Andhra Pradesh High Court - Amravati
Kathula Padmavathi, Nellore District. vs Gurramkonda Vasudeva Rao, Tirupathi ... on 14 February, 2024
IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI
(Special Original Jurisdiction) [
3
3
6
WEDNESDAY ,THE FOURTEENTH DAY OF FEBRUARY 7
TWO THOUSAND AND TWENTY FOUR ]
APHC010492502009
PRESENT
THE HONOURABLE SRI JUSTICE V SRINIVAS
CRIMINAL REVISION CASE NO: 1090 OF 2009
Between:
KATHULA PADMAVATHI, NELLORE DISTRICT. ...PETITIONER(S)
AND
GURRAMKONDA VASUDEVA RAO TIRUPATHI TOWN CHITTOOR ANR AND OTHERS ...RESPONDENT(S)
Counsel for the Petitioner(s):SRI. TURAGA SAI SURYA
Counsel for the Respondents: 10959/GANTA RAMAKRISHNA
Counsel for the Respondents: PUBLIC PROSECUTOR
The Court made the following:
ORDER:
This Revision is filed by the petitioner/complainant,
challenging the judgment dated 25.05.2009 in S.C.No.31 of 2009
passed by the learned II Additional Assistant Sessions Judge, Nellore,
wherein the accused was found not guilty and acquitted of the
offences punishable under Sections 354 and 352 I.P.C.
2. The brief facts of the case are as follows:
a. The complainant is an advocate by profession and her husband
was running an automobile spare parts shop at Nellore. Their second
daughter's marriage was performed with the accused in 2001 as per
Hindu rites and customs. Later due to disputes, they got divorced.
Her daughter along with her son returned to India and staying with
them. The accused filed a petition before the Family Court, Nellore,
seeking custody of his son.
b. On 17.12.2023, the complainant went to attend the court
proceedings at Nellore. On that day at about 3.15 p.m. in front of
the court, the accused picked up a quarrel by abusing her in filthy
language, beat her with hands, caught hold her right breast and
dragged and tore her jacket by holding her neck. Hence, she lodged
a complaint in IV Town Police Station (Law and Order), Nellore and
the same was registered as a case in Crime No.305 of 2008 under
Sections 354 and 352 I.P.C. After completion of investigation, charge
sheet was filed.
3. During the course of trial, the prosecution examined PW.1 to
PW.8 and marked Ex.P1 to Ex.P4 and MO.1. On behalf of the
accused, Exs.D1 to D3 were marked and no oral evidence was
adduced.
4. The trial Court acquitted the accused holding that the
prosecution miserably failed to prove the guilt of the accused for the
offences punishable under Sections 354 and 352 I.P.C.
5. Being aggrieved by the acquittal of the accused/1st
respondent, the present revision has been filed by the
petitioner/complainant.
6. Heard Sri Yashwant, learned counsel representing Sri T.Sai
Surya, learned counsel for the petitioner, Sri Ganta Ramakrishna,
learned counsel for the 1st respondent/accused and Sri Dheera
Kanishk, learned Special Assistant Public Prosecutor appearing for the
2ndrespondent-State.
7. The point for consideration in this revision is:
"Whether there is any manifest error of law or
procedure or flagrant miscarriage of justice in the
judgment rendered in S.C.No.31 of 2009 by the learned II
Additional Assistant Sessions Judge, Nellore?"
8. Before discussing the main point, in particular, this revision is
against the acquittal of the accused, the law is settled on the point
of jurisdiction that the power of revision accords a superior court,
the prerogative to scrutinize and review the decisions made by a
lower court at any stage of a trial and rectify errors or irregularities
in conformity with the cannons of natural justice and equitable
treatment among other grounds. The revisionary powers of the High
Court can be sourced to section 401 of the Cr.P.C., whereunder the
High Court has the discretionary power to inter alia reverse/alter a
finding by a lower court; order a retrial; suspend the execution of a
lower court's order; issue a warrant of arrest and direct the recording
of additional evidence. However, a revision Court, therefore, has a
limited mandate of only evaluating the prima facie legality,
correctness, or the propriety of the orders, findings and/or sentence
of a lower court in accordance with the established rules of criminal
jurisprudence.
9. It is also settled proposition that such jurisdiction cannot be
exercised in a routine manner by the higher courts and can be only
invoked in specific instances wherein the decisions under challenge
are inter-alia grossly erroneous, there is no compliance with the
provisions of law, the finding recorded is based on no evidence,
material evidence is ignored or judicial discretion is exercised
arbitrarily or perversely.
10. In this connection, this Court fortified the judgment of the
Hon'ble Supreme Court in Amit Kapoor v. Ramesh Chander1and
Jagjeet Singh v. Ashish Mishra2.
11. Besides in another judgment of the Hon'ble Supreme Court in
Joseph Stephen v. Santhanaswamy3, held at paragraph Nos.10 and
12 as follows:
"10.Applying the law laid down by this Court in the
aforesaid decisions and on a plain reading of sub-section
(3) of Section 401 Cr.P.C., it has to be held that sub-section
(3) of Section 401 Cr.P.C. prohibits/bars the High Court to
convert a finding of acquittal into one of
conviction.Though and as observed hereinabove, the High
(2012) 9 SCC 460
2022 SCC Online SC 453
(2022) 13 SCC 115
Court has revisional power to examine whether there is
manifest error of law or procedure etc., however, after
giving its own findings on the findings recorded by the
court acquitting the accused and after setting aside the
order of acquittal, the High Court has to remit the matter
to the trial Court and/or the first appellate Court, as the
case may be.
12.Therefore, in the present case, the High Court has
erred in quashing and setting aside the order of acquittal
and reversing and/or converting a finding of acquittal into
one ofconviction and consequently convicted the accused,
while exercising the powers under Section 401 Cr.P.C. The
order of conviction by the High Court, while exercising the
revisional jurisdiction under Section 401Cr.P.C., is
therefore unsustainable, beyond the scope and ambit
ofSection 401 Cr.P.C., more particularly sub-section (3) of
Section 401 Cr.P.C. Issue no.1 is answered accordingly."
12. From the above, it is clear that Section 401(3) of Cr.P.C.
Prohibits/bars the High Court to convert a finding of acquittal into
one of conviction. The High Court has revisional power to examine
whether there is manifest error of law or procedure etc. However,
after giving its own findings on the findings recorded by the Court
acquitting the accused and after setting aside the order of acquittal,
the High Court has to remit the matter to the trial Court.
13. In the present case on hand, now, this Court has to decide
whether there is any such manifest error of law or procedure or
excess use of discretion by the trial court in acquitting the accused.
14. The facts are that PW.1 by name K.Padmavathi is an advocate
and her second daughter by name Saisri marriage was performed with
the accused in 2001 and they blessed with a baby boy. In view of the
family disputes among them, they got divorced. The accused filed a
case in the Family Court, Nellore seeking custody of his son. While so,
on 17.12.2008, she attended the court and as per her version, at
about 3.15 p.m. the accused picked up a quarrel and abused her in
filthy language and attacked her in front of the court and beat her
with hands, caught hold her right breast and torn her jacket by
holding her neck. The same is stated in her report covered under
Ex.P1.
15. The gist of PW.1 evidence is that she was practicing as an
advocate since last 12 years by the date of giving her evidence. The
accused was husband of her second daughter and in view of divorce
they were living separately. The accused filed a custody petition
before the Family Court, Nellore, and on 17.12.2008, the matter was
posted for orders. On that day, at 3.15 p.m. she went to court hall to
know the result of the said case. While she was coming to the
outside of said court hall premises, the accused, who was standing
outside the court along with his advocate by name P.V.Chalapathi,
scolded her in filthy language. When she was informing the same to
the said advocate, the accused beat her with the hands and pulled
her right breast and torn out her jacket and pressed her neck with his
left hand. When she raised cries, one Brahmaiah, Suresh and Suneel,
who were examined as PWs.3 to 5 came and rescued her. Thereafter
she gave report to the police.
16. It is a fact elicited from the testimony of PW.1 while in the
cross examination that the alleged offence took place opposite of the
Family court, Nellore. It is also culled out from the evidence placed
on record by the prosecution that the so called offence taken place in
the premises of the Family Court. But in the cross examination she
stated that on the date of alleged offence, two or three advocates
were present along with court staff and some advocates are present
outside the court premises. She did not mention the names of other
persons. She also did not mention the names of persons in Ex.P1-
report, who were said to be rescued her. At the time of giving report,
the accused was in the police station. She did not know whether the
accused filed any case against her, her daughter and doctor on the
ground that the pregnancy of her daughter was terminated without
the consent of the accused during pendency of case in Crime No.71 of
2008 on the file of II Additional Judicial Magistrate of First Class,
Nellore. She categorically admitted in the cross examination that on
the alleged date of incident, the Guardian O.P. filed by the accused
was posted for orders. She did not know whether accused was
standing in the said court in relation to said Guardian O.P. as well
attended before the Family Court.
17. Admittedly, Ex.P1-report was scribed in the police station.
Subsequently, she was examined. She curiously mentioned the
document writers, who are present outside the court. Even on
verifying the evidence of PWs.3 to 5, there are contradictions
regarding the incident. If really PWs.3 to 5 are present and
witnessed the incident, there may not be any chance of giving a
different version while they are deposing evidence. Their 161 Cr.P.C.
statements were marked as Exs.D1 to D3. They categorically stated
that they did not state before the police as per Exs.D1 to D3. There
are only mere omissions in the testimony of PW.4, in particular, while
they were returning to the court after taking meals from the way,
which is situated by the side of the Family Court, which is not the
version of PW.1. Besides PW.4 categorically stated that he did not
state before the police they saw one known person in front of family
court and they were talking with the known person. Admittedly, the
said person was not even cited by the prosecution. For the reasons
better known to them as already stated before that PWs.3 to 5
statements were totally contradictory to their statements before the
court, thereby, their 161 Cr.P.C. statements were marked as Exs.D1 to
D3. More so, PWs.3 to 5 were stated that about 15 persons including
advocates and litigant public were present at the scene of offence.
Admittedly, none of them were examined nor cited as witnesses.
Though prosecution cited one J.Hemachandra said to be Junior
Assistant in the Family Court did not even support the case of the
prosecution nor the evidence of PW.1.
18. In this connection, it is necessary to refer the judgment of the
Supreme Court in Krishnegowda v. State of Karnataka4, wherein
the Hon'ble Apex Court held at para No.27 that generally in the
criminal cases, discrepancies in the evidence of witness is bound to
happen because there would be considerable gap between the date
of incident and the time of deposing evidence before the Court, but
if these contradictions create such serious doubt in the mind of the
Court about the truthfulness of the witnesses and it appears to the
Court that there is clear improvement, then it is not safe to rely on
such evidence.
19. In the present case also, on perusal of evidence of PW.1
coupled with PWs.3 to 5, there are many omissions, contradictions as
well inconsistencies. Moreover, exaggerated versions elicited and the
Hon'ble Apex Court as a rule of caution held when there are
contradictions, inconsistencies and exaggerations in the evidence of
prosecution witnesses, it is unsafe to be relied on to find guilt of the
accused. All these aspects are considered by the trial court and
discussed elaborately in paras 19 and 20 of its judgment in
disbelieving the testimonies of PW.1 and PWs.3 to 5. PW.3 stated in
the chief examination that on the date of incident he along with
Suresh Babu, Venkateswarlu and Suneel Kumar came to rescue PW.1
when she was beating by accused by using foul language in the
(2017) 13 Supreme Court Cases 98
premises of the Family Court, Nellore and they separated PW.1 from
the hands of accused while he was pressing her neck. But in the cross
examination in the beginning lines itself, he changed his version by
deposing that on that date he was not sitting in the premises of the
Family Court, Nellore and during that time, himself, Suresh Babu,
Suneel Kumar and Venkateswarlu were coming in front of said court
after taking their lunch. He further stated that they had no cases
either in the Family Court or before the III Additional District Court,
Nellore and he did not state before the police as in Ex.D1 that the
alleged incident was happened while they were coming by the side of
Family Court after taking their meals. Even PW.4 also did not accept
the 161 Cr.P.C. statement and he stated some other version before
the trial court. By gazing all these material on record, no offence
was made out by the prosecution to find guilt of the accused and
acquitting the accused, on which the present revision is filed. As
already stated above, as per the judgments referred to above in
Amit Kapoor and Jagjeet Singh, cases supra, there must be a
manifest error of law or procedure while appreciating the evidence or
there is no compliance with the provisions of law while finding the
accused not committed the offence then this court can entertain this
revision.
20. In these circumstances, this Court is of the considered opinion
that there is no manifest error or rather miscarriage of justice in the
judgment of the trial Court. Even if PW.1 is able to establish that
there is manifest error in the judgment of the trial Court, this Court
ought to have come to the conclusion that it went wrong in acquitting
the accused. Whereas the above discussion goes to show that there is
no material to find the guilt of the accused. On the other hand there
are many discrepancies, inconsistencies, contradictions and
exaggerations, which are unsafe to find guilty of the accused.
21. In view of the foregoing discussion, this Court does not find any
such perversity or manifest error of law or miscarriage of justice to
interfere with the well-articulated judgment of the trial court and
there are no merits in this revision. Thereby, the present criminal
revision is liable to be dismissed.
22. Accordingly, the Criminal Revision Case is dismissed confirming
the judgment dated 25.05.2009 in S.C.No.31 of 2009 passed by the
learned II Additional Assistant Sessions Judge, Nellore,.
23. As a sequel, miscellaneous applications pending, if any, shall
stand closed.
________________
JUSTICE V.SRINIVAS
Date: 14.02.2024
Pab
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.1090 of 2009
DATE:14.02.2024
Pab
