HON’BLE SRI JUSTICE S. RAVI KUMAR
Criminal Revision case No.1681 of 2006
Date: 09.06.2014
Between:
Devarakonda Sambasiva Rao … Revision Petitioner And The State, S.H.O., Narsaraopet Town PS, rep. by its Public Prosecutor, High Court of A.P., Hyderabad … Respondent
HON’BLE SRI JUSTICE S. RAVI KUMAR
Criminal Revision case No.1681 of 2006 JUDGMENT:
This revision is against judgment dated 04.10.2006 in Crl.A.No.96 of 2006 on the file of the Court of III Additional District & Sessions Judge (FTC), Ongole, where under judgment dated 13.09.2005 in SC No.763 of 2003 on the file of the Court of the Assistant Sessions Judge, Ongole, is confirmed.
2. Brief facts leading to this revision are as follows:
The S.H.O., Narsaraopet Town PS, filed charge sheet against petitioner herein alleging that he is an employee in LIC of India, Narasaraopet Branch and the victim is a teacher, working in Elementary School at Kopparam village of Prakasam district. Since two years prior to 24.09.2003, there were misunderstandings between accused and victim and that accused neglected her and her children. On that victim filed maintenance case and for that he developed grouse against her and waiting for an opportunity. While so, on 24.09.2003 while victim was returning home after attending the Court and when she reached Post Office lane in Prakash Nagar, Narsaraopet, around 2 p.m., accused attacked her and stabbed her with knife on her abdomen, left side of her chest and on left arm and caused bleeding injuries and made an attempt on the life of victim. On receipt of hospital intimation, S.H.O., visited Government hospital and recorded statement of victim and registered the same as Cr.No.276 of 2003 and issued FIR and investigation revealed that accused caused injuries to victim with an intention to kill her, thereby committed offences punishable under Sections 307, 326 and 324 IPC.
3. On these allegations, trial Court examined seven witnesses and marked 8 documents, besides five material objects. On behalf of accused, no witness was examined but Ex.B.1 was marked.
4. On an over all consideration of oral and documentary evidence, trial court found accused guilty for all the offences charged and sentenced him to suffer simple imprisonment for five years with fine of Rs.10,000/- for the offence under Section 307 IPC; two years imprisonment with a fine of Rs.5,000/- for offence under Section 326 IPC and six months imprisonment with a fine of Rs.2,000/- for offence under Section 324 IPC and directed that all sentences shall run concurrently and out of the said fine amount, Rs.15,000/- was ordered to be paid to victim.
5. Aggrieved by the same, accused preferred appeal to the Court of Sessions, Ongole and the learned III Additional Sessions Judge, FAC V Additional Sessions Judge (FTC), Ongole, partly allowed appeal by modifying the conviction and sentence, i.e., confirming the conviction for the offence under Section 307 IPC and by sentencing him to suffer imprisonment for seven years and the remaining convictions and sentences for offences under Sections 326 and 324 IPC were set aside.
6. Aggrieved by the same, the present revision case is preferred.
7. No one appeared on behalf of revision petitioner in spite of posting the matter under the caption ‘for orders’. According to the grounds of revision, contention of petitioner is that the lower appellate Court is not vested with jurisdiction to enhance sentence under Section 307 IPC from five years to seven years. The other contention is that the lower appellate Court ought to have seen from the evidence of PW.2 as well as the evidence of PW.3, there is no case either for offence under Section 307 IPC or for Section 326 IPC. It is further contended that reasoning adopted by the appellate Court for enhancing sentence is neither proper nor legal.
8. On the other hand, learned Public Prosecutor submits that the evidence on record would clearly establish offence under Section 307 IPC and both the courts have rightly convicted revision petitioner for the said offence. He submitted that with regard to enhancement of sentence from five years to seven years for offence under Section 307 IPC he would leave the matter to the discretion of the Court and that State has not preferred any appeal for enhancement of sentence.
9. Now the point that would arise for my consideration in this revision is whether the judgments of the courts below are legal, correct and proper?
10. Point: According to prosecution, accused attacked victim. PW.2 deposed that on 24.09.2003 while she was returning from the Court and proceeding to her house accused attacked her. Admittedly, there are disputes between revision petitioner and his wife and a maintenance case was also filed before Narasaraopet Court. PW.2 deposed in her evidence about the disputes with her
husband and the manner in which she was ill-treated and also about the attack on 24.09.2003. As seen from the evidence, it appears that there was counseling before Family Counseling Centre, Narasaraopet but revision petitioner failed to heed the advice of the Family Counseling Centre. From the evidence of PW.2 it is clear that she sustained four incised wounds and according to the evidence of Medical officer, these injuries are possible with a short edged weapon. The defence of accused is that PW.2 received these injuries due to fall on a heap of stones. This version is not accepted by both the trial Court and the appellate Court, as the evidence of the Medical officer, who was examined as PW.3 is supporting prosecution version. The evidence of PW.2 is quite convincing and fully supported and corroborated with the evidence of PW.1 and also medical evidence of PW.3. These three witnesses were cross-examined on behalf of accused and nothing could be elicited from them to doubt their testimony. Both the trial court and the appellate Court have elaborately discussed the evidence on record and held that prosecution has proved the guilty of accused beyond all reasonable doubt for offence under Section 307 IPC. I do not find any wrong appreciation of evidence or incorrect findings in the judgments of the courts below on any of the material aspects. So on a scrutiny of the material on record, I am of the view that both the courts have rightly convicted revision petitioner for offence under Section 307 IPC.
11. Now the main grievance of petitioner is that the appellate Court has enhanced the sentence of five years to seven years without any request from the prosecution or from the de-facto- complainant and that the appellate Court has no such power. For this, learned Public Prosecutor submits that the State has not preferred any appeal for enhancement of the sentence.
12. As rightly pointed out by the revision petitioner, without any request from the State, the appellate Court cannot enhance sentence, unless the trial Court failed to impose minimum sentence prescribed for the offence proved. Here, admittedly, there is no minimum sentence for the offence under Section 307 IPC.
13. Section 386 Cr.P.C., deals with the power of the appellate Court. Section 386 clause (b) deals with the power of the appellate Court in case of appeal from a conviction. There are three sub clauses for Section 386 but clause (b) sub-clause (iii) is relevant for the purpose of this case, which reads as follows:
“Section 386: Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may--
(a) ….. …. …
(b) in an appeal from a conviction-
(i) … …. …
(ii) … … …
(iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same;
(c) …. …. ….”
14. From a reading of the above provision, it is clear that the appellate Court can alter nature of the sentence with or without altering findings but it cannot enhance the same. Here, the appellate Court while confirming conviction for offence under Section 307 IPC, enhanced sentence of five years imprisonment to seven years. Since Section 386(b) sub-clause (iii) prohibits enhancement of sentence, the appellate Court committed error in enhancing sentence. Therefore, that part of the order of the appellate Court has to be corrected by exercising the Revisional powers.
15. For these reasons, conviction for offence under Section 307 IPC recorded against revision petitioner both by the trial Court and the appellate Court is confirmed, but enhanced sentence of 7 years from 5 years by the appellate Court is set aside and sentence of imprisonment of five years imposed by the trial Court is confirmed.
16. With the above modification, the criminal revision case is dismissed.
S. RAVIKUMAR, J
Date: 09.06.2014 BSS
HON’BLE SRI JUSTICE S. RAVI KUMAR
76
Criminal Revision case No.1681 of 2006
Date: 09.06.2014
BSS