Komali Satyanarayana @ Sathibabu Vs the State of A.P.

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAV

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MONDAY, THE SIXTEENTH DAY OF JUNE

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TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO

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CRIMINAL REVISION CASE NO: 669 OF 2010

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Revision filed under Section 397 & 401 of Cr.P.C., against the orders passed in Crl.A.No.28 of 2009 on the file of the I^{AdditionalSessionsJudge,} East Godavari District at Rajahmundry, dated 25*'^ March, 2010 in modifying the conviction and sentence imposed by the trial court^{inSessionsCase334} of 2008 on the file of I Additional Assistant Sessions Judge, Rajahmundry dated 9**^ February, 2009.

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Between:

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Komali Satyanarayana @ Sathibabu, S/o Nageswara Rao @ Nagayya, Aged about 23 years. Coolie, Resident of Bobbililanka Village, Sitaranagaram Mandal, East Godavari District.

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...Petitioner/Accused (A1)

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AND

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State of Andhra Pradesh., Rep. by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad.

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...Respondent/Respondent

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Counsel for the Petitioner: Sri Y Sudhakar

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Counsel for the Respondent: Public Prosecutor

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The Court made the following Order:

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Ml

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THE HONOURABLE DR JUSTICE Y. LAKSHMANA RAO CRIMINAL REVISION CASE NO: 669 of 2010

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ORDER:

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The Criminal Revision Case has been preferred under Sections 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C’) challenging the judgment dated 25.03.2010 in Crl.A.No.28 of 2009 passed by the learned I Additional Sessions Judge, East Godavari at Rajahmundry, modifying the conviction for the offence from section 326 of ‘the I PC.,’ to section 324 of the Indian Penal Code, 1860 (for short ‘the I.P.C’) and sentencing him to undergo simple imprisonment for a period of three months and to pay a fine of Rs.5,000/- (Rupees Five Thousand Only), and, in default, to undergo simple imprisonment for a period of 15 days, as against the sentence of rigorous imprisonment for two years and fine of Rs. 2,000/- imposed by the learned I Additional Assistant Sessions Judge, in S.C.No.334 of 2008 dated 09.02.2009 finding the revisionist guilty, under Section 235 (2) of ‘the Cr.P.C.,’ for the offence punishable under Section 326 of ‘the IPC.’ 2. I have heard the arguments of the learned counsel for the petitioner and the learned Assistant Public Prosecutor. 3. Sri Y. Sudhakar, the learned counsel for the petitioner, whilst reiterating the grounds of the revision, submitted that the judgment of the learned Appellate Court in convicting the accused for the charge^{underSection324of} ‘the IPC.,’ and imposing sentence for three months besides payment of

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Rs.5,000/- in default to undergo simple imprisonment^{of15days,iserroneous} and contrary to evidence on record and probabilities^{ofthecase;thelearned} Appellate Court ought to have seen that there was no^{explanationforthedelay} in presenting the F.I.R which is fatal to the case of the prosecution and ought to have acquitted the accused; there is no corroboration^{betweenonewitness} and other witness and none of the independent witnesses supported the prosecution case; the sister of the 2'^^ accused i.e., Smt.N. Suryakantham is an injured person and basing on her report a case was registered against the P.W.3, Komali Nageswara Rao which was an incident happened in the subject matter of the present case and as it being a case in counter and the petitioner and his family members are victims at the hands of the prosecution witnesses ought to have acquitted the petitioner on the same ground along with the 2"^^ accused.

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3.1. It is further argued that the incident happened at 7:00 p.m., in the dark night and there was no light at the relevant point of time and hurling of tiles by persons from the dark was admitted by the prosecution witnesses and ought to have acquitted the petitioner; the doctor also confirmed that the injury sustained by P.W.2 is possible by hurling of tiles with force and ought to have acquitted the petitioner. Further there is no evidence^{onrecordtoshowthat} the injury was sustained by P.W.2 can only be possible by an axe; the 2^^ accused is nowhere shown as accused till the filing of the charge sheet and L.W.3 was shown as 2^^ accused in Crime No.90 of 2017 and later he was

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figured as L.W.3 and father of the accused was arrayed as^{2^^^^} accused in the charge sheet and there is no explanation implicating the^{2"^^} accused in a mechanical manner; the statement of 2^^^ accused was recorded by the investigating officer on 28.07.2007 at Bobillilanka village at his house, but the same investigating officer deposed that the 2'"'^ accused was absconding from his house from 26.07.2007 onwards and the learned Courts below ought to have given benefit of doubt of the petitioner.

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3.2. It is further more argued that the P.W.1 and P.W.3 deposed that they had sustained injuries, but there was no medical evidence to support their contention and moreover there was no corroboration between the manner of incident and sustained of injury by P.W.2 ought to have acquitted the petitioner: the medical evidence was not strictly proved^{astothenatureofthe} injury sustained by P.W.2 and there was no positive^evidence as to the sutured wound of P.W.1 and there is no corresponding injury, and hence the learned Courts below ought to have given benefit of doubt to the petitioner; the Radiologist was not examined and his report was not^{filedinordertodecide} the injuries are grievous nature, and the learned Courts below ought to have acquitted the petitioner; the prosecution witnesses categorically admitted that some persons hurled tiles from dark, the Court’s below erroneously placed burden on the defence instead of extending of benefit of doubt to the petitioner: P.W.2 version in his cross-examination that he along with the

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petitioner were watching T.V. at 7:00 p.m., on 26.07.2007^{andwereinsidethe} house clearly showed the innocence of the petitioner.

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Alternatively, the learned counsel for the petitioner submits that nearly 18 years ago alleged incident was taken place. By that time the age of the Petitioner was only 21 years. He has been facing mental agony because of delayed litigation. He has no adverse antecedents either prior or subsequent. The Petitioner is ready to pay the additional amount of Rs. 10,000/- towards fine as a measure of penance and urged to consider the case of the Petitioner and pass appropriate orders.

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Per contra, Ms. P. Akila Naidu, learned Assistant Public Prosecutor vehemently argued that the learned Appellate Court having gone through the evidence of the prosecution witnesses and the judgment^{ofthelearnedTrial} Court rightly passed the judgment confirming the conviction for the offence charged and urged to dismiss the revision case as there are no material irregularities, flagrant miscarriage of justice and misreading of the evidence.

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Thoughtful consideration is bestowed on the arguments advanced by the learned counsel for the petitioner and the learned Assistant Public Prosecutor. I have perused the record.

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Now the point for consideration is;

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"Whether the judgment in Crl.A.No.28 of 2009 dated 25.03.2010 passed by the learned I Additional Sessions Judge, East Godavari at Rajahmundry, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?”

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It is apposite to refer to the judgment of the Hon’ble Apex Court in Bindeshwari Prasad Singh v State of Bihar^ wherein at Paragraph No. 13 it

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is held as under:

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"13.... In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the Hiph Court to interfere in the exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illeoalitv resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.

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This Court, while exercising its jurisdiction under^{Section397readwith} Section 401 of ‘the Cr.P.C.,’ cannot invoke its revisional power as a Second Appellate Court and re-appreciation of evidence is not possible in the revision case as laid down in the decision in Bindeshwari Prasad Singh 10. It is forthcoming in the evidence of witnesses of prosecution^thatP.W.3 known to P.W.5, who is a businessman at Rajahmundry.^{Petitioner/Accused} No.1 requested P.W.3 a loan of Rs.5,000/- to purchase a motorcycle from P.W.5. P.W.3, accordingly, arranged that loan. However,^{thePetitionerrefused} to pay the loan amount, when P.W.3 demanded the Petitioner. P.W.5 came to the house of the Petitioner for collection of amounts on 26.07.2007 and insisted the Petitioner to pay the loan amount, but the Petitioner replied that he would pay whenever he had money and quarrelled with P.W.3 and 5.

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^(2002) 6 see 650

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Petitioner also replied that there was no necessity to pay the amount and gave a vague reply.

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It is evident that Accused No.2 pushed down P.W.5.^{Petitionerattacked} P.W.1 with an axe and caused injuries on the head at^{leftside.Asaresult} P.W.1 lost his consciousness. P.W.2 was attacked by^{thePetitionerwithan} axe. He also sustained head injury. Evidence of P.Ws.1 to 3 clearly disposed that the Petitioner caused injuries to the victims. Therefore, the learned Appellate Court found the Petitioner guilty of the^{offenceunderSection324of} 'the I.P.C.' The remaining all the other grounds which^{thelearnedCounselfor} the Petitioner raised in this Criminal Revision Case cannot be appreciated in the revision case by sitting as second Appellate Court for re-appreciating or re evaluating of the evidence of the witness of the prosecution.^{Suchacourseis} impermissible under Section 397 and 401 of ‘the Cr.P.C.’ There was no misreading of evidence. There were no material irregularities.^Therewasno flagrant miscarriage of justice. The judgment of the learned Appellate Court must be sustained. Hence the conviction under Section 324 of 'the I.P.C.,' shall be maintained.

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The Hon’ble Apex Court in Hussainara Khatoon (IV) v. Home Secretary State of Bihar^ it is held that right to speedy trial which includes hearing of the Appeal and Revision is part of a fundamental right under Article 21 of the Constitution. In addition to the appeals the right to a speedy trial also

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^ AIR 1979 SC 1360

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includes criminal revisions as per the decision of the Hon’ble Apex Court in Rajdeo Sharma v. State of Bihar^. The right of speedy^{trialoftherevisionist} is being violated because of delay in disposal of the revision within a reasonable time. 13. As stated supra, the occurrence took place about 18 years ago. At the time of commission of the offence the age of the petitioner was 21 years. Now he is about 40 years. The revisionist has been facing mental agony and trauma of the protracted prosecution and suffered mental^{harassmentfora} long period of 18 years. Section 324 of ‘the I.P.C.,’ gives discretion to this Court either to impose sentence of imprisonment for three years or fine or both. The Petitioner was in incarceration for a period of 45 days. The learned Assistant Public Prosecutor fairly conceded that there were neither prior nor subsequent adverse antecedents against the petitioner. Therefore, the delay is also one of the grounds to modify the impugned judgment. Therefore, it is appropriate and proportionate that the sentence is required to be reduced to the period of sentence of imprisonment already undergone by the revisionist, while the payment of fine amount is required to be^enhanced.

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The learned Trial Court imposed Rs. 2,000/- (thousand^twothousand only) which was enhanced by the learned Appellate Court to Rs.5,000/-. The learned counsel for the revisionist volunteered that the revisionist would pay Rs. 10,000/- excluding the fine of Rs.5,000/- already paid by the revisionist

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3(1999) 7 see 604

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while preferring the appeal before Appellate Court,^{asameasureofpenance.} The said voluntary statement is recorded and approved.

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In view of the obtaining peculiar facts and circumstances^ofthecase, the Criminal Revision Case is disposed of, confirming and maintaining the conviction under section 324 of ‘the I PC.,’ while reducing the sentence to which the revisionist had already undergone, and imposing^{thesentenceof} payment of additional fine of Rs. 10,000/- excluding the fine amount already paid by the revisionist. 16. The additional fine amount of Rs. 10,000/- shall be paid by the revisionist before the learned trial court within a period of two^{monthsfromthedateof} receipt of this order, failing which the revisionist shall undergo rigorous imprisonment for a period of three months. The additional fine amount of Rs. 10,000/- shall be paid to the de-facto complainant or to his LR’s, if the defacto complainant is not alive. 17. The learned I Additional Assistant Sessions Judge, Rajahmundry is directed to take up required follow-up steps for recovering^{thefineamount} from the Petitioner and disbursing the said amount to the de-facto complainant or to his LR’s, if he is not alive, under section 357 of ‘the Cr.P.C.’ 18. The I Additional Assistant Sessions Judge, Rajahmundry^isdirectedto recover the payment of an additional fine of Rs. 10,000/- from the revisionist within two months from the date of receipt of this^order.

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