THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.891 of 2007 Date:11.09.2014 Between:
Mamillapalli Srinivasa Rao . Petitioner.
AND The State The S.H.O., Ponnur, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.891 of 2007 ORDER:
This revision is preferred against judgment dated 06-07-2007 in Crl.A.No.13/2003 on the file of VII Additional District & Sessions Judge, Guntur, whereunder judgment dated 17-01-2003 in Sessions Case No.570/2002 on the file of Assistant Sessions Judge, Bapatla, Guntur was confirmed.
2. Brief facts leading to filing of this revision are as follows:-
Inspector of Police, Ponnur filed charge sheet alleging that 02-07-2002, at about 7.00 A.M., the accused went to the house of victim girl and found that victim girl was alone in the house and that he took the victim girl inside the house, promising her to give a pen and laid her on cot and committed sexual act and went away and after some time, grand mother of the victim girl having noticed that victim girl has not gone to the school, enquired and came to know that victim went to the school, but returned back as she was not feeling well and when enquired, she came to know about the incident and the mother and grand mother of the victim went to the house of accused to question him, but he was found absent and thereafter, mother of the victim with the help of her brother went to police station and lodged a complaint, which is registered as Crime No.58/2002 and investigation revealed that the revision petitioner committed offence under Section 376 IPC. On these allegations, trial Court examined 11 witnesses and marked 14 documents on behalf of prosecution besides five material objects and no witness is examined and no documents are marked on behalf of accused. On an over all consideration of oral and documentary evidence, trial Judge found that there was an act of attempt to rape and accordingly found the revision petitioner guilty for the offence under Section 376 read with 511 IPC and sentenced him to suffer five years imprisonment with a fine of Rs.5,000/-. Aggrieved by the conviction and sentence, he preferred appeal to the Court of Session, Guntur and the VII Additional District & Sessions Judge, Guntur, on a reappraisal of evidence, confirmed conviction and sentence. Now aggrieved by the same, present revision is preferred.
3. Heard both sides.
4. Advocate for petitioner submitted that though the revision petitioner is charged with 376 IPC, but he was convicted for the offence under Section 376 read with 511 IPC. He submitted that though P.Ws.1 to 3 have given a different in the cross-examination, the trial Judge, without considering the same, convicted the revision petitioner.
He submitted that the approach of the trial Court was prejudicial and the conviction cannot be sustained. He further submitted that there is a clear procedural irregularity committed by the trial Court and on that ground also, the accused has to be acquitted.
He submitted that the charge framed against the petitioner is very vague and is in clear violation of provisions of 212 & 213 Cr.P.C. He further submitted that P.Ws.1 to 3 when cross-examined on the next day of the chief examination, who admitted that case is foisted, without treating them as hostile, permitted the public prosecutor to reexamine them is another irregularity on the face of record. He further submitted that as the cross-examination is not considered by the Courts below, convicting the revision petitioner only on the basis of chief examination is unwarranted and the matter requires reappreciation and the same has to be remitted back by exercising powers under Section 401 of the Cr.P.C. He further submitted that for any reasons his argument is not accepted, Probation of Offenders Act has to be applied to the accused as he was only 20 years old and he is not a previous convict. On the other hand, learned Public Prosecutor submitted that the objections with regard to framing of charge, procedure adopted and permitting the public prosecutor to reexamine P.Ws.1 to 3 is only a procedure irregularity and it is not an illegality and on that ground conviction cannot be set aside. He submitted that victim was eight years old and from the material, it is clear that, after treating the witnesses-P.Ws.1 to 3 as hostile, Court permitted the Public Prosecutor to reexamine them and according to settled law, even the evidence of hostile witnesses can also be considered to the extent it supports the prosecution version. He submitted that findings of both the Courts are based on material and there is no perversity on any of the findings. He submitted that material on record is sufficient and that there are no grounds to remit back the case with regard to request of advocate for revision petitioner for applying P.O Act, he submitted that he would leave the matter to the discretion of the Court.
5. Now the point that would arise for my consideration in this revision is whether judgments of the Courts below are legal, proper and correct?
6. Point:- According to prosecution, the alleged incident was on 02-07-2002, at about 7:00 A.M., at the house of victim. P.W.1 is the mother of the victim, P.W.2 is the victim, P.W.3 is elder brother of P.W.1, P.W.4 is the mediator present at the time of arrest of the accused on 03-07-2002, P.W.5 is the teacher of the school, where victim was studying at the time of incident, P.W.6 is the Medical Officer, who examined the victim, P.W.7 is the Medical Officer, who examined the accused and certified that he is potent and issued Ex.P11-certificate, P.W.8 is the Associate Professor of Forensic Medicine, who determined the age of victim, P.W.9 is the Judicial First Class Magistrate, who recorded statements of victim and her mother under Section 164 Cr.P.C and P.W.10 is the Sub-Inspector of Police.
7. The first and foremost objection of the advocate for revision petitioner is, in the charge framed against the revision petitioner, the particulars as to the time and the manner in which, the offence took place is not mentioned, therefore, on that ground, the proceedings of the Court below have to be held as illegal.
8. Learned Advocate has drawn my attention to Section 212 of the Cr.P.C., which reads as follows:-
“212. Particulars as to time, place and person:-
(1) The charge shall contain such particulars as to the time and place of the alleged offence, and the person (if any) against whom, or the thing (if any) in respect of which, it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest misappropriation of money or other movable property, It shall be sufficient to specify the gross sum or, as the case may be, describe the movable property in respect of which the offence is alleged to have been committed, and the dates between which the offence is alleged to have been committed, without specifying particular items or exact dates, and the charge so framed shall be deemed to be a charge of one offence within the meaning of section 219:
Provided that the time included between the first and last of such dates shall not exceed one year.”
9. Section 215 Cr.P.C., deals with effect of errors in framing the charge and I feel it necessary to read the same, which is as follows:
“215. Effect of errors:- No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.”
10. From a plain reading of it, the charge shall contain such particulars as to the time and place of the alleged offence. According to Advocate for petitioner, in the charge, the trial Court only referred to the village name as to the place of offence, but when the alleged offence was at the house of victim, not referring to it, it would amount to non-compliance of Section 212 of Cr.P.C. But according to Section 215 Cr.P.C., that cannot be regarded, unless it is shown that the accused was mislead by such omission or error. Here, it is not the case that the accused was mislead or the place of offence was not disclosed to him. In the F.I.R and the charge sheet and the 161 Cr.P.C., statements of witnesses, the place of offence is clearly referred and all these documents are supplied to the accused under Section 207 Cr.P.C and further at no point of time, during the trial, he raised any such objection. Further, even during the cross- examination of I.O also, there was no cross disputing the place of occurrence. In the charge except the actual place of occurrence all other details are given, therefore, the objection of the Advocate for petitioner with regard to framing of charge is not tenable.
11. The next contention of the advocate for revision petitioner is that the trial Court proceeded with prejudicial mind and it is apparent from the judgment because in the starting paras itself, trial Judge has expressed his opinion and thereafter, he proceeded with discussion. But this objection is also not tenable, because as per the procedure, after expressing opinion, reasons are to be given in support of such opinion in the Judgment, therefore, the objection of the revision petitioner is not tenable.
12. The next objection of the Advocate for revision petitioner is that the Court has not followed the provisions of Evidence Act, while permitting P.Ws.1 to 3 for reexamination. The objection of advocate for revision petitioner is that in the re-examination, the Court permitted the Public Prosecutor to put questions to the witnesses, without treating the witnesses hostile, therefore, it is illegal. Here, P.Ws.1 to 3 were examined in chief on 03-12-2002 and cross-examination was differed till next day and on the next day, in the cross-examination, when the counsel put a question that there are disputes between the accused family and their family and for that, the case is foisted, the witnesses have accepted that and without doing any further cross-examination, the defence counsel left the witnesses. Then the Assistant Public Prosecutor sought permission and the Court permitted the APP to put questions in the re- examination. Now the contention is re-examination is meant only to clarify ambiguity, therefore, permitting the Public Prosecutor is not correct. But as seen from the material, the Court permitted the witness to be examined further, after hearing Public Prosecutor and the objection of defence counsel. When a witness of one party resiles from the earlier version in the cross-examination, the party who examined such witness has every right to seek permission of the Court to cross-examine, though it is recorded as a re-examination, the Court was right in allowing the Public Prosecutor to further examination, therefore, the contention that the procedure adopted by Court amounts to illegality cannot accepted at best it may be an irregularity, therefore, the objection of the counsel for revision petitioner is not tenable.
13. Coming to facts from the evidence of P.Ws.1 to 3, it is clear that on 02-07-2002, the accused made an attempt on the victim and committed rape. In fact as seen from the judgments of the trial Court and appellate Court, the technical objections that were raised here are not raised before these Courts at any time and it was raised during revision. The powers of revisional Court are very limited and if any illegality is committed by Subordinate Courts, revisional Court can exercise its jurisdiction, but here all the objections raised are only irregularities, but not illegalities, therefore, those cannot be considered. The only contention of the Advocate for revision petitioner is that P.Ws.1 & 2 admitted in their cross, that there are disputes between the families and for that, the case is foisted, but when P.Ws.1 & 2 have clearly stated in their evidence in chief-examination, narrating the way in which the incident happened, simply because, they have accepted one question on behalf of the accused, their entire chief-examination cannot be discarded. Statements of these witnesses are recorded under Section 164 Cr.P.C by a Judicial First Class Magistrate and it is marked as Ex.P2 and proved through P.W.9. The trial Court while considering the evidence of remaining witnesses and Ex.P2, excluded the only admission of the victim & her mother. When the victim in categorical terms deposed about the incident, there was no denial of that incident. The only thing elicited from the victim is that accused did not commit any rape on her.
The charge framed against the revision petitioner is attempt to rape but not rape. Further, victim is an eight years old girl and there was no suggestion to her disputing the incident. Considering these aspects, both trial Court and appellate Court held that the evidence on record is sufficient to bring home the guilt of the revision petitioner for the offence under Section 376 read with 511 IPC. I do not find any wrong appreciation of evidence or incorrect findings in the judgments of the Courts below and both the Courts are right in convicting the accused.
14. Now coming to sentence part, trial Court imposed five years imprisonment with fine of Rs.5,000/- and the same was confirmed by the appellate Court. Now the request of the advocate for petitioner is that since the accused was 20 years as on the date of offence and it is only an offence of attempt and as the accused has no previous criminal record, provisions of P.O Act may be applied and to support his argument, he relied on a decision of Supreme Court in STATE OF HARYANA vs. PREM CHAND
[1]
. In that case, the accused was 21 years and prosecutorix was 16 years of age and the Court below released the offender under the provisions of P.O Act and the State questioned it and the Hon’ble Supreme Court confirmed the release of convict under the P.O. Act considering the age of the offender therein. The facts of that case are squarely similar to this case and here also, the revision petitioner was 20 years as on the date of incident and he had no previous criminal record nor involvement in any criminal cases, subsequent to this case. Considering the same, I feel that the provisions of Section 4 of P.O Act can be applied to the revision petitioner.
15. For these reasons, revision is dismissed confirming conviction recorded against the revision petitioner and upheld by the appellate Court, but the sentence of imprisonment is set aside and the revision petitioner is ordered to be released under Section 4 of P.O Act.
16. Revision petitioner shall be released on executing a bond for Rs.20,000/- with two sureties to be on probation of good conduct for two years under the supervision of Probation Officer and to maintain peace and good behaviour and in violation, he should appear and receive the sentence of imprisonment that was awarded for the offence under Section 376 read with Section 511 IPC.
17. As a sequel, miscellaneous petitions if any pending in this Criminal Revision Case, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:11.09.2014 mrb
[1] (1997) 7 Supreme Court Cases 756