Andhra HC (Pre-Telangana)
Yatagari Srenivasulu Son ... vs State Of A.P., Rep. By Public ... on 19 February, 2014
Bench: L.Narasimha Reddy, M.S.K.Jaiswal
HONOURABLE SRI JUSTICE L.NARASIMHA REDDY AND HONOURABLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL APPEAL No.1452 OF 2009 19-02-2014 Yatagari Srenivasulu Son of.Chenchaiah and other ... Appellants State of A.P., rep. By Public Prosecutor,High Court, Hyderabad... Respondent Counsel for the Appellants: Mr. D. Raghava Reddy Counsel for the Respondent: Public Prosecutor <Gist: >Head Note: ?Cases referred: NIL. HONOURABLE SRI JUSTICE L. NARASIMHA REDDY AND THE HONOURABLE SRI JUSTICE M.S.K. JAISWAL CRIMINAL APPEAL No.1452 of 2009 JUDGMENT:
(per Hon'ble Sri Justice L. Narasimha Reddy) As many as 8 accused were tried for the offence punishable under Sections 395, 396, 397, 376 (2) (g) and 450 IPC, by the Court of the III Additional District & Sessions Judge, Nellore, in S.C. No.380 of 2008. By their very nature, the offences alleged against them, are very serious. A detailed charge sheet was filed by the prosecution, alleging the offences under those provisions. At the time of framing charges, the trial Court framed another charge referrable to Section 412 IPC against A-2.
2. The case against A-4, A-5 and A-8 was split on account of the fact that those accused were absconding.
3. After conducting an elaborate trial, wherein PWs.1 to 18 were examined and Exs.P-1 to P-23 were filed, the trial Court, through its judgment, dated 07.09.2009, gave clean acquittal to A-1 and A-7 but convicted A-2, A-3 and A-6 of the offences punishable under Section 412 IPC. These three accused were acquitted of the rest of the offences alleged against them. This appeal is filed by them i.e. A-2, A-3 and A-6.
4. Learned counsel for the appellants submitted that there was absolutely no basis for the trial Court in framing the charge referable to Section 412 IPC against the accused much less to convict them for the offence punishable under that provision. He submits that the question of invoking Section 412 IPC by the prosecution, does not arise once it failed to prove the case of theft. He submits that the trial Court was not consistent in invoking Section 222 Cr.P.C. also.
5. Learned Public Prosecutor, on the other hand, submits that the trial Court has taken into account, the oral and documentary evidence before it and arrived at the conclusion that the appellants failed to account for the property in their possession, and accordingly convicted them for the offence under Section 412 IPC and imposed prescribed punishment.
6. The charges under Sections 395, 396, 397, 376 (2) (g) and 450 IPC were framed against all the accused. In addition to that a charge referable to Section 412 IPC was framed against A-2. No such charge was framed against A-3 and A-6. The trial Court has taken recourse to Section 222 Cr.P.C. with reference to those two accused.
7. The very framing of a separate charge under Section 412 IPC against A- 2 appears to be untenable. The reason is that the prosecution did not allege any crime punishable under that provision much less its ingredients. The trial Court has proceeded on the assumption that what is punishable under Section 412 IPC is a 'minor offence' mentioned under Section 222 Cr.P.C., compared to offences punishable under Sections 395, 396 and the like. Such an approach is not at all proper. Today itself we have discussed at length in Crl.A. No.1372 of 2009, the circumstances under which the power under Section 222 Cr.P.C. can be invoked by a trial Court. That judgment squarely covers the facts of this case.
8. The trial Court was not consistent in its approach. While in respect of A-2, it framed charge under Section 412 IPC, it did not do so in respect of A-3 and A-6. However, punishment of the same magnitude was imposed on all of them. One distinction that needs to be maintained herein is that A-2 was separately alleged of committing offence under Section 412 IPC and a charge to that extent was framed. He did not assail the same at any stage. Assuming that if the offence under Sections 395 and 397 are not made against him, he was under
obligation to explain the source from which he procured the goods that were recovered from him. The record discloses that the goods were procured from the other accused, who are members of the gang. To that extent, the offence under Section 412 IPC stands proved against him. However, the punishment imposed against him is totally disproportionate, if one takes into account the evidence on record. We are of the view that rigorous imprisonment for five years for him would meet the ends of justice.
9. A-3 and A-6, however, stand on a different footing. The trial Court was conscious of the fact that the power under Section 222 IPC cannot be invoked for making allegation referable to Section 412 IPC and accordingly, framed an independent charge vis--vis A-2. Such a step not having been taken in respect of A-3 and A-6, there was no justification for it to bundle all the three accused together. The existence of a charge in a criminal case has its own significance. In the absence of a charge, and when the case does not permit the invocation of the power under Section 222 Cr.P.C., is not at all possible to convict A-3 and A-6. In addition to that what was recovered from A-2 are valuable items, viz., Gold items that are supposed to be worn by a woman, whereas the material recovered from A-3 is few rupee coins (32 in number), and from A-6, it is just a crowbar.
10. In the result, the Criminal Appeal is partly allowed. The conviction and sentence ordered in S.C.No.380 of 2008 on the file of the III Additional District & Sessions Judge (FTC), Nellore, dated 07.09.2009, against appellant No.1 - accused No.2 is confirmed, but the sentence ordered against him is reduced to the one of rigorous imprisonment for a period of five (5) years. Appellant No.1 - accused No.2 shall be set at liberty forthwith, in case he has served the sentence of rigorous imprisonment for five (5) years; and the conviction and sentence ordered against the appellants 2 and 3 - accused Nos.3 and 6, are set aside. The appellant Nos. 2 and 3 - accused Nos.3 and 6 shall be set at liberty forthwith, unless their detention is needed in any other case. The fine amount, if any, paid by the appellant Nos.2 and 3 - accused Nos.3 and 6 shall be refunded to them.
___________________ L.NARASIMHA REDDY, J _______________ M.S.K.JAISWAL, J February 19, 2014