Andhra HC (Pre-Telangana)
D. Chinnagurappa vs K. Gopal Reddy And Ors. on 1 April, 2004
Equivalent citations: 2004(1)ALD(CRI)796, 2004CRILJ3158
JUDGMENT C.V. Ramulu, J.
1. This Criminal Revision case is filed by the defacto-complainant against the Judgment dated 3-1-2000 in SC & ST Sessions Case No.137 of 1998 on the file of the Court of I Additional District and Sessions Judge, Kurnool, wherein accused No.1 i.e. respondent No.1 herein was convicted for the offences under Sections 323 and 342 IPC and sentenced to pay a fine of Rs. 1,000/- for each of the offences in default to suffer simple imprisonment for one month.
2. The case of the prosecution, in brief, is that accused Nos.2 and 3 are the sons of accused No.1 and accused No.4 is the brother of accused No.1. A1 is running a stone polishing factory at Ramapuram village. The defacto-complainant (P.W.1) belongs to Scheduled Caste. Prior to10-4-1998, P.W.1 and his wife (P.W.2) worked in the factory of A1 for some time. Thereafter, they left for Hyderabad. After six months, they returned back to their village Giddalur. On 10-4-1998, A1 took P.W.1 to his factory, where A1 to A4 wrongfully confined P.W.1 in a room, abused him by naming his caste and beat him with belts and iron pipes. On 11-4-1998 A1 to A4 obtained promissory note from P.W.1 for Rs. 17,500/- in favour of A1. On 12-4-1998 A4 brought P.W.2 and her daughter to the factory and confined them in a room. On 14-4-1998, the accused released P.Ws.1 and 2 and their daughter On 16-4-1998, P.W.1 was admitted in the Government Hospital. On receipt of Ex.P3 intimation, P.W.5 - Head Constable, III Town Police Station, Kurnool, visited the Government General Hospital, Kurnool and recorded the statement of P.W.1 under Ex.P1 and sent the same to Owk Police Station on the point of jurisdiction. On 24-4-1998, P.W.6 received Exs.P1 and P3 by post and registered a case in Crime No.111/98 under Sections 384, 365, 342, and 324 IPC and Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sent Ex.P4 FIR to all the concerned. Thereafter, P.W.7 took up investigation and recorded the statements of P.Ws.1 to 3 and others. On 15-5-1998 he arrested the accused and after completion of investigation he filed the charge sheet.
The plea of the accused was one of total denial.
3. The trial Court framed charges under Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and Sections 323 and 342 IPC against A1 to A4 and under Section 384 IPC against A2 to A4. The prosecution examined P.Ws.1 to 8 and marked Exs.P1 to P5.No oral or documentary evidence was let in by the accused. On appreciation of the entire evidence on record, the Court below acquitted A2 to A4 of all the charges framed against them, but convicted and sentenced A1 as stated supra. However, A1 was acquitted of the offence under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Aggrieved by the same, the present revision is filed by the defacto-complainant to enhance the punishment awarded against A1 and to convict him for the offences under Sections 327 and 347 IPC.
4. The only legal point raised by Sri K. Balagopal, learned counsel for the petitioner, is that though as per the evidence available on record, the accused were liable to be punished under Sections 327 and 347 IPC, the trial Court convicted A1 for the offences under Sections 323 and 342 IPC erroneously. May be, the trial Court framed the charges under Sections 323 and 342 IPC, but considering the evidence on record, it could have altered the charges to one under Sections 327 and 347 IPC and convicted the accused of the said charges. Sections 327 and 347 IPC contemplate the sentence of imprisonment and fine, whereas Sections 323 and 342 contemplate the sentence of either description. Therefore, the Court below erred in taking a lenient view and letting off A1 with a fine of Rs. 1,000/- for each of the charges under Sections 323 and 342 IPC. The Judgment of the Court below is, thus, bad in law and the matter requires to be remanded for retrial.
5. Since it is the case of P.W.1 that he was wrongfully confined and was beat ruthlessly by using abusive language for the purpose of extortion of the money of Rs. 17,500/-, which he purported to have taken from A1 as advance when he was working in his factory prior to 10-4-1998 and left the place, the Court below has come to the conclusion that there is no reason to disbelieve Ex.P1 complaint given by P.W.1; however, found that there were no injuries on the body of P.W.1. Learned counsel for the petitioner submits that in view of the evidence of P.Ws.1 to 3 read with the evidence of P.W.8, it must be held that the accused had beat P.W.1 with belts and iron rods and the wound certificate - Ex.P5 categorically shows that P.W.1 suffered injuries and as such, the charges framed by the Court below under Sections 323 and 342 IPC were themselves not proper and in view of the evidence available on record, the accused could have been convicted for the offences under Sections 327 and 347 IPC.
6. I have gone through the entire evidence on record and also the Judgment of the trial Court.
7. I am of the opinion that the revision petitioner has not made out any case to alter the charges framed by the Court. Learned counsel for the petitioner submits that in view of the evidence of P.W.1 read with Ex.P1, the ingredients of Section 347 IPC were all satisfied. In this connection, it may be necessary to examine Section 347 IPC, which reads as under:
"SECTION 347 Wrongful confinement to extort property, or constrain to illegal act
-Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall be also be liable to fine."
8. In the light of the above provision, this Court will examine the evidence of P.Ws.1 to 3. P.W.1 stated that he had borrowed Rs. 17,500/- from A1 two years ago and he did not execute any promissory note. He repaid Rs. 4,500/-. There was a quarrel between him and A2 and A3 about the cooly amount. A3 beat him with hands at that time. Therefore, he left the factory and went to Hyderabad. After six months, he came to Giddalur. A4 came to his village and asked the caste leader to prevail upon him for repayment of the remaining amount. On 10-4-1998 A1 took him to their factory and confined him in a room in the factory and the accused beat him with motor belts and pipes and abused him by naming his caste. In the cross-examination, he asserted that he had borrowed Rs. 17,500/- from A1 towards advance. He denied the suggestion that he had executed a promissory note at the time of joining A1's industry. P.W.2 is the wife of P.W.1. She also stated that the accused confined her and their daughter in the factory and abused them by naming their caste. P.W.3 is the person who was working in the factory. He only spoke to the fact that P.Ws.1 and 2 worked in the factory of A1 for two weeks and then left the factory.P.Ws.1 and 2 came to the factory of A1 after 9 months for working in the factory. They stayed in the factory for one day and left the factory. He also stated that the accused did not abuse, beat, or restrain P.Ws.1 and 2 wrongfully. He was declared hostile and was cross-examined by the prosecution. Except the above evidence, there is no other independent evidence. P.Ws.4 to 7 are the Investigating Officers. The Medical Officer - P.W.8 - examined P.W.1 on 16-4-1998 and found the following injuries:
"1. Defused tenderness over right infra auxiliary region and back of the chest.
2. Defused tenderness over the anterior part of left side of the chest.
3. Defused tenderness over infra scapular region."
9. P.W.8 further stated that the said injuries are simple in nature and might have been caused by blunt object. Ex.P5 is the wound certificate issued by him.
10. Though it is the case of the prosecution that the accused beat P.W.1 with motor belts, pipes and iron rods, the said objects were not seized and marked. The medical evidence, as seen above, shows that there was some tenderness over right infra auxiliary region and left side of the chest and also over infra scapular region. X-ray revealed no fractures. From the above evidence, it is seen that the injuries are simple in nature. Neither there was any lacerated injury nor contusion noticed by the Medical Officer, except saying defused tenderness on some parts of the body of P.W.1.
11. In view of the above, I am of the considered opinion that the charge framed under Section 323 IPC cannot be said to be improper on the part of the Court below. In fact, the ingredients as required under Section 327 IPC are not made out. That apart, the ingredients of Section 342 IPC alone are made out and not that of Section 347 IPC as contended by the learned counsel for the petitioner.
12. Learned counsel for the petitioner contended that in view of the evidence of P.W.1 that he was due an amount of Rs. 17,500/- and for recovery of the same he was wrongfully confined and because of the language imported into Section 347 IPC i.e. wrongful confinement to extort property, the accused should be punished under Section 347 IPC. In this regard, it may be necessary to examine Section 347 IPC, which reads as under:
"SECTION 347 Wrongful confinement to extort property, or constrain to illegal act
-Whoever wrongfully confines any person for the purpose of extorting from the person confined, or from any person interested in the person confined, any property or valuable security or of constraining the person confined or any person interested in such person to do anything illegal or to give any information which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to three years, and shall be also be liable to fine."
13. From the evidence on record, as discussed above, it is clear that the prosecution could not satisfy the ingredients of Section 347 IPC. The question of extortion of any property from P.W.1 by wrongfully confining him in a room does not arise. In fact, the Court below has framed such a charge under Section 384 IPC against Accused Nos.2 to 4 only and not against accused No.1, and on considering the evidence, A2 to A4 were acquitted of the said charge and there is no appeal filed against the said finding. It is not the case of the revision petitioner that the Court ought to have found A1 guilty at least of the charge under Section 384 IPC. The whole grievance of defacto-complainant - P.W.1 - is that had the charges under Sections 327 and 347 IPC were framed, the respondent-accused could have been sentenced with imprisonment as well as fine, but the Court below has framed the charges against A1 under Sections 323 and 342 IPC, wherein the punishment contemplated is either sentence of imprisonment or fine. In view of the above evidence, I cannot agree with the contention of the learned counsel for the petitioner.
14. Further, the learned counsel for the petitioners submitted that the charges can be altered at any point of time i.e. either during the course of trial or at the appellate stage or at revisional stage. In this regard, he has brought to the notice of this Court, the decisions in THAKUR SHAH v. EMPEROR1, KANTILAL CHANDULAL MEHTA v. STATE OF MAHARASHTRA2, PATEL JETHABHAI v. STATE OF GUJARAT3 and K.PREMA S. RAO v. YADLA SRINIVASARAO4.
15. In THAKUR SHAH's case (1 supra), the Privy Council held that under English law, it would be impossible to justify a variation of the charge of abetting named persons into one of abetting unknown persons. The history of the growth of criminal law in England, its lines of development and the technicalities consequent thereon all militate against such a course. Indian law is subject to no such limitation, but is governed solely by the Indian Criminal Code and the Code of Criminal Procedure, always of course, subject to the limitation that no course should be taken by reason of which the accused may be prejudiced either because he is not fully aware of the charge made or is not given a full opportunity of meeting it and putting forward any defence open to him on the charge originally preferred. It was also held that under Section 423(1)(d) the High Court has power to amend a charge abetting named persons so as to turn it into a charge of abetment of person or persons unknown or to turn it into a charge of abetting an abetment. An amendment in the persons alleged to have committed the offence is an amendment within Section 423 and not the charging of a fresh offence.
16. In Kantilal Chandulal Mehta v. State of Maharashtra (2 supra), the Supreme Court held as follows: :
".....As already pointed out the learned Judge of the High Court did not intend nor did he direct a new trial in the sense that it is contended he had done. There was in fact no retrial directed, but only an opportunity was given to the accused to safeguard himself against any prejudice by giving him an opportunity to recall any witnesses and adduce any evidence on his behalf. The appellant has also understood the order not as a retrial is clear from ground (f) of the Special Leave Petition filed before us. It is therefore not necessary for us to examine the scope and extent of the power or circumstances in which a retrial should be ordered.............. The offence with which he is now charged. alternatively is the same namely under Section 406 but as the entire transaction was one and indivisible he is not only required to answer the charge of misappropriation of money but in the alternative misappropriation of goods which the complainant Bank contends became their's as soon as the accused purchased them with the moneys it advanced. In our view no prejudice is caused or is likely to be caused to the accused by the amendment of the charge as directed by the High Court."
17. In Patel Jethabhai Chatur v. State of Gujarat (3 supra), the Supreme Court held as under:
"The High Court could legitimately in the exercise of its jurisdiction, set right the error committed by the learned Judicial Magistrate in not framing a proper charge. Here, the High Court, on a consideration of the material which was before the learned Judicial Magistrate, came to the conclusion that this material warranted the framing of a further charge against the appellant and Accused 3 to 8 for possession of liquor and it, therefore, directed that the case should go back to the learned Judicial Magistrate and he should try the appellant and Accused 3 to 8 on such further charge. The High Court clearly had jurisdiction to make such an order. .............The liquor in his glass would be liquor in his possession. But at the same time it would not be correct to say that merely because a participant in a drinking party can stretch his hand and take liquor for his use and consumption, he can be held to be in possession of liquor. The question is not whether a participant in a drinking party can place himself in possession of liquor by stretching his band and taking it but whether he is actually in possession of it. Possession again niust be distinguished from custody and it must be conscious possession. If, for example, a bottle of liquor is kept by someone in the car or house of a person without his knowledge, he cannot be said to be in possession of the bottle of liquor. It cannot, therefore, be laid down as an absolute proposition that whoever is present at a drinking party must necessarily be guilty of the offence of possession of liquor and must be-charged for such offence. Whether an accused is in possession of liquor or not must depend on the facts and circumstances of each case.."
18. In K. Prema S. Rao v. Yadla Srinivasa Rao (4 supra) the apex Court held as under:
22. Mere omission or defect in framing charge does not disable the criminal court from convicting the accused for the offence which is found to have been proved on the evidence on record. The Code of Criminal Procedure has ample provisions to meet a situation like the one before us. From the statement of charge framed under Section 304-B and in the alternative Section 498-A IPC (as quoted above) it is clear that all facts and ingredients for framing charge for offence under Section 306 IPC existed in the case. The mere omission on the part of the trial Judge to mention Section 306 IPC with Section 498-A IPC does not preclude the court from convicting the accused for the said offence when found proved. In the alternate charge framed under Section 498-A IPC, it has been clearly mentioned that the accused subjected the deceased to such cruelty and harassment as to drive her to commit suicide. The provisions of Section 221 Cr.PC take care of such a situation and safeguard the powers of the criminal court to convict an accused for an offence with which he is not charged although on facts found in evidence, he could have been charged for such offence. Section 221 Cr.PC needs reproduction:
"221. Where it is doubtful what offence has been committed.-(1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.
(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it."
19. May be, that the High Court even at the appellate jurisdiction or under the revisional jurisdiction, in a given case, on the basis of the evidence available on record, can come to a conclusion that the Court below ought to have framed a charge under a particular section, instead of some other section. But, in this case, absolutely, there is no evidence, as discussed above, to connect the accused for the offences punishable under Sections 327 and 347 IPC. The only effort made by the learned counsel for the petitioners was to show that if the Court below had framed charges under Sections 327 and 347 IPC, the accused since found guilty, could have been sentenced with some imprisonment and also fine. Whereas, in view of the charges under Sections 323 and 342 IPC, the accused No.1 was let off with only a fine, as, such a discretion was vested in the Court below in view of the above conclusions.
20. Whereas, the learned counsel for the respondent-accused submitted that the material objects, such as, motor belts, pipes and iron rods were neither recovered nor marked. Further, he submitted that the defacto complainant had ample opportunity before the trial Court to plead for alteration of the charges either after framing of charges or conclusion of the trial. No such effort was made on behalf of the defacto-complainant. In this regard, he relied upon the decisions reported in FAKIR CHAND v. KOMAL PRASAD5, SURAYA IBRAHIM SHAIKH v. IBRAHIM RAHIM SHAIKH6 and JAGANNATH CHOUDHARY AND OTHERS v. RAMAYAN SINGH7.
21. In Fakir Chand v. Komal Prasad (5 supra), the apex Court held as under:
"3. Mr. Purshottam Trikamdas, for the appellants, contends that the order passed by the High Court is clearly unjustified, and he argues that the point which he seeks to raise in the present appeal is concluded by a recent decision of this Court in the case of K. Chinnaswamy Reddy v. State of Andhra Pradesh 1. In that case this Court has held that the power of the High Court to set aside an order of acquittal at the instance of a private party can be exercised only in exceptional cases as for e.g. where the trial court has wrongly shut out the evidence which the prosecution wished to produce, or where the appellate court has wrongly held evidence which was admitted by the trial court to be inadmissible, or where material evidence has been overlooked either by the trial court or by the appellate court, or where the acquittal is based on a compounding of the offence, which is invalid under the law. The result of this judgment is that it is only where the order of acquittal challenged before the High Court under Section 439 of the Code of Criminal Procedure suffers from an infirmity of the character illustrated in the judgment that the High Court can set aside the order of acquittal. Purshottam urges that in the present case none of such infirmities is even alleged to exist and plainly and clearly the High Court set aside the acquittal because it came to the conclusion that in its opinion the evidence adduced by the prosecution had not been properly appreciated by the trial court. We are satisfied that Mr. Purshottam is right."
22. In SURAYA IBRAHIM SHAIKH's case (6 supra), the Bombay High Court held that the position of law is that only in exceptional cases, the High Court can interfere in revision to set aside an order of acquittal and then order retrial of the accused. The exceptional grounds mentioned in some of the cases are that the learned Magistrate has refused opportunity to the prosecution to produce evidence or he has shut out legal evidence from consideration or admitted inadmissible evidence and so on. It is also well settled that the presumption about innocence of the accused is re-inforced by the judgment of acquittal of the trial Court. It is also well settled that mere appreciation of evidence, however, erroneous it may be, cannot be interfered with either in an appeal or revision against a judgment of acquittal. Merely because another view is possible, is no ground for an appellate or revisional court to interfere and substitute its own view in the place of the view of the trial Court.
23. In JAGANNATH CHOUDHARY's case (7 supra), the Supreme Court held as follows:
"The High Court possesses a general power of superintendence over the actions of courts subordinate to it. On its administrative side, the power is known as the power of superintendence. On the judicial side, it is known as the duty of revision. The High Court can at any stage even on its own motion, if it so desires, and certainly when illegalities or irregularities resulting in injustice are brought to its notice, call for the records and examine them. This right of the High Court is as much a part of the administration of justice as its duty to hear appeals and revisions and interlocutory applications - so also its right to exercise its powers of administrative superintendence. Though however, the jurisdictional sweep of the process of the High Court, however, under the provisions of Section 401 is very much circumscribed, as noticed hereinbefore."
24. Be that as it may, since the evidence on record itself does not inspire confidence for altering the charges under Sections 323 and 342 IPC as framed by the Court below to that of under Sections 327 and 347 IPC, this Court is of the opinion that the defacto-complainant has not made any case to interfere with the Judgment rendered by the Court below.
25. Accordingly, the Criminal Revision Case fails and is dismissed.