1. An appellate court cannot convict an accused of an offense for which they were not convicted by the trial court, unless the accused has appealed against the acquittal. 2. The evidence of a panch witness is essential to prove the seizure of illicit liquor, and the evidence of official witnesses alone is insufficient.

JUDGMENT

R Raghunandan Rao, J. - A raid was conducted by the Prohibition and Excise Inspector, Enforcement, Kakinada along with his staff on a thatched house in Bhirawapalem village, where accused Nos.1 to 3 were found conducting liquor and arrack business without permit or license and about 20 lts of I.D liquor in a white plastic can with another 50 lts of ID liquor in three black plastic cans were found. Apart from this, four cardboard boxes containing about 92 bottles of Rum, 3 bottles of 180 ml Whisky and 8 bottles of 375 ml Whisky were found. On the basis of recovery of the above alcohol, Crime No.32/2001-02 was registered against eight accused persons for the offences under Sections 7(A) r/w 8 (e) of A.P.Prohibition Act and Section 34(a) of A.P.Excise Act. Thereafter, the crime was taken up as C.C.No.395 of 2001 by the Judicial Magistrate of First Class, Mummidivaram. During the course of the trial, Accused No.3 had passed away and the case abated against Accused No.3. The case against Accused Nos.5 and 8 were separated and registered as a fresh case vide C.C.No.373 of 2002. Trial was taken up for Accused Nos.1, 2, 4, 6 and 7. After the trial, the trial Judge found that the accused were not guilty for the offence punishable under Section 34(a) of A.P.Excise Act and acquitted them in relation to the said offence. However, Accused Nos.1 and 2 were found guilty for the offence punishable under Section 7(A) r/w 8 (e) of A.P.Prohibition Act and were sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/- each after setting of the period of detention, already undergone by the Accused Nos.1 and 2.

2. Aggrieved by the same, Accused Nos.1 and 2 filed Crl.A.No.91 of 2004 before the I Additional Sessions Judge, East Godavari District at Rajahmundry. This appeal was dismissed on 17.10.2005. The Accused no. 1 and 2 have now filed the present revision case.

3. Sri C.Sharan Reddy, learned counsel for the petitioners, would raise a preliminary issue that the judgment of the appellate Court requires to be set aside on a short ground. He submits that the trial Judge had acquitted the petitioners for the offence under Section 34(a) of A.P.Excise Act and had convicted the petitioners for the offence under Section 7(A) r/w 8 (e) of A.P.Prohibition Act. There was no appeal from the prosecution. In the appeal filed by the petitioners against the conviction under Section 7(A) r/w 8 (e) of A.P.Prohibition Act, the appellate Judge had found the petitioners guilty of the charge under Section 34(a) of A.P.Excise Act. He submits that this would show clear non application of mind as there was no appeal against any conviction under Section 34(a) of A.P.Excise Act, and the appeal was only against the conviction under Section 7(A) r/w 8 (e) of A.P.Prohibition Act.

4. Sri C.Sharan Reddy, learned counsel for the petitioners, making submissions on the merits of the case, would submit that the raid was allegedly conducted in the presence of P.W.3, who was the mediator. It is submitted that P.W.3 had turned hostile and refused to corroborate or affirm the mediator report and the factum of the raid. It is submitted that in view of the refusal of P.W.3 to corroborate the mediator report and in view of the hostile evidence of P.W.3, no recovery of illicit alcohol can be proved. In the absence of such proof, the petitioners cannot be convicted. The learned counsel for the petitioners relied upon Section 100 of Cr.P.C and a judgment of the erstwhile High Court of Andhra Pradesh reported as T.Subbanna Vs. State of Andhra Pradesh, (2003) CriLJ 2150.

5. Learned counsel for the petitioner would also submit that both the trial Court and the appellate Court while considering the aspect of non corroboration of mediator report by P.W.3, had misdirected themselves by holding that such non-corroboration is not fatal to the case of the prosecution and that the evidence of the official witnesses would be sufficient for accepting the recovery of the i