IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE EIGHTH DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1314 OF 2003 Between: Pinjala Parandhamaiah ..... Petitioner/Accused AND The State, Rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. ..... Respondent/Complainant The Court made the following: ORDER: The Criminal Revision Case, under Sections 397 & 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 27.08.2003, in Crl.A.No.13 of 2001, on the file of the learned II Additional Sessions Judge, Nellore, whereunder and whereby the conviction of the accused for the offence punishable under Section 411 of the Indian Penal Code, 1860 (for short, “I.P.C.”), and sentence of Rigorous Imprisonment for a period of two years and to pay a fine of Rs.5,000/-, in default to suffer Simple Imprisonment for a period of three months as imposed in the judgment, dated 30.11.2000, in C.C.No.227 of 1996, on the file of the learned Judicial Magistrate of I Class, Venkatagiri, were confirmed. 2. The brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: P.W.1-V. Balakrishna Reddy, who was working as a Deputy Tahasildar, Enforcement, Venkatagiri, parked his Hero Honda motorcycle bearing No.ATN 7775 at the parking area in the Venkatagiri Railway Station on 09.07.1996. After attending to his duties, P.W.1 returned to the Venkatagiri Railway Station on 11.07.1996 and found missing of the Hero Honda motorcycle. Then immediately, P.W.1 lodged a complaint with the Venkatagiri police. The police registered a case in Crime No.93 of 996 under Section 379 I.P.C. and took up further investigation. During the course of investigation, the police seized the motorcycle of P.W.1 on 21.07.1996 at 3.00 p.m. by apprehending the accused near Vallivedu Cross Roads while the accused was coming on the said motor cycle which was involved in this case in the presence of P.W.6, the Village Administrative Officer of Chelikampadu. After completion of investigation, the police filed the charge sheet. 3. When a charge under Section 379 I.P.C. or alternatively under Section 411 I.P.C. was framed, read over and explained to the accused in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charge, the prosecution examined P.Ws.1 to 7 and got marked Exs.P1 to P7 besides case property M.O.1. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, D.Ws.1 to 3 were examined and Exs.D1 to D6 were marked. 6. The trial Court, after placing reliance on the evidence of P.Ws.1, 6 and 7, found the accused guilty of the offence punishable under Section 411 I.P.C. and accordingly, convicted and sentenced him as stated above. On appeal, the said conviction and sentence were confirmed. Challenging the same, the present Criminal Revision Case is filed. 7. Now the point for determination is whether the judgments of the two Courts below are correct, legal and proper? 8. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be incorrect, or illegal, or improper, ordinarily this Court will not interfere with the concurrent findings of the two Courts below. Therefore, the scope of revisional jurisdiction is very limited. To know whether the findings are based upon proper appreciation of evidence on record or not, it is necessary to refer to the evidence of P.Ws.1, 6 and 7. 9. The evidence of P.W.1 would clearly go to show that he parked his Hero Honda motorcycle bearing No.ATN 7775 in the parking area of the Venkatagiri Railway Station on 09.07.1996. After attending to his duties, he returned to the Venkatagiri Railway Station on 11.07.1996 and found missing of the Hero Honda motorcycle. Therefore, he lodged a complaint on 11.07.1996. In view of the fact that the theft was committed not in his presence, he has not named any person as the person who committed the theft of motorcycle. 10. The evidence of P.Ws.6 and 7 would go to show that at about 3.00 p.m. on 21.7.1996, the Hero Honda motorcycle was seized from the possession of the accused by apprehending the accused near Vallivedu Cross Roads while the accused was coming on the said motor cycle. The trial Court placed reliance on the evidence of these two witnesses. Their evidence is very clear that the Hero Honda motorcycle was seized from accused under a cover of Ex.P6-Seizure Panchanama. There is absolutely no reason for these two witnesses to speak false against the accused saying that while the accused was driving the Hero Honda motorcycle, he was caught hold of. 11. It is not in dispute that P.W.1 is the owner of the Hero Honda motorcycle bearing No.ATN 7775. Admittedly, the accused is not the owner of the Hero Honda motorcycle bearing No.ATN 7775. A suggestion was put to P.Ws.6 and 7 that there were disputes between P.W.1 and the accused with regard to release of essential commodities and therefore, a false case is foisted against the accused. P.W.1 has not named the accused as the person who committed the theft of Hero Honda motorcycle. There is no reason for P.W.1 to implicate the accused falsely by foisting a case of this nature that the accused committed theft of motorcycle. Therefore, P.W.1 is the witness of truth and he has not implicated the accused falsely. Similarly, P.Ws.6 and 7 has no grouse or enmity against the accused so as to implicate him falsely saying that the accused was found in possession of Hero Honda motorcycle. Once the possession of Hero Honda motorcycle, which is a stolen vehicle, is established, the presumption under Section 114 (a) of the Indian Evidence Act, 1872, would attract which reads as follows: “The Court may presume- (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” So, from the above provision, it is clear that if the presumption is drawn, the accused is either a thief or receiver of stolen property. To rebut the presumption, the accused examined himself as D.W.1 and got marked Exs.D1 to D6-Registers and also examined D.Ws.2 and 3 who stated that at the relevant point of time of incident, the accused was selling oil and sugar to them. 12. Practically, the evidence of P.Ws.6 and 7 remained unchallenged. Except giving some suggestions, nothing has been elicited. It is not even suggested to P.Ws.6 and 7 that the accused was selling the essential commodities to the card holders at about 3.00 p.m. on 21.07.1996. When the accused pleaded alibi, it is for him to prove and establish the same. It is not even suggested to P.Ws.6 and 7 that the accused was not caught red handed by the police at 3.00 p.m. on 21.07.1996. Therefore, there is no other reason to doubt the testimony of P.Ws.6 and 7. In the absence of any plea that the accused was selling the essential commodities as testified by D.Ws.2 and 3, it can be said that it is an after thought and cannot be given much credence. Perhaps, that is the reason why the trial Court rightly has not placed any reliance on the evidence of D.Ws.2 and 3. Therefore, the burden placed on the accused has not been discharged by preponderance of probability. None of the findings is shown to be incorrect or illegal. Hence, there are no grounds to interfere with the conviction recorded by the trial Court for the offence punishable under Section 411 I.P.C. 13. With regard to the sentence, 13 years have been elapsed from the date of commission of offence. As a matter of fact, the accused is not a habitual offender. He was maintaining a fair price shop for the last 12 years without any remark. He is having three children and wife who completely depend upon him. Considering these aspects, the lower Court ought to have applied the provisions of the Probation of Offenders Act after calling for the report in view of the fact that he said to be the first offender. No reason is given by the trial Court for not invoking the provisions of beneficial piece of legislation i.e., Probation of Offenders Act. Therefore, a lenient view can be taken with regard to the sentence. 14. In the result, the conviction recorded by the learned Judicial Magistrate of I Class, Venkatagiri, in C.C.No.227 of 1996, dated 30.11.2000, against the petitioner/accused of the offence punishable under Section 411 I.P.C. as confirmed by the Appellate Court is confirmed, but the sentence of Rigorous Imprisonment for a period of two years is set aside while maintaining the fine amount with default sentence. 15. With the above modification, the Criminal Revision Case is dismissed. _______________ (K.C. BHANU, J) Date: 8th December, 2009 KL