No Mandate Under CrPC For Witness To Appear Only When Summoned: Andhra Pradesh High Court Sets Aside Conviction Of Two

The Andhra Pradesh High Court has set aside the conviction of two individuals charged under the A.P. Prohibition Act, 1995, holding that when two views are possible in a Criminal Case, the one favouring the accused is to be adopted.

Court further emphasized 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, upon being told that the lower court had rejected defence evidence which belied the prosecution case, on grounds that the defence witness had not been summoned.

A single bench of Justice Venkata Jyothirmai Pratapa held:

“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, he 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 witness has to appear before the Court to give evidence only on receipt of summons. 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 Bench passed the order relying on the Judgement passed by the APHC in Pothabathula Abbulu v The State of Andhra Pradesh (2005) in a Criminal Revision Petition filed challenging the concurrent orders of conviction passed by the lower courts under section 7(A) r/w 8(e) of the A.P Prohibition Act.

The accused/appellants contended that the lower court based their conviction solely on the testimony of the official witnesses/Police officials, which was untenable in law. Petitioners further contended that the lower Court had blatantly ignored the deposition of the attester, another public servant, to the panchnamma, which completely went against the case of the prosecution.

It was submitted that the deposition of the panchwitness stated that Police Officials, not only in this case but also in several other cases had taken his signature on blank papers.

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.

On the claim that a conviction is untenable in law if passed based on the sole testimony of the official witnesses, the Court held that there is no hard and fast rule against such a conviction. It further clarified that, a conviction is tenable in law, based on the deposition of the official witnesses, if there is "truthfulness in the evidence given by the said witnesses." It held:

“In the present case, there is no force in the argument that basing 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 deposed before the Court. The test is truthfulness in their evidence.”

Court finally noted that the deposition of the panchwitness which was not considered had gone against the version painted by the prosecution and hence the entire prosecution case based on only evidence by official witnesses, could not be taken on record as 'truthful'.

Accordingly, the revision was allowed and the orders of conviction for the petitioners were set aside.

Crl.R.C. No.1224 of 2008

Counsel for Petitioner: Butta Vijaya Bhasker

Counsel for Respondent/State: Public Prosecutor

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