Muddireddy Sivarami Reddy 2 ... vs The State Of Ap., Rep By Pp
2023 Latest Caselaw 981 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE NO.376 OF 2012

ORDER:

In this Criminal Revision Petition filed by three (3)

convicts, they seek to set aside the judgment of the learned first

appellate Court by exercising powers under Section 397 and

401 Cr.P.C. Respondent herein is the State on whose

prosecution these revision petitioners were earlier convicted by

the learned trial Court.

02. The facts leading to the presentation of present revision

are to be noticed.

Crime No.50 of 2009 of Chennur police station was

investigated into by the Sub Inspector of Police and on collection

of evidence and conclusion of investigation a charge sheet was

filed before learned First Additional Judicial Magistrate of First

Class, Kadapa for the offences under Sections 324 r/w. 34 IPC

and Section 188 IPC. After taking cognizance of offence and

securing the presence of accused and having furnished copies of

documents and after hearing counsel on both sides the learned

trial Court framed a charge under Section 324 IPC as against

A2 and A3 and a charge under Section 324 r/w.34 IPC against

A1. The accused denied the facts and pleaded not guilty.

Dr. VRKS, J Crl.R.C.376 of 2012

Further trial ensued where prosecution examined Pws.1 to 8

and got marked Exs.P1 to P6 and also exhibited one of the

crime weapons/MO.1 stick. The incriminating material available

on record was explained to the accused under section 313

Cr.P.C. wherein the accused denied the truth of the evidence.

Accused did not adduce any evidence. After hearing arguments

on both sides and after thorough scrutiny of evidence on record,

learned trial Court found A1 to A3 guilty for the charges framed

against them and convicted them and sentenced them to

undergo simple imprisonment for six months and further

directed each one of them to pay fine of Rs.1,000/- prescribing

default sentence to undergo simple imprisonment for one

month. Before the learned trial Court, it was a case of one

victim and three accused. They belong to different political

parties and the alleged offence occurred on 23.04.2009 which

was the day for general elections for Parliament as well as State

Assembly. The allegations are that all the three accused noticed

the victim/Pw.1 at 2.30 PM at Old bank street, Chennur of

Kadapa District and thus accused reached the victim and

attacked him. A1 caught hold the neck of the victim and

dragged him and A2 using MO.1 stick caused injury on the

head and A3 using a stone caused injury on the back of the

Dr. VRKS, J Crl.R.C.376 of 2012

victim. The evidence of victim/Pw.1 and that of his friend, who

was by his side and witnessed the incident, gave evidence as

Pw.2 and the earlier statement of Pw.1 given to police as per

Ex.P1 were found consistent by the trial Court. In addition to

that there was the evidence of Pws.3, 4 and 5 which also stood

as full support for the version of the prosecution. The victim was

examined by medical expert and his wound certificate was there

on record and was exhibited as a document while examining the

investigation officer/Pw.8. It seems the medical doctor who

examined the victim did not testify before the Court and

prosecution gave up his evidence. It was in that context of facts

defence raised a contention before the learned trial Court about

proof of contents of the wound certificate/Ex.P6. Learned trial

Court by furnishing its own reasons observed that from the rest

of the evidence it was able to reach to the conclusion about

simple hurt suffered by Pw.1 in the hands of accused and

therefore it felt that non-examination of doctor did not affect the

case of the prosecution. Acting upon such evidence the learned

trial Court found the accused guilty and convicted them and

sentenced them accordingly.

Dr. VRKS, J Crl.R.C.376 of 2012

3. Challenging that judgment all the three convicts preferred

Criminal Appeal No. 124 of 2010 and First Additional Sessions

Judge, Kadapa after due hearing, by his judgment dated

24.01.2012 felt that the wound certificate of the victim was not

proved in accordance with law and it gave its reasons at Para

12, 13 and 14 of its judgment and held that, that technical

lapse should not result in acquittal of culprits. Therefore, in its

view a fresh opportunity be given to the prosecution to prove the

wound certificate for proper appreciation of evidence. It was in

that view of the matter learned first appellate Court passed the

following Order:

"In the result, the appeal shall be allowed setting aside the judgment of conviction and sentence order dated 10.12.2010 in C.C.No.109 of 2009 on the file of the First Additional Judicial Magistrate of First Class, Kadapa, and that the case in C.C.No.109 of 2009 on the file of the First Additional Judicial Magistrate of First Class, Kadapa shall be remanded back to the trial Court with a direction for giving opportunity to the prosecution to prove the contents of wound certificate for the injuries on Pw.1, which is marked as Ex.P3 in the deposition of Pw.8 and as Ex.P6 as per the endorsement on the document and render its judgment without prejudice in respect of

Dr. VRKS, J Crl.R.C.376 of 2012

the observations in the earlier judgment as well as in this appeal."

4. Aggrieved by that Order of remand the convicts preferred

this Criminal Revision stating that for the lapses of prosecution

in proving its case in the manner known to law these revision

petitioners cannot be subjected to a remand for re-trial. In the

absence of any improper trial, remanding the matter is incorrect

and un-known to law. The learned first appellate Court ought to

have acquitted these revision petitioners and it committed an

error in remanding the case and therefore prayed this Court to

set-aside the judgment of the first appellate Court.

5. Learned Senior Counsel Sri P.Veera Reddy argued for

revision petitioners and submit that as against an appeal

against conviction it is Section 386 Cr.P.C. that provides

principles for the first appellate Court and Section 386(b)

empowers the first appellate Court to reverse the finding and

sentence and acquit or discharge the accused. The other

alternative provided by the provision is for retrial by the Court of

competent jurisdiction. Learned counsel would submit that the

Court which tried the case was the Court of competent

jurisdiction and therefore there is no jurisdictional error

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warranting remand of the matter for retrial. Learned senior

counsel further argued that the judgment of the learned first

appellate Court does not indicate the provision under which it

remanded the case to the trial Court. A validly argued defence

contention cannot be used for remanding a case. While the

statute specifies a provision for retrial the Order passed by the

first appellate Court speaks about recording of further evidence

with reference to wound certificate alone and not retrial and

thus there was clear irregular or illegal exercise of power by the

learned first appellate Court.

6. Learned Special Assistant Public Prosecutor appearing for

respondent submits that it was on a well considered judgment

of conviction of the trial Court the matter was heard by the

learned first appellate Court and the wound certificate was

already on record and examining a witness would in no way

cause prejudice to the defence and in that view of the matter

there is no need to exercise revisional powers by this Court.

7. The point that falls for consideration is:-

Whether the Order passed by the learned first appellate Court is sustainable under law?

Dr. VRKS, J Crl.R.C.376 of 2012

8. POINT:-

The material on record admit the following aspects and

they remain undisputed. It was for the offence under Section

324 IPC trial was held before the learned Magistrate. Since the

punishment provided extend up to three years, it was a warrant

triable case in terms of Section (2) (x) Cr.P.C. and accordingly

the learned Magistrate followed the procedure provided under

Chapter XIX of Code of Criminal Procedure and tried the case

accordingly. All the principles of fair trial were followed and the

accused were defended by their own learned counsel. Neither

the prosecution nor accused ever contended about any errors in

the trial procedure or violation of any principles of natural

justice. They never contended about any other fundamental

lapses that would vitiate the trial. Thus, the competent Court in

a duly conducted trial rendered its judgment of conviction. It

was that judgment of conviction that went in appeal to learned

first appellate Court. Before the learned first appellate Court the

strong contention raised by the convicts was about absence of

any legal proof of injuries on Pw.1/victim. During the course of

trial as well as during the course of first appeal the accused

seriously contested the very existence of injuries on Pw.1 on the

Dr. VRKS, J Crl.R.C.376 of 2012

ground that the victim was allegedly treated in a hospital where

his own close relative was a doctor through whom he procured a

false and fabricated wound certificate. When that being the

contention, the doctor who issued the wound certificate was

expected to be examined before the trial Court. Prosecution gave

up his evidence. Learned trial Court recorded that the doctor

left the hospital and therefore prosecution gave up his evidence.

However, it went on to accept the proof of injuries on victim

based on other available evidence. If the learned first appellate

Court finds that some additional evidence was required, it

should have exercised the powers vested with it under Section

391 Cr.P.C. If that power was to be exercised, it holds on the

appeal and the judgment of the trial Court remains preserved

and after securing additional evidence either by itself or through

the trial Court, it could dispose of the appeal in accordance with

law. It did not adopt that course. Instead, it set aside the

judgment of the learned Magistrate and sent back the case to

the trial Court by way of remand without mentioning the

statutory provision under which it was doing so. Section 386(b)

of Code of Criminal Procedure provides for remand for retrial

and not for mere recording of some evidence. What the learned

first appellate Court did was, it mixed up the two different

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principles of law and it set aside the entire judgment of the trial

Court and sent back the case by way of remand only for

recording additional evidence. The consequence of this is that

now there is no judgment of the learned trial Court and there is

no judgment of the first appellate Court on facts and law. Such

Order is unsupportable especially since the material before the

learned first appellate Court did not warrant remanding of the

case.

9. Hon'ble Supreme Court of India in Mohd.Hussain @

Julfikar Ali vs. The State (Govt. of NCT) Delhi1 held that the

power under Section 386(b) Cr.P.C. should not be exercised in a

routine manner. A de novo trial or retrial of the accused should

be ordered in exceptional and rare cases and only when in the

opinion of the appellate court such course becomes

indispensable to avert failure of justice. Their Lordships

emphasized and stated that such power cannot be used to allow

the prosecution to improve upon its case or fill up the lacuna.

The guiding factor for retrial must always be demand of justice.

1 [2012] 9 SCC 408

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Courts must closely keep in view that the people who seek

protection of law do not lose hope in legal system.

10. Looking at the facts available on record and the impugned

Order of the learned first appellate Court and in the context of

the legal principles contained in Section 386(b) and Section 391

Cr.P.C. and the ratio of the judgment of the Hon'ble Supreme

Court of India referred earlier, this Court finds that both on

facts and law the Order impugned here cannot be supported as

it is against the statute and the intendment of law and therefore

it is liable to be set aside. Hence point is answered in favour of

the revision petitioner.

11. In the result, the Criminal Revision Case is allowed and

the Order of the First Additional Sessions Judge, Kadapa in

Criminal Appeal No.124 of 2010 dated 24.01.2012 is set aside.

First appeal is restored and the learned first appellate Court

shall hear the appeal afresh and dispose it of in accordance with

law as expeditiously as possible.

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As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 21.02.2023 KLNS

Dr. VRKS, J Crl.R.C.376 of 2012

THE HON'BLE SRI JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE NO.376 OF 2012

Date: 21.02.2023

KLNS