Telangana High Court

Narne Ranga Rao, vs The State Of Telangana on 25 February, 2025

         THE HON'BLE SRI JUSTICE E.V.VENUGOPAL

        CRIMINAL REVISION CASE No.463 OF 2024

ORDER:

1 This criminal revision case is filed under Section 397 r/w 401

Cr.P.C challenging the Order dated 28.02.2024 passed in

Crl.M.P.No.11 of 2024 in C.C.No.834 of 2006 on the file of the

Court of the Judicial Magistrate of First Class, Bhongir, wherein

and whereby the petition filed under Section 243 (2) Cr.P.C. by the

complainant was allowed.

2 Heard Sri B.Raveendra Babu, learned counsel for the

petitioners, the learned Assistant Public Prosecutor representing

the State-1st respondent and Sri MAK Mukheed, learned counsel

appearing for the de facto complainant and perused the record.

3 The factual matrix that led to the filing of the present

revision is that PW.1 - Thota Balwanth Rao lodged a report stating

that he is the absolute owner and possessor of the agricultural

land in Sy.No.492 and Sy.No.296 admeasuring an extent of Ac.20-

35 guntas situated at Bibinagar village and mandal. He came to

know that one Narne Ranga Rao / A.1 of Narne Estates was

attending to alienate his lands to third parties. After verifying the

facts, he came to know that the accused created forged / fake

GPA in the name of P.W.1 and tried to register his lands with the

help of that forged GPA. In that connection a case in Cr.No.65 of

2005 was registered for the offences punishable under Sections

463, 468, 471 and 420 r/w Section 511 IPC and after completion

of investigation, police filed charge sheet against A.1 to A.3.

During the course of trial, the de facto complainant was examined

as P.W.1 and certain documents were marked through him. The

accused filed a suit for specific performance, vide O.S.No.8 of

2005. A copy of the judgment in the said suit was also filed in the

present proceedings before the trial Court. However, pendente lite,

P.W.1 died on 06.5.2021 as such his son Thota Venkateswara

(L.W.2) Prasad was made as party both in the civil suit as well as

in the criminal proceedings.

4 While so, the prosecution filed petition under Section 243 (2)

Cr.P.C praying the Court to receive 1) certified copy of the

deposition of Narne Ranga Rao / A.1 herein in O.S.No.8 of 2005

and 2) certified copy of letter addressed to Sub-Registrar, Bhongir

requesting not to register the land to third parties. The contention

of the prosecution was that the above two documents are very

much relevant to decide the present case and no prejudice would

be caused to the accused if the said documents are taken on

record and marked through L.W.2 Thota Venkateswara Prasad.

5 Opposing the said petition, A.1 filed counter which was

adopted by A.2 whereas A.3 reported no counter. The contention

of the respondent Nos.1 and 2 is that the petition was signed by

the learned Assistant Public Prosecutor, whereas the cause title

read that it was filed by the complainant who is no more now and

passed away on 06.5.2021. It is further contended that the two

proposed certified copies disclose that they were obtained on

05.8.2008 by P.W.1 when he was very much alive who deposed

before the Court on 15.12.2014, earlier there were four documents

marked as Exs.P.2 to P.5 through P.W.1 and against such orders

the accused A.1 and A.2 preferred Crl.R.C.No.2511 of 2014. It

was further contended that the certified copy of the judgment in

O.S.No.8 of 2005 was filed and marked through P.W.1 as Ex.P.5

against which judgment, the A.1 preferred A.S.No.776 of 2009. It

was further contended that the evidence of a party recorded in

civil suit cannot be treated as a document and cannot be utilized

as a document in criminal trial.

6 Basing on the above pleadings and upon hearing the learned

counsel for both parties, the learned trial Court allowed the

petition by order dated 28.02.2024. Hence the present criminal

revision case.

7 The learned counsel for the petitioner submitted that though

the certified copies of the documents were available with P.W.1 as

long back as 05.8.2008 he did not choose to file them when he

was examined on 15.12.2014 and no reasons were given for not

filing the said documents earlier. He further submitted that in

view of Section 33 of the Indian Evidence Act, statement of a

person in a judicial proceeding cannot be used as evidence in the

same judicial proceeding or in a different judicial proceeding in the

absence of any one of the circumstances mentioned in the said

Section. He further submitted that the deposition of P.W.1 in suit

O.S.No.8 of 2005 is that of the petitioner A.1 in C.C.No.834 of

2006 and his presence is very much available before the Court. It

is his further contention that in view of Section 65 of the Evidence

Act, secondary evidence is inadmissible unless it is shown that the

original is lost or when the original is in the custody of a person

against whom the document is sought to be proved. He further

submitted that the letter dated 13.6.2005 is the certified copy of

the original and the original is available with the SRO, Bhongir and

in such circumstances the court below ought not to have allowed

the petition. The learned counsel for the petitioners further

submitted that the finding of the trial Court that the letter dated

13.6.2005 is relevant for the purpose of the case is erroneous

since A.S.No.776 of 2009 filed against the judgment in O.S.No.8 of

2005 is pending and the authenticity of the said letter has to be

adjudicated in that appeal. In support of his contentions, the

learned counsel for the petitioners relied on the judgment of the

erstwhile High Court of Andhra Pradesh in Talasila Suresh vs.

Naarla Srinivasa Chakravarthi 1.

8 On the other hand, the learned Assistant Public Prosecutor

submitted that the order impugned in this revision is based on

sound appreciation of law and facts and that no prejudice will be

caused to the petitioners even if the documents are taken on file

inasmuch as they will have ample opportunity to cross examine

the witness on the said documents. He further submitted that

mere receiving the documents or marking them through the

witnesses by itself would not amount to proof of the same. Hence

he prayed to dismiss this revision.

2012 SCC OnLine AP 324 = (2013) 1 ALD 599

9 Sailing with the Assistant Public Prosecutor, Sri MAK

Mukheed, learned counsel for the third respondent - implead

petitioner submitted that in view of scope of Section 242 (3) Cr.P.C

the Magistrate has to take all such evidence as may be produced

in support of the prosecution and it cannot be inferred that only

the materials collected during investigation could be permitted to

be produced in evidence. The trial Court has taken all these

aspects into consideration while passing the impugned order,

which does not suffer from any irregularity much less any illegality.

Hence he prayed to dismiss the criminal revision case.

10 Now the point for consideration is whether the trial Court has

committed any error in allowing the petition filed by the

prosecution under Section 243 (2) Cr.P.C?

11 In Talasila Suresh case (1 supra) the question arose for

consideration was as to whether the deposition of the petitioner

therein, as a witness in another suit can be taken on record, as an

exhibit in E.P. proceedings filed by the first respondent therein.

12 While answering the said question, the Court held as follows:

"3. Section 33 of the Act deals with this aspect. The executing Court has extracted the provision and has undertaken discussion with reference to it. The evidence given by a witness in a judicial proceeding, is treated as relevant, for the purpose of

proving the truth of the facts stated in subsequent judicial proceedings, subject to certain conditions. Such facility is available,

(a) when a witness is dead or (b) cannot be found or (c) is incapable of giving evidence or (d) is kept out of reach, by the adverse party or (e) his presence cannot be obtained without an amount of delay or expense. Even if one of these circumstances exist, it must be ensured that the proceedings are (a) between the same parties or their representatives in interest and the questions in issue are substantially the same in both the proceedings and (b) the adverse party in the first proceeding had the right and opportunity to cross-examine the witness. When such are the conditions imposed by the Legislature in the context of placing reliance on evidence of a witness, given in an earlier set of proceedings, heavy burden rested upon the 1st respondent to establish each of these facets.

4. In the instant case, what is sought to be marked is the deposition of the petitioner, in OS No. 60 of 2003. He is very much alive, and available to be examined and cross-examined. Therefore, the conditions incorporated in Section 33 of the Act, themselves bar the marking of the deposition of the petitioner recorded in another suit. Added to that the 1st respondent failed to establish any of the conditions stipulated in the provision, which are independent of each other.

5. The trial Court relied upon the judgment of the Calcutta Court in Dukhiram Dey v. Mrityunjoy Prasad Daw, AIR 1982 Cal.

294. That was a case in which the witness was confronted with a statement made by him in another suit. Confronting a witness with a statement is substantially different from marking the entire deposition, and making it part of the record in another case.

6. Hence, the civil revision petition is allowed and the impugned order is set aside. There shall be no order as to costs. The miscellaneous petition filed in this civil revision petition shall stand disposed of.

13 Coming to the case on hand, there is no dispute with regard

to the death of P.W.1 and L.W.2 being the son of P.W.1. When the

prosecution feels it appropriate to mark certain documents which

would be helpful in disposal of the case in a fair manner, there is

no embargo as such to mark those documents through LW.2.

Further, Section 242 (3) Cr.P.C. requires the court to take all such

evidence which the prosecution desires to produce including the

documents which are not mentioned in sub-section (5) of Section

173 Cr.P.C., but such evidence must relate to the matters of fact in

inquiry. In that view of the matter, I find no irregularity much less

any illegality in the impugned order. Therefore, the proposition

laid down in Talasila Suresh case (1 supra) is not helpful to the