Andhra Pradesh High Court - Amravati
Vemu Rama Rao Kothanna Prasad, vs State Of A.P., Rep By Pp., on 10 September, 2024
APHC010479122007
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3367]
(Special Original Jurisdiction)
TUESDAY ,THE TENTH DAY OF SEPTEMBER
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
I.A.NO.1 OF 2024 IN/AND
CRIMINAL REVISION CASE No.456 of 2007
Between:
Vemu Rama Rao @ Kothanna @ Prasad, ...PETITIONER
AND
State Of A P Rep By Pp ...RESPONDENT
Counsel for the Petitioner:
POSANI AKASH
Counsel for the Respondent:
PUBLIC PROSECUTOR
The Court made the following:
COMMON ORDER:
Assailing the judgment dated 23.03.2007 in Crl.A.No.233
of 2003 on the file of the Court of learned X Additional Sessions
Judge, Guntur at Narasaraopet, confirming the conviction and
sentence passed against the accused by the judgment dated
22.05.2003 in S.C.No.904 of 2000 on the file of the Court of
learned Principal Assistant Sessions Judge at Narasaraopet, for
the charge under section 5 of Explosive Substance Act, 1908
(hereinafter referred to as "E.S. Act"), the petitioner/accused
filed the present criminal revision case under Section 397
r/w.401 of the Criminal Procedure Code, 1973.
2. The revision case was admitted on 02.04.2007 and the
sentence of imprisonment imposed against the petitioner was
suspended, vide orders in Crl.R.C.M.P.No.659 of 2007.
3. The shorn of prosecution case is that:
i). On credible information that accused, who is District
Committee Secretary, is coming to Bellamkonda, on
02.12.1999, P.W.3 along with P.W.2 and other staff
reached Kondamodu Junction, on seeing the police
party, accused tried to rush into the bushes. On that,
P.W.3 caught hold him, then accused revealed his
identity as well confessed that he joined and worked in
different fronts like RSU, RYL, Youth league etc. and
later he was appointed as Central Organizer and he is
responsible in murder of intelligence S.I. Immaniel at
Vijayawada, Maganti Subbaramireddy, M.P. of Ongole
and SK.Masthanvali, Constable of Guntur District. Due
to ill-health, he was undergoing treatment at Hyderabad.
ii). On verification, P.W.3 found three gelatin sticks,
three detonators and a book-let having title "Peoples
War", a pocket dairy, small slip showing the address of
Guravaiah, two small chits regarding criticism on
Dalams, a letter of A.Salmon Raj and a letter to DC
written by Saralakka. Then, P.W.3 seized all the material
under the cover of police proceedings at 12 noon on
02.12.1999 and for having high explosive and literature
of banned organizations, arrested the accused.
4. After completion of investigation, P.W.3 laid final report
for the offences under Sections 120(B), 123 of Indian Penal Code
and Section 5 of E.S. Act and Section 8(1) of Andhra Pradesh
Public Security Act, 1992 and the same was numbered as
P.R.C.No.17 of 2000 on the file of the Court of learned
Additional Judicial Magistrate of First Class at Sattenapalli and
committed to the Court of Sessions and numbered as
S.C.No.904 of 2000 on the file of the Court of Principal
Assistant Sessions Judge at Narasaraopet, after full-fledged
trial, found the accused guilty of the charge under Section 5 of
E.S. Act, sentenced him to undergo simple imprisonment of
three (3) years and to pay fine of Rs.500/-, in default to suffer
simple imprisonment of three (3) month. However, he was found
not guilty of the charges under Section 120-B(1) and 123 of
Indian Penal Code and Section 8(1) of Andhra Pradesh Public
Security Act, 1992.
5. Aggrieved by the same, the petitioner/accused preferred
an appeal, vide Crl.A.No.233 of 2003, before the Court of
learned X Additional Sessions Judge, Guntur at Narasaraopet
and the same was dismissed, vide judgment dated 23.03.2007,
by confirming the conviction and sentence passed by the trial
Court against the petitioner.
6. Against the said judgment of the first Appellate Court, the
present criminal revision case was preferred by the
petitioner/accused.
7. Pending the present criminal revision, petitioner filed an
application, vide I.A.No.1 of 2024 along with documents four in
number, prays the Court to receive the said documents as
additional evidence.
8. Heard Sri Posani Venkateswarlu, learned Senior Counsel
appearing on behalf of Sri Posani Akash, learned counsel for the
petitioner/accused and Sri S.Dheera Kanishk, learned Special
Assistant Public Prosecutor for the respondent-State.
9. Firstly, this Court would like to decide whether this Court
can allow the petitioner to submit the additional documentary
evidence at the stage of revision.
10. In this context, Sri Posani Venkateswarlu, learned Senior
Counsel appearing on behalf of Sri Posani Akash, learned
counsel for the petitioner/accused submits that the petitioner,
in fact, was taken in to custody by police on 30.11.1999 at
Hyderabad, placed him in illegal detention for two (2) days and
then brought to Sattenapali on 02.12.1999 and produced before
the Court of law, as if he was arrested on the said date itself;
that the wife of the petitioner filed a writ petition under Hebeas
Corpus before the erstwhile High Court of Andhra Pradesh at
Hyderabad on 01.12.1999 itself vide W.P.No.24891 of 1999 and
in the said writ petition a counter affidavit was filed by P.W.3,
who is none other than the investigating officer in the present
crime, stating that he was arrested on 02.12.1999 only at
Kondamodu Junction; the Court below failed to appreciate the
said fact in the absence of relevant material on record, thereby,
the said documents i.e., certified copy of affidavit in
W.P.No.24891 of 1999, certified copy of counter affidavit in the
said writ petitioner, certified copy order in the said writ petition
as well remand report in Cr.No.95 of 1999, are required to be
considered by this Court to appreciate the material facts of the
case and to prevent the miscarriage of justice. In support of the
above contentions, he relied upon judgments of Allahabad High
Court in Vinod Kumar v. Mohrawati1 as well Vishram Singh
v. State of U.P.2
11. Per contra, Sri S.Dheera Kanishk, learned Special
Assistant Public Prosecutor for the respondent-State by filing
counter vehemently submits that the scope and ambit of
revision is very minimal, as such, the receipt of additional
documentary evidence at this stage is very much unwarranted
and it would eventually change the factual contents of
prosecution case; that the petitioner failed to availed the
opportunity of submitting those documents before the Courts
below, thereby, this Court cannot permit him to file the same at
this stage to fill the lacunas in his defence. In support of his
contention, he placed reliance on the various pronouncements
of Hon'ble Supreme Court in Mary Pappa Jebamani v.
Ganesan3, Satyajit Banerjee v. State of West Bengal4,
M/s.White Hill Dry Cleaners v. D.D.A.5, Zahira Habibulla
H.Sheikh v. State of Gujarat6 and Nasib Singh v. State of
Punjab7
1 1990 SCC OnLine All 737
2 2018 AHC 207996
3 (2014) 14 SCC 477
4 (2005) 1 SCC 115
5 Crl.Rev.Pt.No.168 of 1984, decided on 18.03.1986
6 (2004) 5 SCC 158
7 (2022) 2 SCC 89
12. In view of the above rival contentions, this Court would
like to refer the settled legal position that the High Court has
every power to receive the additional evidence even at the
revisional stage as governed by Section 405 of the Code of Civil
Procedure to prevent the miscarriage of justice, however, it
should be stratified some conditions that i).the evidence is
relevant and material; ii).that the evidence is not cumulative or
repetitive and iii).that the evidence would have made a
significant difference in the outcome of the case.
13. Now, this Court has to verify that the documents sought
to be received as additional evidence would satisfy the above
conditions or not. Even as per the prosecution version the
petitioner was arrested on 02.12.1999 at Kondamodu Junction
and produced him before the Judicial Magistrate of Fist Class at
Sattennapalli on the same day. But, as per the defence taken by
the petitioner, it is not in dispute that, the wife of the petitioner
has filed a writ petition of Habeas Corpus vide W.P.No.24891 of
1999 on 01.12.1999 itself by contending that the police illegally
detained the petitioner on 30.11.1999 at Hyderabad and that as
per the document No.3, in the said writ petition a counter
affidavit was filed by P.W.3, who is none other than the
investigating officer and sole crucial witness to the prosecution,
stating that the petitioner was arrested on 02.12.1999 at the
limits of Sattenapalli Police Station, seized some explosive
material from his position and he was remanded to judicial
custody. If that is so, it has to be answered by the prosecution
that when the petitioner was arrested on 02.12.1999 at the
limits of Sattennapalli police Station and seized explosive
material, how the wife of petitioner filed habeas corpus petition
on 01.12.1999 before the High Court stating that the petitioner
was illegally detained by police at Hyderabad. It is not known,
how she anticipated the arrest of the petitioner even two days
prior to the date of his arrest that too at the limits of
Sattenapalli Police Station. Furthermore, the said writ petition
was dismissed by the erstwhile High Court of Andhra Pradesh
at Hyderabad basing on the counter affidavit filed by P.W.3.
Thereby, it is clear in vivid terms that the documents, which are
sought to be received by this Court, have some bearing about
the factual aspect of arrest of accused and seized
material(explosive substance) on 02.12.1999 at the place as
stated by the prosecution; they are relevant and give significant
chance in the outcome of the case.
14. It is apposite to refer some categorical observations made
by the Hon'ble Supreme Court, which are very much relevant to
the present facts of the case, even relied upon by the learned
Assistant Public Prosecutor, in While Hill Dry Cleaners case
(referred to supra), at paragraph No.10 and 11 as follows:
"10. The application is, however, opposed by the
learned counsel for the respondent who has
vigorously urged that no additional evidence can be
permitted in revisional proceedings. However, this
contention flies in the face of the specific provisions
contained in the Code in this regard. Sub-section (1)
of section 401 of the code which defines High Courts
power of revision, explicitly provides that the High
Court may in its discretion exercise any of the powers
conferred on a Court of Appellate Court, if it thinks
additional evidence to be necessary, shall record its
reasons and may either take such evidence itself, or
direct it to be taken by a Magistrate, or when the
Appellate Court is a High Court, by a Court of Session
or a Magistrate. It cannot, therefore, be doubted for a
moment that the High Court can while exercising its
revisional power permit additional evidence provided
it thinks it to be necessary. Obviously, the object of
this section is to see that justice is done between the
prosecutor and the person prosecuted. However, the
discretion which vests in the court has to be exercised
judicially and not arbitrarily only when the interests
of justice demand such a course. In Rajeswar Prasad
Misra v. The state of West Bengal and another, AIR
1965 SC 1887(4), the Supreme Court observed:
"Additional evidence may be necessary for a
variety of reasons which it is hardly necessary
(even if it was possible) to list here............It may,
however, be said that additional evidence must
be necessary not because there would be failure
of justice without it. The power must be
exercised sparingly and only in suitable cases.
Once such action is justified, there is no
restriction on the kind of evidence which may be
received. It may be formal or substantial."
11. Obviously, the additional evidence sought to be
tendered by the petitioner at this stage is very vital to
his defence. It is not just a question of filling up the
gaps or lacunae. Refusal to receive the documents
mentioned above is bound to result in miscarriage of
justice, and the court cannot shut its eves to this
glaring aspect of the matter. Hence, I am of
considered view that the documents mentioned above
be received in evidence, as they are of the type that no
formal proof is even necessary. Indeed, they are in
consonance with the plea raised by the petitioner at
the earliest available opportunity i.e., in reply to the
show-cause notice served on them by the respondent.
Once that is done there is no escape from the
conclusion that the commercial user of the premises
in question had commenced much before the coming
into force of the Zonal Development Plan. Since the
respondent has not so far made any regulations the
petitioner cannot be deprived of taking advantage of
the provision to Section 14......" (emphasis supplied)
[
15. In view of the above settled legal position, as discussed
supra, refusal to receive the said documents, which have
bearing in the factual aspect of the matter, at this stage is
bound to result in miscarriage of justice and the Court cannot
shout its eyes to this glaring aspect of the matter. Thereby, the
application under I.A.No.1 of 2024 is ordered.
16. At this juncture, by taking into consideration of said
documents filed along with I.A.No.1 of 2024, it is to be verified
that "whether there is any manifest error of law or flagrant
miscarriage of justice in the findings recorded by the Trial Court
as well first Appellate Court?"
17. As stated supra, the accused was found guilty of the
charge under Section 5 of E.S.Act, basing on the testimonies of
P.Ws.1 and 3, who are S.I. Police and investigating officer, the
trial Court as well first Appellate Court gave categorical findings
that the accused found in possession of explosive substance on
02.12.1999 and the defence taken by the accused from the
beginning is that he was detained on 30.11.1999 itself at
Hyderabad by the police and foisted the case against him was
rejected in the absence of material on record.
18. This Court when perused the testimony of P.W.1, Ex.P.2
police proceedings the so called apprehension of the
petitioner/accused at Kodumudi Junction at 12 noon on
02.12.1999. While P.W.1 was in the witness box, he
categorically admitted that Kodumudi Junction is a three road
junction, passengers are waiting at Kodumudi Junction to go to
different places by buses. He further admitted that coffee hotels
and bunks were located at Kodumudi Junction. P.W.3
investigating officer, who also admitted during cross
examination that Kodumudi Junction is a three road junction,
coffee hotels as well bunks are situated at the said junction.
Some people gathered at a distance when they came to the
junction. When specific question was put to P.W.3 for trying to
secure independent mediators, he did not state anything.
19. Before the trial Court a specific question was put to
P.Ws.1 and 3 that writ petition bearing No.24891 of 1999 on the
file of High Court of A.P. regarding the arrest said to be done on
30.11.1999 at Hyderabad. As stated supra, on perusal of
affidavit filed in the writ petition as well counter affidavit filed by
P.W.3 himself in the said writ petition categorically shows that
the wife of the petitioner filed the said writ petition on
01.12.1999 itself stating that the petitioner was illegally
detained by police on 30.11.1999 at Hyderabad.
20. Thereby, it is crystal clear, there is some clandestine in
the prosecution version regarding date of apprehension of
petitioner and seized material(explosive substance), which cuts
root of the prosecution version. If that is so, the alleged seizure
of explosive substance made by P.W.3 from the possession of
petitioner on 02.12.1999 cannot be believed. As discussed
supra, it is not explained by the prosecution, if the petitioner
was apprehended on 30.11.1999 at Hyderabad, how the police
seized the explosive substance from the possession of petitioner
at Sattenapalli police station limits on 02.12.1999 and if really
he was found in possession of such material on 02.12.1999 at
Kondamodu Junction, how the wife of the petitioner anticipated
such arrest even on 01.12.1999 and filed the said Habeas
Corpus petition before High Court. Thereby, the above facts go
to show the glaring error in the prosecution version even the
apprehension of the petitioner on the date alleged, which
vitiates the entire prosecution case. No corroborating testimony
is placed on record by the prosecution before the Courts below
or before this Court to make believe that the testimonies of
P.Ws.1 and 3 can be relied upon.
21. This Court specifically observed that P.Ws.1 and 3 did not
secure independent mediators at relevant point of time i.e., on
02.12.1999 and that no explanation is forthcoming for not
securing any independent mediators and that prosecution did
not explain why they could not secure independent mediators to
comply the provisions of Section 100(4) Cr.P.C., when so called
arrest and seizure explosive substance from the
petitioner/accused on the very brought day light that too at 12
noon and the testimony of P.Ws.1 and 3 clinchingly established
that there was possibility of securing independent mediators at
the place of alleged apprehension and without securing
independent mediators, preparing police proceedings creates
any amount of doubt over the prosecution version. It is settled
that, if there is infirmity or doubt in the investigation done by
P.W.3, this Court can come to the conclusion that the
prosecution failed to prove the guilt of the accused beyond all
reasonable doubts.
22. Having regard to the above discussion, this Court is of the
considered opinion that the prosecution utterly failed to prove
charge leveled against the petitioner, thereby, the conviction
and sentence rendered by the trial Court as confirmed by the
first Appellate Court cannot be sustained in the eye of law,
which is nothing but miscarriage of justice. As such, the present
criminal revision case has merits to consider.
23. In the result, the Criminal Revision Case is allowed. The
conviction and sentence imposed against the
petitioner/accused, vide judgment dated 22.05.2003 in
S.C.No.904 of 2000 on the file of the Court of learned Principal
Assistant Sessions Judge at Narasaraopet, confirmed by the
judgment dated 23.03.2007 in Crl.A.No.233 of 2003 on the file
of the Court of learned X Additional Sessions Judge, Guntur at
Narasaraopet, are hereby set aside. The revision
petitioner/accused is acquitted of the charge under Section 5 of
E.S.Act. The fine amount paid by the accused, if any, shall be
refunded to him.
Interim orders granted earlier if any, stand vacated.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_______________________
JUSTICE V.SRINIVAS
Date: 10.09.2024
Krs
THE HON'BLE SRI JUSTICE V.SRINIVAS
I.A.NO.1 OF 2024 IN/AND
CRIMINAL REVISION CASE No.456 of 2007
(COMMON ORDER)
DATE: 10.09.2024
Krs
