THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI
CRIMINAL REVISION CASE No.594 OF 2008
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of Cr.P.C., is filed by the petitioners/A.1 and A.3, challenging the judgment, dated 15.04.2008, passed in Criminal Appeal No.13 of 2006 by the learned II Additional Sessions Judge (Fast Track Court) at Sanga Reddy, whereby, the judgment, dated 31.01.2006, passed in S.C.No.265 of 2005 by the Assistant Sessions Judge, Sangareddy, convicting the petitioners/A.1 to A.3 of the offence punishable under Section 394 IPC and sentencing them to undergo rigorous imprisonment for five years each and to pay a fine of Rs.500/-, in default, to undergo simple imprisonment for three months, was confirmed.
2. Heard Sri Y.Koteshwara Rao, learned counsel representing Sri. P.Sriharinath, learned counsel for the petitioners/A.1 and A.3, learned Assistant Public Prosecutor appearing for the respondent/State and perused the record.
3. The case of the prosecution, in brief, is that Inspector of Police, Ramchandrapuram averred in the charge sheet that on 08.02.2005 at 12.00 noon, PW.1 came to police station and submitted a report stating that while he was at his house, he 2 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 heard hue and cries from the opposite house, on that he rushed there and found one person coming out from the house and another person went away on the motor cycle in speedy manner. On hearing hue and cries of lady from the house, PW.1 entered into the house and found one person caught hold the throat of house owner lady and blood is oozing from her face. There are some broken bangle pieces in the room. Seeing the situation, PW.1 thought that the persons were committing theft, on that he shouted as "Donga...Donga". Immediately, the person relieved the lady and tried to escape. But he caught hold that person. Meantime some of the neighbouring public gathered there and tried to take him into their custody, but he escaped from their hands. On enquiry PW.1 came to know that the injured lady name is Punadevi.
Basing on the report, PW.9 registered a case in Crime No.43 of 2005 and recorded the statement of PW.1. PW.9 visited the scene, prepared scene of offence panchanama in the presence of PW.4 and G.Chandra Shekar Vinoy Kumar and seized broken bangle pieces, hot pack box, two steel boxes, napkin, hair, knife and also collected blood swabs under cover of panchanama and also drawn rough sketch. Later PW.11 took up investigation. On 17.2.2005, PW.11 visited the scene, examined PW.3 and recorded 3 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 her statement and seized one parcel box which was left by the accused, in the presence of PW.5. On 14.02.2005, PW.10 arrested A.1 to A.5 and recorded their separate confessional statements in the presence of PW6, Amruth Laal Sharma and seized Bajaj Caliber Motor Cycle bearing registration No.AP-9-AC-4420 from A.1, one knife from A.2, one knife, two pairs of hand gloves from the possession of A.3 under cover of panchanama in the presence of LW.9-G.Chandra Shekar Vinoy Kumar and PW.5. Later A.1 to A.5 were sent to the Court for judicial remand. After completion of investigation, PW.11 filed charge sheet against A.1 to A.3 for the offences under Sections 395, 120(B) IPC and against A.4 and A.5 for the offences under Sections 120(B), 109 IPC.
4. To substantiate the case of prosecution, PWs.1 to 11 were examined and Exs.P1 to P10 and MOs.1 to 13 were marked. On behalf of the petitioners/accused, neither oral nor documentary evidence was adduced.
5. The trial Court, after analyzing the entire evidence on record, holding that the prosecution has satisfied the ingredients of the offence punishable under Section 394 of IPC against A.1 to A.3, convicted them for the said offence and sentenced them as stated supra. Aggrieved by the same, the petitioners/A.1 and A.3 preferred the subject Criminal Appeal No.13 of 2006 before the 4 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 Court below and the Court below, on re-appreciation of entire evidence on record, confirmed the conviction and sentence recorded against A.1 to A.3 of the offence under Section 394 IPC. Aggrieved by the same, the petitioners/A.1 and A.3 filed this Criminal Revision Case. Here, it is apt to state that A.4 and A.5 in this case were acquitted by the trial Court.
6. Learned counsel appearing for the petitioners/A.1 and A.3 would contend that the trial Court and lower appellate Court failed to consider the evidence of PW.7, who is the learned Magistrate who conducted test identification parade. The evidence of PW.7 is crucial in this case. Since the police detained the petitioners in the police station for 8 to 10 days and beat them with rods, lathis, pestle, etc. by tying their hands and legs, the petitioners had no option except to admit the commission of the offence, though they did not commit the same. Further, the photographs of the petitioners were shown to PWs.1 to 6 in the police station to identify them in the identification parade and also in the trial Court and since the photographs of the petitioners were taken in the police station, PWs.1 to 6 identified them in the jail and also before the trial court. Hence, the evidence of PWs.1 to 6 cannot be relied upon, in view of the clinching evidence of PW.7-Magistrate. Further, both the Courts below failed to take into consideration the 5 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 crucial aspect that the place of incident is busy locality and there is no possibility of committing robbery near the scene of offence. Further, both the Courts below ought not to have believed the version of PW.6, inasmuch as his evidence goes to show that he was running a shop inside the BHEL Township and that he would be in the shop between 09.00 AM to 01.00 PM and again from 03.00 PM to 09.00 PM. Further, the evidence of prosecution witnesses is full of omissions and contradictions and as such, both the Courts below ought not to have taken the same into consideration. It is a fit case to set aside the conviction and sentence recorded against the petitioners/A.1 and A.3 by exercising the Revisional jurisdiction by this Court under Sections 397 and 401 of Cr.P.C. and ultimately prayed to allowed the Criminal Revision Case as prayed for.
7. On the other, the learned Assistant Public Prosecutor appearing for the Respondent/State supported the impugned judgment and contended that there is nothing to interfere with the impugned judgment of the Court below which is based on sound reasoning. All the necessary ingredients of Section 394 of IPC are firmly made out against the petitioners/A.1 and A.3. The discrepancies pointed out by the learned counsel for the petitioners/A.1 and A.3 are trivial in nature which cannot, in any 6 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 event, demolish the whole prosecution case. Both the Courts below have appreciated the evidence on record in correct perspective and rightly convicted the petitioners/A.1 and A.3 of the offence under Section 394 of IPC. It is not a fit case to set aside the conviction and sentence recorded against the petitioners/A.1 and A.3 by exercising Revisional jurisdiction under Sections 397 and 401 of Cr.P.C. and ultimately prayed to dismiss the Criminal Revision Case.
8. In view of the above submissions, the point that arises for determination in this Criminal Revision Case is as follows:
"Whether the judgment, dated 15.04.2008, passed in Criminal Appeal No.13 of 2006 by the II Additional District and Sessions Judge (FTC), at Sangareddy, convicting the petitioners/A.1 and A.3 of the offence under Section 394 IPC is legally sustainable?
POINT:-
9. I have given thoughtful consideration to the above rival submissions and meticulously gone through entire material on record. This Court is aware of the settled legal position that this Court, in exercise of its Revisional jurisdiction under Sections 397 and 401 of Cr.P.C., cannot interfere with the concurrent findings of fact recorded by the Courts below, unless they are perverse or arrived at ignoring material evidence. Further, the Revisional 7 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 power of this Court under Sections 397 and 401 of Cr.P.C., cannot be equated with that of an appeal. But however, when the decision of the Court below is perverse or untenable in law or grossly erroneous or glaringly unreasonable or based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court can interfere with the said decision in exercise of its Revisional jurisdiction. Section 401 of Cr.P.C. enables the High Court to exercise all powers of appellate Court, if necessary, in aid of power of superintendence or supervision, as a part of Revisional power. Section 397 of Cr.P.C. confers power on the High Court or Sessions Court, as the case may be, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such Subordinate Court. Thus, a duty rests on the High Court under Sections 397 and 401 of Cr.P.C. to correct manifest illegality resulting in gross miscarriage of justice.
10. In the above context in regard to the scope and limitation imposed on Revisional court, this Court deems it proper to evaluate the entire case on hand, in order to find out as to whether the prosecution has established the case against the 8 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 petitioners/A.1 and A.3 and if not, whether the petitioners/A.1 and A.3 are entitled for acquittal before the Revisional court.
11. A meticulous analysis of the evidence of PWs.1 to 6 makes it clear that it is unsafe to act upon their testimony. PW.1 is the person who set the criminal law into motion by lodging Ex.P1 report with the police concerned. Though he stated in his examination-in-chief that he saw A.1 holding the throat of PW.3 (injured) and also identified A.1 to A.3 in the test identification parade in District Jail, Sangareddy, he stated in his cross- examination that he did not furnish the physical features of the offenders to the police. He also stated in his cross-examination that his family members got friendship with the family members of PW.3. He further stated in his cross-examination that from among the persons gathered on the road, he could not identify the offenders. Further, he admitted that items like M.Os.1 to 3 i.e. hot pot, gift pack and bangle pieces would be readily available in all the houses. PW.2 deposed that he was present in his tailor shop at the time of alleged incident and he heard shouts from the house of PW.3, whereupon, he came out of his shop and saw a person speeding away on a motor cycle. Though he stated that he can identify the person whom he saw and that he had identified A.1 and A.2 in the test identification parade conducted at District Jail, 9 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 Sangareddy, this witness also categorically stated in his cross- examination that there will be vehicular moment on the road and shops were located and students will be going to the college, but however, at the time of incident, no students were present. PW.3, who is the injured/victim, narrated the whole incident in her examination-in-chief and further deposed that she identified A.1 to A.3 in the Court hall. However, in her cross-examination, she stated that she was in conscious condition till two or three of her neighbours entered into her house. PW.4 categorically stated in his cross-examination that items like M.Os.1, 7 and 8 can be purchased from the open market and that M.O.3 can be secured near the bangle stores. PW.6, who was mediator for confessional and seizure panchanama, categorically deposed in his cross- examination that when the accused made confessional statements, the Deputy Superintendent of Police, Circle Inspector of Police, Sub Inspector of Police and other police constables were present. Thus it is clear that PWs.1 to 6 were tutored by the police and were also shown the photographs of A.1 to A.3 in the police station so as to identify them in the identification parade and also before the trial Court. Since the photographs of A.1 to A.3 were taken in the police station and shown to PWs.1 to 6, PWs.1 to 6 identified them in the jail as well as before the trial Court. Thus, the evidence of 10 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 PWs.1 to 6 cannot be relied upon. PW.7 is a Magistrate who conducted test identification parade. He deposed as follows:-
"Suspect No.1 stated that he was kept in P.S.R.C.Puram for 8 or 10 days, that every day his hands and legs were tied and was hanged and was beaten with rods, pestle and lathi twice or thrice. That on 8th, he, Paras and Hariprasad started for Lingampally on Caliber bike to meet Samunder, a friend of Paras and in front of police station, Gopi constable caught hold of them for triple riding, the constable started that the bike is a theft property, that though he stated that bike is in the name of his cousin, they were detained in police station. Four days thereafter four elderly persons and two or three female persons came to the police station and saw them. The police asked the said persons whether we are the particular persons that the said persons said affirmatively that his photographs were taken by the police that all three persons were made to stand before certain persons in the room of S.I. of police. That they were made to lift certain articles, that were taken to their room and that police have taken his titan watch, gold ring and belt. The other two suspects also stated the same effect."
12. It has also come up in the evidence of the prosecution witnesses that /A.1 to A.3 were going on triple riding in front of the police station on 08.02.2005 and as such, the police detained them for 8 to 10 days in the police station. In view of the evidence of PWs.1 to 7, it cannot be held with certainty that it is the petitioners/A.1 and A.3 who committed the subject offence. Further, PW.8, the Doctor who examined PW.3, categorically stated in his cross-examination that PW.3 was treated as an outpatient on the date of the offence and that the injuries found over the person of PW.3 may be caused due to fall on hard surface from a height. Further, PW.9, Sub Inspector of Police, who registered the subject case categorically, stated in his cross- examination that PW.1 did not state any specific overt acts 11 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 committed by the offenders. Further, none of the prosecution witnesses stated that the petitioners/A.1 and A.3 entered into the house of PW.3 to commit theft and in that process caused injuries to PW.3. Further, PW.3 also did not state that the accused entered into her house to commit theft by causing injuries to her. Further, Ex.P1 complaint was lodged against unknown offenders and no descriptive particulars of the offenders was mentioned therein. Further, PW.7 Magistrate deposed in his evidence that the petitioner/A.1 stated to him that he was detained in police station for triple riding and his bike was seized. Further, the place of incident is a busy locality and as such, there is no possibility of committing robbery near the scene of offence. All the above circumstances create a doubt with regard to the case of the prosecution. A suspicion may arise against the petitioners/A.1 and A.3, but it is settled law that suspicion, however strong it may be, cannot take place of legal proof. In view of the evidence placed on record, it cannot be held that the petitioners/A.1 and A.3 are guilty of the offence under Section 394 of IPC.
13. In the considered opinion of this Court, the prosecution miserably failed to prove the guilt of the petitioners/A.1 and A.3 of the offence under Section 394 of IPC. Both the Courts below have fallen in error in convicting the petitioners/A.1 and A.3 of the 12 Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008 offence under Section 394 of IPC, without properly appreciating the evidence on record. The findings recorded by the trial Court in convicting the petitioners/A.1 and A.3 and which was confirmed by the Court below are perverse and untenable in law. It is a fit case to set aside the conviction and sentence recorded against the petitioners/A.1 and A.3 of the offence under Section 394 of IPC by exercising Revisional jurisdiction of this Court under Sections 397 and 401 of Cr.P.C.
14. Accordingly, the Criminal Revision Case is allowed by setting aside the judgment, dated 15.04.2008, passed in Criminal Appeal No.13 of 2006 by the learned II Additional Sessions Judge (Fast Track Court) at Sangareddy. Consequently, the petitioners/A.1 and A.3 stand acquitted of the offence under Section 394 of IPC. The bail bonds of the petitioners/A.1 and A.3 shall stand discharged. Fine amount, if any, paid by the petitioners/A.1 and A.3, shall be refunded to them.
Miscellaneous applications, if any, pending in this Criminal Revision Case, shall stand disposed of in terms of this order.
_________________ JUVVADI SRIDEVI, J 28th April, 2023 Ksk