Telangana High Court
Mohd Rafiq vs The State Of A.P on 4 November, 2022
Author: D.Nagarjun
Bench: D.Nagarjun
THE HON'BLE DR. JUSTICE D.NAGARJUN
CRIMINAL REVISION CASE No.794 of 2009
ORDER:
This revision is filed aggrieved by the judgment of the trial Court in C.C.No.576 of 2007 dated 25.03.2008 of IX Additional Chief Metropolitan Magistrate, Hyderabad, wherein the petitioner was found guilty for the offence under Section 394 IPC and ordered sentence to suffer rigorous imprisonment for a period of 3 years which was confirmed in Crl.A.No.86 of 2008 dated 02.09.2008 on the file of the Metropolitan Sessions Judge, Hyderabad.
2. The facts in brief as can be seen from the record are as under:
a. On 21.08.2007 at 12.30 p.m., when PW.1 was in house in Kachiguda at Basant theatre, the petitioner entered the house, armed with iron rod, threatened PW.1 to give valuables, cash and etc. PW.1 has resisted and pushed the petitioner on which the petitioner has beat PW.1 with iron rod on his head and other parts of the body. PW.1 tried to catch hold of the petitioner/accused, 2 then the petitioner has pushed the PW.1 aside and tried to ran away. The petitioner/accused while getting down from the stair case fell down and received injuries. In the meanwhile, PW.1 shouted on which the police, who are on patrolling duty in the street of PW.1, heard the noise and rushed to the house and caught hold of the accused. Basing on the complaint a case has been registered and during the course of investigation the petitioner/accused was taken to hospital, weapon i.e., iron rod was recovered and on completion of investigation, charge sheet is filed.
3. The prosecution in order to prove its case has examined PWs.1 o 4 and Exs.P1 to P4 and M.O.1 were marked. On considering the entire evidence on record, the trial Court has found the petitioner guilty and sentenced him as mentioned above. The appellate Court also on considering the material on record including the evidence and on hearing both sides dismissed the appeal by confirming the conviction awarded by the trial Court.
4. Aggrieved by the same, the present revision is filed on the following grounds:
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i. The Courts below failed to consider that there is only circumstantial evidence, which is not proved before the Court. There are contradictions in the evidence of the witnesses which was also ignored by the trial Court. Trial Court has heavily relied on the evidence of PWs.2 and 3 and there is no corroboration in their evidence. The trial Court has failed to consider that there were no injuries on the parts of the de-facto complainant and therefore, prayed the Court to set aside the judgment passed in Crl.A.No.86 of 2008.
5. Heard both sides and perused the record.
6. Now, the point for determination is whether the judgment dated 02.09.2008 passed in Crl.A.No.86 of 2008 can be set aside?
7. On considering the evidence of PW.1 and PW.2, the Head Constable, who is on patrolling duty on 21.08.2007, the trial Court has found the petitioner guilty of the offence. The appellate Court also has critically discussed the evidence of all the witnesses and found that the trial 4 Court has came to the conclusion rightly in respect of giving a finding that the petitioner/accused has committed offence punishable under Section 394 IPC. Both the trial Court and the appellate Court has given a concurrent judgment, the scope of this revision will be very limited. Unless this Court finds misapplication of law to the facts already established by the trial Court and concluded by the appellate Court and unless there is a material to show that miscarriage of justice was done on account of the finding of the trial Court and the appellate Court, this revisional Court is not supposed to interfere.
8. On going through the judgments of both the trial Court and appellate Court, there are two important aspects which require consideration of this Court.
9. It is the case of the prosecution that on 21.08.2007 at 12.30 p.m. when PW.1 was at his home, the petitioner/accused entered into his house near Basanth theatre, Hyderabad, armed with a rod and demanded to give the valuables, cash etc., and when PW.1 has resisted, the petitioner/accused beat PW.1 with the rod on his head 5 and other parts of the body. Even then PW.1 further resisted and tried to catch hold of the petitioner while shouting in the hall, the petitioner has thrown PW.1 and ran away. While running down from the stair case, the petitioner/accused fell down and sustained injuries. In the meanwhile, PW.2/Head constable, who was on patrolling duty, heard the noise of PW.1 and rushed to his house and caught hold of the petitioner/accused.
10. The important aspects in the above contention of the prosecution is that the petitioner has beat PW.1 with iron rod on his head and other parts of the body. If really that is so, PW.1 must have received injuries. The trial Court has believed the recovery of iron rod in the confessional statement of the petitioner/accused in the presence of mediator/PW.3. However, the trial Court while appreciating the same has felt that the alleged recovery of rod is not under Section 27 of the Evidence Act, but under Section 26 and thereby the confessional statement given before the police was not admissible and gave a finding that the recovery of rod is not proved.
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11. The other aspect to be considered is, according to the evidence of PW.1, on hitting by the rod by the petitioner, PW.1 has received injures and it is the version of the prosecution that PW.1 was taken to hospital and given first aid and sent back. Medical certificate is not filed before the Court and the doctor is also not examined. May be because either there are no injuries or if at all there are certain injuries, they are very negligible in nature. Therefore, it can be treated that the injuries are also not proved before the Court. It can be concluded that there is no evidence before the Court to prove that PW.1 has received injuries.
12. When there is no material to show that PW.1 has received injuries and that the prosecution failed to prove that there was a rod with the petitioner/accused with which he allegedly hit PW.1, whether Section 394 IPC can be applied or not.
13. Section 394 IPC reads as under:
"394. Voluntarily causing hurt in committing robbery. - If any person, in committing or in attempting to commit robbery, voluntarily 7 causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
In order to find the petitioner guilty for the offence under Section 394 IPC, the petitioner while committing or attempt to commit robbery shall voluntarily cause a hurt.
Section 319 IPC defines 'Hurt', which runs as under:
"319. Hurt - Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."
14. In the case on hand, though PW.1 has stated that the petitioner has beat him on his head and other parts of the body with a rod, no injuries were brought on record that he sustained injuries with the hitting of the petitioner with a rod. Therefore, it cannot be said that PW.1 was hurt on account of beatings of the petitioner with the help of a rod while committing or attempt to commit the offence of robbery. Therefore, Section 394 has no application to the facts of the case.
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15. This is a case where robbery has not been completed. PW.1 has not lost any property or valuable security and basing on the facts, which are proved before the Court, it is a case where the petitioner/accused has made an attempt to commit theft and while making an attempt to commit theft has also made an attempt to cause hurt to the body of PW.1. 'Robbery' as defined under Section 390 IPC would go to show that the aggravated form of theft can be a robbery. While committing the theft or making an attempt to commit theft, if the offender attempts to cause any person either death or hurt, amounts to robbery.
16. In the case on hand, the petitioner entered into the house of PW.1 to commit theft in a dwelling house, which attracts offence under Section 380 IPC and while unsuccessful in making an attempt of theft, he also made an attempt to cause hurt. Therefore, the act of the petitioner can be termed as robbery without there being any hurt to PW.1. In fact, the petitioner was also not successful in committing the robbery, but he was only successful in attempting to commit robbery. 9
17. In any case, this is a case where though the prosecution alleged that the petitioner has caused hurt of PW.1 with a rod, failed to prove that PW.1 has received injuries under the hands of the petitioner and also failed to prove the rod allegedly used for inflicting injuries on the person of PW.1. Therefore, the main ingredients of Section 394 IPC for which charge has been framed are not found. Therefore, this is a case where a simple attempt of committing of theft in a dwelling house is made by the petitioner unsuccessfully.
18. Considering the facts and circumstances of the case, if the weapon is eliminated and the injuries to PW.1 are also eliminated, it only amounts to an attempt of committing a theft in a dwelling house belonging to PW.1. Since theft has taken place in a dwelling house as defined under Section 380 IPC, which is not successful, the petitioner at the most be found guilty for the offence under Section 380/511 IPC.
19. In view of the above, the criminal revision case is disposed of and the sentence imposed against the 10 petitioner/accused to suffer rigorous imprisonment for a period of three years is modified to that of one year and the remand period already undergone by the petitioner, if any, shall be ordered to be set off under Section 428 Cr.P.C.
Miscellaneous applications, if any, shall stand closed.
_____________________ DR. D.NAGARJUN, J Date: 04.11.2022 ES