HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.766 OF 2004 Dated 23-6-2010 Between:
And:
Mohd. Khaled.
…Petitioner.
The State of A.P. represented by its Public Prosecutor, High Court of A.P., Hyderabad.
. …Respondent.
HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.766 OF 2004 ORDER:
This Revision is filed by the petitioner-accused aggrieved by the Judgment dated 31-3-2004 passed by the learned Metropolitan Sessions Judge, Hyderabad in Crl.A.No.463 of 2003.
2. Even though the case is posted to today under the caption ‘for dismissal’, no representation is made on behalf of the petitioner.
3. Petitioner herein is the sole accused.
4. The facts of the case in brief are as follows:
The petitioner-accused abused and teased a mother of ten year old boy by name Mohd. Faizal who was admitted in Emergency Ward on 18-1-2001 and demanded her to satisfy his sexual urge for shifting the patient from the ward to operation theatre. In this connection, a case was registered for the offence under Section 509 I.P.C.
5. The petitioner was tried by the 4th Metropolitan Magistrate, Hyderabad.
6. On behalf of the prosecution, P.Ws.1 to 3 were examined and no documents were marked. On behalf of the defence, no witnesses were examined and no documents were marked.
7. The trial Court having observed that the prosecution was successful in bringing home the guilt of the accused beyond all reasonable doubt, convicted the accused for the offence punishable under Section 509 I.P.C. and having considered the facts and circumstances and nature of the offence and the character of the offender as certified by P.W.1, released the accused instead of sentencing him to any punishment. Aggrieved by the same, an appeal was preferred by the accused before the Metropolitan Sessions Judge, Hyderabad. In the said appeal, the learned Sessions Judge instead of disposing the appeal either by allowing or dismissing the appeal, modified the order passed by the trial Court and directed the trial Court to dispose of the matter afresh. Aggrieved over the same, the present revision has been filed by the accused-petitioner.
8. A perusal of the order passed by the learned Sessions Judge goes to show that the learned Sessions Judge having observed that non-examination of witness i.e. Sub-Inspector of Police who received the complaint and registered the First Information report and investigated the case causes prejudice to both sides, remanded the matter to the trial Court for fresh disposal for the purpose of examining the witness-Sub-Inspector of Police according to law.
9. In an appeal filed by the convicted person, the appellate Court has power to remand the case for fresh disposal but in any event that order should not be for the purpose of filling up the lacunae in the trial Court.
10. As seen from the lower Court record, the Judgment passed by the learned Sessions Judge in directing the trial Court to examine L.W.4-Investigating Officer is almost in the nature of directing the trial court to fill up lacunae. Apart from that, the record further goes to show that even after opportunity is given, L.W.4-Sub-Inspector of Police, who investigated the case, has not examined himself as witness. Hence, the Judgment passed by the learned Sessions Judge is liable to be set aside and the same is hereby set aside.
11. While setting the said judgment of the learned Sessions Judge and on perusal of the entire record and findings, this Court is the view that the contentions raised in the revision basing reliance on non-examination of Investigation Officer which is fatal to the prosecution case, should have been considered by the learned Sessions Judge and on that ground, the petitioner-accused ought to have been acquitted. In this view of the matter, I feel it a fit case wherein the conviction passed by the learned trial Court can be set aside and hence, the same is hereby set aside.
12. Accordingly, this Criminal Revision Case is allowed.
JUSTICE RAJA ELANGO Dated 23-6-2010 Dvs HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL REVISION CASE No.766 OF 2004 Dated 23-6-2010