Telangana High Court

Jampala Krishna vs The State Rep. By P.P., H.C., Hyd. on 6 March, 2024

THE HONOURABLE SMT. JUSTICE M.G.PRIYADARSINI

               CRIMINAL APPEAL No.682 OF 2012

J U D G M E N T:

This Criminal Appeal is filed by appellant-accused

under Section 374 (2) of the Code of Criminal Procedure

(for short 'Cr.P.C.,') aggrieved by the Judgment of

Conviction and Sentence dated 13.07.2012 passed in

S.C.No.37 of 2011 by the learned Special Judge for trial of

cases under the Scheduled Castes and the Scheduled

Tribes (Prevention of Atrocities) Act, 1989-cum-Additional

Sessions Judge at Khammam (hereinafter referred as 'trial

Court').

02. For the sake of convenience, hereinafter, the

parties will be referred as per their array before the trial

Court.

03. As per the averments of the charge sheet, on

26.04.2010 at about 08:30 PM., Islavath Lingya gave

complaint stating that his minor daughter (victim) is

studying 9th class at Gandhampally and she was found

missing from 24.04.2010 at 08:00 PM.,. The accused also

found missing in the village. The complainant searched for

victim in the village, but in vain. One G.Sakru, informed

the complainant (father of the victim) that accused took

victim along with him in auto. Based on the complaint by

father of the victim, the Police, Garla Bayyaram, registered

a case in Crime No.54 of 2010 for the offences under

Section 366 of the Indian Penal Code (for short 'IPC') and

Sections 3(1)(xv) of the Scheduled Castes and the

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for

short 'the Act').

04. During the course of investigation, on receiving

reliable information, the Police apprehended the accused

on 28.04.2010 at 04:00 PM., along with victim. On

examination, victim stated that accused took her under the

guise that he would marry her and cohabited with her on

several occasions. On 24.04.2010 the accused married the

victim by tying thali and exchanged garlands at

Muthyalamma Temple and returned to their village on

25.04.2010. In view of the above statement, Section of law

was altered and Section 376 of IPC was added. After

collecting all relevant documents and on completion of

investigation, he filed charge sheet against the accused for

the offences under Sections 363, 376 of IPC and Sections

3(1)(xv) and 3(1)(xii) of the Act.

05. To prove the guilt of accused, the prosecution

got examined PW1 to PW12 and got marked Exs.P1 to P14.

On behalf of accused, no oral or documentary evidence was

adduced.

06. The learned trial Court, after considering the

oral and documentary evidence available on record and on

hearing both sides, has convicted accused for the offence

under Section 363 of IPC and sentenced him to undergo

Rigorous Imprisonment for a period of seven (7) years and

to pay fine of Rs.1,000/- and in default, suffer Simple

Imprisonment for six months and at the same time

acquitted the accused for other charged offences.

07. Aggrieved by the Judgment of Conviction and

Sentence, appellant-accused filed the present Criminal

Appeal.

08. Heard both sides and perused the entire record

available before this Court.

09. Learned counsel for appellant-accused

submitted that there are discrepancies in the evidence of

the prosecution witnesses and that the victim has not

raised any alarm or hue and cry at the time of alleged

kidnapping by accused and that the prosecution witnesses

are interested witnesses and that there is delay in lodging

FIR and prayed to allow this Criminal Appeal by setting

aside the Judgment of Conviction and Sentence passed by

the trial Court.

10. Per contra, learned Additional Public Prosecutor

for the State-respondent submitted that the trial Court

after conducting full-fledged trial and on hearing both

sides, has come to a correct conclusion and the

prosecution has proved the guilt of the accused before the

trial Court and the accused was rightly convicted and

sentenced by the trial Court and sought for dismissal of

this Criminal Appeal by confirming the Judgment of

Conviction and Sentence passed by the trial Court.

11. This Court has perused the entire evidence

adduced before the trial Court. PW1 and PW2 who are the

parents of the victim deposed that the victim was found

missing from their house and even after searching for three

days, the victim was not found. They received information

from one Sakru (PW4) that victim was taken by accused in

auto. The victim was minor. PW1 lodged Ex.P1 complaint

with the Police.

12. PW3 who is brother of PW1 stated in the similar

lines of PW1 and PW2. PW4 deposed that he saw accused

taking away the victim in auto and informed the same to

the parents of victim.

13. PW5 who is victim deposed that accused is her

neighbor and that in the absence of her parents in their

house, the accused took her forcibly in auto to Hyderabad

and further took her to IDL Bollaram, Hyderabad to the

room of his friend and kept her for 2 days at Hyderabad.

She further deposed that accused married her at

Muthyalamma Temple and cohabited with her. Knowing

about the filing of complaint, accused brought her to

Santhalapadu thanda.

14. PW6 and PW7 who are panch witnesses for

scene of offence panchanama and crime details form,

turned hostile to the case of the prosecution.

15. PW8 who is Head Master, ZPSS, Gandhampalli,

Kothapeta deposed that the victim was studying in their

school and he issued Ex.P4-Study and conduct certificate

showing date of birth of the victim.

16. PW9 who is the Tahsildar deposed about

issuance of caste certificate of the victim under Ex.P5.

17. PW10 who is the Civil Assistant Surgeon,

District Headquarters Hospital, Khammam deposed about

examination of victim and issuance of Exs.P6 to P8 which

are preliminary report, FSL report and final opinion. PW11

and PW12 are the Investigating Officers in this case who

conducted investigation and filed charge sheet against the

accused.

18. It is pertinent to state that the trial Court found

the accused guilty for the offence under Section 363 of IPC

after considering the oral and documentary evidence

available on record. In so far as offence under Section 375

of IPC which is punishable under Section 376 of IPC is

concerned, there is no dispute that the accused cohabited

with victim. The said fact was also confirmed through the

statement of the victim. It was presumed by the trial Court

that the victim is 16 years old at the time of incident and

that she is not under 16 years of age, by relying on

ossification test which shows the age of the victim was

between 15 to 17 years. Even as per the record she is 13

years old. Even assuming for a moment, she is aged 15 to

17 years, she is a minor.

19. In Ram Vijay Singh v. State of Uttar

Pradesh 1 the Honourable Supreme Court held that:

"The procedure for determining the age is now part of Section 94 of the Juvenile Justice (Care and Protection of Children) Act, 2015 which was earlier part of Rule 12 of the Rules. Section 94 of the Act reads thus:

Criminal Appeal No.175 of 2021 (Arising out of SLP (Criminal) No.2898 of 2020)

"Section 94. Presumption and determination of age:

Where, it is obvious to the Committee or the Board, based on the appearance of the person brought before it under any of the provisions of this Act (other than for the purpose of giving evidence) that the said person is a child, the Committee or the Board shall record such observation stating the age of the child as nearly as may be and proceed with the inquiry under section 14 or section 36, as the case may be, without waiting for further confirmation of the age.

In case, the Committee or the Board has reasonable grounds for doubt regarding whether the person brought before it is a child or not, the Committee or the Board, as the case may be, shall undertake the process of age determination, by seeking evidence by obtaining-

the date of birth certificate from the school, or the matriculation or equivalent certificate from the concerned examination Board, if available; and in the absence thereof;

the birth certificate given by a corporation or a municipal authority or a panchayat;

(iii) and only in the absence of (I) and (ii) above, age shall be determined by an ossification test or any other latest medical age determination test conducted on the orders of the Committee or the Board:

Provided such age determination test conducted on the order of the Committee or the

Board shall be completed within fifteen days from the date of such order.

(3) The age recorded by the Committee or the Board to be the age of person so brought before it shall, for the purpose of this Act, be deemed to be true age of that person."

20. In the above authority, the procedure for

determining the age is described in detail. In the present

case on hand, the learned trial Court has given much

weightage to ossification test even though Ex.P4-Study and

conduct certificate issued by PW8-Head Master, is very

much available, for determination of age of the victim. The

date of birth as per Ex.P4-Study and conduct certificate is

13.06.1996 and the date of offence was prior to

26.04.2010.

21. In the context of this case, it is relevant here to

extract Section 386 of Cr.P.C:

After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may

(a) In an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for

trial, as the case may be, or find him guilty and pass sentence on him according to law;

(b) In an appeal from a conviction-

(i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re-

tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or

(ii) alter the finding, maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;

       (c)     In   an     appeal     for   enhancement     of
sentence;

(i) reverse the finding and sentence and acquit or discharge the accused or order him to be re- tried by a Court competent to try the offence, or

(ii) alter the finding maintaining the sentence, or

(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same;

(d) in an appeal from any other order, alter or reverse such order;

(e) make any amendment or any consequential or incidental order that may be just or proper:

Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement.

Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might

have been inflicted for that offence by the Court passing the order or sentence under appeal.

22. As per Section 386(b) of Cr.P.C. in an appeal

from a conviction although the Appellate Court can alter

the finding, maintaining the sentence, or with or without

altering the finding, alter the nature or the extent, of the

sentence, but not so as to enhance the same. Under

Section 386(b)(iii), in an appeal from a conviction, for

enhancement of sentence, the Appellate Court can exercise

the power of enhancement. The Appellate Court in an

appeal for enhancement, can enhance the sentence also.

The proviso to Section 386, further, provides that the

sentence shall not be enhanced unless the accused had an

opportunity of showing cause against such enhancement.

23. In Kumar Ghimirey v. The State of Sikkim 2

the Honourable Supreme Court held that:

"13. In the case of Sahab Singh and others vs. State of Haryana, (1990) 2 SCC 385, also after considering the procedure prescribed by Cr.P.C. including Sections 386 and 401 High Court held that the High Court even if no appeal is filed by the State for enhancement of sentence can exercise suo motu power of

Criminal Appeal No.719 of 2019 (Arising out of SLP (Criminal) No.1948 of 2017) by the Honourable Supreme Court of India

revision under Section 397 read with Section 401 of Cr.P.C. but before the High Court can exercise its revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice. In paragraph 4 this Court laid down following:

"4.Section 374 of the Code of Criminal Procedure ('the Code' hereinafter) provides for appeals from conviction by a Sessions Judge or an Additional Sessions Judge to the High Court. Section 377 entitles the State Government to direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. Sub−section 3 of Section 377 says that when an appeal has been filed against the sentence on the ground of its inadequacy, the High Court shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause the accused may plead for his acquittal or for the reduction of the sentence. Admittedly no appeal was preferred by the State Government against the sentence imposed by the High Court on the conviction of the appellants under Section 302/149, I.P.C. Section 378 provides for an appeal against an order of acquittal. Section 386 enumerates the powers of the appellate court. The first proviso to that section states that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. Section 397 confers revisional powers on the High Court as well as the Sessions Court. It, inter alia, provides that the High Court may call for and examine the record of any proceeding before any inferior criminal court situate within its jurisdiction for the purposes 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 proceedings of any inferior court. Section 401 further provides that in the case of any proceedings, the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 386,389, 390 and 391 of the Code. Sub−section 2 of Section 401 provides that no order under this Section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by Pleader in his own defence. Sub−section 4 next provides that where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at theinstance of the party who could have appealed. It is clear from a conjoint reading of Sections 377, 386, 397 and 401 that if the State Government is aggrieved about the inade quacy of the sentence it can prefer an appeal under Section 377(1) of the Code. The failure on the part of the State Government to prefer an appeal does not, however, preclude the High Court from exercising suo motu power of revision under Section 397 read with Section 401 of the Code since the High Court itself is empowered to call for the record of the proceeding of any court subordinate to it. Sub− section 4 of Section 401 operates as a bar to the party which has a right to prefer an appeal but has failed to do so but that sub−section cannot stand in the way of the High Court exercising revisional jurisdiction suo motu. But before the High Court exercises its suo motu revisional jurisdiction to enhance the sentence, it is imperative that the convict is put on notice and is given an opportunity of being heard on the question of sentence either in person or through his

advocate. The revisional jurisdiction cannot be exercised to the prejudice of the convict without putting him on guard that it is proposed to enhance the sentence imposed by the Trial Court."

14. The same proposition has been laid down in Govind Ramji Jadhav vs. State of Maharashtra, (1990) 4 SCC 718 and Surendra Singh Rautela @ Surendra Singh Bengali vs. State of Bihar (Now State of Jharkhand), (2002) 1 SCC."

24. In the above authority, the Honourable

Supreme Court of India made it clear that the High Court

even if no appeal is filed by the State for enhancement of

sentence can exercise suo-motu power of revision under

Section 397 read with Section 401 of the Cr.P.C. but before

the High Court can exercise its revisional jurisdiction to

enhance the sentence, it is imperative that the convict is

put on notice.

25. In view of the above discussion and having

regard to the above settled principle of law, without going

into merits and demerits of the case, as there was improper

consideration of material document under Ex.P4 issued by