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2022 DIGILAW 1267 (AP)

Madugula Gurappa v. Nallipilli Krishna Kumar

2022-11-14

A.V.RAVINDRA BABU

body2022
ORDER : This Criminal Revision Case came to be filed by the petitioner namely Madugula Gurappa, daughter of late Appanna, who was the prosecution witness No.1 in Calendar Case No.187 of 2006, on the file of the Court of Additional Judicial Magistrate of First Class, Vizianagaram (for short, ‘the learned Magistrate’), under Sections 397(1) and 401 of the Code of Criminal Procedure, 1972 (for short, ‘the Cr.P.C’), challenging the judgment, dated 22.08.2008, where under the learned Magistrate acquitted the first respondent/accused for the offence under Section 417 of the Indian Penal Code, 1860 (for short, ‘the IPC’). 2. The parties to this Criminal Revision Case will hereinafter be referred to as described before the trial Court, for the sake of convenience. 3. The case of the prosecution, before the trial Court, according to the charge sheet filed by the State Government represented by Sub-Inspector of Police, II Town Police Station, Vizianagaram, in brief, is as follows: LW.1-Madugula Gurappa is an un-married woman. Accused is resident of her locality. The accused and victim belongs to the same caste. In fact, accused got engagement with another lady by name Harathi of Srikakulam for marriage about five years prior to the date of incident. But he developed love on the victim and had sexual intercourse with her by promising her to marry. Later, he told the victim that he would marry both victim and the engaged lady at Srikakulam. Then, the victim raised an objection and consumed pesticide poison on the night of 25.03.2006 and she was shifted to Sukhibava Hospital, Vizianagaram for treatment. Subsequently, she gave a report to the Police. During investigation, basing on the statement, Police registered the F.I.R. and took up investigation and they arrested the accused. After completion of investigation, charge sheet is laid. The learned Magistrate, took cognizance of the case under Section 417 IPC and after appearance of the accused, copies of the case documents were furnished as required and the accused was examined under Section 251 Cr.P.C. for which he pleaded not guilty and claimed to be tried. 4. To bring home the guilt of the accused, the prosecution examined PWs.1 to 8 and got marked Exs.P-1 to P-10. After closure of the evidence of the prosecution witnesses, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances for which he denied the same. 4. To bring home the guilt of the accused, the prosecution examined PWs.1 to 8 and got marked Exs.P-1 to P-10. After closure of the evidence of the prosecution witnesses, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances for which he denied the same. In support of the defence, accused got examined DW.1 and got marked Exs.D-1 and D-2. 5. The trial Court, after hearing both sides and on considering the oral as well as documentary evidence on record, found the accused not guilty of the offence under Section 417 IPC and acquitted him under Section 255(1) Cr.P.C. 6. Aggrieved by the same, the de-facto complainant/victim/ PW.1 in C.C. No.187 of 2006, dated 22.08.2008, preferred this Criminal Revision Case under Sections 397(1) and 401 Cr.P.C. 7. Now, in deciding this Criminal Revision Case, the point that arises for consideration is as to whether the judgment in C.C. No.187 of 2006, dated 22.08.2008, by the learned Additional Judicial Magistrate of First Class, Vizianagaram suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the same? 8. POINT: Learned counsel appearing for the revision petitioner would contend that the Court below instead of convicting the accused under Section 417 IPC acquitted him. PW.1 categorically testified that accused had sexual intercourse with her promising to marry and subsequently he did not marry. Her evidence has support from PW.2, the cousin sister, PW.3, younger brother of PW.1, and also from PW.4. They testified that accused used to come to the house of PW.1, chitchat and move with her very closely. He promised to marry PW.1 and had sexual intercourse with her. The trial Court did not look into the aspect. Though the accused got engaged with a lady by name Harathi of Srikakulam but quarreled with PW.1 by refusing to marry and by saying that he would marry both of them. So, PW.1 took poison on 25.03.2006. The evidence of PW.1 has corroboration from the doctor, PW.7. The trial Court committed illegality in acquitting accused as such the Criminal Revision is liable to be allowed by giving conviction. 9. So, PW.1 took poison on 25.03.2006. The evidence of PW.1 has corroboration from the doctor, PW.7. The trial Court committed illegality in acquitting accused as such the Criminal Revision is liable to be allowed by giving conviction. 9. Learned counsel for the first respondent/accused would strenuously contend that this Court cannot convert the order of acquittal into conviction in view of the embargo under Section 401(3) Cr.P.C. Learned counsel would further contend that there is any amount of improbable circumstances in the evidence of PWs.1 to 4, and other witnesses did not support the case of the prosecution and the appreciation of the evidence by the Court below is based upon sound lines and the judgment is not perverse and in such case this Court cannot interfere with the matter as such the Revision Case is liable to be dismissed. 10. PW.1 before the trial Court is no other than the victim and her evidence on material aspects is that the accused got marriage alliance engagement with one Harathi of Srikakulam about 5 years prior to the date of incident but he informed PW.1 that he fell in love with her. Then she questioned why he is loving her when he already went on engagement with Harathi. He told her that she dislikes Harathi. So, both of them fell in love and in the absence of inmates and her brother, PW.3, they used to meet physically. Accused promised that he would marry her. She believed his promise. So she offered herself to him. Three years prior to the date of incident, accused told her that he would marry Harathi along with her. So, there was a dispute. The accused denied her request to marry. On 25.03.2006 accused told her that he will marry her first in the Temple and later he would marry Harathi. So, she consumed poison. On 02.04.2006, she lodged a report. 11. Turning to the evidence of PWs.2 and PW.3, the cousin sister and younger brother of PW.1 respectively they testified to the effect that accused used to come often to the house of PW.1 and intimated PW.1 that he will marry and he cannot live without PW.1. They questioned him about his marriage betrothal with Harathi and he stated that he is not willing to marry Harathi. PW.3, further deposed that even he warned PW.1 not to move closely with the accused. They questioned him about his marriage betrothal with Harathi and he stated that he is not willing to marry Harathi. PW.3, further deposed that even he warned PW.1 not to move closely with the accused. He also questioned the accused about his marriage engagement with Harathi for which he replied that he is not going to marry Harathi. On 25.03.2006, he found PW.1 in unconscious state and took her to hospital. 12. Turning to the evidence of PW.4, she deposed that accused and PW.1 fell in love with each other about three years ago. She questioned the accused that he got engagement with Harathi and why he is loving PW.1, accused told her that he had no interest towards Harathi. She learnt that the accused breached his promise later and PW.1 consumed poison. 13. PWs.5 and 6 did not support the case of the prosecution. 14. PW.7 is the Medical officer, who deposed that he can identify the handwriting and signature of LW.8-Dr. P. Venugopala Rao. Ex.P-9, wound certificate bears the signature of LW.8. 15. PW.8 is the Sub-Inspector of Police, who testified that PW.1 came to the Police station on 02.04.2006 and gave a statement which is registered as a case and took up investigation. On completion of investigation, he filed charge sheet. 16. Accused got examined DW.1, who was not examined by the prosecution though he was cited as a witness and, according to the testimony of DW.1, Police summoned him to give evidence falsely against the accused. His deposition is that accused and PW.1 never loved each other and he never saw them moving closely. 17. It is shown as evident from the charge sheet the age of the accused was shown as 27 years as on the date of offence. Turning to the deposition of PW.1, as on the date of her evidence, her age was shown as that of 27 years. During the course of cross-examination, PW.1 deposed that she know that accused got marriage alliance with Harathi about 5 years ago. She did not intimate to the elders or to her elder sisters that she fell in love with the accused. She did not inform to the parents or elders of Harathi that accused fell in love with her. Even she did not intimate to the family members or elders of the accused in this regard. She did not intimate to the elders or to her elder sisters that she fell in love with the accused. She did not inform to the parents or elders of Harathi that accused fell in love with her. Even she did not intimate to the family members or elders of the accused in this regard. She did not intimate to elders or family members that accused had sexual intercourse with her. She denied that accused never fell in love with her and never had sexual intercourse with her. Generally, they would inform to the caste elders if any difference arose in their street. She did not give any police complaint on 25.03.2006 on which date she took poison. No FIR was registered alleging that she consumed poison. She denied that she did not consume any poison. She filed a suit in O.S. No.312 of 2006 against the accused seeking to grant permanent injunction restraining him from marrying Harathi. It is true that they were told that the marriage of the accused was performed on 06th but it was performed on 09th. She denied that accused did not cheat her and she is deposing false. 18. PW.2 during the cross-examination deposed that she did not state before Police as in Ex.D-2. Turning to the evidence of PW.3, he deposed in cross-examination that he did not question the parents of Harathi about the attitude of the accused. The dispute was not referred to any elders. He did not state before Police that accused got sexual intercourse with PW.1. PW.4, during cross-examination, denied that she did not question the accused with regard to love affair and that she is deposing false. It is to be noticed that there is no medical evidence to prove that accused had sexual intercourse with PW.1. So, there appears the solitary testimony of PW.1 in this regard. 19. Now, the simple question that falls for consideration is whether the evidence adduced by the prosecution by examining PWs.1 to 4 is believable? 20. It is not as though the marriage alliance of the accused was not fixed with any lady prior to the alleged promise of the accused to PW.1 to marry her. Even according to PW.1, she had knowledge that long prior to the commission of the offence in this case i.e., 5 years back accused got betrothal ceremony to marry one Harathi of Srikakulam. Even according to PW.1, she had knowledge that long prior to the commission of the offence in this case i.e., 5 years back accused got betrothal ceremony to marry one Harathi of Srikakulam. The so called Harathi of Srikakulam was also a lady like PW.1. So, when PW.1 had knowledge that the accused had a marriage engagement with Harathi of Srikakulam and when the accused proposed love with PW.1, definitely a lady of reasonable prudence would question the accused how he made such proposal to marry her keeping the life of Harathi at peril. It is rather improbable that PW.1 believed the version of the accused as if he was loving her. PW.2 is the cousin sister of PW.1 and PW.3 is the younger brother of PW.1 and they were supposed to protest before the accused as to how he could love PW.1 when his marriage alliance was already fixed with Harathi of Srikakulam. In those circumstances, PWs.2 and 3 being close relatives if they are having reasonable prudence they would not have kept quiet. Certainly, they would have brought the fact to the notice of Harathi or the relatives of Harathi about the act of the accused. The evidence adduced by the prosecution by examining PWs.1 to 4, as regards the allegations raised against the accused, are nothing but improbable and the evidence of PWs.1 to 4 cannot stand to the test of scrutiny. Apart from this, when it is a known fact according to the admission made by PW.1 that there used to village elders in their street who used to resolve the issues of persons in the village or street, the dispute between the accused and PW.1 was not brought to the notice of such elders. Even otherwise, the alleged act of PW.1 in consuming pesticide poison cannot be attributed to the accused as there is no link in evidence to prove the same. Apart from this, if really the incident was happened, as deposed by PW.1, on that particular day, it is not understandable as to why she kept quiet without lodging any report to the Police. Even after the so called consumption of poison the report was lodged only after one week. Apart from this, if really the incident was happened, as deposed by PW.1, on that particular day, it is not understandable as to why she kept quiet without lodging any report to the Police. Even after the so called consumption of poison the report was lodged only after one week. In the facts and circumstances of the case, the solitary evidence of PW.1 that accused had sexual intercourse with her on the false promise to marry her cannot stand to the test of scrutiny. The evidence of PWs.2 to 4 is inherently improbable. 21. Having regard to the above, I am of the considered view that the learned Additional Judicial Magistrate of First Class, Vizianagaram appreciated the evidence on record on right lines and it cannot be said that the judgment rendered by the learned Magistrate is perverse. 22. To exercise the powers of Revision to remand the matter, which is the only course left before this Court is the judgment under challenge should be perverse. It is the bounden duty of the revision petitioner to show how the judgment of the learned trial Judge is perverse. In my considered view, the judgment rendered by the learned Magistrate, looking into facts and circumstances of the case cannot be said to be perverse. 23. The settled legal position is that under Section 401(3) Cr.P.C., this Court cannot convert the order of acquittal into conviction. It is only when the judgment of the trial Court is perverse and it is rendered ignoring the evidence on record without any proper reason, this Court is empowered to exercise the powers of remand. It is pertinent here to refer the scope of the Revision under Sections 397 and 401 Cr.P.C. Section 397 Cr.P.C. contemplates the powers of the High Court and Sessions Court to exercise the powers of revision as to the correctness, legality or propriety of any order of the Court inferior to that. Section 401 of Cr.P.C. specifically deals with the High Court’s power of revision. It is no doubt true that under Sub-section (3) of Section 401 of Cr.P.C. nothing shall be deemed to authorize a High Court to convert a finding of the acquittal into one of conviction. Section 401 of Cr.P.C. specifically deals with the High Court’s power of revision. It is no doubt true that under Sub-section (3) of Section 401 of Cr.P.C. nothing shall be deemed to authorize a High Court to convert a finding of the acquittal into one of conviction. So, there is a legal impediment to the effect that this Court cannot convert a finding of the acquittal into one of conviction, which has been specifically provided in Sub-section (3) of Section 401 of Cr.P.C. 24. In Ram Briksh Singh and others v. Amkbika Yadav and another, (2004) 7 SCC 665 , the Apex Court referring to its earlier decision relating to the powers of the High Court under Section 401 Cr.P.C. held that the High Court can set-aside the order of acquittal and remit the case for retrial where material evidence is overlooked by the trial Court. This is clearly reflected in a judgment of this Court in Sama Subhash Reddy v. S. Lalitha and others, 2010 (2) ALD (Crl.) 779 AP wherein the Andhra Pradesh High Court dealt with the powers of the revision under Section 401 Cr.P.C. relying upon a judgment of the Apex Court, as above. It is quietly evident from the said decision that the revisional powers in setting-aside the order of acquittal have to be sparingly and exceptionally exercised when there is a manifest error of law and procedure and only to prevent the gross miscarriage of justice. So, if the material evidence available on record is totally overlooked by the trial Court or when the findings of the trial Court are perverse, the revisional Court can set-aside the order of acquittal and order for retrial. 25. Having regard to the above, I am of the considered view that the judgment in C.C. No.187 of 2006, dated 22.08.2008, passed by the learned Additional Judicial Magistrate of First Class, Vizianagaram cannot be said to be perverse and it does not suffer with illegality, irregularity and impropriety and the Criminal Revision Case is devoid of merits. 26. In the result, the Criminal Revision Case is dismissed. Consequently, Miscellaneous Applications pending, if any, shall stand closed.