APHC010484652015 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] THURSDAY, THE TWENTY SEVENTH DAY OF NOVEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1560/2015 Between: 1. G.SANTOSH KUMAR, S/O. LATE SATYANARAYANA, BARBAR, R/O. AKULA VARI STREET, D.NO. 10-14-13/5, MALLIKARJUNAPET, VIJAYAWADA. ...PETITIONER AND 1. THE STATE OF AP REP. BY ITS PUBLIC PROSECUTOR, HIGH COURT OF A.P., HYDERABAD, THROUGH SI OF POLICE, 1 TOWN, CRIME PS., VIJAYACITY CITY. ...RESPONDENT Revision filed under Section 397/401 of Cr.P.C praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to present this Crl.Rc.Sr., aggrieved by the judgment dated 10-06-2013 passed by the Sessions Metropolitan Division, (Metropolitan Sessions Judge, Vijayawada) in Crl.Appeal No. 110 of 2012 confirming the conviction and sentence dated 27-08-2012 passed in C.C.No. 567 of 2011 on the file of the Chief Metropolitan Magistrate, Vijayawada. IA NO: 1 OF 2013(CRLRCMP 3930 OF 2013) 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 condone the delay of 61 days in filing the revision. 2 IA NO: 1 OF 2015(CRLRCMP 2204 OF 2015) 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 dispense with the filing of the certified copy of the Judgment dt.27.08.2012 passed in CC.NO.567 of 2011 on the file of the Chief Metropolitan Magistrate, Vijayawada and pass IA NO: 1 OF 2016(CRLRCMP 818 OF 2016) 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 expedite the hearing of Crl.R.C. No.1560 of 2015 and pass Counsel for the Petitioner: 1. D V SASIDHAR Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following Order: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 1560 OF 2015 ORDER: Heard. 2. The present petitioner was arrayed as accused in C.C.No.567 of 2011 for an offence punishable under Section 379 IPC. 3. The brief fact of the matter is that on 17.05.2011 there held counting of “Hundi collections” at Bhavani Diksha Mandapam of Sri Durga Malleswara Swamyvarla Devasthanam. Around 2.30 p.m., the persons attended the counting were going for lunch, the special protection force were checking them, the petitioner/accused was caught redhanded as he committed theft of one gold coin having Lakshmi Devi emblem. 4. In this particular case, there are four witnesses namely PW.1/Executive Officer of the Temple, PWs.2 and 3/Police personnel conducted search, PW.4 is the Sub-Inspector of Police, Head of the Special Protection Force Team, PW.5 is the Investigating Officer. 5. The learned trial Court, after receiving evidences in both oral and documentary, petitioner was found guilty for the offence punishable under Section 379 IPC and sentenced to suffer simple imprisonment for a period of four months. Against which, the petitioner has approached the appellate Court in Criminal Appeal No.110 of 2012, wherein the learned appellate Court has 4 modified punishment of the petitioner reducing the substantive sentence of imprisonment from four months to the period already undergone, besides he further sentenced to pay a fine of Rs.1,000/-. Hence, the instant Criminal Revision Case. 6. The learned counsel for the petitioner submits that the prosecution has failed to establish the case beyond all reasonable doubt. He further submits that there are no independent witness in this case to substantiate the prosecution case. He further submits from evidence of PW.1, it would reveal that one constable namely Madhava Reddy, has conducted the alleged search the petitioner and found the gold coin marked as Material Object No.1. He submits that such Madhava Reddy was not examined by the prosecution to justify the factum of search. He submits that Madhava Reddy, as a material witness, was not examined by the investigating officer. The alleged offence against the petitioner could not be said to be proved beyond all reasonable doubt. He further submits that learned trial Court has failed to appreciate the entire matter regarding the evidences, solely PWs.1 to 5, who are not at all eye witnesses. Thus, the order of conviction is not legally tenable. He further submits that the presence of the petitioner in the said Bhavani Diksha Mandapam at the time of counting of Hundi collections is also doubtful. The prosecution has failed to produce any register to show that the accused was engaged in counting of Hundi Collection at the relevant point of time. He further submits that the Hon’ble Supreme Court has time and again applied the principle that in a criminal case the prime witness has to be examined. 5 Learned counsel referred Hon’ble Apex Court in the case of Gaurav Maini vs. The State of Haryana (Criminal Appeal No.696 of 2010) at paragraph 47, which reads as follows: “Shamlal Garg, grandfather of the kidnapped boy-Sachin Garg (PW.2) was the first person who came into contact of the police officials on 15th April, 2003 and he admittedly disclosed about the incident to Investigating Officer (PW.37). In that background, Shamlal Garg would have been the most vital witness to unfurl the truth of the matter. However, for the reasons best known to the prosecution, Shamlal Garg was not examined as a witness in the case. As a matter of fact, the trial Court should have remained vigilant and it was absolutely essential for the Court to have exercised powers under Section 311 Cr.P.C so as to summon and examine Shamlal Garg in evidence because his evidence was essential for a just decision of the case. Section 165 of the Evidence Act permits the Judge to ask any question as he pleases in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant or may order production of any document or thing.” 7. Learned counsel further argued that there are no mediatornama regarding seizure of the gold coin from the possession of the petitioner. Thus the prosecution has failed to bring home the charge against the petitioner beyond all reasonable doubt. He prayed for set aside the impugned order of conviction. 8. Learned Assistant Public Prosecutor, refuting the contention of the petitioner, submits that the fact suggests that when the persons engaged for counting of Hundi Collection in the said Temple were going out to attend 6 lunch, at that time, the special protection force employees were deployed to check them, during the checking, the accused was caught red handed. He further submits that three constables were engaged for checking, among them, PWs.2 and 3 were deposed in favour of the prosecution. He submits that though the person namely Madhava Reddy was engaged for checking of the petitioner, the checking of the petitioner was conducted in the presence of PW.2. He further argued that since the accused has caught redhanded and placed before PW.4, there was no necessity to make a mediatornama (seizure list) regarding seizure of the material object from the possession of the petitioner. He further submits that the learned trial Court as well as appellate Court has correctly opined that the evidence of PWs.2 and 3 is sufficient to prove the guilt of the petitioner. 9. It is the contention of the learned Assistant Public Prosecutor that PWs.2 and 3 were engaged for the purpose of checking, there is no doubt of the fact that the accused was caught redhanded at the place of the occurrence. Thus the prosecution has sufficiently proved the case beyond all reasonable doubt. 10. Heard learned counsel for the parties. Perused the judgment and order of conviction passed by the learned Courts below. 11. It appears that the petitioner was convicted under Section 379 IPC. Conviction under Section 379 IPC i.e., theft by a person has to be proved, in its material ingredients. In this particular case, it has been alleged that one 7 Madhava Reddy, PW.2 and PW.3 being the three police personals were engaged for checking the persons, who were engaged to count Hundi collections in the Temple. The prosecution, firstly, has to establish that the petitioner/accused was engaged for counting of holy collection in the Temple. There is no such documentary evidence to show that the petitioner was there at the time of the alleged offence. To substantiate such ingredient, the prosecution has to submit such ingredient, it is came to the notice that there are some registers maintained by the Temple committee, to mention the persons, who are engaged to count the Hundi collections, for the reasons best known to the prosecution, such register was not produced. Register is a prime and best evidence, which can prove the presence of the petitioner at the place of the offence, withholding such material object or evidence juxtaposed adverse inference of this Court. Accordingly, documentary evidence is such a nature can always override oral evidence of other witness regarding their credentiality, at this juncture, the first ingredient regarding the presence of the accused at the place of the occurrence has not proved though documentary proof. Secondly, the prosecution has to prove the seizure of material object from the possession of the accused. To prove the same, it is evidence of PW.2 that he along with one Madhava Reddy were searching the persons going out from the place of counting, at that time Madhava Reddy was searched the accused person, PW.2 was also searching other persons standing beside Madhava Reddy. During search, Madhava Reddy found the material object from the possession of the petitioner. The evidence of 8 Madhava Reddy may not be so vital as PW.2 deposed that Madhava Reddy has conducted search of the petitioner but it is the material in this case that the search of the person of the petitioner and find the material object from the possession of the petitioner has to be documented by seizure list (Mediatornama). In this case, there is no such seizure list by the prosecution. Prosecution only placed a material object without any proper document of seizure. Thus, where the seizure was made, the time of seizure, the persons in presence of whom the seizure has been effected, was not proved. Consequently, the prosecution has miserably failed to prove the recovery of the material object from the possession of the petitioner/accused. 12. Learned trial Court as well as the appellate Court has failed to prove the criteria under Section 379 IPC and thereby they cause miscarriage of the justice. Under the observation, I find that the prosecution case has miserably failed to bring home the charges against the petitioner beyond all reasonable doubt. 13. Under the above observation, the order of conviction and sentence passed by the trial Court and modified by the appellate Court, appears to me illegal and the same is hereby set aside. 14. The accused/petitioner is acquitted from this case. The sureties stands in favour of the petitioner are also discharged. 9 15. Consequently, the instant Criminal Revision Case appears to me meritorious and the same is allowed. There shall be no order as to costs. As a sequel, pending miscellaneous applications, if any, shall stand disposed of. ____________________________ JUSTICE SUBHENDU SAMANTA Date: 27.11.2025 SPP 10 THE HON’BLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE No.1560 of 2015 27.11.2025 SPP