HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.220 OF 2004 Date:04-07-2011 Between: Ojja Kanukamma. - - - Petitioner/ De-facto complainant. Versus The State of A.P., Rep. By its Public prosecutor, High Court of A.P., Hyderabad and 4 others. - - - Respondents. This Court made the following : HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL REVISION CASE No.220 OF 2004 JUDGMENT: This Criminal Revision Case is preferred by the Petitioner-De- facto complainant against judgment of acquittal, dated 31-10-2003, made in Sessions Case No.112 of 2003 by the learned II Additional District and Sessions Judge, Karimnagar. 2. The Revision Petitioner is the De-facto complainant whereas, the first respondent is the complainant and Respondents Nos.2 to 5 are the Accused in the Sessions Case. 3. For the sake of convenience, I refer the parties as arrayed in Sessions Case No. 112 of 2003 before the lower Court. 4. The Accused were prosecuted in S.C. No.112 of 2003 for the offences punishable under Sections 302 and 324 read with Section 34 of I.P.C. after observing necessary formalities. 5. The accusation levelled against them is as follows : On 05-10- 2002 at about 07-00 p.m. the de-facto complainant Ojja Kanukamma along with her daughter-in-law was going to a pond carrying ‘Bathukamma’ and on their way in front of the house of Kadari Rajeshwar Rao, all the accused followed them and attacked the de- facto complainant. On coming to know about it, the husband of the de- facto complainant namely Ramulu rushed to the scene. In fact the first accused and his son i.e., the second accused way laid and waited for him and hatched up a plan to kill him and attacked him and beat on his head with stick and iron rod by which he received severe bleeding injuries and fell unconscious and then the first accused beat with stick on the left hand and on waist of the de-facto complainant. Then the accused 3 and 4 beat the deceased indiscriminately. Further, the incident took place due to old enmity between the two groups on the ground that the de-facto complainant’s son Sadaiah outraged the modesty of the fourth accused. Later, the de-facto complainant’s son went to the scene of offence and took the deceased to hospital and subsequently he succumbed to the injuries received by him. Further, in the report given by the de-facto complainant a case was registered in crime No.207 of 2002 on the file of P.S. Sulthanabad for offences punishable under Sections 302 and 324 read with Section 34 IPC and the police conducted necessary investigation and filed the corresponding charge sheet before the concerned committal Court. 6. After observing necessary formalities, charges for the offences punishable under Sections 302 and 324 read with Section 34 of IPC, were framed against them, read over and explained to them in telugu, for which, they pleaded not guilty and claimed to be tried. 7. On behalf of the prosecution, the de-facto complainant and 14 other witnesses were examined as PWs.1 to 15 and EXs. P-1 to P-17 and M.O.s. 1 to 4 were marked whereas, the accused when examined under Section 313 Cr.P.C. denied incriminating evidence adduced against them. 8. It is the contention of the learned counsel for the petitioner that PWs. 1 to 5 namely Ojje Kanukamma, Ojje Sadaiah, Ojje Swaroopa, Kadari Rajeshwer Rao and Davaraveni Thirupathi Rao examined to depose about the main incident gave trustworthy evidence and further the weapons used by the accused in the incident were seized by the police about it also there is trustworthy evidence but the lower Court on flimsy grounds rejected their evidence and acquitted the accused of the charges framed against them and hence the acquittal recorded by the trial Court is to be set aside and necessary steps are to be taken for the re-examination of the matter through appropriate forum. 9. Therefore, it is to be seen as to : 1) Whether the prosecution placed sufficient evidence in order to bring home the guilt of the accused with reference to the charges framed against them?. 2) Whether the trial Court examined the matter properly arrived at correct conclusions? and 3) Whether the judgement delivered by the Trial Court is tenable or not? 10. It is the evidence of PW.1 de-facto complainant that on the relevant day when she along with her daughter-in-law was going at the house of Kadiri Rajeshwar Rao, A-3 and A-4 came and beat her with hands and then she raised cries by which her husband, the deceased came to the place and then A-2 came and beat with iron rod on the back of the head of the deceased and she intercepted and then the accused beat them indiscriminately. It is further her evidence that A-1 beat on her waist and left hand with a stick and A-3 and A-4 bet her and the deceased indiscriminately with hands and then V. Sadaiah and V. Swaroopa and later the accused went away and subsequently she and her son went to Sulthanabad police station and she gave a report on which the case was registered. It is also deposed by her that the accused caused the incident due to enmity, which arose on the ground that their son outraged the modesty of A-4 following which a Criminal case was registered, which was pending trial. 11. PW.9 Deputy Civil Surgeon deposed that on a particular day he examined PW.1 and found a scratch mark on forearm 4” in length and contusion 2” x 1” on the back and they were simple in nature and were caused by blunt object which in fact agrees with her ocular evidence that A-3 and A-4 beat her and that A-1 beat on her waist and on her left hand with stick and A-3 and A-4 beat her indiscriminately with hands. 12. Ex.P1 first information report statement agrees with the evidence of PW.1 by and large. 13. Further, PW.2 Ojja Sadaiah son of the deceased and PW.1 deposed about the incident but it appears that his evidence is only hearsay which, therefore, is not useful in substantiating the prosecution version. Further, PW.3 deposed to the effect that she along with PW.1 was going with Bathukamma to a river but she did not witness anything. It is quite surprising that even though it is according to both PWs.1 and 3 that the later was accompanying the former at the time of incident in question, she (PW.3) deposed that she did not witness anything, which is quite unnatural and unbelievable. In fact, it rules over that she was accompanying PW.1 then. 14. PW.4 Kadari Rajeshwar Rao examined as independent witness deposed that on the date of the incident as his grand son was going along with his mother, he went in order to bring his grand son and found PW.1 returning and then A-3 and A-4 went and attacked PW.1 but he was not aware whether the deceased went to the place of incident and whether he was beaten by the accused. The evidence of PW.4 is somewhat different from the evidence of PW.1 in one way because according to her, the incident took place while she was going along with Bathukamma and according PW.4 the incident took place while she was returning. Further, if PW.4 happened to see the incident of A-3 and A-4 beating PW.1 definitely he would have the chance of seeing the incident of all the accused beating the deceased also. 15. Further, PW.5 deposed that on the relevant date, he found PW.1 and A-3 and A-4 sprinkling mud against each other whereas, some mud fell upon him, but he did not witness A-1 to A-4 beating PW.1 and the deceased and he was not examined by the concerned police. His evidence gives altogether a different picture compared to the depositions of PW.1 and PW.4. If what he deposed is true, he also would have definitely a chance of witnessing the entire incident. It is also something unnatural that under such circumstances he left the scene of offence. On the other hand, PW.6 V. Komuraiah @ Kondaiah examined as another eyewitness to the incident deposed that he did not know anything about the incident. In fact as PWs. 3 to 6 did not support the prosecution version, learned Additional Public prosecutor of the court declared them as hostile witnesses to the prosecution and while cross-examining them got marked relevant portions of their statements under Section 161 Cr.P.C. as Exs.P-2 to P-5 respectively. It appears that PWs.2 to 6 were planted as eyewitnesses to the incident. 16. Therefore, leaving their evidence apart the evidence of PW.1 is only available for consideration with regards to the alleged incident. The trial Court mainly rejected the evidence of PW.1 on the ground that it was incidental that the deceased went to the scene of offence and received fatal injuries and more so, the presence of A-1 and A-2 at the scene of offence or their arrival at the scene of offence was not narrated by her and she further deposed that the accused were living with amicable terms and the case of outraging the modesty of A-4 by her son took place one year prior to the incident in question and hence the motive put forth by the prosecution would lean in favour of two views one to the effect that the accused actually beat the deceased and PW.1 and the other one to the effect that in order to get something a false report was given and there is no probable reason that can be attributed to the accused for trying to take the law into their hands and hence the motive attributed against the accused was not established. Further, the medical evidence not agreed with the evidence of PW.1 about the injuries received by her. The trial Court also observed that whereas it was according to the prosecution that Mos. 1 to 3 were seized from the possession of the accused, satisfactory evidence was not placed in that context. 17. Therefore, the following points to be considered here : 1) Whether the prosecution placed satisfactory evidence with regards to the charges framed against the accused? 2) Whether the trial Court examined the matter properly and arrived at correct conclusions? 3) Whether the judgement of acquittal delivered by the trial Court is tenable or not and necessary conviction and sentences are to be imposed in the case? 18. Point No.1: Significantly, this is a revision preferred only by the de-facto complainant in the case and not by the State. I n Seeni Ammal[1], it is observed that though the High Court can set aside an acquittal, it cannot in revision, as in the case of an appeal under Section 378 convert it into a conviction and the only course is to order a retrial when it is found necessary basing upon the relevant material available and further, a retrial order does not amount to a conversion of a finding of acquittal into one of conviction within the meaning of sub- section (3) of Section 401 Cr.P.C. Further, in Logendra Nath Jha V. Polai Lal Biswas[2] it is observed by the Hon’ble Supreme Court as follows : If the High Court reverses pure findings of fact characterising them as “perverse” and “lacking in true perspective” and orders a retrial by setting aside an acquittal, it exceeds revisional powers though it stops short of finding the accused guilty and passing sentence and thus formally complies with sub-section (3). However in Chandrabiar Singh v. Samresh Singh[3], it is observed that while ordering retrial care should be taken not to express an opinion so that a conviction by a trial Court becomes a certainty and thus circumvent sub-section (3). Further, in T.N. Dhakkal Vs. James Basnett[4], it is observed by the Hon’ble Supreme Court that the revisional powers are only exercisable to rectify any illegality, irregularity, impropriety or mistake appearing on the face of the record but these powers are discretionary and are to be exercised with circumspection and care. Further, in Kana Ram Vs. State of Rajasthan[5] it is observed that the revisional powers are to be used only for relieving the persons who had not a fair trial or who have been convicted for non observance of the material provisions of law. Further, in Lakshwinder Kaur Vs. Piare Lal[6] it is observed by the Hon’ble Supreme Court that the High Court will not in revision ordinarily interfere with an acquittal order at the instance of a third party merely because it was wrong or involves irregularities. 19. The principles laid by various Courts amply make it very clear that only in exceptional cases judgment of acquittals in Criminal cases can be interfered with. If judgements are perverse or illegal, the High Courts can reverse them and remand them to trial Courts for retrial without giving any opinion, which is likely to pressurize the trial Courts to retrial to dispose of the matters in a particular way. 20. Further, it is to be emphasised very much that the other case was registered against the son of the de-facto complainant and the deceased on the ground of outraging the modesty of A-4 about one year prior to the date of the incident and it was pending before a Court of law admittedly, by the relevant date therefore it cannot be ruled out that the accused attacked the de-facto complainant and deceased in view of that prior incident having developed some enmity with their family. 21. However, when it is already held that the presence of PW.3 at the scene of offence is doubtful and she might have been planted as eyewitness to the incident, the evidence of the de-facto complainant that PW.3 was accompanying her when the incident took place is not acceptable. It is quite possible in the circumstances of the case, that she gave false evidence having got interest in the matter and also in view of the pendency of the other case, in which her son was the accused. Further, if the acquittal recorded by the trial Court is set aside and the matter is remanded to consider it afresh, it definitely amounts to pressurizing the trial Court to dispose of the matter in a particular way to the prejudice of the accused, in view of the circumstances of the case which is not permissible. In view of the facts and circumstances of the case, I feel that it is not safe to rely upon her evidence without any corroboration. Further, the seizure of the material objects from the accused is subject to the acceptance of direct evidence. For the foregoing reasons, I find no merits in the Revision and accordingly the Criminal Revision Case is liable to be dismissed. Accordingly, the Criminal Revision Case is dismissed. __________________________ G. KRISHNA MOHAN REDDY, J 04th July, 2011. Dsh THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 221 CRIMINAL REVISION CASE No.220 OF 2004 July, 04, 2011 DSH [1] AIR 1960 Mad 573 [2] AIR 1951 SC 316 [3] AIR 1952 All 461 [4] (2001) 10 SCC 519 [5] 2002 Crl.L.J. 1867 [6] 2004 Crl.L.J (NOC) 203