The Andhra Pradesh High Court set aside the order of conviction wherein the lower Court had discarded the witness on the sole ground that he had not been summoned by the Court and held that there is no mandate under the Code of Criminal Procedure that a witness has to appear before the Court to give evidence only on receipt of summons and when two views are possible in a Criminal case, which view is favourable to the accused has to be considered.
Brief Facts:
The present petition was filed against the judgments of conviction and sentence passed against the petitioners for the offences punishable under Section 7 (A) r/w 8 (e) of A.P. Prohibition Act, 1995 after they were alleged to have illegally transported arrack sachets across the border of Karnataka.
Contentions of the Petitioner:
The learned counsel for the petitioner submitted that the police failed to produce the contraband before the Court and except for the evidence of the official witnesses, who are interested, nothing is placed on record and further, the evidence of the defence witness has completely been ignored without any proper reason.
Contentions of the Respondent:
The learned counsel for the respondent contended that t there is no hard and fast rule that the evidence of official witnesses cannot be believed and submitted that the evidence of the prosecution witnesses has been corroborated and the sentence imposed was a minimum sentence and thus the petition should be dismissed.
Observations of the Court:
The court stated that this court being a revisional Court cannot substitute its opinion simply because another view is possible and unless there is any blatant mistake or error on the face of the record that may lead to miscarriage of justice, the Revisional Court shall not exercise its diligence over the matter. This Court cannot touch the factual aspects of the matter and reappreciate the evidence on record unless it is specifically warranted in a particular case when it is accepted that the learned Courts failed to exercise the jurisdiction which they are supposed to exercise and erred in exercising their jurisdiction.
Further, it was stated that when two views are possible in a Criminal case, which view is favourable to the accused has to be considered. In the present case, Defense Witness 1 blatantly rejected the case of the prosecution, being the Village Servant working as a Public servant openly stated in the Court that the excise officials obtained his signatures [on blank paper] not only in this case but also in several other cases. There is no mandate under the Code of Criminal Procedure that a witness has to appear before the Court to give evidence only on receipt of summons. The accused has not produced any witness to surprise the prosecution. DW.1 is the own witness of the prosecution, but the prosecution did not choose to examine him.
The Court noted that nothing had been elicited in the cross-examination against the said panchwitness, in order to discredit his evidence and the lower Court had discarded the same on the sole ground that he had not been summoned by the Court, which was not tenable in law.
Further, it was stated that in the present case, there is no force in the argument that based on the evidence of PWs. 1 to 3, conviction cannot be recorded against the accused simply because they are the official witnesses. There is no hard and fast rule to rely upon the evidence of any witness who was deposed before the Court. The test is truthfulness in their evidence.
The decision of the Court:
The court allowed the petition and set aside the order of conviction.
Case Title: Boya Gopal vs and anr. vs State
Coram: Hon’ble Smt. Justice Venkata Jyothiram Pratapa
Case No.: Crl. R.C. No.1224 of 2008
Advocate for the Applicant: Butta Vijaya Bhasker
Advocate for the Respondent: Public Prosecutor
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