Vydyaraju Srinivas Rao, Another, vs The State Of Ap Rep By Its Pp Hyd.,
2023 Latest Caselaw 1851 Tel

          THE HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

           CRIMINAL REVISION CASE No.594 OF 2008

ORDER:

This Criminal Revision Case, under Sections 397 and 401 of

Cr.P.C., is filed by the petitioners/A.1 and A.3, challenging the

judgment, dated 15.04.2008, passed in Criminal Appeal No.13 of

2006 by the learned II Additional Sessions Judge (Fast Track

Court) at Sanga Reddy, whereby, the judgment, dated

31.01.2006, passed in S.C.No.265 of 2005 by the Assistant

Sessions Judge, Sangareddy, convicting the petitioners/A.1 to A.3

of the offence punishable under Section 394 IPC and sentencing

them to undergo rigorous imprisonment for five years each and to

pay a fine of Rs.500/-, in default, to undergo simple imprisonment

for three months, was confirmed.

2. Heard Sri Y.Koteshwara Rao, learned counsel representing

Sri. P.Sriharinath, learned counsel for the petitioners/A.1 and A.3,

learned Assistant Public Prosecutor appearing for the

respondent/State and perused the record.

3. The case of the prosecution, in brief, is that Inspector of

Police, Ramchandrapuram averred in the charge sheet that on

08.02.2005 at 12.00 noon, PW.1 came to police station and

submitted a report stating that while he was at his house, he

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

heard hue and cries from the opposite house, on that he rushed

there and found one person coming out from the house and

another person went away on the motor cycle in speedy manner.

On hearing hue and cries of lady from the house, PW.1 entered

into the house and found one person caught hold the throat of

house owner lady and blood is oozing from her face. There are

some broken bangle pieces in the room. Seeing the situation,

PW.1 thought that the persons were committing theft, on that he

shouted as "Donga...Donga". Immediately, the person relieved the

lady and tried to escape. But he caught hold that person.

Meantime some of the neighbouring public gathered there and

tried to take him into their custody, but he escaped from their

hands. On enquiry PW.1 came to know that the injured lady name

is Punadevi.

Basing on the report, PW.9 registered a case in Crime No.43

of 2005 and recorded the statement of PW.1. PW.9 visited the

scene, prepared scene of offence panchanama in the presence of

PW.4 and G.Chandra Shekar Vinoy Kumar and seized broken

bangle pieces, hot pack box, two steel boxes, napkin, hair, knife

and also collected blood swabs under cover of panchanama and

also drawn rough sketch. Later PW.11 took up investigation. On

17.2.2005, PW.11 visited the scene, examined PW.3 and recorded

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

her statement and seized one parcel box which was left by the

accused, in the presence of PW.5. On 14.02.2005, PW.10 arrested

A.1 to A.5 and recorded their separate confessional statements in

the presence of PW6, Amruth Laal Sharma and seized Bajaj Caliber

Motor Cycle bearing registration No.AP-9-AC-4420 from A.1, one

knife from A.2, one knife, two pairs of hand gloves from the

possession of A.3 under cover of panchanama in the presence of

LW.9-G.Chandra Shekar Vinoy Kumar and PW.5. Later A.1 to A.5

were sent to the Court for judicial remand. After completion of

investigation, PW.11 filed charge sheet against A.1 to A.3 for the

offences under Sections 395, 120(B) IPC and against A.4 and A.5

for the offences under Sections 120(B), 109 IPC.

4. To substantiate the case of prosecution, PWs.1 to 11 were

examined and Exs.P1 to P10 and MOs.1 to 13 were marked. On

behalf of the petitioners/accused, neither oral nor documentary

evidence was adduced.

5. The trial Court, after analyzing the entire evidence on record,

holding that the prosecution has satisfied the ingredients of the

offence punishable under Section 394 of IPC against A.1 to A.3,

convicted them for the said offence and sentenced them as stated

supra. Aggrieved by the same, the petitioners/A.1 and A.3

preferred the subject Criminal Appeal No.13 of 2006 before the

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

Court below and the Court below, on re-appreciation of entire

evidence on record, confirmed the conviction and sentence

recorded against A.1 to A.3 of the offence under Section 394 IPC.

Aggrieved by the same, the petitioners/A.1 and A.3 filed this

Criminal Revision Case. Here, it is apt to state that A.4 and A.5 in

this case were acquitted by the trial Court.

6. Learned counsel appearing for the petitioners/A.1 and A.3

would contend that the trial Court and lower appellate Court failed

to consider the evidence of PW.7, who is the learned Magistrate

who conducted test identification parade. The evidence of PW.7 is

crucial in this case. Since the police detained the petitioners in the

police station for 8 to 10 days and beat them with rods, lathis,

pestle, etc. by tying their hands and legs, the petitioners had no

option except to admit the commission of the offence, though they

did not commit the same. Further, the photographs of the

petitioners were shown to PWs.1 to 6 in the police station to

identify them in the identification parade and also in the trial Court

and since the photographs of the petitioners were taken in the

police station, PWs.1 to 6 identified them in the jail and also before

the trial court. Hence, the evidence of PWs.1 to 6 cannot be relied

upon, in view of the clinching evidence of PW.7-Magistrate.

Further, both the Courts below failed to take into consideration the

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

crucial aspect that the place of incident is busy locality and there is

no possibility of committing robbery near the scene of offence.

Further, both the Courts below ought not to have believed the

version of PW.6, inasmuch as his evidence goes to show that he

was running a shop inside the BHEL Township and that he would

be in the shop between 09.00 AM to 01.00 PM and again from

03.00 PM to 09.00 PM. Further, the evidence of prosecution

witnesses is full of omissions and contradictions and as such, both

the Courts below ought not to have taken the same into

consideration. It is a fit case to set aside the conviction and

sentence recorded against the petitioners/A.1 and A.3 by

exercising the Revisional jurisdiction by this Court under Sections

397 and 401 of Cr.P.C. and ultimately prayed to allowed the

Criminal Revision Case as prayed for.

7. On the other, the learned Assistant Public Prosecutor

appearing for the Respondent/State supported the impugned

judgment and contended that there is nothing to interfere with the

impugned judgment of the Court below which is based on sound

reasoning. All the necessary ingredients of Section 394 of IPC are

firmly made out against the petitioners/A.1 and A.3. The

discrepancies pointed out by the learned counsel for the

petitioners/A.1 and A.3 are trivial in nature which cannot, in any

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

event, demolish the whole prosecution case. Both the Courts

below have appreciated the evidence on record in correct

perspective and rightly convicted the petitioners/A.1 and A.3 of the

offence under Section 394 of IPC. It is not a fit case to set aside

the conviction and sentence recorded against the petitioners/A.1

and A.3 by exercising Revisional jurisdiction under Sections 397

and 401 of Cr.P.C. and ultimately prayed to dismiss the Criminal

Revision Case.

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

determination in this Criminal Revision Case is as follows:

"Whether the judgment, dated 15.04.2008, passed in Criminal Appeal No.13 of 2006 by the II Additional District and Sessions Judge (FTC), at Sangareddy, convicting the petitioners/A.1 and A.3 of the offence under Section 394 IPC is legally sustainable?

POINT:-

9. I have given thoughtful consideration to 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

and 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

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

power of this Court under Sections 397 and 401 of Cr.P.C., cannot

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 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 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 Subordinate 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.

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

imposed on Revisional court, this Court deems it proper to

evaluate the entire case on hand, in order to find out as to

whether the prosecution has established the case against the

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

petitioners/A.1 and A.3 and if not, whether the petitioners/A.1 and

A.3 are entitled for acquittal before the Revisional court.

11. A meticulous analysis of the evidence of PWs.1 to 6 makes it

clear that it is unsafe to act upon their testimony. PW.1 is the

person who set the criminal law into motion by lodging Ex.P1

report with the police concerned. Though he stated in his

examination-in-chief that he saw A.1 holding the throat of PW.3

(injured) and also identified A.1 to A.3 in the test identification

parade in District Jail, Sangareddy, he stated in his cross-

examination that he did not furnish the physical features of the

offenders to the police. He also stated in his cross-examination

that his family members got friendship with the family members of

PW.3. He further stated in his cross-examination that from among

the persons gathered on the road, he could not identify the

offenders. Further, he admitted that items like M.Os.1 to 3 i.e. hot

pot, gift pack and bangle pieces would be readily available in all

the houses. PW.2 deposed that he was present in his tailor shop

at the time of alleged incident and he heard shouts from the house

of PW.3, whereupon, he came out of his shop and saw a person

speeding away on a motor cycle. Though he stated that he can

identify the person whom he saw and that he had identified A.1

and A.2 in the test identification parade conducted at District Jail,

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

Sangareddy, this witness also categorically stated in his cross-

examination that there will be vehicular moment on the road and

shops were located and students will be going to the college, but

however, at the time of incident, no students were present. PW.3,

who is the injured/victim, narrated the whole incident in her

examination-in-chief and further deposed that she identified A.1 to

A.3 in the Court hall. However, in her cross-examination, she

stated that she was in conscious condition till two or three of her

neighbours entered into her house. PW.4 categorically stated in

his cross-examination that items like M.Os.1, 7 and 8 can be

purchased from the open market and that M.O.3 can be secured

near the bangle stores. PW.6, who was mediator for confessional

and seizure panchanama, categorically deposed in his cross-

examination that when the accused made confessional statements,

the Deputy Superintendent of Police, Circle Inspector of Police, Sub

Inspector of Police and other police constables were present. Thus

it is clear that PWs.1 to 6 were tutored by the police and were also

shown the photographs of A.1 to A.3 in the police station so as to

identify them in the identification parade and also before the trial

Court. Since the photographs of A.1 to A.3 were taken in the

police station and shown to PWs.1 to 6, PWs.1 to 6 identified them

in the jail as well as before the trial Court. Thus, the evidence of

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

PWs.1 to 6 cannot be relied upon. PW.7 is a Magistrate who

conducted test identification parade. He deposed as follows:-

"Suspect No.1 stated that he was kept in P.S.R.C.Puram for 8 or 10 days, that every day his hands and legs were tied and was hanged and was beaten with rods, pestle and lathi twice or thrice. That on 8th, he, Paras and Hariprasad started for Lingampally on Caliber bike to meet Samunder, a friend of Paras and in front of police station, Gopi constable caught hold of them for triple riding, the constable started that the bike is a theft property, that though he stated that bike is in the name of his cousin, they were detained in police station. Four days thereafter four elderly persons and two or three female persons came to the police station and saw them. The police asked the said persons whether we are the particular persons that the said persons said affirmatively that his photographs were taken by the police that all three persons were made to stand before certain persons in the room of S.I. of police. That they were made to lift certain articles, that were taken to their room and that police have taken his titan watch, gold ring and belt. The other two suspects also stated the same effect."

12. It has also come up in the evidence of the prosecution

witnesses that /A.1 to A.3 were going on triple riding in front of

the police station on 08.02.2005 and as such, the police detained

them for 8 to 10 days in the police station. In view of the

evidence of PWs.1 to 7, it cannot be held with certainty that it is

the petitioners/A.1 and A.3 who committed the subject offence.

Further, PW.8, the Doctor who examined PW.3, categorically

stated in his cross-examination that PW.3 was treated as an

outpatient on the date of the offence and that the injuries found

over the person of PW.3 may be caused due to fall on hard surface

from a height. Further, PW.9, Sub Inspector of Police, who

registered the subject case categorically, stated in his cross-

examination that PW.1 did not state any specific overt acts

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

committed by the offenders. Further, none of the prosecution

witnesses stated that the petitioners/A.1 and A.3 entered into the

house of PW.3 to commit theft and in that process caused injuries

to PW.3. Further, PW.3 also did not state that the accused entered

into her house to commit theft by causing injuries to her. Further,

Ex.P1 complaint was lodged against unknown offenders and no

descriptive particulars of the offenders was mentioned therein.

Further, PW.7 Magistrate deposed in his evidence that the

petitioner/A.1 stated to him that he was detained in police station

for triple riding and his bike was seized. Further, the place of

incident is a busy locality and as such, there is no possibility of

committing robbery near the scene of offence. All the above

circumstances create a doubt with regard to the case of the

prosecution. A suspicion may arise against the petitioners/A.1 and

A.3, but it is settled law that suspicion, however strong it may be,

cannot take place of legal proof. In view of the evidence placed on

record, it cannot be held that the petitioners/A.1 and A.3 are guilty

of the offence under Section 394 of IPC.

13. In the considered opinion of this Court, the prosecution

miserably failed to prove the guilt of the petitioners/A.1 and A.3 of

the offence under Section 394 of IPC. Both the Courts below have

fallen in error in convicting the petitioners/A.1 and A.3 of the

Justice Juvvadi Sridevi Crl.R.C.No.594 of 2008

offence under Section 394 of IPC, without properly appreciating

the evidence on record. The findings recorded by the trial Court in

convicting the petitioners/A.1 and A.3 and which was confirmed by

the Court below are perverse and untenable in law. It is a fit case

to set aside the conviction and sentence recorded against the

petitioners/A.1 and A.3 of the offence under Section 394 of IPC by

exercising Revisional jurisdiction of this Court under Sections 397

and 401 of Cr.P.C.

14. Accordingly, the Criminal Revision Case is allowed by setting

aside the judgment, dated 15.04.2008, passed in Criminal Appeal

No.13 of 2006 by the learned II Additional Sessions Judge (Fast

Track Court) at Sangareddy. Consequently, the petitioners/A.1

and A.3 stand acquitted of the offence under Section 394 of IPC.

The bail bonds of the petitioners/A.1 and A.3 shall stand

discharged. Fine amount, if any, paid by the petitioners/A.1 and

A.3, shall be refunded to them.

Miscellaneous applications, if any, pending in this Criminal

Revision Case, shall stand disposed of in terms of this order.

_________________ JUVVADI SRIDEVI, J 28th April, 2023 Ksk