THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1755 of 2004 Dated:- July 08, 2010 Between: Vudatala Manikyalarao …Petitioner AND The State of A.P. …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1755 of 2004 ORDER: This Criminal Revision Case is directed against the judgment dated 07.10.2004 passed in Crl.A.No.123 of 2003 by the Principal Sessions Judge, West Godavari District at Eluru. 2. The petitioner herein was initially tried by the Additional Judicial Magistrate for the First class, Tadepalligudem, for the offences punishable under Sections 435 and 506 Part II of IPC and the learned Magistrate, by order dated 05.05.2003 in C.C.No.237 of 1999, convicted the petitioner and sentenced him to undergo Rigorous Imprisonment for two years and to pay a fine of Rs.1,000/- in default to undergo Simple Imprisonment for one month for the offence punishable under Section 435 IPC. The petitioner herein was also sentenced to undergo Rigorous Imprisonment for one year for the offence punishable under Section 506 Part II of IPC and both the substantive sentences were ordered to run concurrently. Aggrieved by the same, the petitioner had preferred an appeal before the Principal Sessions Judge, West Godavari District at Eluru, and the learned Judge, by order dated 07.10.2004 in Crl.A.No.123 of 2003, confirmed the conviction for the above said offences, but however, modified and reduced the sentence to six months imprisonment for each of the offence and confirmed the fine imposed by the trial Court. Challenging the same, present Criminal Revision Case is filed. 3. The petitioner herein will be referred to as the accused for the sake of convenience. 4. The brief facts of the case are as follows: On 12.06.1999 at about 05:00 A.M., P.W.1 – D.V.Pandya Katta Brahmanna and one I.Yesubabu started on a tractor bearing registration No.AP 37 U 4131 attached with trailor bearing registration No.AP 37 U 3823 and went to Unguturu Village to get the trailor loaded with hay in the field of one Bhuvana Narayana. They loaded hay in the trailor to some extent and as per the directions of said Bhavana Narayana, they proceeded to the field of one Pedakapu for filling hay through the field of the accused. Meanwhile, the accused came there and alleged that the tractor while passing through his field spoiled his blackgram crop. He had further threatened to set fire to the hay in the trolley and accordingly set fire to the hay. When the neighbouring agriculturists came there, the accused ran away. The loss of the property was estimated at Rs.250/-. Basing on the complaint given by P.W.1, police registered a case in Crime No.49 of 1999 for the offences punishable under Sections 435 and 506 Part II IPC. After completing investigation, charge-sheet was laid against the accused for the offences stated supra. 5. Since the accused pleaded not guilty, the prosecution, in order to prove its case, examined P.Ws.1 to 9 and got marked Exs.P.1 to P.3. On behalf of the accused, none were examined and no exhibits were marked. 6. The main submission of the learned counsel for the petitioner is that the prosecution version is full of inconsistencies and P.Ws.1 to 5 deposed that the accused ran away after the incident whereas P.W.6 stated that the accused was caught red- handed. It is also submitted that only interested witnesses were examined and though independent witnesses were available, they were not examined and placing conviction by the Courts below on such interested witnesses is not proper. It is further submitted that though photographs of scene of offence were taken, no such photographs were placed on record and as such, the very involvement of the accused in this case is doubtful. It is also submitted that there were disputes between the accused and one Yadlapalli Suryarao and in view of those disputes, the accused was falsely implicated in this case at the instance of said Yadlapalli Suryarao. It is further submitted that though the witnesses alleged that the accused had threatened them with a crowbar, no such crowbar was seized from the scene of offence and there is no mention about the crowbar in the FIR. It is also submitted that the accused was convicted for the offences punishable under Sections 435 and 506(2) IPC which amount to double jeopardy. It is also submitted that only for the purpose of claiming insurance amount, the accused was falsely implicated in this case. In support of his contentions, learned counsel relied on the judgment in the case between State of H.P. Vs. Bal Krishan and Another[1] wherein, it was held that “in case where independent witnesses are available and not examined, the culpability of the accused cannot be said to be established.” 7. Per contra, learned Additional Public Prosecutor submitted that the evidence of P.Ws.1 to 6 is cogent and convincing and that there is nothing to disbelieve their evidence. It is also submitted that merely because the crowbar was not seized from the scene of offence, it cannot be said that no offence has been made out. It is also submitted that the contradictory versions printed out by the learned counsel for the petitioner are minor. 8. The only point that arises for consideration in this revision is whether there is any misreading of evidence which resulted in miscarriage of justice. 9. When the Investigating Officers fail to present the case as it is and does not show the correct date and time of arrest of the accused, the prosecution witnesses will not be in a position to depose to the facts as perceived by them and when the version of the witnesses is inconsistent with the prosecution case, the net result would be that the accused will be entitled for benefit of doubt. Therefore, the Investigating Officers must be careful and fair in presenting the case before a Court of law and should present the truthful version only. 10. As seen from the evidence on record, P.W.6 deposed that he is the owner of the tractor bearing registration No.AP 37 U 4131 attached with trailor bearing registration No.AP 37 U 3823. He deposed that he knows P.Ws.1 to 5, said I.Yesubabu, one Krishna Prasad and the accused. According to him, on 12.06.1999, at about 04:30 P.M., they started to Unguturu village and loaded hay into the trailer. His further deposed that after loading the hay into the trailer to some extent, he went for tiffin. He deposed that while he was returning after having tiffin, he was informed that hay and tractor were burnt with fire. According to him, when he reached the scene of offence and asked the coolies regarding the incident, the coolies informed him that the accused had set fire to the hay set fire on the ground that the tractor, while proceeding from his field, spoiled his blackgram crop. P.W.6 also deposed that he sustained loss of Rs.1.00 lakh. He had also deposed that except coolies, none were present at the scene of offence. His specific version is that when he reached the scene of offence, the accused was running away and the coolies caught hold of him. He has also admitted that he had claimed insurance of Rs.1.00 lakh. However, he had denied the suggestion that he got relationship with said Yadlapalli Suryarao and the said Suryarao had disputes with the accused and at the instance of said Yadlapalli Suryarao, this false case is foisted against the accused. 10. P.W.7 – T.Ravi Kumar deposed that though he had taken photos of the burning hay, those photos were spoiled. P.W.8 – Yadlapalli Musalayya is one of the mediators to the observation report and he deposed that he was present when the scene of offence was observed and when Ex.P.2 – Observation Report was prepared. P.W.9 – P.Bharatmathaji is the Investigating Officer. According to him, he registered a case in Crime No.49 of 1999 basing on the complaint given by P.W.1 on 12.06.1999 at about 02:00 P.M. and issued FIR in Ex.P.3. His further deposed that he arrested the accused on 14.06.1999 at 04:00 P.M. According to him, the photos pertaining to the offence, though taken, were spoiled and, therefore, could not be filed along with the charge sheet. Thus, according to P.W.6 – the owner of the tractor and the trailor, the accused was caught red- handed on 12.06.1999 whereas according to P.W.9 – Investigating Officer, the accused was arrested on 14.06.1999. 11. Obviously there appears to be some repugnancy between the versions of P.W.6 and P.W.9. Be that as it is, let us see the version of the other witnesses. P.Ws.1 to 5 deposed that all of them are coolies and that about three and half years back they went to Unguturu village at about 07:00 A.M. for loading hay. They deposed that they loaded hay at some place and went to another place through the pathway of the blackgram field belonging to the accused. According to them, the accused came there and abused them in unparliamentary language and threatened them. According to them, when one of them (P.W.1) told the accused that the owner – cum – driver of the tractor went to take tea and that accused could discuss the matter with the said driver, the accused threatened them with a crowbar and further threatened to set fire to the trailor loaded with hay and accordingly set fire. According to them, then they separated the trailor from the tractor and in the meanwhile, the accused ran away from the scene of offence. 12. Ex.P.1 is the report given by P.W.1 to the police. According to P.W.1, he told the accused that they would pay compensation for the damage caused to his blackgram field. According to P.W.3, while hay was burning, about 25 persons gathered at the scene of offence. As seen from the contents of Ex.P.1 – complaint, it is clear that P.W.1 did not state that the accused threatened them with a crowbar. P.W.6 also did not whisper anything about the crowbar. Admittedly, the Investigating Officer also did not seize any crowbar from the scene of offence. Thus, it appears that threatening P.W.1 and others by the accused with a crowbar is a subsequent improvement and this material fact was not taken into consideration by both the Courts below. Thus, it is clear that no offence under Section 506 Part II IPC has been made out against the accused. 13. Now, let us see whether any offence punishable under Section 435 IPC has been made about against the accused. Admittedly, in Ex.P.1 – complaint, it is not mentioned that the damage to property amounting to one hundred rupees or upwards was caused by the accused. Even in Ex.P.2 – Scene of Observation Report, no specific amount of damage to the property is mentioned. Admittedly, no photographs have been filed. Except the oral evidence of P.W.4 and P.W.6, there is no other evidence to show that the value of burnt hay. Moreover, the version of P.Ws.1 to 5 on material facts is contradictory to the version of P.W.6. According to P.W.6, the accused was caught red-handed at the scene of offence but according to P.Ws.1 to 5, the accused ran away from the scene of offence immediately after the incident. Admittedly 25 persons gathered at the scene of offence. It has to be seen that except coolies who went on the tractor of P.W.6 to load hay, no other independent witness was examined. Non-examining of independent witnesses in certain circumstances assume importance. When the version of the prosecution witness whether the accused had threatened them with crowbar or not and whether the accused was caught red- handed or not is not only inconsistent but contradicting one another, it may be reasonable to give benefit of doubt to the accused. Therefore, it appears that both the Courts below have not taken into consideration all these material discrepancies which appear to have resulted in miscarriage of justice. Particularly when the witnesses lie on the material aspects, i.e., with regard to the date and time of the arrest of the accused and when particularly no other independent witnesses examined though available and only interested witnesses were examined, these material aspects ought to have been considered by the Courts below. In the circumstances, I consider it just and reasonable to set aside the judgments passed by both the Courts below. 14. In the result, the Criminal Revision Case is allowed setting aside the judgments passed by both the Courts below. Consequently, the conviction and sentence recorded against the petitioner are also set aside. _______________________________ JUSTICE B.CHANDRA KUMAR July 08, 2010 Bvv [1] 2007 Crl.L.J. 3239