CRIMINAL APPEAL 1674 of 2008 on 14 November 2008

ORDER:

Assailing the Judgment, dated 14.11.2008 in Criminal Appeal No.l41of 2007 on the file of the Court of learned XI Additional District & SessionsCourt (Fast Track Court), Guntur at Tenali, confirming[the]conviction andsentencepassedagainstthepetitioner/accusedbyJudgment,dated13.04.2007inC.C.No.273of 2006 on thefileof the Court of learnedIAdditionalMunsif Magistrateat Tenali,for the offence punishable underSection 292 of IndianPenal Code (hereinafter referred to as "IPC"), thepetitioner/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 ofimprisonment imposed against the petitioner was suspended,vide ordersinCrl.R.C.M.P.No.2302 of 2008.imprisonment imposed against the petitioner was suspended,vide ordersinCrl.R.C.M.P.No.2302 of 2008.

3. The shorn of necessary facts are that;

i). On04.08.2006, LW9 Sub-Inspector of Police, TenaliIII TownPolice Station received information about the obscene C.Ds, securedthe 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. Whenthe 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.]

LW9 arrested the accused at 8.10 p.m., on recording[his] confessionalstatement.In the presenceof mediatorsi.e., LWs 7to9,theobscene C.Ds were seized on playing the C.Ds., under the cover of amediators report and registered a case and after completionofinvestigation filed charge sheet,

ii). When charge sheet wasfiled, the same was numberedasC.C.No.273 of 2006 on the file of the Court of learnedI AdditionalMunsif Magistrate, Tenali andtrial was conducted andfoundtheaccused guilty of the offence under Section 292 IPC, and accordinglyheis sentenced to undergo simple imprisonment foraperiod ofthree months and shall also pay a fine of Rs.2,000/- (Rupees TwoThousand Only), in default, to suffer 15 days of SI.

4.

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,videjudgment, dated14.11.2008, by confirming the conviction andsentencepassed against the appellant/accused by the trail Court.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,videjudgment, dated14.11.2008, by confirming the conviction andsentencepassed against the appellant/accused by the trail Court.

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

6. HeardSriCh.RavindraBabu,learnedcounselforthepetitioner/accused and Ms.P. Akhila Naidu, learned Special Assistant PublicProsecutor for the respondent-State.

7. Now the point that arises for determination in this[revision][ is][ "whether]thereis any manifest error of law or flagrant miscarriage of justicein thefindings recorded by the first Appellate Court?"thereis any manifest error of law or flagrant miscarriage of justicein thefindings 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 arehighlyinterestedwitnesses. TheCourtsbelow failed to see that PW4 categorically stated that[he][ is][ not][ aware][ of][ the]contentsof Ex.P3 and hesignedthe sameatpolicestationitself. Theevidence 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.PWl and PW2 themselves did not support the prosecution[case][ and][ turned]hostile. The other witnesses arehighlyinterestedwitnesses. TheCourtsbelow failed to see that PW4 categorically stated that[he][ is][ not][ aware][ of][ the]contentsof Ex.P3 and hesignedthe sameatpolicestationitself. Theevidence 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. AkhilaNaidu,learnedSpecialAssistantPublicProsecutor for therespondent/state submitsthat prosecutioninandallexamined5 witnesses and got marked Ex.Pl to P4. Thematerialseizedclearly established the case against the accused and[that][ the][ accused]isselling and distributing obscene CDS and thereby he is liable for punishment.Prosecutor for therespondent/state submitsthat prosecutioninandallexamined5 witnesses and got marked Ex.Pl to P4. Thematerialseizedclearly established the case against the accused and[that][ the][ accused]isselling and distributing obscene CDS and thereby he is liable for punishment.

10. Point:-In view of the above rival contentions, this Court perused thematerial available on record. It is the case of the prosecution that the accusedis running a C.D.Point in the name of Imax C.D.Point[at Tenali]and on04.08.2006, on information about obscene C.Ds secured by him, the policecaught him and seized 11 C.Ds in the presence of mediators[and][ that][ a][ case]was registered against him.material available on record. It is the case of the prosecution that the accusedis running a C.D.Point in the name of Imax C.D.Point[at Tenali]and on04.08.2006, on information about obscene C.Ds secured by him, the policecaught him and seized 11 C.Ds in the presence of mediators[and][ that][ a][ case]was registered against him.

11. In the present case, PWs 1 and 2 are neighbouring shop owners, PW3is a constable, PW4 is mediator and PWSis SI of Police. PWl deposed thatpolice never arrested the accusedin his presence and that conducting raid ofhis shop in his presenceis false nor seized any property from the shop byname, Imax C.D which said to belong to the accused. PW2 also deposed inthe same lines of PWl and both PWs 1 and2 who are punch witnessesturnedhostile to the case of the are neighbouring shop owners, PW3is a constable, PW4 is mediator and PWSis SI of Police. PWl deposed thatpolice never arrested the accusedin his presence and that conducting raid ofhis shop in his presenceis false nor seized any property from the shop byname, Imax C.D which said to belong to the accused. PW2 also deposed inthe same lines of PWl and both PWs 1 and2 who are punch witnessesturnedhostile to the case of the prosecution. PWs 3 and5 areofficialwitnesses and their evidence is highly interested.witnesses and their evidence is highly interested.

12. Coming to the evidence of PW4, it appears that the prosecution toprove seizure mahazar has examined PW4 who deposed that himselfandother mediator along with police staff proceeded to a shop at Tenali andfound the accusedin the shop. On seeing them, when the accusedwasconcealing the C.Ds, the S,I of Police caught him and he confessedthat hebrought the said CDs from shop which are 11 in number which contain ablue films. Then, the accused was arrested. During his cross-examination, hestated that he signed on the mediators report at police station and he doesnot knowits contents. So that his evidencecannot support the caseofprosecution.prove seizure mahazar has examined PW4 who deposed that himselfandother mediator along with police staff proceeded to a shop at Tenali andfound the accusedin the shop. On seeing them, when the accusedwasconcealing the C.Ds, the S,I of Police caught him and he confessedthat hebrought the said CDs from shop which are 11 in number which contain ablue films. Then, the accused was arrested. During his cross-examination, hestated that he signed on the mediators report at police station and he doesnot knowits contents. So that his evidencecannot support the caseofprosecution.

13. Onoverallconsiderationof theevidenceonrecord,thepunchwitnesses itself turned hostile and the prosecution may successfully establishthe seizure mahazar, but this court is of the opinion that mere proving theseizure mahazaris not sufficient to connect the accused for the allegedoffence against them. The evidence of PW4is not supportedby anyindependent witnesses and the evidence of PWs 3 and 5 is unsafe to rely.onrecord,thepunchwitnesses itself turned hostile and the prosecution may successfully establishthe seizure mahazar, but this court is of the opinion that mere proving theseizure mahazaris not sufficient to connect the accused for the allegedoffence against them. The evidence of PW4is not supportedby anyindependent witnesses and the evidence of PWs 3 and 5 is unsafe to rely.

14. Further, the prosecution has not examined any independent witnessesand has not marked any documents to show that theaccused is the owner ofthe shop where raid was conducted. Therefore, looking[from]any angle, I amof the considered opinion that the evidenceonrecordisinsufficient toconclude that the prosecution has proved its case beyond reasonable doubt.Accordingly, the accused is entitled for the benefit of doubt. any independent witnessesand has not marked any documents to show that theaccused is the owner ofthe shop where raid was conducted. Therefore, looking[from]any angle, I amof the considered opinion that the evidenceonrecordisinsufficient toconclude that the prosecution has proved its case beyond reasonable doubt.Accordingly, the accused is entitled for the benefit of doubt.

15. In the result, the Criminal Revision Caseis allowed. The judgmentpassedin Criminal Appeal No. 141 of 2007on thefile of the learned XIAdditional District & Sessions Judge, (Fast TractCourt), Guntur at Tenali ishereby set aside. Consequently, the petitioner is not found guilty of theoffence under Section 292 IPC and accordingly, he Is acquitted under Section255(1) Cr.P.C,is allowed. The judgmentpassedin Criminal Appeal No. 141 of 2007on thefile of the learned XIAdditional District & Sessions Judge, (Fast TractCourt), Guntur at Tenali ishereby set aside. Consequently, the petitioner is not found guilty of theoffence under Section 292 IPC and accordingly, he Is acquitted under Section255(1) Cr.P.C, Copy of this order shall be marked to the trial Court concerned as well sessions Court.

'^'scellaneous applications pending.if any, shall stand closed Sd/- V. DIWAKAR

DEPUTY F^GISTRAR//TRUE COPY//SECTION OFFICER

To,

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

/

HIGH COURT

DATED:28/01/2025

ORDERCRLRC.No.1674 of 2008

ALLOWING THE CRLRC

mIfl 8 OCT mCurrent Section