ORDER:

Assailing the judgment dated 28.09.2012 in Crl.A.No.101 of 2012 on the file of the Court of learned II Additional District & Sessions Judge, West Godavari, Eluru, confirming the conviction and sentence passed against the petitioner/accused by the judgment, dated 09.03.2012 in C.C.No.225 of 2010 on the file of the Court of learned I Additional Judicial Magistrate of First Class, Tadepalligudem, for the offence under Section 411 IPC, the petitioner herein/accused filed the present criminal revision case under Section 397 r/w

401 of the Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.P.C.”).

2. The revision case was admitted on 03.10.2012 and the sentence of imprisonment imposed against the petitioner was suspended vide order in Crl.R.C.M.P.No.2811 of 2012.

3. The shorn of necessary facts are that:

i) On 03.05.2010 at 1.30 p.m., PW.1, who is working as Additional Assistant Engineer, APEPDC Limited, Neeladripuram Sub-Station came to Police Station and presented a report stating that on the night of 02.05.2010 unknown offenders went to the fields of LW.3- A.Gopala Krishna located at Kommugudem village, broke open one electrical transformer and committed theft of copper winding wire and oil, all worth of Rs.1,500/- and escaped with the booty.

ii) On the report given by P.W.1. PW.3 registered a case in Crime No.61 of 2010 under Section 379 of IPC and investigated into.

iii) During the course of investigation, PW.4 arrested the accused on 06.05.20210 at 1.00 p.m., at Krishnayapalem village bust stop in the presence of PW.2 and LW-6- U.V.Narayana, recovered the entire stolen property worth Rs.1,500/- and also recovered the case property in other three crimes of Tedepalligudem Rural Police Station and sent them for remand. Since all the accused are found in possession of the stolen property under Section 411 of IPC was added against the accused.

4. After completion of investigation, police laid charge sheet and the same was numbered as C.C.No.225 of 2010 on the file of the Court of learned I Additional Judicial Magistrate of First Class, Tadepalligudem. After full-fledged trial, accused Nos.1 & 2 are found guilty for the offence under Section 411 IPC and sentenced to undergo simple imprisonment for a period of five (05)

months each.

5. Aggrieved by the same, the petitioner herein/accused No.1 preferred an appeal, vide Crl.A.No.101 of 2012, before the Court of II Additional District & Sessions Judge, West Godavari, Eluru and the same was dismissed, vide judgment dated 28.09.2012, by confirming the conviction and sentenced passed by the trial Court.

6. Against the said judgment of the first Appellate Court, the present criminal revision case was preferred by the petitioner herein/accused No.1.

7. Heard Sri Mangena Sree Rama Rao, learned counsel for the petitioner and Sri Dheera Kanishk, learned Special Assistant Public Prosecutor representing the respondent-State.

8. Now the point that arises for determination in this revision is “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?”

9. Sri Mangena Sree Rama Rao, learned counsel for the petitioner submits that both the Courts below erroneously recorded a finding of conviction against the accused. The mediators whose presence the seizure was made are stock witnesses who acted as mediators in number of cases, and no seizure was effected in the presence of accused No.1. It is further contention of the learned counsel for the petitioner that the alleged property seizure from the petitioner is copper plates but not the copper wire as alleged by the prosecution. So, the question of recovery of stolen property does not arise and the petitioner would have to give the benefit of doubt. The Courts below erred in appreciating the evidence of witnesses who were stock witnesses. Hence prays to allow the present revision and acquit the petitioner herein/accused No.1.

10. On the other hand, Sri D