt and he received injuries on his chest. PW3 identified the accused who attacked them but failed to identify specifically A5 and A6. 12. This Court closely perused the evidence of PWs.1 to 3, who are official witnesses. It is clear that there is no corroboration of evidence of PWs.1 to 3 and no specific overt acts attributed any of the accused. PW1 stated that A1 is responsible for the alleged assault but he cannot specifically stated the overt acts against A1. 13. In the said crime, there were 15 accused. The case against A14 was dismissed as abated during pendency of case. The trial court acquitted A1 to A13 and A15 for the offence punishable under Section 332 and 506(II) IPC and found A1, A5 and A6 guilty for the offence under Section 353 IPC and sentenced to undergo simple imprisonment for a period of six months each. In the appeal preferred by A1, A5 and A6, the appellate Court acquitted A5 and A6 and convicted A1 alone. 14. In this connection, it is relevant to state that when there is similar or identical evidence of PWs.1 to 3 against A1, A5 and A6 by ascribing them the same or similar role, the appellate Court cannot convict A1 and acquit A5 and A6. Here, it is relevant to mention the judgment of the Supreme Court in Javed Shaukat Ali Qureshi v. State of Gujarat, 2023(9) SCC 164 , wherein at para-15 it was held as follows: "When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination." 15. In the instant case also, the evidence of PWs.1 to 3 with regard to the role of A1, A5 and A6 is same. The reason given by the appellate Court in acquitting A5 and A6 is that PWs.1 to 3 did not identify A5 and A6 but identified A1 alone, which is not correct and is not in accordance with law. When there is a similar identification evidence of witnesses against the accused ascribing them some or similar role the court cannot convict one and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity, which means that the criminal court should decide likes cases alike and in such cases, the court cannot make a distinction between accused, which would amount to discrimination. 16. Moreover, it is also found from the evidence of PW1 that A1 is a habitual offender. Admittedly, PW1 is the then Excise Sub-Inspector of Parvathipuram. PW2 is also Prohibition and Excise Sub-Inspector, Bobbili. Both of them stated that A1 is a habitual offender. In their testimonies, no material is placed except their self-serving testimony. If really A1 is a habitual offender, they might have placed a piece of material or some evidence to make believe that A1 is a habitual offender. Without any such material showing discrimination by the appellate court is not in accordance with law. 17. For the foregoing reasons, this court is of the view that the appellate court erred in convicting A1 and acquitting A5 and A6 believing the same evidence. Hence, A1 is also entitled to benefit of doubt. 18. Accordingly, the Criminal Revision Case is allowed, setting aside the conviction and sentence imposed against the petitioner/A1 in the judgment dated 15.10.2009 in C.C.No.226 of 2007 passed by the learned Principal Junior Civil Judge, Parvathipuram, as confirmed in judgment dated 31.12.2010 in Crl.A.No.67 of 2009 passed by the learned II Additional District and Sessions Judge(Fast Track Court), Parvathipuram, Vizianagaram District and thereby the petitioner/A1 is acquitted. He shall be forthwith set at liberty unless he is required to be detained in connection with any other offence. 19. Interim orders granted earlier if any, stand vacated. 20. Miscellaneous petitions pending if any, shall stand closed.