Andhra Pradesh High Court - Amravati
Yarlagadda Srinivasaro, Others, vs The State Of Ap Rep By Its Pp Hyd., on 28 September, 2022
HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
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I.A. (SR) No.58629 OF 2022
IN
CRIMINAL APPEAL No.1597 OF 2006
Between:
1. Yarlagadda Srinivasa Rao (Died)
2. Yarlagadda Venkata Reddy,
S/o.Butchaiah, Aged 75 years,
R/o. Vulavalapudi Village,
Gudlavalleru Mandal, Krishna District.
3. Yarlagadda Nancharamma,
W/o.Venkata Reddy, Aged 70 years,
R/o. Vulavalapudi Village,
Gudlavalleru Mandal,
Krishna District. .... Petitioners/
Appellant Nos.2 & 3
Versus
The State of Andhra Pradesh,
Rep. by its Public Prosecutor,
High Court of Andhra Pradesh,
Amaravathi. .... Respondent
DATE OF ORDER PRONOUNCED : 28.09.2022
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
1. Whether Reporters of Local Newspapers
may be allowed to see the Order? Yes/No
2. Whether the copy of Order may be
marked to Law Reporters/Journals? Yes/No
2
3. Whether His Lordship wish to see
the fair copy of the order? Yes/No
______________________________
A.V.RAVINDRA BABU, J
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* HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
+ I.A. (SR) No.58629 OF 2022
IN
CRIMINAL APPEAL No.1597 OF 2006
% 28.09.2022
# Between:
1. Yarlagadda Srinivasa Rao (Died)
2. Yarlagadda Venkata Reddy,
S/o.Butchaiah, Aged 75 years,
R/o. Vulavalapudi Village,
Gudlavalleru Mandal, Krishna District.
3. Yarlagadda Nancharamma,
W/o.Venkata Reddy, Aged 70 years,
R/o. Vulavalapudi Village,
Gudlavalleru Mandal,
Krishna District. .... Petitioners/
Appellant Nos.2 & 3
Versus
The State of Andhra Pradesh,
Rep. by its Public Prosecutor,
High Court of Andhra Pradesh,
Amaravathi. .... Respondent
! Counsel for the Petitioners : Sri Narasimha Rao Gudiseva
^ Counsel for the Respondent : ---
< Gist:
> Head Note:
? Cases referred:
1. 1969 (3) SCC 166
This Court made the following:
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HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
I.A. (SR) No.58629 OF 2022
IN
CRIMINAL APPEAL No.1597 OF 2006
ORDER:
This Interlocutory Application came to be filed by the petitioners 2 and 3, who are the appellants in Criminal Appeal No.1597 of 2006 before this Court, with a prayer to exercise the powers under Section 216 of the Code of Criminal Procedure, 1972 (for short, 'the Cr.P.C') to alter the charge from Section 304-B of Indian Penal Code, 1860 (for short, 'the IPC') to Section 498-A IPC against the petitioners herein i.e., appellants 2 and 3.
2. Their submission in the verified Application is that the petitioners' son Y. Srinivasa Rao (A-1) married one Nagabadra Kumari, D/o. P. Sahadevudu (PW.1) and P. Nageswaramma (PW.2) on 07.05.1999. The Police filed charge sheet against the present petitioners as well as A-1 (A-1 died during the course of Appeal) before the trial Court, alleging the dowry harassment and that A-1 beat the deceased Nagabadra Kumari and thrown her dead body into the well of Y. Srimannarayana (A-4). Prior to that PW.1 presented report and after investigation Police laid the charge sheet, which was numbered as Sessions Case No.315 of 2003 on 5 the file of the Court of VI Additional District and Sessions Judge (FTC), Krishna at Machilipatnam (for short, 'the learned Additional Sessions Judge'). After the trial, A-1 to A-3 were convicted under Section 304-B IPC. They were sentenced to suffer Rigorous Imprisonment for 7 years each and to pay a fine of Rs.500/- each and in default to suffer Simple Imprisonment for one month each. The other accused were acquitted. Aggrieved by the same, the appellants preferred Criminal Appeal No.1597 of 2006 before this Court and, during the course of Appeal, A-1, Y. Srinivasa Rao, husband of the deceased died due to electrocution on 20.05.2021.
3. The appellants 2 and 3 are the parents of deceased A-1 and they are aged 75 and 70 years respectively. There is evidence on record that they were in Gudivada Hospital by the time of alleged incident and they were unconcerned with the same. There is no evidence on record to show that they have harassed the deceased and subjected her to cruelty. The very framing of charge under Section 304-B IPC by the trial Court is not proper. The trial Court ought to have framed a charge under Section 498-A IPC. Learned Additional Sessions Judge, having framed charge under Section 304-B IPC, convicted them without any proper evidence. 6 Under Section 216 Cr.P.C. the Court has power to alter charge. Hence, the Petition.
4. To the above Petition, the Registry has taken the following objection:
"How the above IASR is entertainable as charge alteration petition in pending Crl.A.1597/06 as the Hon'ble High Court is an appellate Court. Please Clarify."
5. As against the above, learned counsel for the petitioners made an endorsement to call the matter on Bench as per the judgment of the Hon'ble Supreme Court in Kantilal Chandulal Mehta v. The State of Maharashtra and another1, as such the matter was heard on Bench.
6. Now the simple question that falls for consideration is whether a petition of this nature before this appellate Court in the light of the conviction of the petitioners before the trial Court under Section 304-B IPC is maintainable?
7. Learned counsel appearing for the petitioners would contend that absolutely the petition of this nature is maintainable because the trial Court framed charge under Section 304-B IPC without 1 1969 (3) SCC 166 7 there being any material instead of framing charge under Section 498-A IPC and, in support of his contention, he would rely upon the judgment of the Hon'ble Supreme Court in Kantilal Chandulal Mehta (1 supra).
8. I have gone through the above said decision of the Hon'ble Supreme Court, which shows that the accused therein was convicted before the trial Court under Section 406 IPC i.e., for criminal breach of trust and the allegations in the charge were as to the entrustment of money. As against the same, an Appeal was preferred before the Hon'ble High Court of Bombay and on the oral request of the complainant's Advocate, the learned appellate Judge gave a direction to amend the charge to include the entrustment of goods purchased with the said money. The facts were also that as the case was based upon a complaint, the charges were framed after recording the evidence of the complainant and the above said direction of the learned Judge of the Bombay High Court was challenged before the Hon'ble Supreme Court. The Hon'ble Supreme Court dismissed the Appeal filed by the petitioner holding that no prejudice is caused or likely to be caused to the accused by amendment of the charge as directed by the High Court.
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9. Now, this Court has to see as to whether the contention of the petitioners 2 and 3 to entertain the petition so as to alter the charge from Section 304-B IPC to Section 498-A IPC is tenable.
10. According to the allegations of the prosecution before the trial Court, the learned Additional Sessions Judge Krishna at Machilipatnam, framed charges under Section 302 IPC against A-1, under Section 302 R/w. 34 IPC against A-2 and A-3 (petitioners herein), under Section 304-B IPC against A-1 (who died during the course of Appeal) and A-2 and A-3 (petitioners herein) and A-5 and A-6, under Section 201 IPC against A-1, A-4 and A-6 and under Section 212 IPC against A-2 to A-6 and also against A-1. The learned Additional Sessions Judge ultimately found A-1 (first petitioner herein), A-2 and A-3 (second and third petitioners herein) guilty of the offence under Section 304-B IPC and convicted and sentenced them to suffer Rigorous Imprisonment for 7 years each and to pay a fine of Rs.500/- each in default to suffer Simple Imprisonment for one month each. In respect of other charges framed against the present petitioners and deceased A-1, they were exonerated and other accused were also exonerated of all the charges leveled against them. So, the 9 present petitioners along with A-1 preferred the instant Criminal Appeal.
11. It is a case where the present petitioners were convicted and sentenced under Section 304-B IPC, after they were subjected to trial. Aggrieved by the same, they preferred the Appeal. The findings of the learned Additional Sessions Judge would be as a matter of appreciation before this appellate Court. The finding of the trial Court is that the prosecution has established ingredients of Section 304-B IPC against A-1 to A-3 to that extent there was dowry demand continuously soon before the death of the deceased and the deceased was subjected to cruelty. With the above findings, the present petitioners along with A-1 were subjected to conviction and sentence. Needless to point out here that one of the essential ingredients of Section 304-B IPC is subjecting the deceased to cruelty or harassment. One of the essential ingredients of Section 498-A IPC is also the same.
12. At this juncture, this Court would like to make it clear that, admittedly, under Section 216 Cr.P.C., any Court may alter or add to any charge at any time before judgment is pronounced. In view of the provisions of Sections 227 and 228 Cr.P.C., the basis for the 10 learned Additional Sessions Judge to frame the charge under Section 304-B IPC against the present petitioners was the record of the case before the trial Court i.e., the charge sheet, statements of the witnesses recorded during the course of investigation, the other documents such as medical documents etc., It is settled law that the basis for framing of charge in a case of this nature would be the charge sheet, its enclosures and the statements of the witnesses, if any, recorded during the investigation. The charge that was framed against the present petitioners under Section 304-B IPC was not challenged by the petitioners and they participated in the trial and having been suffered with conviction under Section 304-B IPC, they filed the present Appeal way back in the year 2006 and at the fag end of the Appeal, they filed the present Application. There is also no dispute that the powers of the appellate Court under Section 386 Cr.P.C. to deal with a conviction Appeal are wide enough and the Court has power in an Appeal from conviction to reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court of a competent jurisdiction subordinate to such appellate Court or committed for trial. It is quietly evident from Section 286(b)(i)(ii) and (iii) Cr.P.C.
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13. Absolutely whenever a trial Court convicted an accused after completing trial and whenever the accused filed an Appeal against the said conviction and sentence, appeal has to be decided basing on the evidence available. In other words, the offence that was said to be established by the prosecution before the trial Court under Section 304-B IPC is to be adjudicated by this appellate Court after hearing the Appeal. Virtually, the intention of the petitioners appears to be to alter the charge under Section 304-B IPC by simply filing this application into Section 498-A IPC which would amount to exonerating the petitioners/appellants without hearing the Appeal. Though any Court may alter the charge under Section 216 Cr.P.C. at any stage but whenever an accused is convicted before the trial Court and whenever he filed an Appeal before the appellate Court, the charge that was held to be proved before the trial Court is to be adjudicated before the appellate Court by appreciating the evidence on record. In such a situation, a petition of this nature under Section 216 Cr.P.C. is not maintainable. Either before any Court of Session or before a Magistrate, when the case of the prosecution is based upon Police report, after investigation, the basis for the charge would be the charge sheet, its enclosed documents and the statements of the witnesses, if 12 any. It is only in limited circumstances when the cases are instituted otherwise than on a Police report in a warrant procedure, the basis for the charge would be the statements of the witnesses recorded by the trial Court before framing of charges. In other words the power under Section 216 Cr.P.C. cannot be exercised by going back to look into the material that was the basis for the trial Court to frame charge after the trial Court recorded an order of conviction and when an Appeal is pending challenging the conviction. As this Court already pointed out the powers under Section 286 Cr.P.C. are wide enough. If ultimately the appellate Court finds that there is no convincing evidence, the evidence on record does not attract the essential ingredients of the charge that were framed before the trial Court and the material on record discloses another distinct offence for alteration of charges, it has every power to remand the matter to the trial Court.
14. At this juncture, this Court would like to make it clear that the citation relied upon by learned counsel for the petitioners, obviously, stands on a different footing where the accused was convicted before the trial Court under Section 406 IPC, on the allegations of criminal breach of trust of money and in the Appeal at the oral request of the complainant, entrustment of the goods 13 were ordered to be included in the charge. By virtue of the above, no prejudice was likely to be caused to the accused therein. The above said decision of the Hon'ble Supreme Court is of no use to the case of the petitioners to contend that this Petition is maintainable under Section 216 Cr.P.C. in the peculiar facts and circumstances.
15. In the light of the peculiar facts and circumstances, this Court would further like to refer some of the provisions in the Cr.P.C. where this Court can take care of the contention of the petitioners while appreciating the evidence on record. Section 222 of the Cr.P.C. reads as follows:
"222. When offence proved included in offence charged:
(1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.14
(3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied."
16. A close perusal of Section 222 of the Cr.P.C. reveals that the trial Court as well as the appellate Court can take care of a minor offence if the evidence available on record would only prove the minor offence. It is no doubt true that if one has looked into the ingredients of 304-B IPC and 498-A IPC, Section 498-A IPC is only a minor offence, as the ingredients of some of which can be found in Section 304-B IPC. So this Court would like to make it clear that in the Appeal, it is always open to the appellants to contend that the evidence on record would not satisfy either the essential ingredients of Section 304-B IPC or even the essential ingredients of Section 498-A IPC. In other words, to look into the offence under Section 498-A IPC basing on the evidence available on record in view of Section 222 Cr.P.C., there is no need or necessity to frame any charge under Section 498-A IPC that too by way of alteration from Section 304-B IPC to 498-A IPC.
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17. Having regard to the offence for which the petitioners were convicted before the trial Court and having regard to the scope of Section 304-B IPC and as well as Section 498-A IPC and that further the legality of the conviction recorded against the present petitioners before the trial Court is to be appreciated by looking into the evidence, absolutely, an application of this nature is not maintainable in the peculiar facts and circumstances.
18. Hence, the objection taken by the Registry, as regards the maintainability of the Petition, is sustained.
________________________________ JUSTICE A.V.RAVINDRA BABU Date : 28.09.2022 DSH