Andhra Pradesh High Court - Amravati
Medida Thirupalu, vs The State Of A.P., Rep By Pp And 4 Others, on 18 February, 2020
Author: C. Praveen Kumar
Bench: C. Praveen Kumar
GO : chicken 4 and the deceased informed them that he was going to feast ee . : Bas, oe Scanned with CamScanner HON'BLE SRI JUSTICE C. PRAVEEN KUMAR Cr. R.C. No. 799 of 2008 ORDE R:- ne Heard the learned counsel for both the parties and perused the record, The present Criminal Revision Case is filed under Sections 397 and 401 Cr.P.C. assailing the judgment dated 23.08.2007 in acquitting the accused - respondents 2 to 5 in S.C. No. 209 of 2004
on the file of the Court of Il! Additional District & Sessions Judge (Fast Tract Court), Ongole, Prakasam District.
Originally, Al to A4 were tried for the offences punishable under Sections 302 and 201 IPC, The facts in issue are that the deceased ~ Medida Koteswara Rao is a native of Binginapalli village of Singarayakonda Mandal.
About four years ago, he went to Ongole and was working as to the incident, he came to: Binginapalli i i.e. at the time of his wife's delivery, The deceased formed a group in Schedule Caste Community and acted against the interest of the accused, As such, the accused bore grudge against him. On the evening of 12,02,2004, at about 10:00 p.m. when the deceased left the village he was seen by PW9 near the Auto stand of Singarayakonda and she owas informed by the deceased that he would come: to the village in the Auto of Ad. At about. 11; 00.A, M,, the deceased i is said " to "have gone: - to the : hotel, oo where s PW 16 and "Pw 14 -were: eating with Al. It is further stated that PWs.14 and 16 went to the petrol bunk for diesel to their Tractor. At that time, Al approached PW16 and asked him for an empty tin to take petrol.
The deceased was seen by PW15 who was going along with Al, A2 and A4 in the Auto of Al towards south of NH5 road. On 13.02.2004, in the early hours, only Al, A2 and A4 were seen by PW11 getting down the Auto in Binginapalli village. On the same day, PW1 was informed by PW2 that PW2 found dead body of the deceased in the village limits of Bhimavaram near old gravel road towards south. Then, PW1 proceeded to the place where the dead body was found, and on enquiry, came to know that the dead body was brought there and burnt in a pit. Thereupon, PW1 went to the police station and lodged a report which led to registration of a case in Crime No.7 of 2004 for the offences punishable under Sections 302 and 201 IPC of the Police Station, Ulavapadu. Ex.P1 is the report while Ex.P10 is the F.1.R. PW1 came back to the dead body and found green mark "MLS" on the hand and he had. shown the same to the Sub-Inspector of Police, who recorded his statement.
During the course of investigation, the Inspector of Police visited the scene of offence, prepared an observation report and also the rough sketch of the scene in the presence of the witnesses which are marked as Exs.P2 and Pll. Thereafter, he held inquest over the dead body of the deceased... Ex.P3 is the inquest report. After inquest, the dead body. was sent for post-mortem examination. PW15, the: Civil Assistant Surgeon, conducted 'autopsy over the dead body and issued Ex.P7 - post-mortem
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Scanned with CamScanner 3 cule 799.2008 certificate opining that the deceased appeared to have died about 36 to 48 hours prior to the post-mortem examination. After completion of investigation, a charge sheet came to be filed which was taken on file as P.R.C.No. 18 of 2004 on the file of the Court of the Additional Judicial First Class Magistrate, Kandukur.
On appearance, copies of documents as required under Section 207 Cr.P.C., came to be furnished and since the offence is exclusively triable by the Court of Sessions, the same wags committed ta the Court of II] Additional District and Sessions Judge, Ongole, Prakasam District under Section 209 Cr.P.C.
On appearance of the accused, charges under Sections 302 and 201 IPC came to be framed, read over and explained to them in Telugu, to which, they pleaded not guilty and claimed to be tried.
In support of its case, the prosecution examined PWs.1 to 18 and got marked Exs.P1 to P14 and M.Os.1 to 10. After completion of prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against | 'them in the evidence of the: _ Prosecution witnesses, to which they denied, but however, they did not adduce any oral evidence except marking a portion of the statement of PW4 recorded under Section 161 Cr.P,C, as Ex.D1, In the absence of any evidence, the trial Court acquitted the accused for the charged offences, Challenging the same, the presen Criminal Revision Case is filed by the informant.
lt is stated in the grounds: of revision that the evidence of 2 PWws. 1, 2 and 3 amply establish the involvement of the accused in. Scanned with CamScanner PAREN D RIA PLIIS PEED LEED EALPEELELELLS ceKS ' CHRC_799_ 2008 the commission of offence as these witnesses saw the accused and the deceased together prior to the incident. It is further pleaded that there was sufficient motive for the accused to kill the deceased.
The same is opposed by the learned counsel for the accused.
"6 Le The point that arises for consideration is whether there is any EES material on record to connect the accused with the alleged offences.
Admittedly, there are no eye-witnesses to the incident and the case rests on circumstantial evidence. In a case arising out of circumstantial evidence the prosecution has to prove each circumstance and the circumstances so proved must form a chain of events connecting the accused with the crime. That apart, it is also to be noted that this is a revision filed against acquittal of the accused where the scope of interference is very limited.
In K, Chinnaswamy Reddy vs State Of Andhra Pradesh!, the Hon'ble Apex Court held as under:-
"That it was open to a High Court in revision and at the instance af a private party to set aside an order of acquittal though the State might not have appealed. But such jurisdiction should be exercised only in exceptional cases, as where a glaring defect in the pracedure or a manifest ; error of law leading te a flagrant miscarriage of justice has taken place. | When s. 439/4) of the Code forbids the High Court from converting a Jinding of acquittal into one of conviction, i is not proper that the High Court should do the.same indirectly by ordering a retrial Hk was not possible to lay down the criteria for by which ta judge such exceptional cases. It was, however, clear that the High Court would be justified in vo interfering in cases such as (1 ) where the trial court had wrongly shut out.
a evidence Sought to be adduced by the prosecution, (2) where the appeal a Scanned with CamScanner 5 CPKJ CrIRC_799_2008 court had wrongly held evidence admitted by the trial court to be inadmissible, (3) where material evidence has been averlooked either by the trial court or the court of appeal or, (4) where the acquittal was based on @ compounding of the offence not permitted by law and cases similar to the above.
In Kalu Ahir And Gthers vs Ramdeo Ram, the Hon'ble Apex Court held as under:-
"An unrestricted right of appeal from acquittal is specifically conferred only on the State and a private complainant is given the right of appeal ,only when the criminal prosecution was instituted on his complaint and then also subject to special leave by the High Court. A private complainant can only claim a right, in common with ali aggrieved parties in a criminal proceeding, to invoke the revisional jurisdiction of the High Court for redress against miscarriage of justice arising from an erroneous order of acquittal: but the High Court's power in such cases ts circumscribed by the provisions of Ss. 417 and 439, CrP.C. and also by the fundamental principles of criminal Jurisprudence it is only in glaring cases of injustice resulting from some vioiation of fundamental principles of lau: by the tral court that the High Caurt is empowered to set aside the order of acquittal and direct a retrial of the acquitted accused. From the very nature of this power it should be exercised only in exceptional cases and with great care ~gand caution. Trials are not to be lightly set aside when-such orders expose the accused persons to a fresh trial with ail its consequential harassment. The power of revision conferred on the High Court by Ss. 433 and 439 CrP, is an extraordinary discretionary power vested in the superior court to be exercised in aid of justice. The High Court has been invested with this power to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that the subordinate caurts do not exceed their jurisdiction or abuse the power conferred on them by taw, As a general nile, this power, in spite of the wide language of the sections does not contemplate interference with conclusions af fact in the absence of serious legal infirmity and failure of justice. This power is certainly not intended to be exercised as to one portion of the Criminal "Procedure Code conflict with another as would be the case when, in the garb ,of exercising revisional power, the High Court in effect exercises _ the power of appeal in face of statutory prohibition. In revision, the High Ba Court is expressly prohibited from converting acquittal inte a conviction it . makes it therefore ail the more incumbent on the High Court to see that it ees not parivert the: f nding. of aoquittal into 4 ne of conviction by the 'Scanned with CamScanner do LOR te "
indirect method of ordering a retrial. The High Court wher approached by a private party for exercising its power of revision in the case of an order of acquittal should therefore refrain from interfering except when there is a glaring legal defect of a serious nature which has resulted in grave failure of justice. The High Court is not expected to act as if it is hearing an appeal in spite of the wide language under_s,435 which empowers it to salisfy itself as to the correctness, legality or propriety of a finding, sentence or order and as to the regularity of any proceeding, and alsa in spite of the fact that under s.439 it can exercise inter alia the power conferred on a court of appeal under s.423, Cr.P.C. The power being discretionary, it is to be exercised judicially and not arbitrarily. Judicial discretion means a discretion which is informed by analogy and disciplined by system".
In State of Orissa Appetlant v. Nakula Sahu and others Respondents', the Hon'ble Apex Court held as under:
"9. So far as the first point is concerned, it is te be emphasised that although the revisional power of the High Court under S. 439 read with Sec. 435 of the Cade the Criminal Procedure, 1898 is as wide as the power of Court of Appeal under S. 423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Sec. 439 is to be exercised only in exceptional cases when there is a glaring defect in the _. procedure or there is a manifest. error.on.a point of law which has consequently resulted in flagrant miscarriage of justice. Reference in this connection may be made to the decisions of this Court in Amar Chand Agarwalia v. Shanti Base (1973) 4 SCC 10: (AIR 1973 SC 799) and Akatu Akur v. Ramdeo Ram (1973) 2 SCC 583: (AIR 1973 SC 2145). In the latter case viz. Akalu Ahir v. Ramdeo Ram (supra) this Court follewing its earlier decision in the Amar Chand Agarwalla v. Shanti Bose (supra) held that in spite of the wide language of 8. 435 of the Code of Criminal Procedure, 1898 which empowered it to satisfy itself as to the correctness, legality or _ propriety of any findings, sentence or order recarded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any preceeding of such inferior court and in spite of the fact that under S. 439 of the Code it can exercise inter alia the power conferred on a court of appeal under S, 423 of the Code the High Court is not m expected to act under S, 438 or s. 439 as if it is hearing an appeal. The .
oo] power being discretionary, it has to be exercised judiciously and not :
urbitranily or lightly. 'Judicial. discretian, as has often been said, meansa Scanned with CamScanner deceased going away along with Al, "She cPKS CARE _799_2008 methodised by analogy and discretion which in informed by tradition, disciplined by systenv".
in view of the law laid down in the judgments referred to above, it is to be decided whether the findings of the trial Court warrant interference.
Insofar as the circumstances of last seen is concerned, the prosecution mainly relied upon the evidence of PWs.3 to 6. According to the prosecution, the deceased was seen in the company of Al on 13.02.2004. Apart from that Al and some other accused along with the deceased were also seen by some of the witnesses. These witnesses saw Al along with the deceased going in an Auto with the other accused and the deceased did not return to the village. On the 3 day, PW3 - father of the deceased received a phone call from PW4 with regard to the dead body of the deceased in Kandukur hospital. Thereafter, he proceeded to the hospital and identified the body as that of the deceased. One of the witnesses who was relied upon by the prosecution is the son of the deceased. Though his evidence initially revealed about his father consuming liquer along with Al; going to attend a big party at Singarayakonda- and faiting to return for three days, but the . answers s elicited i in his cross-examination establish that his version is a tutored one. 'He categorically admits that he was 5 made t ta state 'about Al only by his family members, Pwe is. the wife of the deceased who deposed about the so deposed. about the.
intimacy of the accused and. the dec Scanned with CamScanner in the cross-examination, it was elicited that she came to know about the deceased living with Al when examined by the police. She did not state certain factual aspects, particularly, the ill- feelings between Seshaiah and Pullaiah with the deceased before death which she has deposed in chief examination, The answers elicited in the cross-examination of PW8, create a doubt as she failed to state the names of A2 to Ad in the Statement recorded by the police and motive to kill the deceased. This evidence of PW8 also may not be much help to the prosecution.
PW16, who is another witness, in his evidence, deposed that he knew PW14 and the deceased. He saw Al in Singarayakonda at a petrol bunk at about 10:30 or 11:00 P.M. After taking food in a hotel along with PW14, PW16 saw the deceased in the same hotel and took a piece of mutton from his plate and ate it. Al requested PW14 to Bie a.can. to. fill upetrel but he. stated that he was not having the same, In the ¢ cross- examination, PW16 replied that the deceased would be attending coolly work whenever called by him. | On the other hand, PW14, in his evidence, deposed that he did not 'know PW16 and did not work as driver of the Tractor belonging to PW16, but in the statement recorded before the police, PW14 Stated that he was the driver of the Tractor to PW16. Thus, the evidence of PW16 does not inspire confidence to believe his presence at the scene of offence as deposed by him. | Having regard to the evidence adduced by the prosecution, J . gee no reason to interfere with the impugned judgment.
: Accor dinaly, the » Criminal Revision Case is di 7 Pa Scanned with CamScanner 9 CPR CARC_799_ 2008 As a sequel, Miscellaneous Petitions, if any pending, shall stand disposed of as infructuous.
ae te ORE ee ARES MAR, J RAVEEN KU 18.02.2020 bej Scanned with CamScanner