THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No.135 of 2005 Date: 25.09.2009 Between: Shaik Abdul Rahiman (alias) Uma. .. Petitioner/Accused And The State of Andhra Pradesh, rep. by its Public prosecutor, High Court Buildings, Hyderabad. .. Respondent/Complainant THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No.135 of 2005 Judgment: This revision is directed against the judgment dated 02.02.2005 in Criminal Appeal No.158 of 2002 passed by the I Additional Sessions Judge, Prakasam Division, Ongole, whereby and whereunder the judgment dated 14.08.2002 in C.C. No.115 of 2000 passed by the Judicial Magistrate of First Class, Kanigiri, convicting the petitioner herein for the offence punishable under Section 8(b) of the A.P. Prohibition Act and sentencing him to undergo R.I for one year six months and to pay a fine of Rs.20,000/-, in default to suffer S.I for one year, has been confirmed. The brief facts of the case are as follows. On 28.08.1995 at about 11.00 AM, PW.2 P. Subba Rao, In-charge Prohibition and Excise Inspector, Kanigiri, PW.5 B. Balaji Prasad, Prohibition and Excise Inspector, District Task Force, Ongole, PW.6 O. Guravaiah, Sub-Inspector of Prohibition and Excise, Kanigiri and PW.7 Sk.B. Khasim, Sub-Inspector of Prohibition and Excise, Kanigiri, accompanied by the mediators PW.1 Noor Basha Khasim, Mandal Revenue Officer, Kandukur and PW3 Revuri Srinivasulu, the then Mandal Revenue Inspector, Kanigiri, raided the house bearing No.8- 200 situated in Andhra Bank street, Kanigiri, belonging to PW.4 Ch. Subbaratnamma, served search proceedings on the accused, searched the house and found 23 card board boxes containing 543 liquor bottles, enquired with the accused and ascertained the name of the supplier, collected the samples from each bottle, sealed and packed the contraband, seized the same under a cover of mediatornama, arrested the accused No.1 and brought him to Excise police station. Then a case in Crime No.222/94-95 of Kanigiri Excise Police Station was registered for the offences punishable under Section 8(b) of the A.P. Prohibition Act, 1995 and under Sections 34(a) and 39 of the A.P. Excise Act, and the samples were sent to the Chemical Examiner, who sent a report confirming that the samples were Indian Liquor. After completion of investigation, charge sheet was filed against A1 to A3 for the offences punishable under Section 8(b) of the A.P. Prohibition Act, 1995 and under Sections 34(a) and 39 of the A.P. Excise Act alleging that A1 was in possession of contraband and A2 and A3 supplied the contraband to A1. The prosecution, in order to prove its case, examined PWs.1 to 7 and got marked Exs.P1 to P6 and MOs.1 to 4. The accused denied the incriminating evidence appearing against them when they were examined under Section 313 Cr.P.C, but however, did not adduce any evidence in their defence. The learned Magistrate found A-1 guilty for the offence punishable under Section 8(b) of the A.P. Prohibition Act and accordingly convicted and sentenced him as stated supra. A2 and A3 were found not guilty and they were acquitted. The accused No.1 preferred an appeal, but as he was unsuccessful, he preferred this revision. The accused No.1 shall be referred as accused hereinafter. Sri D. Purnachandra Reddy, learned counsel for the petitioner/accused, argued that PW.4 owner of the house categorically deposed that she does not know the accused and in the absence of any evidence connecting the accused with the house from which the contraband was seized the finding of both the Courts below that the accused was in possession of the contraband cannot be sustained. It is also his submission that no respectable local inhabitants have been taken as mediators and only interested witnesses have been examined. It is also his submission that out of six samples collected, only four samples were deposited and it is not known as to what happened to the remaining two samples. It is also his submission that PW.3 did not speak about the presence of the accused and PW.1 did not identify the accused and that there are material contradictions in the evidence of prosecution witnesses as to from which place the contraband was seized i.e., whether from first room or from the hall, and in view of these contradictions the accused is entitled to acquittal. The learned Public Prosecutor has supported the judgments of the Courts below. The only point that arises for consideration is Whether the appreciation of evidence by the Courts below resulted in miscarriage of justice? It is settled law that the revisional Court cannot re-appreciate the evidence. However, where a finding has been recorded contra to the evidence on record or not based on evidence, the same amounts to a perverse finding. Such finding has to be set aside and where in a case the appreciation of evidence resulted in perverse finding and totally incorrect finding, then the revisional Court must interfere for avoiding miscarriage of justice. No doubt, the prosecution case cannot be thrown out merely because there are some contradictions or omissions or some doubts here and there. However, where in a case the very link itself is missing and where there is no proper evidence connecting the accused with the crime, the Courts have to be careful in appreciating the evidence. In the light of the above settled legal principle, let us examine the evidence on record in this case. As far as the independent witnesses are concerned, no doubt PW.1 is the Mandal Revenue Officer, Kandukur and PW.3 is a Mandal Revenue Inspector of Kanigiri. It cannot be said that they are not the respectable witnesses. Merely because the witnesses are officials and holding some post their evidence cannot be discarded on that ground. The evidence of official witnesses has to be appreciated on par with any other witness. It has to be carefully scrutinized and reasonable conclusions have to be drawn. Section 104 Cr.P.C envisages that independent and respectable inhabitants of the locality should be taken as mediators at the time of search. According to PW.1, he was working as Mandal Revenue Officer, Kandukur. On 28.08.1995 he accompanied the Excise Officials on their request and proceeded to the house of Abdul Rahiman, situated at Andhra Bank road and searched the house and found 543 liquor bottles of various quantities. He says that the excise officials have taken the samples, seized the contraband under a cover of panchanama Ex.P1. Copy of search proceedings served on the accused is Ex.P2. As far as identity of the accused is concerned, PW.1 did not specifically say that the accused facing the trial is the same Abdul Rahiman. What he deposed is that since Abdul Rahiman was present in the house, he felt that the house belongs to him or that he was a tenant of that house. He admitted that he did not have any record to say that the house belongs to Abdul Rahiman. According to him, there are two or three rooms in the said house and that the card board boxes were found in the first room at the western wall under a cot. He says that search proceedings were concluded at about 3.00 PM. PW.3 is another mediator. According to him, he accompanied the excise officials on their request and they went to a house situated in Andhra Bank road. According to him, between the first portion and the rear portion of the house there is a small vacant place like pancha and in that space there were some card board boxes and that the excise officials seized the same. According to him, several persons gathered there and that himself and PW.1 have signed in the panchanama. However, he says that he did not remember when and where he signed in the search proceedings and whether any person was arrested at that time or not. Thus, PW.3 did not whisper neither presence of the accused nor his name. PW.2 is the Prohibition and Excise Sub-Inspector, Kanigiri during relevant period. According to him, on 28.08.1995 at about 11.00 AM, he along with other excise officials and PWs.1 and 3 proceeded to the back side house of PW.4 i.e., to the house of Abdul Rahiman and that the said Abdul Rahiman was present in his house by that time. He further deposed that after serving search proceedings on the accused, they searched the house and found the contraband near the western side wall under a cot. According to him, six samples were collected and identity slips were affixed and the contraband was seized under a cover of panchanama and the accused along with property was brought to the Excise police station. He says that he registered a case and sent the sample bottles to the Chemical Examiner under Ex.P4 requisition along with letter of advice and Ex.P5 is the report of the Chemical Examiner. According to PW.2, the house belongs to PW.4 and it has only one portion. He admitted that the house consists of one room and that the mediators report was drafted in the pancha of the house at the entrance of the room. The prosecution case is that the accused was a tenant in the house of PW.4 at door No.8-200 (HSC No.4582) and that the accused and his wife were present in their house and that the contraband was found near western side wall of the first room under a cot. Admittedly, there is no documentary evidence to show that the accused was residing in the rear side portion of house No.8-200. The prosecution examined PW.4 the owner of the house. However, PW.4 did not support the case of the prosecution. She was not cross- examined by the prosecution. Admittedly the accused was present in the Court dock when PW.4 was examined. She categorically deposed that she does not know the accused. According to her, her house number is 8-200 and there are two portions in the ground floor and there is an up-stair in the building and the first floor and the rear side of the same building were let out to Health Department people and that she does not know the name of the tenant who stayed in the rear side portion of the house in the month of August 1995. Since PW.4 the owner of the house has categorically stated that she does not know A1 the important link is missing in this case. Admittedly, the signature of PW.4 has not been obtained in Ex.P1 mediators report or in Ex.P2 search proceedings. PW.2 who is the Investigating Officer has admitted that he did not record the statement of PW.4 in support of the prosecution version that the accused was residing as tenant in her house. According to him, he did not seize any document with regard to ownership of the house from PW.4. Now, we have to see whether the prosecution version is consistent with regard to actual place from where the contraband was seized. According to PW.1, the card board boxes were in the first room at the western wall. According to PW.2, the house of Abdul Rahiman consists of one room and the mediators report was drafted at the entrance of the room. According to PW.3, the contraband was seized from a small vacant place like pancha, which is in between the first portion and the rear portion of the house. According to PW.5 they drafted the proceedings in the varandah of the rear side of the house. According to PW.6, he does not remember the door number of the house and also boundaries of the house and as to how many portions are there in the said house. He says that he did not enter into the said house. According to him, Ex.P1 was scribed outside the house. According to PW.7 he cannot say as to how many rooms and portions are there in the said house. Thus, the prosecution version is not consistent with regard to place from which the contraband was seized. Another peculiar circumstance in this case is that, PW.1, PW.2 and PW.4 have referred the name of the accused as Abdul Rahiman, but they were not specifically asked to identify whether the accused in the dock is the same Abdul Rahiman or not. PW.3 even did not refer the name of the accused. Admittedly, six samples were seized, but only four samples have been sent to the Court. PW.2 admitted that he does not know as to what happened to the remaining two samples. According to PW.2, nobody gathered at the place of seizure, but the other witnesses have stated that several persons gathered at the place of seizure. The prosecution version is not consistent with regard to number of rooms occupied by the accused and the place from where the contraband was seized. It has to be seen that even the boundaries of the scene of offence are not mentioned in the mediators report. In view of the above discussion, it is clear that in the absence of any clear evidence connecting the accused to the place from where the contraband was seized, the prosecution version cannot be believed. It is clear that the trial Court as well as the lower appellate Court have failed to appreciate the evidence in proper perspective and reached to wrong conclusions. In view of the same, the revision is allowed and the impugned judgments of both the Court below are set aside. Consequently, the conviction and sentence passed against the petitioner/accused stands set aside and he is acquitted of the charge under Section 8(b) of the A.P. Prohibition Act. His bail bonds stand cancelled. The fine amount, if any, paid shall be returned to him. ____________________ B. CHANDRA KUMAR, J. Date: 25.09.2009 Nsr