THE HON'BLE Dr. JUSTICE G. RADHA RANI
CRIMINAL REVISION CASE No. 1086 of 2016
ORDER:
This Criminal Revision Case is filed by the petitioner/ appellant/accused aggrieved by the judgment dated 13.04.2016 passed in Criminal Appeal No.762 of 2015 on the file of the Special Judge for Trial of Offences under SCs and STs (POA) Act - cum - VI Additional Metropolitan Sessions Judge, Secunderabad confirming the judgment dated 02.09.2015 passed in C.C.No.290 of 2012 on the file of the XI Additional Chief Metropolitan Magistrate, Secunderabad.
2. The case of the prosecution in brief was that on 20.08.2011 at 5:15 P.M., the defacto-complainant, Smt. S. Rajeshwari gave a report to the Police that her daughter Neelima aged 6 years studying 1st class was kidnapped by one Manemma (accused) and demanded money of Rs.1,00,000/-. She stated that her daughter Neelima was suffering from fever as such, she was at home on that day. At about 12 noon, she went to attend Mahila Mandali meeting and returned home at 1:00 P.M. and found that her daughter was missing. She left her daughter under the care and custody of her father-in-law. All of Dr.GRR,J Crl.R.C.No.1086 of 2016 2 them searched for Neelima. The complainant's brother-in-law Raju, who was returning from duty informed that he had seen Neelima with Manemma, who was residing earlier in that locality. One Nagaiah, who was a tenant of the complainant also informed that he saw Neelima with Manemma and both were proceeding towards main road. Between 2:00 P.M. to 3:00 P.M., Manemma made calls twice to the complainant to her landline number and stated that complainant's daughter was kidnapped by her and demanded Rs.1,00,000/- for her release. The complainant further stated that while she was at Mahila Mandali meeting, Manemma also attended the meeting and took her landline number.
3. Basing on the said report given by the defacto-complainant, Begumpet Police registered a case vide Crime No.285 of 2011 under Section 364-A of IPC. The Police tracked the cell phone number of the accused Manemma and tracked the victim girl with the accused in an auto rickshaw bearing No.AP11Y1303 near Lifestyle Building, Begumpet. They arrested the accused. On interrogation, she admitted her guilt. After completion of investigation, police filed charge sheet against the accused for the offence under Section 363 of Dr.GRR,J Crl.R.C.No.1086 of 2016 3 IPC.
4. Learned XI Additional Chief Metropolitan Magistrate, Secunderabad had taken cognizance of the offence against the accused, framed charge under Section 363 of IPC and as the accused pleaded not guilty, conducted the trial.
5. During the course of trial, the prosecution examined PWs.1 to 6 and got marked Exs.P1 to P4 on its behalf. No defence evidence was adduced by the accused and no documents were marked on her behalf.
6. On considering the oral and documentary evidence on record, the trial court found the accused guilty for the offence under Section 363 of IPC and sentenced her to undergo rigorous imprisonment for a period of (06) months and to pay a fine of Rs.500/-, in default of payment of fine, to undergo simple imprisonment for 15 days.
7. Aggrieved by the said judgment of conviction and sentence recorded against her, accused preferred an appeal. The appeal was heard by the the Special Judge for Trial of Offences under SCs and Dr.GRR,J Crl.R.C.No.1086 of 2016 4 STs (POA) Act - cum - VI Additional Metropolitan Sessions Judge, Secunderabad. Vide Criminal Appeal No.762 of 2015 dated 13.04.2016, the lower appellant court dismissed the appeal confirming the conviction and sentence recorded against the accused in C.C.No.290 of 2012 dated 02.09.2015.
8. Aggrieved further, the accused preferred this revision contending that the order passed by the lower appellate court was erroneous and contrary to law. The lower appellate court erred in not considering that non-examination of the minor girl by the prosecution was fatal. The lower appellant court erred in not observing that the witnesses examined were interested and interrelated. In the cross- examination of PW1, she stated that she had not seen anybody who kidnapped the victim girl, but in the chief examination suspected the accused. The lower appellate court failed to appreciate that as per the investigation, on the basis of the confession statement of the accused, the police recovered one Samsung Mobile phone from the possession of the accused under the cover of panchanama in the presence of panch witnesses. The panch witness cited as PW.4 turned hostile and not supported the prosecution case and another panch witness was not Dr.GRR,J Crl.R.C.No.1086 of 2016 5 examined by the prosecution, as such the recovery was not proved and the prosecution failed to establish the case against the accused and prayed to allow the revision by setting aside the judgments of the courts below.
9. Heard learned counsel for the revision petitioner and learned Assistant Public Prosecutor.
10. Learned counsel for the revision petitioner argued on the same lines as raised in the grounds of the appeal. Learned Assistant Public Prosecutor supported the judgments of the courts below and submitted that there was no necessity to interfere with the same as they were reasoned orders based on evidence on record.
11. As seen from the object of the revisional jurisdiction under Section 397 of Cr.P.C., the revisional jurisdiction of the court can be exercised where there is palpable error, non-compliance with the provisions of law, the decision is completely erroneous or where the judicial discretion is exercised arbitrarily. The Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander & Anr.1 held that:
"Normally, a revisional jurisdiction should be 1 (2012) 9 SCC 406.
Dr.GRR,J Crl.R.C.No.1086 of 2016 6 exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the court. Merely an apprehension or suspicion of the same would not be a sufficient ground for interference in such cases."
The revisional jurisdiction is very limited. The legality, proprietary or correctness of an order passed by a court is the very foundation of exercise of jurisdiction under Section 397 of Cr.P.C.
12. On a perusal of the judgments of the courts below, both the courts analysed the evidence of the witnesses and appreciated their evidence basing on the touch stone of the proof beyond reasonable doubt and the contentions raised by the accused with regard to the interestedness of the witnesses.
13. The lower appellant court on considering the evidence of PW1 and the Ex.P1 report given by her to the police observed that PW.1 categorically mentioned in the FIR itself about the name of the accused, as the accused came to her and enquired in the Mahila Mandali meeting and took her landline phone number and subsequently telephoned to her and demanded for Rs.1,00,000/- for Dr.GRR,J Crl.R.C.No.1086 of 2016 7 releasing the minor girl. She also stated in the FIR itself about PW.3 informing her that he saw the victim with the accused. The lower appellate court observed that though PW.3 was a relative, his evidence could not be discarded on the said ground. The Court on analysing his evidence held that PW.3 though observed the minor girl with the accused had not prevented her, as he did not suspect any foul play, as the accused was known to them and residing in the vicinity by selling vegetables but however, when he came to know that the minor girl was missing, then he informed to her parents.
14. PW.5 WPC, PS, Begumpet and PW.6 Investigating Officer traced the accused and victim in an auto between 6:30 P.M. to 7:00 P.M. on the same day near Lifestyle building. The evidence of these witnesses, PWs. 1 and 2, the parents of the minor girl and the evidence of PW.3 would disclose that the minor girl was kidnapped and as PW.3 found the minor girl with the accused, they raised suspicion against the accused and the evidence of PW.1 also would disclose that the accused had taken her landline number and made calls from her cell phone to that landline number and demanded ransom for the release of the victim and the police traced out the cell Dr.GRR,J Crl.R.C.No.1086 of 2016 8 phone number of the accused and found her with the victim girl near the Lifestyle building in an auto . The tracing of the victim girl with the accused coupled with the evidence of other witnesses would prove the case against the accused.
15. The defence taken by the accused was that the complainant had lodged a false case against her at the instance of one Laxmi who was running chits and the accused was due of some amount to Laxmi and as such, the said Laxmi approached PW.1 and requested to recover the amount due from the accused and with a view to recover the said amount, a false case was foisted against her. Both the trial court and lower appellate court observed that no evidence was adduced by the accused in proof of her defence and the evidence on record would establish her guilt beyond reasonable doubt.
16. The other contention of the accused was that the panch witness examined as PW.4, who was cited in proof of recovery of cell phone from the accused turned hostile and not supported the prosecution case and the other panch witness was not examined by the prosecution.
Dr.GRR,J Crl.R.C.No.1086 of 2016 9
17. The lower appellate court observed that as per clause (5) of Section 100 of Cr.P.C., no person witnessing the search need to be examined before the court by summoning him. Non-examination of panch witness or the panch witness turning hostile itself would not raise suspicion on the recovery. It has to be seen in the light of the other facts and circumstances proved by the prosecution. The evidence of PW.6, the investigating officer is corroborating with the evidence of PWs.1 to 5 for the arrest of the accused and rescue of the victim from the hands of the accused. Even though the recovery of cell phone from the accused is not proved by the prosecution, the other evidence is cogent and consistent to believe that the accused kidnapped the minor girl and demanded PW.1, a ransom for her release and the minor was rescued from the hands of the accused by the police.
18. Another contention taken by the learned counsel for the revision petitioner/accused was that non-examination of minor girl before the court by the prosecution is fatal to the prosecution.
19. The lower appellate court observed that minor girl was aged about 5 or 6 years and she was not worldly wise to know the things.
Dr.GRR,J Crl.R.C.No.1086 of 2016 10 If at all she was worldly wise, she would not have gone along with the accused. Non-examination of the victim is not at all fatal and the other material evidence on record would positively establish the ingredients of the offence under Section 363 of IPC. Hence, this Court does not find any perversity in the findings of the courts below to set aside the same. As the trial court itself had taken a lenient view in convicting the accused and inflicted a sentence of only (06) months imprisonment, this Court does not find any necessity to interfere with the same.
20. In the result, the Criminal Revision Case is dismissed confirming the judgments of the courts below in convicting and sentencing the accused for the offence under Section 363 of IPC as stated above. The revision petitioner/appellant is directed to be taken into custody immediately by the trial Court and to implement the sentence accordingly.
Miscellaneous petitions pending, if any, shall stand closed.
_____________________ Dr. G. RADHA RANI, J February 07, 2023 SS Dr.GRR,J Crl.R.C.No.1086 of 2016 11 THE HON'BLE Dr. JUSTICE G. RADHA RANI CRIMINAL REVISION CASE No.1086 of 2016 February 07, 2023 SS