IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY FOURTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1510 of 2002 Between: Shaik Masthan, S/o. Mowla Saheb, Aged 50 years, R/o. Nujendla, Guntur District Petitioner / Accused No.2 AND The State of A.P., rep by Public Prosecutor, High Court of A.P., Hyderabad …Respondent The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1510 of 2002 JUDGMENT: 1. This Criminal Revision Case by the petitioner – A2, under Sections 397 and 401 of Code of Criminal Procedure, 1973 (‘Cr.P.C.’, for brevity), is directed against the judgment, dated 04.10.2002 in Criminal Appeal No.426 of 1999 on the file of the Court of the III Additional Sessions Judge, Guntur. 2. The brief facts that are necessary for the disposal of the prosecution case may be stated as follows. Accused No.1 (A-1) was working as Agricultural Officer on sale point, Macherla, for the period from 11.09.1978 to 19.06.1979 and again from 18.08.1979 to 23.04.1982. Thereafter, he was suspended. Accused No.2 (A-2) - the present petitioner, who worked as Agricultural Extension Sub Assistant in Thumurukota village from 1978 to 1980, was transferred to Macherla Sale Point as Sub-Assistant on 01.08.1980. It is the further case of the prosecution that A-2, while working at Thumurukota Village in Macherla Mandal, colluded with A-1 and manipulated the records such as cash book, bill books, fertilizers stock registers, seed stock registers, vouchers etc., pertaining to sale point, Macherla. In pursuance of the letter given by P.W.5, P.W.1 proceeded to the godown at Macherla and seized the godown and records at the sale point in the presence of P.W.29 and others. On 11.04.1982, P.W.5 checked the seals put by P.W.1 and found them to be intact. He directed A-1 to handover the charge of the post of Agricultural Officer, Sale Point, Macherla to P.W.3, failing which, the stocks will be taken into possession. But A-1 did not handover the same. Therefore, in the presence of P.W.6 and P.W.7, P.W.1 checked the inventory of the stocks and found that paddy husk bags were concealed beneath the top row and behind the first row of fertilizers bags and thereby, they committed a loss to the Government to a tune of Rs.45,000/-. The police conducted investigation and filed the charge sheet. 3. When the charges under Sections 409, 120-B, 468, 465, 471, 201 and 420 of I.P.C. were framed, read over and explained to the accused, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.W.s 1 to 38 and marked Exs.P.1 to P.131. No evidence, either oral or documentary was adduced on behalf of the accused. 5. The trial Court, placing reliance on the evidence of P.W.15 coupled with the evidence of P.W.1, found the petitioner guilty and accordingly, convicted and sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.2,000/- each, in default, to undergo Rigorous Imprisonment for six months of the charge under Section 409 of I.P.C., to undergo Rigorous Imprisonment for a period of two years and to pay fine of Rs.1,000/- each and in default, to undergo Rigorous Imprisonment for six months of the charge under Section 120(b) of I.P.C., to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.1,000/- each, in default, to undergo Rigorous Imprisonment for six months of the charge under Section 420 of the I.P.C., and to undergo Rigorous Imprisonment for a period of one year each of the charges under Sections 465, 468 and 471 of the I.P.C., and to undergo Rigorous Imprisonment for a period of one year of the charge under Section 201 of I.P.C. On appeal, the said convictions and sentences were confirmed by the Appellate Court. Challenging the same, present criminal revision case is filed. 6. Now the point for consideration is whether the prosecution proved its case against the accused beyond all reasonable doubt of the offences with which they were charged. 7. Learned counsel for the appellant contended that except the evidence of P.W.5, there is no other evidence that the finding that was given by the appellate Court that handwriting of the petitioner was found in the registers as well as in the bills and thereby, A-2 caused deficit to the fertilizer stocks is illegal, that the evidence of P.W.15 is in the nature of accomplice and it cannot be acted upon, without there being any further corroboration with the material particulars and therefore, he prays to set aside the impugned judgment. He also relied upon the judgments, which will be referred to at appropriate time. 8. On the other hand, learned counsel representing the learned Public Prosecutor contended that the categorical findings of the two Courts below need not be interfered with, as there is no illegal or incorrect finding, that the evidence of accomplice need not be corroborated with all material particulars, but some material particulars, if substantiated with the evidence of accomplice, the same can be accepted and therefore, there are no grounds to interfere with the same. 9. During the pendency of the revision petition, A-1 - the Agricultural Officer died. Insofar as A-2 is concerned, the entire case rests upon the evidence of P.W.15 and the recitals in Ex.P.31, which is the statement recorded in question and answer form by P.W.1. From the evidence on record, it can be said that the evidence of P.W.15 is in the nature of accomplice. Because P.W.15 stated that in the empty gunny bags, A-2, Kutumba Rao and himself used to put husk and arrange them in the godown at relevant places. Therefore, he was partis pis in criminis. Under Section 114(b) of the Indian Evidence Act, 1872 (‘the Act’, for brevity), which reads that the Court may presume that an accomplice is untrustworthy of credit, unless he is corroborated with the material particulars. Section 114(b) of the Act cannot be read in isolation. It is to be necessarily read along with Section 133 of the Act, which reads that an accomplice shall be a competent witness against the accused person; and a conviction is not illegal merely because it proceeds upon the uncorroboratory testimony of an accomplice. 10. Insofar as the contents in the Ex.P.1 are concerned, which was admittedly given by the present petitioner (A-2) to P.W.1, those contents in Ex.P.31 do not incriminate anything against the accused. On the other hand, it reads as if the answers in the statement given by the accused exculpating himself from the offence. Therefore, no part of Ex.P.31 amounts to extra judicial confession. The entire prosecution case rests upon the evidence of P.W.15, who was in-charge of the godown. His evidence would go to show that he, along with the petitioner and some others, placed husk bags in the place of the manure bags in the godown. Therefore, his evidence requires corroboration, in view of the following decisions relied upon by the counsel for the petitioner. In Francis Stanly alias Stalin v. Intelligence Officer, Narcotic Control Bureau, Thiruvananthapuram[1], it was held as follows. We make it clear that we are not of the opinion that the evidence of the accomplice can never be relied upon, since such evidence is admissible under Section 133 of the Evidence Act. However, Section 133 has to be read with along with Section 114(b) of the Evidence Act, and reading them together the law is well settled that the rule of prudence requires that the evidence of an accomplice should ordinarily be corroborated by some other evidence vide Suresh Chandra Bahri vs. State of Bihar (AIR 1994 SC 2420). In Ramprasad v. State of Maharashtra[2], it is held as follows. While dealing with the appeals concerning A.1 – Gopal Maharaj and A.4 – Ram Prasad Yadao we are to point out that their conviction depends entirely on the testimony of P.W.2 – Anil Chaudhary. The Division Bench of the High Court placed full reliance on his evidence. Though there is no legal hurdle against acting on the testimony of an accomplice, it is well-nigh settled that it would be imprudent to base a conviction on such testimony unless it is corroborated in material particulars. Hence P.W.2’s evidence has to pass the test of realibility and must secure adequate corroboration before the same can be acted upon. In so far as A.1 – Gopal Maharaj and A.4 – Ram Prasad Yadao are concerned. In Kanan and others v State of Kerala[3], it was held as follows. Apart from this P.W.s17 and 18 named Plyachi as being the person in this meeting where it was decided to raid the police station. From the evidence of these witnesses, it appears that they were also co-conspirators. In the circumstances, the evidence of these witnesses was that of an accomplice and could not be accepted without further corroboration. From the above decisions, it is clear that there is no legal bar for placing reliance on the evidence of accomplice. But to pass a conviction, the rule of prudence requires that the evidence of accomplice should be corroborated, though not in all material particulars, but with some material particulars. There is no other evidence on record, which would go to show that the godown in question, from where the husk bags were replaced in the place of fertilizer bags, was under the control of the petitioner. Even according to the case of the prosecution, the godown was exclusively under the control of A-1 – the Assistant Agricultural Officer. There is no other evidence that at the instance of the petitioner, fertilizer bags were replaced with the husk. All the witnesses i.e. P.W.16 to P.W.24, P.W.36, P.W.33 to P.W.35 do not support the case of the prosecution. Therefore, the accomplice evidence is not corroborated with the same material particulars, so as to draw an inference that he participated in the commission of offence along with A-1 and committed the offence. Therefore, this aspect of the case has not been considered by both the courts below and came to a wrong conclusion. 12. The question of law that arises for consideration with regard to evidence of accomplice has not been considered in the right perspective by both the Courts below. Hence, the findings are illegal and are not based upon the evidence. A finding can be said to be perverse, if it is not based upon any admissible evidence on record. It is a case where the findings of the trial Court as well as the appellate Court can be said to be perverse and has not been based upon the admissible evidence. Hence, the conviction and sentence are liable to be set aside. 13. For the reasons stated herein above, the convictions and sentences passed in C.C.No.55 of 1990 by the learned VII Additional Judicial First Class Magistrate, Guntur dated 17.08.1999, which were confirmed in Crl.A.Nos.420 and 426 of 1999 by the learned III Additional Sessions Judge, Guntur against the petitioner, are set aside. The petitioner/A-2 is found not guilty of the charges leveled against him and he is acquitted of the said charges. The bail bonds of the petitioner/A-2 shall stand cancelled. The fine amount, if any, paid by the petitioner/accused shall be refunded to him. 14. The Criminal Revision Case is accordingly, allowed. ________________ JUSTICE K.C.BHANU November 24, 2009 BVV [1] 2007 Crl. L. J. 1157 (Supreme Court) [2] AIR 1999 Supreme Court 1969 [3] AIR 1979 Supreme Court 1127