* THE HONOURABLE SRI JUSTICE B.CHANDRA KUMA + CRIMINAL REVISION CASE No.1772 of 2004 % Dated 15.07.2010 # Angadi Srinivasa Rao S/o.Chennaiah and others …Petitio Vs. $ The State of A.P. rep by Public Prosecutor …Respo ! Counsel for the petitioners: K.Suresh Reddy, Advoca ^ Counsel for the Respondent: Public Prosecutor < Gist : > Head Note: ? Cases Referred: THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1772 of 2004 Dated:- 15th July, 2010 Between:- Angadi Srinivasa Rao and others …Petitioners AND State of A.P. …Respondent THE HON’BLE SRI JUSTICE B.CHANDRA KUMAR CRIMINAL REVISION CASE No.1772 of 2004 ORDER:- This Criminal Revision Case, under Sections 307 and 401 Cr.P.C., is filed by the petitioners challenging the judgment dated 11.10.2004 passed in Crl.A.No.611 of 2001 by the VII Additional Sessions Judge, Guntur, whereby and whereunder, the learned Additional Sessions Judge confirmed the judgment dated 26.11.2001 passed in S.C.No.796 of 1998 by the Principal Assistant Sessions Judge, Guntur. The first petitioner herein (A-2) was found guilty for the offences punishable under Section 25 (1B) (a) of the Arms Act and was sentenced to suffer Rigorous Imprisonment for three years and to pay a fine of Rs.5,000/- in default, to suffer Simple Imprisonment for three months along with A-1. Similarly, the other petitioners i.e. A-3, A-5, A-7 and A-8 respectively were also found guilty for the offences punishable under Section 25 (1B) (a) R/w. Section 35 of the Arms Act and were convicted and sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/- each, in default, to suffer Simple Imprisonment for one month. Challenging the said judgment, this revision has been filed. 2. Originally, there were eight accused persons in total before the trail Court and since A-1, A-4 and A-6 are no more, remaining accused i.e. A-2, A-3, A-5, A-7 and A-8 filed this revision challenging the said judgment. 3. The brief facts of the case are as follows:- A-1 is Secretary of CPI (ML) Praja Panda Party. He was a rowdy-sheeter indulged in various criminal activities. A-2 is son of A-1 who is also a rowdy-sheeter in Nagarapalem Law and Order Police Station. A-6 to A-8 are also rowdy-sheeters. A-2 and A-8 are followers of A-1. There was a rivalry between CPI(ML) Praja Panda Party led by A-1 and CPI group led by one Kummari Koteswara Rao. The prosecution case is that on credible information that some persons were hiding in the house of A-1 with deadly weapons and explosive substances, P.W.1 – A.Ravichandra, the then SDPO, Guntur, raided the house of A-1 bearing door No.26-31-144/A of A.T.Agraharam, 5th Lane, Guntur, along with P.W.2 – Y.Brahmaiah, Circle Inspector of Police, P.W.3 – K.Ramesh Babu, Sub-Inspector of Police, and other police staff on the intervening night of 21st and 22nd June, 1995 at about 01:30 A.M. A-1 was found to be in possession of a Service Revolver with six rounds of cartridges (M.O.1), A-2 was found to be in possession of a country made revolver and five rounds of bullets (M.O.2) and A-3 to A-6 and A-8 were found to be in possession of Thalwar Knives in leather cover (M.O.3), button knife (M.O.4), G.I.Pipe (M.O.5), white plastic tin containing a bomb in cotton (M.O.6) and blue colour plastic tin containing a bomb respectively. They had no licences to carry the material objects at the time of raid. M.O.7 – Country made Revolver, M.O.8 – VIP leather zip bag were also found in the house of A-1. A slip was also found containing the description of A-1 on the side of the said VIP leather zip bag. All the incriminating material were seized under cover of police proceedings. There were no mediators at the time of conducting police proceedings and seizure of incriminating material. P.W.3 – K.Ramesh Babu, Sub- Inspector of Police, registered a case basing on the said police proceedings in Crime No.84 of 1995 under Sections 25 (c) and Section 27 of the Arms Act and Section 5 of the Explosive Substances Act, and issued FIR. P.W.2 took up investigation and made the country made bombs defused and sent the seized revolvers and cartridges to the Forensic Science Laboratory, Hyderabad, and after receiving of Ex.P.3 and Ex.P.4 reports from Forensic Science Laboratory, Hyderabad, and after completing investigation, charge-sheet was filed against all the accused. 4. The case was committed to the Court of Sessions, Guntur, and the learned Sessions Judge framed charges and the case was made over to the Principal Assistant Sessions Judge, Guntur, (for short, ‘trial Court’). The trial Court framed necessary charges for the offences stated supra. 5. The prosecution, in order to prove its case, examined P.Ws.1 to 3, marked Exs.P.1 to P.6 and M.Os.1 to 9. After appreciating oral and documentary evidence, the trial Court found the accused guilty and convicted and sentenced them as stated supra. Challenging the said judgment, the accused carried the matter by way of appeal before the Court of VII Additional Sessions Judge, Guntur, (for short, ‘lower appellate Court’) but the appeal was dismissed. Hence, they preferred this revision petition. 6. Sri Bal Reddy, learned senior counsel appearing for the accused submitted that the whole episode appears to be unnatural. It is submitted that admittedly, on credible information a raid was conducted and when raid was conducted on credible information, nothing prevented P.W.1 to secure presence of mediators. It is also submitted that P.W.1 could have secured some Government Employees such as V.A.O or Revenue officials as mediators and that conducting search of a house by police themselves and showing recoveries under police proceedings cannot be believed. It is also submitted that admittedly, there was no attempt by the accused to flee away from the scene of offence and they never tried to throw away the weapons alleged to be in their possession and these circumstances also show that the whole story is a make-believe story. It is also submitted that no documentary evidence has been adduced to show that the house in which the raid was conducted belongs to A-1. It is also submitted that there is no strict compliance of Section 35 of the Arms Act because unless the accused are aware of the existence of arms and explosives in the said house, knowledge cannot be attributed to the other accused who were found in the house of A-1. 7. Per contra, the learned Additional Public Prosecutor supported the judgments of both the Courts below. His submission is that the raid was conducted at odd hours and at that time, nobody would like to come forward to act as mediators and there is nothing wrong if the weapons are seized under police proceedings and what is to be seen is that whether the evidence of P.Ws.1 to 3 is inspiring confidence or not. It is also submitted that the evidence of police officers are to be treated on par with any other evidence and there is nothing to disbelieve the testimony of P.Ws.1 to 3 and that the Courts below rightly found the accused guilty and accordingly convicted and sentenced them. 8. The only point that arises for consideration in this revision is whether the findings of the Courts below resulted in miscarriage of justice and whether those findings are perverse. 9. P.W.1 – A.Ravichandra was working as Sub Divisional Police Officer, Guntur Town, during the relevant time. According to him, he received information at about 10:00 P.M. that there was a likelihood of quash between CPI(ML) Praja Panda party led by A-1 and CPI party led by one Koteswara Rao. He had also received information that those persons were in possession of deadly weapons and explosives. Then, he left with his staff – P.Ws.2, 3 and others in the intervening night of 21st and 22nd June, 1995 at about 01:30 A.M. to the house of A-1 located at Door No.26-31- 144/A, 5th Line of A.T.Agraharam, Guntur. They found the main gate locked. Then he pushed the calling bell. According to him, A-1 – Angadi Chennayya saw them through the window but did not open the door. Then, according to P.W.1, when he disclosed his identity and purpose of visit, then A-1 opened the gate. Then P.W.1, along with the accompanying police officials went inside the house of A-1 and found the other accused. Then he searched for arms and the incriminating material were seized from the possession of the accused as alleged in the charge-sheet allegations mentioned supra. Then, Ex.P.1 – Search List and Ex.P.2 – police proceedings were prepared by P.W.1. P.W.1 admitted that signatures of other police officials who accompanied him were not obtained in Ex.P.2 – Police Proceedings and that the Search Proceedings were not served on the accused. According to him, the reverse side of Ex.P.1 – Search List was prepared with a carbon paper and the original was not sent to the Court. According to P.W.1, he has made G.D. entry with regard to the credible information received by him on 21.06.1995 at about 10:00 P.M. 10. Admittedly, P.W.1 received credible information at about 10:00 P.M. and he made G.D. entry accordingly. The raid was conducted at about 01:30 A.M. in the intervening night of that day. The distance between the police station and the house of A-1, as seen from the contents of the FIR, is about one and half kilometres. It has to be seen that P.W.1 had received information that the accused were in possession of deadly weapons and arms and as such, he was dealing with a serious case wherein the accused were notorious and they were involved in other cases. In all probabilities, it appears that P.W.1 had sufficient time to secure the presence of independent mediators. It is not his case that he has ordered summons to any independent witnesses and those independent witnesses refused to act as mediators. It is also not his case that he had requested the concerned Revenue Inspector or concerned V.A.O. of the locality or any other officials to act as mediator. When P.W.1 was specifically asked about his efforts to secure presence of mediators, he had categorically deposed that he was not able to give the names of persons whom he tried to secure as mediators. He had also admitted that there was no mention of such efforts in C.D. file. According to him, he had deputed the Sub-Inspector of Police to bring the mediators. Admittedly, the rough sketch of scene of offence was not prepared. It is not clear that whether the house of A-1 is having any other doors from the rear side of the house or not. It appears to be most unnatural that the accused did not try to flee away from the house even after coming to know that police came to raid the house particularly when they were alleged to be in possession of arms without any licence. P.W.1 is unable to say as to how many rooms, doorways and windows are there to the house of A-1. He had admitted that he did not seize any of the documents which would go to show that the house raided by him belongs to A-1. He had also admitted that he did not verify either the revenue or municipal records with regard to the ownership of the house raided by him. 11. P.W.2 – Y.Brahmaiah was working as Inspector of Police at relevant time and who had accompanied P.W.1. In the chief examination, he had also spoken about the raid conducted by them and the seizure of various explosives from the possession of different accused as per the Search List. He had also admitted that he did not sign in Ex.P.2 – Police Proceedings. According to him, about 30 police personnel participated in the raid. He had admitted that it is not mentioned in Ex.P.2 – Police Proceedings that they traced the door number on the wall of the house of A-1. He had also admitted that he did not examine the adjacent house owners. He had also admitted that he does not know the topograph particulars of the house raided by them. 12. P.W.3 – K.Ramesh Babu is Sub-Inspector of Police who accompanied P.W.1. He deposed that he assisted P.W.1 during the raid. He had also admitted that he had not signed in Ex.P.2 – Police Proceedings. According to him, he is unable to say as to from which accused which weapon was seized. According to him, he cannot say who were asked to act as mediators and who refused to act as mediators. According to him, there was no record to show that who were asked to act as mediators. Thus, it is clear that P.W.3 did not whisper that P.W.1 directed him to secure the presence of mediators. 13. Sub-Section 4 of Section 100 Cr.P.C. is as follows:- “Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.” 14. It is not the case of prosecution that the search was conducted in forest area where no other person could be available. Search is conducted in residential locality. Admittedly, the house of A-1 was surrounded by several residential houses. It appears that there was ample time to P.W.1 to secure presence of mediators. 15. Considering the entire evidence on record, the version of the prosecution witness that the accused remained in the house of A-1 with the arms in their possession in spite of observing the arrival of police and did not try to flee away from the house, creates a reasonable suspicion about the prosecution version. It appears to be most unnatural to say that none of the accused even thrown away the arms possessed by them. The Court should examine whether the evidence of prosecution witnesses is probable, natural and whether the events deposed by them occur in natural course of events. Where it appears that the version is unnatural, improbable and against normal human conduct, the Courts have to reject the same. What is to be seen is whether the prosecution is inspiring confidence or not. Therefore, the evidence of P.Ws.1 to 3 appears to be unnatural and it is not safe to convict the accused on the interested testimonies of P.Ws.1 to 3. Thus, it is clear that both the Courts below failed to appreciate the evidence in proper perspective and their findings, which are perverse, are liable to be set aside. 16. Accordingly, the Criminal Revision Case is allowed setting aside the conviction and sentence recorded against the petitioners herein / Accused Nos.2, 3, 5, 7 and 8 by both the Courts below. Fine amount, if any, paid by any or all of the petitioner / petitioners shall be returned to him / them. _______________________________ JUSTICE B.CHANDRA KUMAR July 15, 2010 Bvv Note: - Mark LR copy. (B/o) Bvv