Andhra HC (Pre-Telangana)
The Public Prosecutor, High Court Of ... vs Potharlanka Venkateswarlu And Ors. on 15 November, 2001
Equivalent citations: 2002(1)ALD(CRI)500, 2002CRILJ3145
JUDGMENT D.S.R. Varma, J.
1. This appeal was filed by the State against the order of the learned Sessions Judge, Bapatla, dated 27-12-1995, acquitting under Section 235 Cr.P.C. A.1 to A.8 for the charge under Section 147 I.P.C., A1 and A.3 for the charge under Section 354 I.P.C., A.4 to A.8 for the charge under Section 323 I.P.C., A.3 under Section 323 I.P.C. and A.2 for the charge under Section 354 read with Section 149 I.P.C.
2. At the outset, I feel it necessary to point out the mistake committed by the learned Assistant Sessions Judge in framing the charges. The charges are framed under Section 228 Cr.P.C., which reads:
"228. Framing of charge:- (1) If, after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which ---
(a) is not exclusively triable by the Court of Session he may frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate, and thereupon the Chief Judicial Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.
(2) Where the Judge frames any charge under clause (b) of sub-section (1), the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
3. A careful reading of Section 228 Cr.P.C. reveals that the charges shall be framed by the Judge after consideration and hearing. Thereupon as per Sub-Section (2) of Section 228 Cr.P.C. the accused shall be asked whether he or they plead guilty of the charge.
4. In the present case, a reading of the charges discloses that the learned Judge had framed them in a routine manner. I am under serious doubt whether any hearing had taken place before framing charges and also whether there was any consideration as regards framing of charges. It appears to me that the learned Judge had mechanically framed the charges. Further in compliance of Clause (b) of Sub-Section (1) of Section 228 Cr.P.C., the learned Judge had questioned the accused as regards the charges framed against the accused. There appears to be some confusion in the mind of the learned Sessions Judge, which would only indicate that there was no proper hearing or consideration as contemplated under Section 228 Cr.P.C. If really there was hearing by the learned counsel appearing for the accused and the learned Public Prosecutor the charges could not have been framed in such a confused fashion.
5. I would also at this juncture, point out that it is the duty of the learned counsel appearing for the accused as well as the learned Public Prosecutor to assist the court by way of advancing their submissions in appropriate manner in order to enable the court to frame the charges appropriately. It is also equally the duty of the counsels to point out to the court if some mistake in framing of charges is found and lead the court in a right direction. The counsels who are responsible officers of the court shall act in a prudent manner and see that the charges are framed appropriately. In this connection, Sri Desh Pande in the capacity of amicus curie, while commenting upon the manner in which the charges are framed, brought to the notice of this court a decision in NIRANJAN SINGH KARAM SINGH PUNJABI v. JITENDRA BHIMRAJ BIJJA1 1990 S.C. 1962 wherein it was held:
"7. Again in Supdt. And Remembrancer of Legal Affairs, West Bengal V. Anil Kumar Bhunja, Court observed in paragraph 18 of the judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumption opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence."
From the above discussion, it seems well settled that at the Sections 227-228 stage the Court is required to evaluate the material and documents on record with a view to finding out if the facts emerging there from taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case."
6. It appears that their Lordships laid stress upon the 'consideration' and 'hearing'. In the absence of proper hearing and consideration at the time of framing charges there is every possibility that the charges would be framed in routine and mechanical manner which may lead ultimately to a situation where charges are framed either inadequately or inappropriately defeating the cause of justice. In this case, the learned Assistant Sessions Judge framed charge against A.1 and A.3 specifically for the offence under Section 354 I.P.C. So far as A.2, a separate charge under Section 354 read with Section 149 I.P.C. was framed. When the evidence is looked into nothing is attributed against A.2. No witness did speak anything against A.2 so far as the offence under Section 354 I.P.C. is concerned. In such a case, had there been a proper hearing and consideration by the trial court, the offence under Section 354 I.P.C. itself would and could not have been framed against A.2 at all. Curiously there is no charge against A.1 and A.3 for the offence under Sections 354 r/w 149 I.P.C. Equally interesting is, that a charge under Section 354 I.P.C. read with Section 149 I.P.C. was framed against A.2 alone. I am at loss to comprehend as to how a charge under Section 149 I.P.C. coupled with another main offence can be framed against only one accused when the main offence was attributable to all the accused. In the instant case, A.1 and A.3 were specifically charged under Section 354 I.P.C without Section 149 I.P.C.
7. Similarly the learned Judge, it appears, had ignored or it was not brought to his notice by the counsel that a charge under Section 149 I.P.C. can be framed only when the requirements under Section 141 I.P.C. are satisfied which requires participation of minimum 5 persons. In the present case, though Section 354 I.P.C. was attributed to A.1 and A.3 charge under Section 149 I.P.C. was framed only against A.2. This way of framing charges is not only contrary to the basic principles but also ignominious.
8. Coming to the judgment part of the Sessions Judge, an elaborate discussion was made and there is a finding so far as A.7 is concerned under Section 354 I.P.C. The said finding is as follows:
"Therefore, I hold that the prosecution failed to prove the guilt against A.7 u/s. 354 I.P.C."
9. The learned Judge perhaps forgot or did not apply his mind while delivering the judgment that there is no charge against A.7 for the offence under Section 354 I.P.C. at all.
10. Another aspect which I feel it necessary to put on record is that there is a discussion with regard to the offence of outraging of modesty against A.1 and A.2. The learned Judge here again forgot the accusation against A.3 for the offence under Section 354 I.P.C. But curiously in the discussion part of the judgment while dealing with the offence under Section 354 I.P.C. the accusation against A.3 under Section 354 I.P.C. was also made. Therefore, I am of the view that the learned Judge was rather in a state of confusion.
11. Another apparent mistake committed by the learned Judge while framing charges is that a charge under Section 323 I.P.C. was framed against A.3 separately and again against A.4 to A.8 for the same charges were framed. He could not have framed a comprehensive charge under Section 323 I.P.C. against A.3 to A.8 at a stretch or independently depending upon the nature of the offence coupled with the circumstances committed by each of the accused. Therefore, these are only some classic examples, which I would find prima facie as regards non-application of mind by the learned Assistant Sessions Judge.
12. However, coming to the merits of the case, the prosecution examined P.Ws.1 to 8 and marked Exs. P.1 to P.5 and M.Os. 1 and 2. The accused, on his behalf, did not examine any witness but marked Exs. D.1 and D.2.
13. P.Ws.1 and 3 who are the victims, spoke specifically that on 21-7-1993 at about 9.30 A.M. while P.W.1 was returning after taking water from the well A.1, A.2 and A.3 outraged her modesty and then P.W.3 interfered.P.W.3 deposed that A.7 tore her blouse while pushing her down when she tried to rescue her sister P.W.1. But P.W.1 did not state anything about the act of A.7 against P.W.3 in respect of the offence under Section 354 I.P.C. P.W.4 deposed that he noticed A.6 and A.7 outraging the modesty of P.Ws. 1 and 3 by catching hold of their sarees and tearing their blouses. But P.Ws. 1 and 3 did not state anything as regards the act of A.6 with regard to outraging of modesty. But she improved her version while coming to the witness box against A.6. It is evident from Exs. D.1 and D.2 which are 161(3) Cr.P.C. statements of P.Ws. 1 and 4 respectively that they did not state the alleged outraging modesty before the police at the time of their examination. Therefore, it was noticed by the trial Court for the first time that P.Ws. 1 and 3 stated before the court about the outraging of their modesty by some other accused. Hence it was treated as improved version of P.Ws. 1 and 3 in so far as some other accused are concerned.
14. Further the evidence of P.Ws. 3 and 4 also reveals that some interestedness in deposing in favour of the prosecution. They spoke some thing which was not stated in Ex.P.1 report made at the earliest point of time. A perusal of cross-examination of P.Ws. 1, 3 and 4 would only disclose that the alleged outrage of modesty against P.W.3 is not corroborated by P.W.1. But it is the specific case of the prosecution that P.W.1 was present althrough. Therefore if really the offence under Section 354 I.P.C. was committed against P.W.3, P.W.1 should have spoken about the alleged offence under 354 I.P.C. by the accused.
15. It is to be further noted that as per the prosecution version when P.W.1 was fetching the water all the accused attacked her and abused her and committed the offence under Section 354 I.P.C. and upon interference of P.W.3 she was also attacked and assaulted physically committing them by an under Section 354 I.P.C. and her modesty was outraged. But P.W.1 did not speak anything about this outraging of modesty of P.W.3 at all. She only spoke about the physical assault against P.W.3 by the accused.
16. For the same offence under Section 354 I.P.C., nobody including P.Ws. 1 and 3 did speak anything about the participation of A.2 for the offence under Section 354 I.P.C. As already pointed out, in fact there was no reason for the court to frame a charge against A.2 for the offence under Section 354 I.P.C. read with Section 149 I.P.C.
17. Therefore, the finding of the trial Judge in so far as the offence under Section 354 against A.1 to A.3 is concerned, I am of the view that the offence is not proved inasmuch as the evidence of P.Ws. 1, 3 and 4 is not trustworthy, and the prosecution failed to prove the case beyond reasonable doubt.
18. In so far as the offence against A.4 to A.8 for the offence under Section 323 I.P.C., the independent witnesses are P.Ws. 4, 5 and 7. But in their evidence they did not state in respect of the assault against P.Ws. 1 and 3. On the other hand, P.W.5 states that there was altercation between P.W.1 and A.2 and A.2 beat P.W.1 with a stick twice and P.W.3 was beaten by A.2 with a stick again twice. Therefore, the evidence of P.W.5 goes to reveal that A.1 and A.3 alone beat P.Ws. 1 and 3 twice. Another aspect that is to be taken into account is that P.W.1 deposed that A.5 and A.6 beat P.W.3 on her right elbow and A.6 beat P.W.3 on her right wrist and A.7 kicked her several times and A.4 beat her hand and A.8 kicked her with his legs. But the evidence of P.W.3 goes to show that she was beat by A.5 with a stick on her right shoulder and A.6 beat her on her right wrist and A.7 pushed her down and A.4 kicked her with legs and A.8 kicked her on her neck. Further the evidence of P.Ws. 1 and 3 does not make it clear that P.W.1 was beaten by which of the accused, whereas the evidence of P.W.3 goes to show that A.3 beat her on her body. From the evidence of P.Ws.1 and 3, it is clear that their entire evidence is full of inconsistencies, which are material in nature.
19. Another aspect that has to be taken into account is that admittedly there are some disputes between P.Ws. 1 and 3 on the one hand and the other accused on the other hand and in view of differences P.W.1 came forward by giving Ex.P.1 report after deliberations. A careful perusal of the entire evidence on record shows that it is not capable of inspiring confidence in the mind of the court. Therefore, it is not safe to convict the accused under the circumstances as stated by P.Ws.1, 3 and 6 which was not properly corroborated by Ex.P.1 report and not supported by any other witnesses on material aspects to connect the accused for the offences alleged against them. Hence for the above reasons, I agree with the findings arrived at by the court below recording the order of acquittal of all the charges against the respondents.
20. There are no merits in this appeal. The appeal is accordingly dismissed.
21. The assistance rendered by Sri Desh Pande amicus curie in this case is placed on record.