Shaik Mohammed Hafeez vs The State Of Telangana
2023 Latest Caselaw 1834 Tel

         THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

              CRIMINAL REVISION CASE No.273 of 2018

ORDER:

This Criminal Revision Case, under Sections 397 and 401 of

Cr.P.C., is filed by the petitioner/accused, challenging the judgment,

dated 07.12.2017, passed in Criminal Appeal No.101 of 2017 by the

Principal Sessions Judge at Mahabubnagar, whereby, the Court

below, while setting aside the conviction and sentence recorded

against the petitioner/accused of the offences under Sections 228,

353 and 504 of IPC vide judgment, dated 12.10.2017, passed in

C.C.No.117 of 2010 on the file of the Judicial Magistrate of First

Class, Special Mobile Court, Mahabubnagar, confirmed the conviction

and sentence imposed against the petitioner/accused of the offence

under Section 506 of IPC.

2. I have heard the submissions of Sri Pottigari Sridhar Reddy,

learned counsel for the petitioner/accused, the learned Assistant

Public Prosecutor representing the respondents/State and perused

the record.

3. The case of the prosecution, in a nutshell, is as follows:-

On 20.05.2009, PW.1/Principal District and Sessions Judge,

Mahabubnagar lodged a report vide Ex.P1 with the Superintendent of

Police, Mahabubnagar, stating that on the even date at about 01:20 2 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

PM, he received a phone call from the petitioner/accused on his

official cell phone bearing No.9440621496 abusing him in vulgar

language and caused disturbance in discharge of his Court work and

on verification, the phone call was received from phone bearing

No.9642679242.

4. On receipt of Ex.P1 report, the Superintendent of Police,

Mahabubnagar, directed the Circle Inspector, Mahabubnagar, to

register a case and investigate and to arrest the petitioner/accused.

The Circle Inspector, in turn, directed the Sub Inspector of Police, II

Town Police Station, Mahabubnagar, to register a case and

investigate into. As per the contents of Ex.P1, PW.5 made a GD

entry, as the contents of Ex.P1 discloses non-cognizable offences and

addressed a letter to Judicial Magistrate of First Class,

Mahabubnagar, for permission to register and investigate the case.

The Magistrate accorded permission, whereupon, a case in crime

No.80 of 2009 for the offences under Sections 504, 506, 228 of IPC

was registered against the petitioner/accused.

5. During investigation, PW.5 examined and recorded the

statements of PWs.1 to 3 and arrested the petitioner/accused on

23.06.2009. During interrogation, the petitioner/accused confessed

the offence along with offence in Crime No.79 of 2009 of II Town

Police Station, Mahabubnagar. The petitioner/accused was produced 3 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

before the Court and was remanded to judicial custody. Thereafter,

upon request of PW.5, the Superintendent of police, addressed a

letter to the General Manager, BSNL, Telephone Bhavan, Hyderabad,

to furnish the call details of phone bearing No.964267924 from

19.05.2009 to 21.05.2009 and also to furnish the ID particulars of

the said phone number and also to furnish ID proof of mobile bearing

number 9440621496. Further, the SDPO, Mahabubnagar, addressed

a letter to the Manager, Vodafone, Hyderabad, to provide ID proof of

cell phone bearing No.9642679242. During the investigation, PW.5

visited Hyderabad, examined and recorded the statement of PW.4

and after completion of investigation, laid charge sheet against the

petitioner/accused for the offences punishable under Sections 504,

506, 228, 353 of IPC.

6. The trial Court took cognizance against the petitioner/accused

for the offences punishable under Sections 504, 506, 228, 353 of

IPC. On appearance of the petitioner/accused, copies of documents

were furnished to him as per Section 207 Cr.P.C. and was examined

under Section 251 Cr.P.C for which, the petitioner/accused pleaded

not guilty and claimed to be tried.

7. For bringing home the guilt of the petitioner/accused, the

prosecution examined PWs.1 to 5 and got marked Ex.P1 to P9. PW.1

is the de facto complainant. PWs.2 and 3 are the eye witnesses.

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                                                         Crl.R.C.No.273 of 2018




PW4 is a circumstantial witness.        PW.5 is the investigating officer.

Ex.P1 is the report. Ex.P2 is the statement of PW.4 recorded under

Section 164 of Cr.P.C. Ex.P3 is the letter addressed by PW.5 to the

Judicial Magistrate of First Class, Mahabubnagar, for permission to

register and investigate the case, vide Dis.No.723. Ex.P4 is the FIR.

Ex.P5 is the letter addressed by PW.5 to the Superintendent of Police

with a request to address a letter to the General Manager, BSNL,

Hyderabad. Ex.P6 is the letter addressed by the Superintendent of

Police, Mahabubnagar to the General Manager, Telephone Bhavan,

Hyderabad. Ex.P7 is the letter addressed by the SDPO,

Mahabubnagar, to the Manager, Vodafone, Hyderabad. Ex.P8 is the

customer name for mobile No.9642679242 furnished by Vodafone,

Hyderabad. Ex.P9 is the call details of phone No.9440621496 from

19.05.2009 to 21.05.2009, furnished by BSNL.

8. After closure of the prosecution evidence, when the

petitioner/accused was examined under Section 313 of Cr.P.C., he

denied the allegations and reported no defence evidence on his side.

9. The trial Court, having considered the submissions made and

analyzed the evidence on record, found the petitioner/accused guilty

of the offences under Sections 504, 506, 228 and 353 of IPC and

sentenced him as stated supra. Aggrieved by the same, the

petitioner/accused preferred the subject Criminal Appeal No.101 of 5 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

2017 before the Court below and the Court below, on re-appreciation

of the evidence on record, set aside the conviction and sentence

recorded against the petitioner/accused of the offences under

Sections 228, 353 and 504 of IPC and confirmed the sentence and

conviction recorded against the petitioner/accused of the offence

under Section 506 of IPC. Challenging the same, the

petitioner/accused filed this Criminal Revision Case.

10. Learned counsel for the petitioner/accused would submit that

the Court below, while rightly setting aside the conviction and

sentence recorded against the petitioner/accused of the offences

under Sections 228, 353 and 504 of IPC, erred in recording

conviction and sentence against him of the offence under Section 506

of IPC. The allegation against the petitioner/accused, taken on its

face value, does not satisfy the ingredients of Section 506 of IPC. To

attract the offence under Section 506 of IPC, the intentional insult

must be of such a degree that should provoke a person to break the

public peace or to commit any other offence. Mere allegation that

the petitioner/accused abused PW.1 in filthy language and disturbed

the Court work does not satisfy the ingredients of Section 506 of IPC.

PW.4, a crucial witness to speak about the call allegedly made by the

petitioner/accused to PW.1 through his coin box, did not support the

case of prosecution. The finding of the Court below that PW.1 cannot 6 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

have any motive to foist a false case against the petitioner/accused

cannot be a ground to convict the petitioner/accused of the offence

under Section 506 of IPC. The order under challenge is illegal,

improper and irregular as regards the conviction and sentence

recorded against the petitioner/accused of the offence under Section

506 of IPC and ultimately prayed to allow the Criminal Revision Case

as prayed for.

11. On the other hand, the learned Assistant Public Prosecutor

supported the judgment impugned in this Criminal Revision Case and

contended that there are no circumstances to interfere with the

impugned judgment. The petitioner/accused intentionally insulted

PW.1 in filthy language by calling him over telephone and disturbed

the Court work. The evidence placed on record clinchingly proves

the guilt of the petitioner/accused beyond all reasonable doubt for

the offence under Section 506 of IPC. Though the trial Court

convicted the petitioner/accused of the offences under Sections 228,

353, 504 and 506 of IPC, the Court below acquitted the

petitioner/accused of the offences under Sections 228, 353 and 504

of IPC. The contentions raised on behalf of the petitioner/accused

are untenable and ultimately prayed to dismiss the Criminal Revision

Case.

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                                                        Crl.R.C.No.273 of 2018

12. In view of the above submissions, the point that arises for

determination in this Criminal Revision Case is as follows:

"Whether the impugned judgment, dated 07.12.2017, passed in Criminal Appeal No.101 of 2017 by the Principal Sessions Judge, Mahabubnagar, is legally sustainable, insofar as confirming the conviction and sentence imposed against the petitioner/accused of the offence under Section 506 of IPC?"

POINT:-

13. I have considered the above rival submissions and meticulously

gone through entire material on record. This Court is aware of the

settled legal position that this Court, in exercise of its Revisional

jurisdiction under Sections 397 & 401 of Cr.P.C., cannot interfere

with the concurrent findings of fact recorded by the Courts below,

unless they are perverse or arrived at ignoring material evidence.

Further, the Revisional power of this Court under Sections 397 and

401 of Cr.P.C., is not to be equated with that of an appeal. But

however, when the decision of the Court below is perverse or

untenable in law or grossly erroneous or glaringly unreasonable or

based on no material or where the material facts are wholly ignored

or where the judicial discretion is exercised arbitrarily or capriciously,

this Court can interfere with the said decision in exercise of its

Revisional jurisdiction. Section 401 of Cr.P.C. enables the High Court 8 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

to exercise all powers of appellate Court, if necessary, in aid of power

of superintendence or supervision, as a part of Revisional power.

Section 397 of Cr.P.C. confers power on the High Court or Sessions

Court, as the case may be, for the purpose of satisfying itself or

himself as to the correctness, legality or propriety of any finding

sentence or order, recorded or passed, and as to the regularity of any

proceeding of such inferior court. Thus, a duty rests on the High

Court under Sections 397 and 401 of Cr.P.C. to correct manifest

illegality resulting in gross miscarriage of justice.

14. In the above context in regard to the scope and limitation

imposed on Revisional Court, I deem it proper to evaluate the

evidence on record, in order to find out as to whether the

prosecution has established that the petitioner/accused is guilty of

the offence under Section 506 of IPC, and if not, whether the

petitioner/accused is entitled for acquittal at the hands of Revisional

court.

15. In the instant case, the allegation against the

petitioner/accused is that he called PW.1 over telephone and abused

him in filthy language addressing him and disturbed the Court work.

The trial Court convicted the petitioner/accused of the offences under

Sections 228, 353, 504 and 506 of IPC. However, on appeal, the

Court below, while acquitting the petitioner/accused of the offences 9 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

under Sections 228, 353 and 504 of IPC, confirmed the conviction

and sentence imposed against him of the offence under Section 506

of IPC.

16. Section 506 of IPC prescribes punishment for the offence of

Criminal Intimidation. "Criminal intimidation", as defined under

Section 503 of IPC, is as under:-

"503. Criminal Intimidation.- Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.- A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section."

17. A plain reading of the definition of "Criminal intimidation" would

indicate that there must be an act of threatening to another person,

of causing an injury to the person, reputation, or property of the

person threatened, or to the person in whom the threatened person

is interested and the threat must be with the intent to cause alarm to

the person threatened or it must be to do any act which he is not

legally bound to do or omit to do an act which he is legally entitled to

do.

18. A bare perusal of Section 506 of IPC makes it clear that before

an offence of criminal intimidation is made out it must be established

that an accused had an intention to cause alarm to the complainant.

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                                                             Crl.R.C.No.273 of 2018

Mere expression of any words without any intention to cause alarm

would not be sufficient to bring in the application of Section 506 of

IPC. But material has to be placed on record to show that the

intention is to cause alarm to the complainant.

19. In the instant case, the allegation against the

petitioner/accused is that he called PW.1 over telephone and abused

him in filthy language addressing him and disturbed the Court work.

The allegations in this regard are quite vague and general. The

above allegation, taking on its face value does not satisfy the

ingredients of Section 506 of IPC. In the entire FIR, there is no

whisper of any allegation that the alleged abuse caused any alarm to

the complainant and he felt actually threatened. A plain reading of

the Ex.P1-complaint in the present case does not disclose anything

about the aspect of alarm. Furthermore, in my opinion, the evidence

of voice identification is a suspect, if not wholly unreliable. Accurate

voice identification is much more difficult than visual identification. It

is prone to such extensive and suffocated tampering, doctoring and

editing that the reality can be completely replaced by fiction.

Therefore, the Courts have to be extremely cautious in basing a

conviction purely on the evidence of voice identification. There is a

catena of judgments which emphasise the importance of precautions,

which are necessary to be taken in placing any reliance on the 11 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

evidence of voice identification. Further, identification of the voice of

the petitioner/accused by PWs.2 and 3 is a weak piece of evidence.

The ability of an individual to identify voice in general and the

familiarity of the listener with the known voice and even a confident

recognition of a familiar voice by a listener must be established

beyond all reasonable doubt by cogent, positive, affirmative and

assertive evidence. Voice can also be identified by means of voice

identification parade. In the instant case, admittedly, no voice

identification parade was conducted by the trial Court to satisfy itself

that PWs.2 and 3 were able to identify the voice of the

petitioner/accused. Under these circumstances, it cannot be said

with certainty that the voice of the call allegedly received by the

complainant should be necessarily of the petitioner/accused.

20. In view of the above discussion, this Court is of the considered

opinion that the ingredients of Section 506 of IPC are not made out

against the petitioner/accused. The trial Court erred in convicting

the petitioner/accused of the offence under Section 506 of IPC, so

also the Court below in confirming the same. The petitioner/accused

is entitled for acquittal of the offence under Section 506 of IPC.

23. Viewed thus, the impugned judgment of the Court below

insofar it relates to the conviction and sentence imposed against the

petitioner/accused of the offence under Section 506 of IPC is 12 Justice Juvvadi Sridevi Crl.R.C.No.273 of 2018

improper and irregular, warranting interference of this Court by

exercising power under Sections 397 and 401 of Cr.P.C.

21. Resultantly, the Criminal Revision Case is allowed. The

conviction and sentence recorded against the petitioner/accused of

the offence under Section 506 of IPC by both the Courts below is set

aside. The petitioner/accused is acquitted of the offence under

Section 506 of IPC. Fine amount, if any, paid by the

petitioner/accused, shall be refunded to him.

Miscellaneous applications, if any, pending in this Criminal

Revision Case shall stand closed.

____________________ JUVVADI SRIDEVI, J 28th day of April, 2023 Ksk