Mohammed Ghouse, Hyd 2 Othrs vs State Of Telangana, Rep. By P.P., ...
2022 Latest Caselaw 4280 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

             CRIMINAL REVISION CASE No.54 OF 2015

ORDER:

This Criminal Revision Case is filed by the petitioners-appellants-

accused aggrieved by the common judgment dated 20.01.2015 passed in

Crl.A. No.869 of 2014 and R.P. No.199 of 2014 by the Special Judge for

Economic Offences cum VIII Additional Metropolitan Sessions Judge,

Hyderabad, modifying the judgment dated 28.01.2014 passed in CC No.71

of 2008 on the file of II Additional Chief metropolitan Magistrate,

Hyderabad.

2. The case of the prosecution in brief was that on 06.10.2007 at

about 15.45 hours, the de facto complainant Mr. Laxminivas Agarwal

(PW.6) came to Afzalgunj Police Station with bleeding injuries and

reported that one B.H. Kashinath and others had beaten him opposite to

Quality Oil Depot, Mahaboobgunj, Hyderabad at about 15.00 hours on the

same day. He was referred to Osmania General Hospital for treatment. At

about 21.30 hours, he returned to the police station and lodged a report.

Basing on the said report, the Head Constable registered the case as Crime

No.754 of 2007 under Section 324 read with 34 IPC against Kashinath and

others and handed over the investigation to the Sub-Inspector of Police.

Dr.GRR,J

The Investigating Officer visited the scene of offence and recorded the

statements of the eye-witnesses viz., Saleem Khan, Sharad Kumar Gupta

and Abimanyu. On his further investigation, the Investigating Officer came

to know that Kashinath was attending to his duty in Deccan Chronicle

office at the time of the incident as such, deleted his name from the charge

sheet. He apprehended A1 to A3 on 19.12.2007 and after completing the

investigation, filed charge sheet against them. The case was taken on file

by the II Additional Chief Metropolitan Magistrate, Hyderabad for the

offence under Section 324 read with 34 IPC and on appearance of the

accused framed charges against them for the said offence and conducted

trial.

2.1 The prosecution got examined PWs.1 to 6 and got marked

Exs.P1 to P5. No defence evidence was adduced by the accused persons.

2.2 The de facto complainant was examined as PW.6. The doctor,

who examined the de facto complainant was examined as PW.4. The

Investigating Officer was examined as PW.3. Eye-witnesses to the incident

were examined as PWs.1 and 5. The Deputy Editor of Deccan Chronicle

was examined as PW.2. His evidence was to the effect that B.H.

Kashinath, whose name was deleted by the Investigating Officer, was Dr.GRR,J

present in the office at the time of the incident. PW.1, the alleged eye

witness, turned hostile. PW.5, the other eye witness supported the

prosecution case in his chief examination, but in his cross examination,

conducted after six months, turned hostile and stated that he had not seen

the incident nor the accused.

2.3 The trial court, considering the evidence of the de facto

complainant (PW.6) and the evidence of the Doctor (PW.4) and also the

evidence of PW.5, who initially supported the case of the prosecution,

convicted the accused Nos.1 to 3 for the offence under Section 324 read

with 34 IPC and imposed fine of Rs.3,000/- each by taking a lenient view

that the incident took place in the year 2008 and it was only an outcome of

altercation of words and in default of payment of fine directed them to

undergo simple imprisonment for one month each.

2.4 Aggrieved by the said conviction and sentence, the accused

persons preferred appeal vide Crl.A. No.869 of 2014 and the de facto

complainant preferred revision challenging the quantum of sentence

imposed on the accused. Both the criminal appeal and the revision were

considered together by the Special Judge for Economic offences cum VIII

Additional Metropolitan Magistrate, Hyderabad vide common judgment Dr.GRR,J

dated 20.01.2015 and modified the appeal and allowed the revision

modifying the conviction of the accused for the offence under Section 324

read with 34 IPC to 323 read with 34 IPC and also modified the sentence

and fine imposed by the trial court to rigorous imprisonment for a period of

two months each and to pay a fine of Rs.1,000/- each against A1 to A3 and

in default of payment of fine, to suffer simple imprisonment for a period of

fifteen days each.

3. Aggrieved by the said modification of the order and enhancement

of sentence, the petitioners-appellants-accused preferred the present

revision case contending that the judgment of the Special Judge for

Economic Offences was contrary to law, weight of evidence and

probabilities of the case. The learned Judge erred in convicting and

modifying the sentence imposed against the petitioners. The learned Judge

ought to have seen that the ingredients to constitute an offence under

Section 323 read with 34 IPC were not made out and the conviction

recorded against the petitioners was unsustainable. The findings given by

the learned Judge in convicting the petitioners for the offence under Section

323 read with 34 IPC were contrary to law. PWs.1, 2 and 5 did not support

the case of the prosecution and the learned Judge erred in placing reliance

on the sole testimony of PW.6, whose evidence was exaggerated and Dr.GRR,J

improbable and prayed to allow the revision contending that modifying the

orders of the trial court by the appellate court was unduly severe, illegal

and arbitrary.

4. Heard the learned counsel for the petitioners-appellants and the

learned Public Prosecutor for the respondent.

5. The learned counsel for the revision petitioners contended that the

appellate court though observed that specific evidence was lacking with

regard to common intention, but however, the accused could develop the

common intention at the spur of the moment at the scene of offence,

convicted the petitioners for the offence punishable under Section 323 read

with 34 IPC, which was not in accordance with law. PW.4-doctor, who

treated the complainant expressed that only one injury ought to have been

caused and the other injuries could be caused due to the result of falling

down of the complainant on a rough surface, as such, the conviction under

Section 323 read with 34 IPC was not maintainable against the petitioners.

The sole testimony of PW.6 could not be believed when the Investigating

Officer was of the opinion that the participation of said Kashinath was not

proved and no test identification parade was conducted by the Investigating

Officer, but the petitioners, whose names were not mentioned in the Dr.GRR,J

complaint, were convicted by the courts below. Modifying the orders of

the trial Court by the appellate court and enhancing the punishment was

unduly severe, illegal and arbitrary.

6. The learned Public Prosecutor, on the other hand, supported the

judgment of the appellate court and contended that after considering the

evidence and legal position only, the appellate court modified the

conviction of the petitioners from the offence under Section 324 read with

34 IPC to 323 read with 34 IPC and also modified the sentence, which was

in accordance with law and needs no interference by this court.

7. Now the point for consideration is:

Whether there is any illegality or impropriety in the judgment of the

appellate court in modifying the conviction and sentence imposed by the

trial court against the petitioners?

8. On a perusal of the record, it would disclose that the appellate

court considering that the charge under Section 324 IPC would require

voluntarily causing hurt by dangerous weapons or means and though the

complaint referred using of iron rod in the attack, but the investigation

revealed that the injuries were result of fist blows given by the accused and

there was no recovery of iron rod and the evidence of the doctor also would Dr.GRR,J

not indicate that the injuries sustained by the complainant were the result of

beating with iron rod, found fault with the trial court taking cognizance for

the offence under Section 324 IPC and convicting the accused for the said

offence, as such set aside the same and modified the conviction of the

petitioners-accused from the offence under Section 324 IPC to 323 IPC.

9. The learned counsel for the petitioners found fault with the

observation of the appellate court to convict the petitioners-accused for the

offence under Section 34 IPC, when it observed that there was no specific

evidence with regard to the common intention. The appellate Court though

observed that specific evidence was lacking with regard to common

intention, further continued to state that the manner in which the incident

occurred would show the development of common intention at the spur of

moment at the scene of offence and that common intention resulted in the

attack on PW.6 (complainant).

10. The Hon'ble Apex Court in Balu v. State (U.T. of

Pondicherry)1 observed that:

"The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances of the situation. The question whether there was any common intention or not depends upon the inference to be drawn from the proved

(2016) 15 SCC 471 Dr.GRR,J

facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted."

Thus, the common intention can develop on the spot and the observations

of the appellate court that on observing the manner of incident, the accused

might have developed common intention at the spur of the moment at the

scene of offence is not contrary to law.

11. The other contention raised by the learned counsel for the

petitioners was that the complainant referred the name of one Kashinath

and others as culprits in the complaint. The Investigating Officer found

that there was no involvement of Kashinath in the commission of offence.

No test identification parade was conducted to identify the other persons

involved in the offence and submitted that conviction of the petitioners

considering their involvement in the commission of offence was

unsustainable.

12. The trial court as well as the appellate court had placed

reliance upon the evidence of the complainant - PW.6 to prove the

involvement of the accused in the offence. PW.6 identified the petitioners

as the persons involved in commission of offence during the trial. Though

the alleged eye witnesses i.e. PWs.1 and 5 turned hostile, the trial court as Dr.GRR,J

well as the appellate court considered the aspect that the cross-examination

of PW.5 was deferred for six months for one or the other reason at the

instance of the petitioners and it resulted in an opportunity to the accused to

win over the witness resulting which the witness retracted his previous

deposition and retracted the identity of the accused, but however,

considering that the witness supported the occurrence of the incident in

front of his shop and the evidence of PWs.1 and 5 would show that the

accused belong to the same locality and the complainant stated in the

complaint that the attack was made by the rowdies engaged by Kashinath

and he could recognize the persons who attacked him, and the said attack

was in the broad day light, the absence of test identification parade would

not render the evidence of PW.6 as to the identity of the culprits suspicious.

The Court further observed that the witness was having ample opportunity

to observe the physical features of the culprits who caused bleeding injuries

to him more particularly when they were persons of his locality and

therefore, the identity of the accused by PW.6 could not be thrown away

for the reason of absence of previous test identification parade. The test

identification parade would be conducted only when the persons who

assaulted were complete strangers. But, when the persons, who assaulted

the complainant belong to the same locality and when he stated that he Dr.GRR,J

could identify the said persons and can recognize the persons who attacked

him and identified them before the court during trial, the said evidence

need not be disbelieved. Conducting of test identification parade is only for

the satisfaction of the Investigating Officer to know whether he arrested the

right persons or not and whether the investigation was proceeding in a

proper manner. Non-conducting of test identification parade could not be

viewed with suspicion when the witness identified his assaulters during

trial. Hence, the trial court and the appellate court believing the evidence

of PW.6 and taking into consideration the earlier chief evidence of PW.5 is

considered as not improper. When PW.6 stated that the injuries were

caused to him by the petitioners/accused persons, the contention of the

learned counsel for the petitioners that PW.4 - doctor, who examined the

complainant, expressed that only one injury ought to have been caused on

PW.6 and the other injuries might be a result of fall of PW.6 on a rough

surface, is considered as not proper as the suggestion given to a doctor

could at the most be considered as a defence but not as an evidence to come

to a conclusion that the injuries were the result of a fall of PW.6 on a rough

surface.

13. The contention of the learned counsel for the petitioners was

that reliance would not be placed upon the sole testimony of PW.6 as he Dr.GRR,J

deposed false with regard to the involvement of Kashinath, is not a ground

to throw away his evidence with regard to the involvement of other accused

and on the other facts. The maxim falsus in uno, falsus in omnibus is not

recognized in our criminal law. When a witness speaks false in one thing it

need not be considered that he would speak false on all other aspects. It is

the duty of the courts to separate chaff from the grains. By playing that

duty, the courts below had believed the evidence of PW.6 which finds

corroboration with the evidence of the doctor and from the evidence of the

hostile witnesses PWs.5 and 1 to believe the involvement of the petitioners

in the commission of offence. Hence, this Court does not find any

improbability in the observations of the courts below in placing reliance

upon the evidence of PW.6.

14. With regard to modifying the sentence of imposing fine to

each of the accused and enhancing it to sentence of rigorous imprisonment

for a period of two months each and fine of Rs.1,000/- each, it should be

kept in mind that the Special Judge for Economic Offences cum VIII

Additional Metropolitan Sessions Judge, Hyderabad had passed the order

vide common judgment in Criminal Appeal preferred by the petitioners-

accused as well as the revision petition preferred by the de facto

complainant. The de facto complainant filed the revision challenging the Dr.GRR,J

quantum of sentence imposed on the accused and the same was allowed by

the Court enhancing the sentence to rigorous imprisonment for a period of

two months each and fine of Rs.1,000/-. The Sessions Judge can exercise

all the powers which may be exercised by the High Court in a revision

under subsection (1) of Section 401 Cr.P.C. Under Section 401 (1) Cr.P.C.

the High Court may, in its discretion exercise any of the powers conferred

on a court of appeal by Section 386, 389, 390 and 391 or by Section 307

Cr.P.C. Under Section 386(c) Cr.P.C. , the court can enhance the sentence

in an appeal. Thus, the Sessions Court had also the power to enhance the

sentence in a petition filed by the de facto complainant challenging the

quantum of sentence imposed on the accused while appreciating the

question of insufficiency of sentence. Hence, this court does not find any

illegality or impropriety in the order of the Special Judge for Economic

Offences cum VIII Additional Metropolitan Sessions Judge, Hyderabad in

modifying the conviction and sentence recorded against the petitioners-

accused.

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

confirming the conviction and sentence passed by the Special Judge for

Economic Offences cum VIII Additional Metropolitan Sessions Judge,

Hyderabad vide common judgment dated 20.01.2015 in Crl.A. No.869 of Dr.GRR,J

2014 and R.P. No.199 of 2014. The bail granted to the petitioners -

accused during the pendency of the revision shall stand cancelled. The

petitioners - accused shall surrender forthwith before the Court below, and

suffer the sentence, as confirmed by this Court. In the event they fail to do

so, the Court below shall initiate steps in accordance with law to apprehend

and incarcerate them for the confirmed sentence.

Miscellaneous Petitions pending, if any, shall, stand closed.

_____________________ Dr. G. RADHA RANI, J August 25, 2022 KTL