IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE EIGHTEENTH DAY OF SEPTEMBER TWO THOUSAND AND NINE PRESENT THE HON'BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.18 OF 2005 Between: Mopidevi Venkata Ramana ..... PETITIONER AND The State Rep.by its Public Prossecutor, High Court of A.P., Hyderabad. ....RESPONDENT The Court delivered the following : J U D G M E N T: This Criminal Revision is directed against the Judgment, dated 07.01.2005 in Criminal Appeal No.531 of 2002, passed by the VII Additional District and Sessions Judge, Guntur, whereby and whereunder the learned Sessions Judge confirmed the conviction and sentence passed against the petitioner / A2 by the learned II Additional Judicial First Class Magistrate, Repalle, Guntur District, dated 21.12.2002 in C.C.No.240 of 1997 for the offence punishable under Section 411 of the Indian Penal Code ( for short ‘I.P.C.’) and to under go rigorous imprisonment for two years and to pay fine of Rs.1500/- in default to suffer simple imprisonment for three months. 2. The Revision petitioner will be referred as accused No.2 for the sake of convenience. 3. The prosecution case, in brief, is that: Pw-1 G.Ravi Babu, is a resident of Isukapalli Village of Repalle Mandal and he is working as an L.I.C. agent. On 15.09.1997 he went to his office on his Hero Honda Motor Cycle bearing No. AHH/38 at about 10.00 A.M. and parked his Hero Honda Motor Cycle infront of the L.I.C. Office. At about 10.45 a.m. when he came out of his office he noticed that his motor cycle was missing. Then he went to police station, Repalle and presented report Ex.P1. Basing on the said report, D.Venkateswarlu, who was working as Sub- Inspector of Police of Repalle police station registered a case in Crime No.131 of 1997 for the offence under Section 379 of I.P.C., and issued Ex.P2 First Information Report. Then he examined PW.1 and recorded his statement and visited the scene of offence. The further case of the prosecution is that on 15/16-09-1997 at about 4.00 a.m. while PWs.2 to 5 were on route watch duty near Akkileru bridge they found A-1 to A-3 coming on a Hero Honda Motor Cycle and on suspicion they stopped the accused. The accused tried to run away. However, they were detained and A-1 made a confessional statement and then the confessional statements of A-2 and A-3 were also recorded and they made similar confessional statements as made by A-1. As there were no mediators, the Hero Honda Motor Cycle was seized under the cover of police proceedings. Though charge sheet was filed against A-1 to A-3, the case against A-3 was separated. 4. Since A-1 and A-2 pleaded not guilty, the prosecution, in order to prove their case, examined PWs 1 to 5 and got marked Exs.P.1 to P.3 and Hero Honda Motor Cycle was marked as M.O.1. 5. The learned II Additional Judicial Magistrate of First Class, Repalle, on appreciation of oral and documentary evidence, believed the prosecution case and convicted A1 and A2 for the offence punishable under Section 411 of I.P.C., and they were sentenced to under go rigorous imprisonment for two years and to pay fine of Rs.1500/-, in default simple imprisonment for three months. 6. Against the said Judgment, A-2 preferred an appeal in Criminal Appeal No.531 of 2002 and the learned VII Additional Sessions Judge, Guntur, dismissed the said appeal as stated supra. 7. Aggrieved by the same the second accused preferred this revision. 8. The learned counsel for the petitioner/A2 submitted that admittedly there are no mediators at the time of recording the confessional statements of the accused and seizure of the property from the possession of the accused. It is also submitted that recording of joint confessional statement and seizing the property from the joint possession of the accused is contrary to Section 25 of the Indian Evidence Act. It is also submitted that admittedly only police officials were examined as witnesses and they had not made any efforts to secure the mediators. 9. The learned Public Prosecutor supported the Judgments of both the Courts below and submitted that the seizure was at about 4.00 a.m. and there was no possibility of securing mediators at that time, and therefore, the evidence of prosecution witnesses can be accepted. 10. The point that arises for consideration is whether the conviction and sentenced passed against A2 is sustainable? 11. Pw-1 is the owner of Hero Honda Motor Cycle. According to him, on 15.09.1997 at about 10.00 a.m., he parked the motor cycle infront of L.I.C. office and went inside the office. His further case is that when he returned, he found that his motor cycle was missing. Then, he went to police station and lodged report Ex.P1. According to him, on the very next day, he saw his motor cycle in the police station. M.O.1 is the motor cycle. Ex.A-1 is the report given by Pw-1. The evidence of Pw-1 and contents of Ex.P-1 proves that the motor cycle of Pw-1 was missing and that he lodged a report in the police station at about 2.00 p.m. on the same day. 12. The main question that arises for consideration is whether the evidence of Pws-2 to 5 can be safely accepted for convicting accused No.2. Pws.2 and 3 were working as constables at Repalle police station. Pw-4 is the Head constable, Pw-5 is the Sub-Inspector of police. According to Pws-2 to 4 they accompanied Pw-5 during night rounds. Their specific case is that when they were proceeding towards Akkileru bridge, Repalle, at about 4.00 a.m., they found A-1 to A-3 coming on Hero Honda Motor Cycle, then they detained A-1 to A-3. On interrogation the accused confessed about the commission of the offence. According to Pw-2 they tried for mediators, but none were available. Their further case is that they arrested the accused and seized the motor cycle under the cover of police proceedings Ex.P-3. 13. According to Pw-2, they went towards Akkileru bridge in a private jeep. He says that he does not remember the name of the driver of the jeep. According to Pw-3 he accompanied Pw-5 and when they reached Akkileru bridge they found the accused coming on Hero Honda Motor Cycle and they stopped the accused and they were brought to police station. According to Pw-4, he accompanied Pw-5 at about 3.30 or 4.00 a.m. and when they reached near the bridge, they found A-1 and A-2 and some other person coming on Hero Honda Motor Cycle and they stopped them and arrested the accused and seized the motor cycle. According to Pw-5, when he along with Pws-2 to 4 reached Akkileru bridge they found the accused and on suspicion he tried to stop the vehicle and the accused tried to run away and they detained them and A-1 revealed the crime details. Then he arrested A-1 to A- 3 and seized M.O.1 under the cover of police proceedings. According to Pw-5 Isukapalli is at a distance of ¾ km and Guddikyalanka is at about 1 km from Akkileru bridge. Except Pw-5, it is not the case of other witnesses that the accused tried to run away. 14. Admittedly, Guddikyalanka was at a distance of 1 km and Isukapalli was at a distance of ¾ km. Moreover the seizure was on the main road. According to Pw-5 he did not try to secure mediators. Pw-4 also admitted that they did not try to secure the mediators from the nearby villages. According to Pw-2 they tried to secure mediators, but none were available. Admittedly, they went in a private jeep. Nothing prevented them to request the driver of the jeep to act as mediator. It is not their case that they intercepted any vehicle and asked the inmates of that vehicle to act as mediators. Of course, it was odd hours of early morning 4.00 a.m. Usually, it will be difficult time to secure mediators. However, Pws-4 and 5 admitted that they have not tried to secure mediators. Had they made any efforts and did not secure mediators that would have been a different case, but when they admit that they have not made efforts to secure mediators, it appears that the police officials have not complied with the required conditions. Every effort has to be made to secure the locally respectful mediators. Admittedly, Section 25 of the Indian Evidence Act envisages that no confession made to the police officer shall be proved as against a person accused of any offence. Therefore, the confession said to have been made by the accused becomes inadmissible under Section 25 of the Indian Evidence Act. In a situation like this, where the police have caught the accused red handedly with the stolen property their evidence to the extent of seizure can be believed, if their evidence inspire the confidence. Admittedly the signatures of Pws-2 to 4 are not found in the seizure proceedings. There is no explanation as to why Pw-5 has not obtained the signatures of Pws-2 to 4 in seizure proceedings. Even the driver of the jeep was not cited as a witness or was asked to act as mediator. Therefore, the presence of Pws-2 to 4 at the time of seizure becomes doubtful. There remains the evidence of Pw-5. Pw-5 is the Sub-Inspector of police. Now it has to be seen whether his version is inspiring the confidence. The prosecution case is that on 15.09.1997 the property was stolen at about 10.30 a.m. According to Pw-5, Pw-1 gave report at about 2.00 p.m. on 15.09.1997. The prosecution case is that at about 4.00 a.m. on 16.09.1997 they sezized the stolen property from the accused near Akkileru bridge under Ex-P3 police proceedings. As seen from the endorsement of the Magistrate on First Information Report the learned Magistrate received First Information Report on 16.09.1997 at 12.25 p.m. that means Ex.P1 was not forwarded to the Magistrate on 15.09.1997 immediately after registration of the case. There is no explanation from the police as to why Ex-P1 was not forwarded to the Magistrate immediately. It is also clear from the record that Ex.P1 report, Ex.P2 the First Information Report and Ex.P3 police proceedings were forwarded to the Magistrate along with the remand report. There is another lacuna in this case. Admittedly, the petitioner herein is A-2. Even according to the prosecution case Pw-5 recorded the confessional statement of A-1 and then A-2 and A-3. When the confessional statement of A-1 is already recorded and all the facts are known to the police and when the property was already before them, the question of recording the confessional statement of A-2 and A-3 does not serve any purpose, because nothing remains to be seized from them. There is another lacuna in this case. As seen from the contents of Ex.P1 report there is a correction at the place of date, beneath the endorsement of Pw-5. It appear that at the first instance he had put the date as 16.09.1997 and subsequently corrected the same as 15.09.1997. There is another correction even in the charge sheet i.e., the date of commission of offence is corrected as 15.09.1997. If at all, Ex.P1 was presented on 15.09.1997 at 2.00 p.m. there was no need to correct the date on it from 16.09.1997 to 15.09.1997. 15. All these circumstances create reasonable doubt about the prosecution case. Since Pws-4 and 5 admitted that they have not made efforts to secure mediators and they have not even taken the driver of the jeep as mediator it is not safe to rely on the evidence of prosecution witnesses who are all police personnel. The trial court and the learned Sessions Judge have not considered the above important points and appreciation of the evidence seems to have resulted in miscarriage of justice. 16. In view of the above discussion, the Judgments of both the Courts below are set aside and consequently the conviction and sentence recorded against the petitioner/A2 is set aside. 17. The Criminal Revision Case is allowed accordingly. ________________________ B.CHANDRA KUMAR, J September 18, 2009. YVL