THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.700 OF 2005 DATED 30th SEPTEMBER, 2010. Between : P.Potharaju & another ..Petitioners-A.1 & A.2 and The State of A.P. ..Respondent THE HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.700 OF 2005 ORDER: This Criminal Revision Case under Sections 397 and 401 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) is filed by the petitioners-A.1 and A.2 against the judgment, dated 24.03.2005, rendered in Criminal Appeal No.154 of 2002 by the Sessions Judge, Ongole. Prosecution case is that on 04.05.2001 some unknown offenders committed theft of Kirloskar Oil Engine in Valaparla Village worth Rs.10,000/- belonging to one D.Adam. On receipt of a written report from the complainant, Police registered a case in crime No.30 of 2001. During the course of investigation, Police arrested A.1 and A.2 along with case property and they on interrogation confessed to have committed the offence along with A.3 to A.5. After completion of investigation Police filed charge sheet against A.1 to A.5 for the offence punishable under Section 379 or 411 of Indian Penal Code and the same was taken cognizance by the Additional Judicial Magistrate of First Class, Addanki, in C.C.No.199 of 2001. The learned Magistrate, after perusing the oral and documentary evidence adduced by the Prosecution, acquitted A.3 to A.5 for the offence punishable under Section 379 or 411 IPC. Further A.1 and A.2 were also acquitted for the offence punishable under Section 379 IPC, but however A.1 and A.2 were convicted under Section 248 (2) Cr.P.C. for the offence punishable under Section 411 IPC and were sentenced to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs.500/-, in default to suffer simple imprisonment for two months. As against the said judgment and conviction, petitioners herein preferred Crl.A.No.154 of 2002 wherein the learned Sessions Judge vide impugned judgment convicted A.1 and A.2 for the offence punishable under Section 379 IPC instead of 411 IPC and confirmed the sentence of imprisonment and the fine amount awarded by the trial Court for the offence punishable under Section 379 IPC acquitting the petitioners for the offence punishable under Section 411 IPC. Aggrieved by the same, the present revision is filed. Heard. Learned counsel for the petitioners submitted that the learned Sessions Judge passed an erroneous order by convicting the petitioners for the offence punishable under Section 379 IPC even though there is no appeal preferred against the acquittal order passed by the learned Magistrate. The only point for consideration before this Court is ‘whether the learned Sessions Judge can convict the petitioners for the offence punishable under section 379 IPC for which they were acquitted by the trial Court and the same was not questioned in the appeal?’ Originally the petitioners were acquitted by the trial Court for the offence punishable under Section 379 IPC while convicted for the offence punishable under Section 411 IPC, but reversing the same, the learned Sessions Judge acquitted the petitioners for the offence punishable under Section 411 IPC while convicting them for the offence punishable under Section 379 IPC vide impugned judgment. In view of the well settled proposition of law, in the absence of any challenge against the acquittal order passed by the learned Magistrate for the offence punishable under Section 379 IPC, petitioners cannot be convicted by the learned Sessions Judge for the same. Hence, the present conviction and sentence imposed on the petitioner by the learned Sessions Judge for the offence punishable under Section 379 IPC is liable to be set aside and accordingly set aside. The Criminal Revision Case is, accordingly. ________________________ JUSTICE RAJA ELANGO Dated : 30.09.2010 sur