Swarna v. The State of A.P

The State of A.P., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ...Respondent I.A. NO: 1 OF 2008(CRLRCMP. NO: 2302 OF 2008) Petition Section 397 Cr.P.C praying circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to enlarge the petitioner on bail by suspending the execution of sentence of imprisonment passed in the Judgment dated

14.11.2008 made in Crl.A.No.141 of 2007 on the file of the Court of the XI Additional District & Sessions Judge (FTC), Guntur at Tenali, confirming the Judgment dated 13.04.2007 made in C.C.No.273 of 2006 by the Court of the I Additional Junior Civil Judge, Tenali, pending disposal of the CrI.R.C. Counsel for the Petitioner: Sri CH Ravindra Babu Counsel for the Respondent: Public Prosecutor The Court made the following order: THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE No.1674 of 2008 ORDER: Assailing the Judgment, dated 14.11.2008 in Criminal Appeal No.l41 of 2007 on the file of the Court of learned XI Additional District & Sessions Court (Fast Track Court), Guntur at Tenali, confirming the conviction and sentence passed against petitioner/accused Judgment,

13.04.2007 in C.C.No.273 of 2006 on the file of the Court of learned I Additional Munsif Magistrate at Tenali, for the offence punishable under Section 292 of Indian Penal Code (hereinafter referred to as "IPC"), the petitioner/accused filed the present criminal revision case under Section 397 read with 401 of the Criminal Procedure Code, 1973.

2. The revision case was admitted on 17.11.2008 and the sentence of imprisonment imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No.2302 of 2008.

3. The shorn of necessary facts are that; i). On 04.08.2006, LW9 Sub-Inspector of Police, Tenali III Town Police Station received information about the obscene C.Ds, secured the presence of mediators and his staff and went to a C.D. Point in the name of Imax C.D, which belongs to accused at 8.00 p.m. When the accused was going away, they caught hold the accused and the accused stated that he is doing C.Ds business, giving obscene C.Ds \ for rent, earning money dishonestly and produced 11 obscene C.Ds. 2 LW9 arrested the accused at 8.10 p.m., on recording his confessional statement. In the presence of mediators i.e., LWs 7 to 9, obscene C.Ds were seized on playing the C.Ds., under the cover of a mediators report and registered a case and after completion of investigation filed charge sheet, ii). When charge sheet was filed, the same was numbered as C.C.No.273 of 2006 on the file of the Court of learned I Additional Munsif Magistrate, Tenali and trial was conducted and found the accused guilty of the offence under Section 292 IPC, and accordingly he is sentenced to undergo simple imprisonment for a period of three months and shall also pay a fine of Rs.2,000/- (Rupees Two Thousand Only), in default, to suffer 15 days of SI.

4. Aggrieved by the same, the petitioner/accused preferred an appeal, U70(eCrl.A.No.l41 of 2007 before the Court of learned XI Additional District & Sessions Judge (FTC), Guntur at Tenali, and the same was dismissed, vide judgment, dated 14.11.2008, by confirming the conviction and sentence passed against the appellant/accused by the trail Court.

5. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner/accused.

6. Heard Sri Ch. Ravindra Babu, learned counsel petitioner/accused and Ms. P. Akhila Naidu, learned Special Assistant Public Prosecutor for the respondent-State. / 3

7. Now the point that arises for determination in this revision is "whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the first Appellate Court?"

8. Sri Ch. Ravindra Babu, learned counsel for the petitioner submits that PWl and PW2 themselves did not support the prosecution case and turned hostile. The other witnesses are highly interested witnesses. The Courts below failed to see that PW4 categorically stated that he is not aware of the contents of Ex.P3 and he signed the same at police station itself. The evidence of prosecution witnesses is not corroborating with each other and without considering the same, the courts below convicted the accused. The prosecution further failed to prove the alleged search and seizure of Mos 1 to 11 from the custody of accused. Hence, prays to allow the appeal.

9. Per contra. Miss. P. Akhila Naidu, learned Special Assistant Public Prosecutor for the respondent/state submits that prosecution in and all examined 5 witnesses and got marked Ex.Pl to P4. The material seized clearly established the case against the accused and that the accused is selling and distributing obscene CDS and thereby he is liable for punishment.

10. Point:- In view of the above rival contentions, this Court perused the material available on record. It is the case of the prosecution that the accused is running a C.D. Point in the name of Imax C.D. Point at Tenali and on

04.08.2006, on information about obscene C.Ds secured by him, the police caught him and seized 11 C.Ds in the presence of mediators and that a case was registered against him. \ / 4

11. In the present case, PWs 1 and 2 are neighbouring shop owners, PW3 is a constable, PW4 is mediator and PWS is SI of Police. PWl deposed that police never arrested the accused in his presence and that conducting raid of his shop in his presence is false nor seized any property from the shop by name, Imax C.D which said to belong to the accused. PW2 also deposed in the same lines of PWl and both PWs 1 and 2 who are punch witnesses turned hostile to the case of the prosecution. PWs 3 and 5 are official witnesses and their evidence is highly interested.

12. Coming to the evidence of PW4, it appears that the prosecution to prove seizure mahazar has examined PW4 who deposed that himself other mediator along with police staff proceeded to a shop at Tenali and found the accused in the shop. On seeing them, when the accused concealing the C.Ds, the S,I of Police caught him and he confessed that he brought the said CDs from shop which are 11 in number which contain a blue films. Then, the accused was arrested. During his cross-examination, he stated that he signed on the mediators report at police station and he does not know its contents. So that his evidence cannot support the case of prosecution.

13. On overall consideration of the evidence on record, the punch witnesses itself turned hostile and the prosecution may successfully establish the seizure mahazar, but this court is of the opinion that mere proving the seizure mahazar is not sufficient to connect the accused for the alleged offence against them. The evidence of PW4 is not supported by any independent witnesses and the evidence of PWs 3 and 5 is unsafe to rely. / 5

14. Further, the prosecution has not examined any independent witnesses and has not marked any documents to show that the accused is the owner of the shop where raid was conducted. Therefore, looking from of the considered opinion that the evidence on record is insufficient to conclude that the prosecution has proved its case beyond reasonable doubt. Accordingly, the accused is entitled for the benefit of doubt. any angle, I am

15. In the result, the Criminal Revision Case is allowed. The judgment passed in Criminal Appeal No. 141 of 2007 on the file of the learned XI Additional District & Sessions Judge, (Fast Tract Court), Guntur at Tenali is hereby set aside. Consequently, the petitioner is not found guilty of the offence under Section 292 IPC and accordingly, he Is acquitted under Section 255(1) Cr.P.C, Copy of this order shall be marked to the trial Court concerned as well sessions Court. closed '^'scellaneous applications pending. if any, shall stand //TRUE COPY// Sd/- V. DIWAKAR DEPUTY F^GISTRAR SECTION OFFICER / To,

1. The XI Additional District & Sessions Judge (FTC): Tenali, Guntur District. * 2 The I Additional Junior Civil Judge: Tenali, Guntur District. 3 The Station House Officer, Tenali 111 Town Police Station, Guntur r^. . ■ District.

4. The Superintendent, Guntur District Jail, Guntur District. 5. One CC to Sri CH Ravindra Babu Advocate [OPUC] 6. Two GO'S to The Public Prosecutor, High Court of Andhra Pradesh at Amaravati [OUT] 7. Two CD Copies SAM RAM HIGH COURT DATED:28/01/2025 ORDER CRLRC.No.1674 of 2008 I fl 8 OCT m Current Section m ALLOWING THE CRLRC