Upputholla Yesu Babu & Ors. v. The State of A.P

Counsel for the Respondent: Public Prosecutor The Court made the following: ORDER: The Revision has been preferred under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) against the judgment dated 14.03.2007 in Crl.A.No.547 of 2004 on the file of the learned X Additional District and Sessions Judge (FTC), Guntur, confirming the judgment dated 23.11.2004 in C.C.No.94 of 2004 on the file of the learned I Additional Munsif Magistrate, Gurazala, finding the Revisionists guilty for the offence punishable under Section 380 of the Indian Penal Code, 1860 (for short ‘the 2 Dr.YLR, J Crl.R.C.No.552 of 2007 Dated 06.03.2025 I.P.C’) and sentencing him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/- and, in default, to undergo simple imprisonment for a period of two months.

2. I have heard the arguments of the learned counsel for the Revisionists and the learned Assistant Public Prosecutor.

3. Sri Ismail, learned counsel for the Revisionists submit that the prosecution had not proved the guilt of the Revisionists for the offence under Sections 380, 457 of ‘the I.P.C.,’ inasmuch as there was no eyewitness to the alleged occurrence. P.Ws.5, 6 and 8 are interested witnesses; Ex.P1 had not given any particulars of the articles of gold and silver which was lost in the alleged theft. The alleged confession of A2 is not admissible in evidence. The test identification parade was not conducted by the learned Magistrate with articles of similar nature. Therefore, the conviction under Sections 457 and 380 of ‘the I.P.C.,’ are illegal as there was no evidence about the commission of the theft and requested to allow the revision. Alternately, it is prayed that the Revisionists had already undergone substantive period as remand prisoners or under trial prisoner or convict prisoner. Therefore, the Revisionists may be imposed the sentence which they had already undergone.

4. Per contra, Ms. P. Akila Naidu, learned Assistant Public Prosecutor argued that the prosecution proved the guilt of the Revisionists beyond all reasonable doubt. Even though there was no direct evidence to show that the Revisionists had gained entry into the shop of P.W.1 and committed theft of 3 Dr.YLR, J Crl.R.C.No.552 of 2007 Dated 06.03.2025 the property, the stolen property was recovered from the possession of the Revisionists. Therefore, they are liable for punishment even under Section 411 of ‘the I.P.C’. It is argued that there was no material irregularity and no miscarriage of justice was occasioned and urged to dismiss the revision.

5. Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the Petitioner and the learned Assistant Public Prosecutor. I have perused the record.

6. Now the point for consideration is: judgment in Crl.A.No.547 of 2004 dated “Whether 14.03.2007, passed by the learned X Additional District and Sessions Judge (FTC), Guntur at Narasaraopet, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?”

7. This Court in S. Venkat Reddy v. State of A.P1., held at para No.3 as under: “3. It is settled law that when a conviction is recorded by the Trial Judge and upheld by the first Appellate Court, re-appreciation of the evidence cannot be done unless there is miscarriage of justice.”

8. The Hon’ble Apex Court in State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand2 at para No.21, 22 and 23 held as under: “21. In embarking upon the minutest re-examination of the whole evidence at the revisional stage, the learned Judge of the High Court was totally oblivious of the self-restraint that he was required to exercise in a revision under Section 397 CrPC. On behalf of the accused, reliance is placed on the decision of this Court to which one of us (Justice Sabharwal) is a party i.e. Ram Briksh Singh v. 1 2004 (1) ALD (Crl.) 357 (AP) 2 (2000) 7 SCC 569 4 Dr.YLR, J Crl.R.C.No.552 of 2007 Dated 06.03.2025 Ambika Yadav 3 . Theat was the case in which the High Court interfered in revision because material evidence was overlooked by the courts below.

22. The revisional court is empowered to exercise all the powers conferred on the appellate court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may by, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court” It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.

23. On this aspect, it is sufficient to refer to an rely on the decision of this Court in Duli Chand v. Delhi Admin4 in which it is observed thus: (SCC p.651, para 5) the evidence to reappreciate “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two fact was not subordinate courts and unreasonable or perverse.” finding of

9. Keeping in view of the ratio laid by the Hon’ble Apex Court in Jagmaohan Singh Kuldip Singh Anand, this revision has to be determined without appreciating the evidence as a Second Appellate Court