Miss Madugula Gurappa vs Nallipilli Krishna Kumar Another
2022 Latest Caselaw 8692 AP

          HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

         CRIMINAL REVISION CASE No.1724 OF 2008

ORDER:

This Criminal Revision Case came to be filed by the

petitioner namely Madugula Gurappa, daughter of late Appanna,

who was the prosecution witness No.1 in Calendar Case No.187 of

2006, on the file of the Court of Additional Judicial Magistrate of

First Class, Vizianagaram (for short, 'the learned Magistrate'),

under Sections 397(1) and 401 of the Code of Criminal Procedure,

1972 (for short, 'the Cr.P.C'), challenging the judgment, dated

22.08.2008, where under the learned Magistrate acquitted the first

respondent/accused for the offence under Section 417 of the

Indian Penal Code, 1860 (for short, 'the IPC').

2. The parties to this Criminal Revision Case will hereinafter be

referred to as described before the trial Court, for the sake of

convenience.

3. The case of the prosecution, before the trial Court, according

to the charge sheet filed by the State Government represented by

Sub-Inspector of Police, II Town Police Station, Vizianagaram, in

brief, is as follows:

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LW.1-Madugula Gurappa is an un-married woman. Accused

is resident of her locality. The accused and victim belongs to the

same caste. In fact, accused got engagement with another lady by

name Harathi of Srikakulam for marriage about five years prior to

the date of incident. But he developed love on the victim and had

sexual intercourse with her by promising her to marry. Later, he

told the victim that he would marry both victim and the engaged

lady at Srikakulam. Then, the victim raised an objection and

consumed pesticide poison on the night of 25.03.2006 and she

was shifted to Sukhibava Hospital, Vizianagaram for treatment.

Subsequently, she gave a report to the Police. During

investigation, basing on the statement, Police registered the F.I.R.

and took up investigation and they arrested the accused. After

completion of investigation, charge sheet is laid. The learned

Magistrate, took cognizance of the case under Section 417 IPC and

after appearance of the accused, copies of the case documents

were furnished as required and the accused was examined under

Section 251 Cr.P.C. for which he pleaded not guilty and claimed to

be tried.

4. To bring home the guilt of the accused, the prosecution

examined PWs.1 to 8 and got marked Exs.P-1 to P-10. After

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closure of the evidence of the prosecution witnesses, the accused

was examined under Section 313 Cr.P.C. with reference to the

incriminating circumstances for which he denied the same. In

support of the defence, accused got examined DW.1 and got

marked Exs.D-1 and D-2.

5. The trial Court, after hearing both sides and on considering

the oral as well as documentary evidence on record, found the

accused not guilty of the offence under Section 417 IPC and

acquitted him under Section 255(1) Cr.P.C.

6. Aggrieved by the same, the de-facto complainant/victim/

PW.1 in C.C. No.187 of 2006, dated 22.08.2008, preferred this

Criminal Revision Case under Sections 397(1) and 401 Cr.P.C.

7. Now, in deciding this Criminal Revision Case, the point that

arises for consideration is as to whether the judgment in C.C.

No.187 of 2006, dated 22.08.2008, by the learned Additional

Judicial Magistrate of First Class, Vizianagaram suffers with any

illegality, irregularity and impropriety and whether there are any

grounds to interfere with the same?

8. POINT: Learned counsel appearing for the revision petitioner

would contend that the Court below instead of convicting the

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accused under Section 417 IPC acquitted him. PW.1 categorically

testified that accused had sexual intercourse with her promising

to marry and subsequently he did not marry. Her evidence has

support from PW.2, the cousin sister, PW.3, younger brother of

PW.1, and also from PW.4. They testified that accused used to

come to the house of PW.1, chitchat and move with her very

closely. He promised to marry PW.1 and had sexual intercourse

with her. The trial Court did not look into the aspect. Though the

accused got engaged with a lady by name Harathi of Srikakulam

but quarreled with PW.1 by refusing to marry and by saying that

he would marry both of them. So, PW.1 took poison on

25.03.2006. The evidence of PW.1 has corroboration from the

doctor, PW.7. The trial Court committed illegality in acquitting

accused as such the Criminal Revision is liable to be allowed by

giving conviction.

9. Learned counsel for the first respondent/accused would

strenuously contend that this Court cannot convert the order of

acquittal into conviction in view of the embargo under Section

401(3) Cr.P.C. Learned counsel would further contend that there is

any amount of improbable circumstances in the evidence of PWs.1

to 4, and other witnesses did not support the case of the

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prosecution and the appreciation of the evidence by the Court

below is based upon sound lines and the judgment is not perverse

and in such case this Court cannot interfere with the matter as

such the Revision Case is liable to be dismissed.

10. PW.1 before the trial Court is no other than the victim and

her evidence on material aspects is that the accused got marriage

alliance engagement with one Harathi of Srikakulam about 5 years

prior to the date of incident but he informed PW.1 that he fell in

love with her. Then she questioned why he is loving her when he

already went on engagement with Harathi. He told her that she

dislikes Harathi. So, both of them fell in love and in the absence of

inmates and her brother, PW.3, they used to meet physically.

Accused promised that he would marry her. She believed his

promise. So she offered herself to him. Three years prior to the

date of incident, accused told her that he would marry Harathi

along with her. So, there was a dispute. The accused denied her

request to marry. On 25.03.2006 accused told her that he will

marry her first in the Temple and later he would marry Harathi.

So, she consumed poison. On 02.04.2006, she lodged a report.

11. Turning to the evidence of PWs.2 and PW.3, the cousin

sister and younger brother of PW.1 respectively they testified to

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the effect that accused used to come often to the house of PW.1

and intimated PW.1 that he will marry and he cannot live without

PW.1. They questioned him about his marriage betrothal with

Harathi and he stated that he is not willing to marry Harathi.

PW.3, further deposed that even he warned PW.1 not to move

closely with the accused. He also questioned the accused about

his marriage engagement with Harathi for which he replied that he

is not going to marry Harathi. On 25.03.2006, he found PW.1 in

unconscious state and took her to hospital.

12. Turning to the evidence of PW.4, she deposed that accused

and PW.1 fell in love with each other about three years ago. She

questioned the accused that he got engagement with Harathi and

why he is loving PW.1, accused told her that he had no interest

towards Harathi. She learnt that the accused breached his

promise later and PW.1 consumed poison.

13. PWs.5 and 6 did not support the case of the prosecution.

14. PW.7 is the Medical officer, who deposed that he can

identify the handwriting and signature of LW.8-Dr. P. Venugopala

Rao. Ex.P-9, wound certificate bears the signature of LW.8.

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15. PW.8 is the Sub-Inspector of Police, who testified that PW.1

came to the Police station on 02.04.2006 and gave a statement

which is registered as a case and took up investigation. On

completion of investigation, he filed charge sheet.

16. Accused got examined DW.1, who was not examined by the

prosecution though he was cited as a witness and, according to

the testimony of DW.1, Police summoned him to give evidence

falsely against the accused. His deposition is that accused and

PW.1 never loved each other and he never saw them moving

closely.

17. It is shown as evident from the charge sheet the age of the

accused was shown as 27 years as on the date of offence. Turning

to the deposition of PW.1, as on the date of her evidence, her age

was shown as that of 27 years. During the course of cross-

examination, PW.1 deposed that she know that accused got

marriage alliance with Harathi about 5 years ago. She did not

intimate to the elders or to her elder sisters that she fell in love

with the accused. She did not inform to the parents or elders of

Harathi that accused fell in love with her. Even she did not

intimate to the family members or elders of the accused in this

regard. She did not intimate to elders or family members that

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accused had sexual intercourse with her. She denied that accused

never fell in love with her and never had sexual intercourse with

her. Generally, they would inform to the caste elders if any

difference arose in their street. She did not give any police

complaint on 25.03.2006 on which date she took poison. No FIR

was registered alleging that she consumed poison. She denied that

she did not consume any poison. She filed a suit in O.S. No.312 of

2006 against the accused seeking to grant permanent injunction

restraining him from marrying Harathi. It is true that they were

told that the marriage of the accused was performed on 06th but it

was performed on 09th. She denied that accused did not cheat her

and she is deposing false.

18. PW.2 during the cross-examination deposed that she did not

state before Police as in Ex.D-2. Turning to the evidence of PW.3,

he deposed in cross-examination that he did not question the

parents of Harathi about the attitude of the accused. The dispute

was not referred to any elders. He did not state before Police that

accused got sexual intercourse with PW.1. PW.4, during cross-

examination, denied that she did not question the accused with

regard to love affair and that she is deposing false. It is to be

noticed that there is no medical evidence to prove that accused

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had sexual intercourse with PW.1. So, there appears the solitary

testimony of PW.1 in this regard.

19. Now, the simple question that falls for consideration is

whether the evidence adduced by the prosecution by examining

PWs.1 to 4 is believable?

20. It is not as though the marriage alliance of the accused was

not fixed with any lady prior to the alleged promise of the accused

to PW.1 to marry her. Even according to PW.1, she had knowledge

that long prior to the commission of the offence in this case i.e., 5

years back accused got betrothal ceremony to marry one Harathi

of Srikakulam. The so called Harathi of Srikakulam was also a

lady like PW.1. So, when PW.1 had knowledge that the accused

had a marriage engagement with Harathi of Srikakulam and when

the accused proposed love with PW.1, definitely a lady of

reasonable prudence would question the accused how he made

such proposal to marry her keeping the life of Harathi at peril. It is

rather improbable that PW.1 believed the version of the accused as

if he was loving her. PW.2 is the cousin sister of PW.1 and PW.3 is

the younger brother of PW.1 and they were supposed to protest

before the accused as to how he could love PW.1 when his

marriage alliance was already fixed with Harathi of Srikakulam. In

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those circumstances, PWs.2 and 3 being close relatives if they are

having reasonable prudence they would not have kept quiet.

Certainly, they would have brought the fact to the notice of

Harathi or the relatives of Harathi about the act of the accused.

The evidence adduced by the prosecution by examining PWs.1 to

4, as regards the allegations raised against the accused, are

nothing but improbable and the evidence of PWs.1 to 4 cannot

stand to the test of scrutiny. Apart from this, when it is a known

fact according to the admission made by PW.1 that there used to

village elders in their street who used to resolve the issues of

persons in the village or street, the dispute between the accused

and PW.1 was not brought to the notice of such elders. Even

otherwise, the alleged act of PW.1 in consuming pesticide poison

cannot be attributed to the accused as there is no link in evidence

to prove the same. Apart from this, if really the incident was

happened, as deposed by PW.1, on that particular day, it is not

understandable as to why she kept quiet without lodging any

report to the Police. Even after the so called consumption of poison

the report was lodged only after one week. In the facts and

circumstances of the case, the solitary evidence of PW.1 that

accused had sexual intercourse with her on the false promise to

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marry her cannot stand to the test of scrutiny. The evidence of

PWs.2 to 4 is inherently improbable.

21. Having regard to the above, I am of the considered view that

the learned Additional Judicial Magistrate of First Class,

Vizianagaram appreciated the evidence on record on right lines

and it cannot be said that the judgment rendered by the learned

Magistrate is perverse.

22. To exercise the powers of Revision to remand the matter,

which is the only course left before this Court is the judgment

under challenge should be perverse. It is the bounden duty of the

revision petitioner to show how the judgment of the learned trial

Judge is perverse. In my considered view, the judgment rendered

by the learned Magistrate, looking into facts and circumstances of

the case cannot be said to be perverse.

23. The settled legal position is that under Section 401(3)

Cr.P.C., this Court cannot convert the order of acquittal into

conviction. It is only when the judgment of the trial Court is

perverse and it is rendered ignoring the evidence on record without

any proper reason, this Court is empowered to exercise the powers

of remand. It is pertinent here to refer the scope of the Revision

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under Sections 397 and 401 Cr.P.C. Section 397 Cr.P.C.

contemplates the powers of the High Court and Sessions Court to

exercise the powers of revision as to the correctness, legality or

propriety of any order of the Court inferior to that. Section 401 of

Cr.P.C. specifically deals with the High Court's power of revision. It

is no doubt true that under Sub-section (3) of Section 401 of

Cr.P.C. nothing shall be deemed to authorize a High Court to

convert a finding of the acquittal into one of conviction. So, there

is a legal impediment to the effect that this Court cannot convert a

finding of the acquittal into one of conviction, which has been

specifically provided in Sub-section (3) of Section 401 of Cr.P.C.

24. In Ram Briksh Singh and others v. Amkbika Yadav and

another1, the Apex Court referring to its earlier decision relating

to the powers of the High Court under Section 401 Cr.P.C. held

that the High Court can set-aside the order of acquittal and remit

the case for retrial where material evidence is overlooked by the

trial Court. This is clearly reflected in a judgment of this Court in

Sama Subhash Reddy v. S. Lalitha and others2 wherein the

Andhra Pradesh High Court dealt with the powers of the revision

under Section 401 Cr.P.C. relying upon a judgment of the Apex

1 (2004) 7 SCC 665 2 2010 (2) ALD (Crl.) 779 AP

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Court, as above. It is quietly evident from the said decision that

the revisional powers in setting-aside the order of acquittal have to

be sparingly and exceptionally exercised when there is a manifest

error of law and procedure and only to prevent the gross

miscarriage of justice. So, if the material evidence available on

record is totally overlooked by the trial Court or when the findings

of the trial Court are perverse, the revisional Court can set-aside

the order of acquittal and order for retrial.

25. Having regard to the above, I am of the considered view that

the judgment in C.C. No.187 of 2006, dated 22.08.2008, passed

by the learned Additional Judicial Magistrate of First Class,

Vizianagaram cannot be said to be perverse and it does not suffer

with illegality, irregularity and impropriety and the Criminal

Revision Case is devoid of merits.

26. In the result, the Criminal Revision Case is dismissed.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date :14.11.2022 DSH