Andhra Pradesh High Court - Amravati
Sonti Veera Babu, vs The State Of Andhra Pradesh on 27 September, 2022
1
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION NO.5763 of 2022
Between:-
1) Sonti Veera Babu
2) Borra Srinivasa Rao .... Petitioners/A.1 & A.3
And
The State of Andhra Pradesh,
represented by its Public Prosecutor,
High Court of Andhra Pradesh,
Amaravati. .... Respondent/Complainant
Counsel for the Petitioners : Mr.Kesana Rama Koteswararao
Counsel for the Respondent : Learned Assistant Public Prosecutor
ORDER:
Heard Mr.Kesana Rama Koteswararao, learned counsel for the
petitioners and the learned Assistant Public Prosecutor appearing for the
respondent-State.
2. The present Criminal Petition is filed seeking to quash an Order dated
14.07.2022 passed in Crl.M.P.No.53 of 2022 in S.C.No.36 of 2015 on the file of
the Court of the Learned VI Additional District Judge & Sessions Judge, Krishna
at Machilipatnam, Krishna District.
3. The petitioners herein are Accused Nos.1 & 3 in the said case, wherein
they are facing charges for the offences punishable under Sections 147, 148
and 302 R/w Section 149 IPC.
4. The case of the prosecution as per the Charge Sheet is that on
28.02.2013, A.3 attended before the Learned Special Mobile Judicial First Class
Magistrate, Machilipatnam in connection with Cr.No.181 of 2006 as a witness,
deposed evidence against the deceased, L.W.1 & others and after the
adjournment of the case to 04.03.2013, both the groups reached the village
and in the evening A.1, A.2, A.3, A.4, A.6 and A.9 met in the house of A.1,
conspired and hatched a plan to eliminate the deceased. On 28.02.2013 at 9.30
p.m, L.W.1 and deceased are talking about the tractor of L.W.6 in front of the
house of deceased, at that time the accused, who lurked in the bushes behind
the hayric heap situated in between the houses of A.3 and deceased, A.1
armed with Penakkathi, suddenly came out and hacked on the head of
deceased, after him, A.2 attacked deceased with another Pennakathi hacked on
the right side of the head, later A.3 attacked on the deceased with knife, A.4,
A.5 and A.6 attacked on the deceased with iron rods, A.7, A.8 and A.9 attacked
deceased with stout sticks and dragged him towards Ramalayam catching him
with a towel. Further that L.W.1 made hues aloud on that A.1 and A.2 asked to
catch him then he stepped back. Later accused taken the deceased near to the
house of L.W.8 and again A.1 to A.3 attacked with knives on the head of
deceased, A.4 to A.7 hacked on the neck and back side of deceased. L.Ws 1 to
5 tried to rescue the deceased but in vain, in which L.W.2 was pushed back
with hands by the accused. A.1, A.2, A.3 again hacked on head and back side,
A.4 beat the deceased with iron rod on the left leg, A.5 beat on the right leg of
deceased with iron rod, A.6 beat on the right hand of deceased with iron rod,
A.7 beat the deceased with stick on the neck, A.8 and A.9 beat the deceased
with sticks indiscriminately on the body of deceased and caused serious
bleeding injuries and left him as dead at Ramalayam. On that L.Ws 1 to 5 and 7
shifted the deceased to Government Hospital, Machilipatnam through 108
ambulance but the deceased was died on 28.02.2013 at 10.45 p.m, while
taking treatment in the hospital due to injuries caused by the accused with
knives, iron rods and sticks due to previous enmity.
5. After examination of the prosecution witnesses, the petitioners/
A.1 & A.3 filed the above said Criminal Miscellaneous Petition under Section 91
of Cr.P.C to examine the Superintendent, Government Hospital, Machilipatnam
and direct him to cause production of Accident Register dated 11.03.2013, the
medical records i.e., Case Sheet including X-ray films pertaining to the
examination and treatment of A.1 i.e., Sonti Veera Babu I.P.No.4022 from
16.03.2013 and A.2 i.e., Borra Srinivasa Rao on 11.03.2013, who are referred
from Sub-Jail, Machilipatnam.
6. The prosecution filed a counter opposing the said application and by an
Order dated 14.07.2022, the learned Additional District & Sessions Judge was
pleased to dismiss the same. Aggrieved by the said order, the present Criminal
Petition came to be filed.
7. The learned counsel for the petitioners, inter alia, submits that the order
under challenge is perverse and liable to be set aside. He submits that as is
evident from the remand report dated 08.03.2013, the petitioners/A.1 & A.3
complained about injuries to them, which were sustained at the hands of the
deceased in the incident occurred on 28.02.2013 and the matter is required to
be adjudicated with reference to the medical record pertaining to the injuries
sustained by the petitioners. He submits that summoning of witnesses and
production of the medical record as sought for is crucial for the defence of the
petitioner. Referring to the statements of witnesses i.e., P.W.2 that A.1 and A.3
sustained injuries in the incident and A.1 sustained fracture to his fingers of the
hand, P.W.3 that A.3 sustained swelling injury to his right leg and P.W.4 that
while the accused were assaulting the deceased by surrounding him, some of
the accused also sustained injuries, the learned counsel submits that in the light
of the said statements, it is very much essential to summon the Superintendent,
District Government Hospital, Machilipatnam and cause production of the
Accident Register and medical records as sought for. The learned counsel also
submits that the opinion of the learned Sessions Judge that summoning of the
witnesses and production of the medical records would consume considerable
time, that the same is not useful and would prolong the proceedings and
amounts to miscarriage of justice to the prosecution is not tenable. He also
submits that denial of right of defence will effect the fundamental right of the
petitioners and accordingly he seeks to allow the Criminal Petition. In support of
his contentions, the learned counsel for the petitioners places reliance on the
decisions of the Hon'ble Supreme Court reported in State of Orissa vs.
Debendranath Padhi1, Nitya Dharmananda Alias K.Lenin and Another
(2005) 1 Supreme Court Cases 568
vs. Gopal Sheelam Reddy Also known as Nithya Bhaktananda and
Another2 and a Division Bench Judgment of High Court of Madhya Pradesh in
Special Police Establishment vs. Umesh Tiwari and another3.
8. The learned Assistant Public Prosecutor, on the other hand, submits that
if the petitioners sustained injuries on the date of alleged incident,
they would not have waited till they are admitted and would have certainly got
the injuries treated by seeking admission in any hospital, as the injuries are
grievous in nature. He submits that the petitioners filed the Criminal
Miscellaneous Petition only to protract the matter and the same was rightly
dismissed by the learned Sessions Judge and contends that there are no merits
warranting interference with the impugned order.
9. This Court has considered the submissions made and perused the
material on record, including the order, under challenge. In the light of the
submissions made, the point that falls for consideration is "whether the order of
the Learned Additional District Judge is liable to be quashed in the facts and
circumstances of the case?"
10. Point:- The contentions advanced by the learned counsel for the
petitioners are to be effect that the A.1 & A.3 sustained injuries on 28.02.2013
i.e. when the incident occurred in the hands of the deceased and therefore
summoning of the witnesses along with the medical record is required. He also
submits that learned Magistrate, also recorded the statement of the petitioners
(2018) 2 Supreme Court Cases 93
M.Cr.C.No.60404 of 2021, dated 21.01.2022
that they have received injuries on the night of 28.02.2013 at the hands of the
deceased. He further submits that even the other witnesses had categorically
stated that the accused sustained injuries at the time of incident on 28.02.2013.
Therefore, for proper adjudication of the case and to render substantial justice,
the Criminal Miscellaneous Petition ought to have been allowed by the learned
Sessions Judge, but the same was dismissed without proper appreciation of the
petitioners' case.
11. In so far as the contention with regard to summoning of the
Superintendent, Government Hospital along with the medical record, in the
opinion of this Court, the same is not tenable. Even if the version of the
petitioners/accused that they received injuries in the hands of the deceased at
the time of the incident as stated by them in the remand report merits
consideration, but, in the absence of any reliable evidence that the injuries are
owing to the attack by the deceased, no useful purpose would be served by
mere summoning of the witnesses or production of medical record. No counter
case was registered at the instance of the petitioners/Accused Nos.1 & 3,
either. Further, the statements of the prosecution witnesses only testifies about
the injuries sustained by the accused, but not otherwise, as sought to be
projected. Therefore, the contentions advanced on behalf of the petitioners
are rejected.
12. At this juncture, it may be appropriate to refer to the decisions relied on
by the learned counsel for the petitioners.
13. In State of Orissa vs. Debendranath Padhi's case, the question
before the Hon'ble Supreme Court was as to whether the Trial Court at the time
of framing of charge can consider the material filed by the accused. Answering
the said question in negative, the Hon'ble Supreme Court held that at the time
of framing of charge or taking cognizance, the accused has no right to produce
any material. The Hon'ble Supreme Court also held that the jurisdiction under
Section 91 of the Code when invoked by the accused, the necessity and
desirability would have to be seen by the Court in the context of the purpose,
investigation, enquiry, trial or other proceedings under the Code and that it
would also have to be borne in mind that Law does not permit a roving or
fishing enquiry.
14. Nithya Dharmananda referred to supra, is a case where Section 91
Cr.P.C was invoked by the accused at the stage of framing of charge. The
Hon'ble Supreme Court at Para No.5 opined that "at the stage of framing of
charge the accused cannot ordinarily invoke Section 91. However, the Court
being under an obligation to impart justice and to uphold the Law, is not
debarred from exercising its power, if the interest of justice in a given case so
require, even if the accused may have no right to invoke Section 91. The
Hon'ble Supreme Court also opined that to exercise the said power, the Court is
to be satisfied that the material available with the investigator, not made part of
the charge-sheet, has crucial bearing on the issue of framing of charge.
15. In Special Police Establishment's case, the Hon'ble Division Bench of
High Court of Madhya Pradesh while opining that Section 91 of Cr.P.C can be
invoked by the prosecution, victim and accused (except during pendency of
investigation), held that the said invocation by any stakeholder is subject to
satisfaction of the Court about desirability and necessity of the document
sought to be produced.
16. The above decisions are not of much aid to the petitioners nor applicable
to the present fact situation. Even otherwise, for exercising power under
Section 91, the Court has to be satisfied that there is material, which is
deliberately left out from the Charge Sheet.
17. In the present case, the learned Sessions Judge apart from other cogent
reasons, while rejecting the application filed by the petitioner under Section 91
Cr.P.C, also opined that the record sought from the District Hospital is of the
year 2013 and securing the same would certainly take considerable time.
Though the said reason appears to be not sound, in view of its well considered
finding that the version of the prosecution is independent from the version of
the petitioners/accused, which is to be established, this Court finds no ground
to interfere with the order under challenge.
18. For the foregoing reasons, this Criminal Petition fails and the same is
accordingly dismissed. As a sequel, miscellaneous applications, pending if any,
shall stand closed.
________________________
JUSTICE NINALA JAYASURYA
Date: 27.09.2022
IS
THE HON'BLE SRI JUSTICE NINALA JAYASURYA
CRIMINAL PETITION NO.5763 of 2022
Date: 27.09.2022
IS
