Dindi Saibaba Vs the State of A.P. Rep., by Its Pp

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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

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MONDAY, THE SIXTH DAY OF JANUARY TWO THOUSAND AND TWENTY FIVE

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PRESENT

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THE HON’BLE SRI JUSTICE V SRINIVAS

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CRIMINAL REVISION CASE Nos. 70 & 71 OF 2012

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Criminal Revision Case No.70 of 2012

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Revision filed under Section 397/401 of Cr.P.C praying^that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to present this memorandum of Criminal Revision Case against the Conviction and Judgment dated 17-01-2012 in CrI.A.No. 225 of 2009^datedonthe file of the Court of the II Additional Sessions Judge, East Godavari at Amalapuram in confirming the judgment in C.C.No. 126^{of2005dated15-} 09-2009 on the file of the Additional Judicial First Class Magistrate, Amalapuram.

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Between:

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Padamanti Govinda Raju @ Solamon Raju @ Sarikothavarthi Raju, Raju, S/o. Ganiyya N/o. Merakapalem, R/o. Opp: RTC Complex, Relliveddhi, Recharlapaeta,Kakinada.

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...PETITIONER/A-2

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AND

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State of Andhra Pradesh, Rep. by Public Prosecutor, Rep. by the Public Prosecutor

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...RESPONDENT

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LA. NO: 1 OF 2012(CRLRCMP. NO: 113 OF 2012)

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Petition under Section 397 (1) CRPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the sentence in CrI.A.No.^225of2009 dated 17-01-2012 on the file of the Court of the II Additional Sessions Judge, East Godavari at Amalapuram in confirming the judgment in C.C.No. 126 of 2005 dated 15-09-2009 on the file of the Additional Judicial First Class Magistrate, ,Amalapuram, East Godavari^{Districtandtorelease} the petitioner on bail, pending disposal of the CrI.Rc.^{beforethisHon'ble} Court.

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Counsel for the Petitioner: SRI. G. RAMA GOPAL

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Counsel for the Respondent: PUBLIC PROSECUTOR

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Criminal Revision Case No. 71 of 2012

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Revision filed under Section 397/401 of Cr.P.C praying^that in the circumstances stated in the affidavit filed in support^{oftheCriminalRevision} Case, the High Court may be pleased to present this^Memorandum of Criminal Revision Case against the Conviction and Judgment dated 17.01.2012, in CrI.A.No.229 of 2009, on the file of^the II Additional Sessions Judge, East Godavari at Amalapuram in confirming the Sentence and Judgement dated 15.09.2009, in CC.No.126 of 2005, on^{thefileofAdditional} Judicial First Class Magistrate, Amalapuram.

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Between:

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Dindi Saibaba, S/o. Venkataramayya, R/o. Sriramnagar, Near Municipal Colony, Kakinada, East Godavari.

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...PETITIONER

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AND

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

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...RESPONDENT

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I.A. NO: 1 OF 2012(CRLRCIVIP. NO: 114 OF 2012)

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Petition under Section 397 (1) CRPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the sentence in Crl.A.No.229 of 2009, dated 17.01.2012, on the file of the Court of the II Additional Sessions Judge, East Godavari District at Amalapuram, in confirming the Judgement in CC.No.126 of 2005, dated 15.09.2009, on the file of Additional Judicial First Class Magistrate, Amalapuram, East Godavari District,^andtorelease the petitioner on bail,; pending disposal of the CrI.R.C.No. of 2012, before this Hon’ble Court.

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Counsel for the Petitioner : SRI. G. RAMA GOPAL

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Counsel for the Respondent: PUBLIC PROSECUTOR

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The Court made the following COMMON ORDER :

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THE HON'BLE SRI JUSTICE V.SRINIVAS CRIMINAL REVISION CASE Nos.70 and 71 of 2012

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COMMON JUDGMENT:

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Assailing the Common Judgment dated 17.01.2012 in Crl.A.Nos.225 and 229 of 2009 on the file of the learned II Additional Sessions Judge, East Godavari at Amalapuram, confirming the conviction passed against the accused^Nos.1&2 by the Judgment dated 05.09.2009 in C.C.No.126 of 2005^onthe file of the learned Additional Judicial Magistrate^{ofFirstClassat} Amalapuram, for the offences under Sections 384 and^385read with 34 IPC, the petitioners/accused Nos.1 & 2 filed the present criminal revision cases under Section 397 r/w.401 of the Criminal Procedure Code, 1973.

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These revision cases were admitted on 18.01.2012 and the sentence of imprisonment imposed against the petitioners were suspended, vide orders in Crl.R.C.M.P.Nos.113^and114of 2012, respectively.

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The brief facts of the case are that:

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i) Accused Nos.1 & 2 are native of Kakinada and Ex-newspaper reporters. They used to extort the public and earn money. PW.1 and PW.2 are the husband and wife. PW.1 being native of Mukkamala Village and he^is the trustee of choultry Nos.1 and 2 of Mukkamala Village.

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The said two choultries are under the control of Endowment Department. PW.3 and PW.4 are the purohits of two choultries. In the year 1996, choultry No.1 was damaged due to cyclone hit. The Endowment Department sanctioned Rs.2,00,000/- for reconstruction of the^said choultry. After completion of work, audit was completed^to the expenses by the Government. ii) While the matter stood thus, in the year 2004, 1 St week of August, A2 came to the house of PW.1 and got acquaintance with him by introducing his name as Raju and working as reporter in Janaspandana newspaper and he came from Kakinada and threatened PW.1 by putting fear that the grant of Endowment Department was misappropriated without re-constructionof choultries^and took photos of PW.1 threatening that he will publish^the photos and allegations against him in the paper. Later,^he demanded to give an amount of Rs.20,000/- to him. If^he failed to pay the same, he publishes his biodata in all newspapers. Thus, A2 took an amount of Rs.18,000/from PW.1 forcibly and thereby cheated him by his deceitful words. iii) On 18.11.2004, accused Nos.1 & 2 came to Mukkamala Village with a view to threaten PW.1 and^earn money by putting in fear. A2 sent A1 to the house of^PW.1 by giving lesson, how to act before PW.1. On the instigation of A2, A1 approached PW.2, as PW.1 did^not present at that time A1 introduced himself that he^came from Assistant Commissioner’s Office at Kakinada and asked her about PW.1 and that PW.2 replied that, PW.1 went outside.

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iv) On 19.11.2004, A1 telephoned to PW.1 and threatened him that he committed fraud in reconstruction of Mukkamala choultries. On 21.11.2004, A1 & A2 came to Mukkamala, waited at Mukkamala center, and sent^A1 to PW.1. A1 went to the house of PW.1 at about 11.00 a.m. and got introduced himself that he is Aruna Patrika reporter and threatened him by putting in fear that^he committed fraud in reconstruction of choultries and demanded him to pay Rs.25,000/-. If he failed to pay^the said amount, he would publish the allegations in the newspaper. Then, PW.1 got suspicion on the behaviour^of A1 and he informed the same to PWs.3 to 5. When, PWs.3 to 5 went to the house of PW.1 and in their presence, PW.1 asked A1 about his identity card, but^A1 failed to produce the same. Then, PWs.1 to 5 came to conclusion that A1 is a fake reporter and handed over^to Ambajipeta Police Station by giving a written report.

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V). Basing on the report of PW.1., PW.7 Sub-Inspector^of Police, Ambajipeta Police Station, registered a case in Crime No.95 2004 under Section 420, 384 and 385 r/w.34 of IPC and investigated into.

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After completion of investigation, PW.7-Sub-lnspector^of Police, laid charge sheet and the same was taken on file and numbered as C.C.No.126 of 2005 on the file of the learned Additional Judicial Magistrate of First Class at Amalapuram,^after full-fledged trial vide Judgment, dated 05.09.2009, found the f acculed Nos.1 and 2 guilty of the offence punishable under

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Sections 384 and 385 r/w 34 IPC and sentenced them to undergo simple imprisonment for a period of three (3) years^eachandto pay fine of Rs.2,000/each, in default to suffer simple imprisonment of three (3) months each, for the offences under Sections 384 and 385 read with 34 of IPC. 5. Aggrieved by the same, the petitioners/accused Nos.1& 2 preferred appeals, vide Crl.A.Nos.229 and 225 of 2009 respectively, before the Court of learned II Additional Sessions Judge, East Godavari at Amalapuram and the same were dismissed, vide Common Judgment dated 17.01.2012, by confirming the conviction passed by the trial Court against the accused Nos.1 & 2, but modified the sentence of accused Nos.1 and 2 to undergo simple imprisonment for a period^ofthree (3) years and to pay a fine of Rs.2,000/- each, in default to suffer simple imprisonment for a period of three(3) months,^eachforthe offence under Section 384 of IPC and accused Nos.1 and 2 further sentenced to undergo simple imprisonment for a period of two (2) years and to pay a fine of Rs.2,000/-, in default to suffer simple imprisonment for a period of three (3) months each, for the offence under Section 385 of IPC.

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Against the said Common Judgment of the first Appellate Court, the present criminal revision cases were preferred by the petitioners/accused No.1 & 2.

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Heard Sri G. Rama Gopal, learned counsel for the revision petitioners/accused Nos.1 & 2 in both the revisions and Miss. R Akhila Naidu, learned Assistant Public Prosecutor representing the Respondent-State.

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Now the point that arises for determination in these revisions are:“whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by the first Appellate Court?”

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Sri G. Rama Gopal, learned counsel for the revision petitioners/accused Nos.1 & 2 submits that the Courts below should have appreciated that none of the ingredients^toconstitute the offence under Sections 384 and 385 read with 34 I PC are satisfied to convict the accused. He further submits that the evidence of the prosecution witnesses is contradictory to prosecution case and no corroboration to each witness, it gives any amount of doubt over the prosecution case, thereby, the conviction against the accused is unsustainable and the Courts below ought to have disbelieved the version of the prosecution witnesses and ought to have acquitted the accused, therefore.

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the conviction confirmed by the first Appellate Court in Crl.A.Nos.229 and 225 of 2009 is liable to be set aside. 10. Per contra, Miss. P. Akhila Naidu, learned Assistant Public Prosecutor representing the Respondent-State, submits that both the Courts have categorically appreciated the evidence placed on record. In particular, the evidence of PWs.1 and 2 coupled with the testimony of PWs.3 to 5 supports the version that A1 and A2 were committed offences punishable under Sections 384 and 385 read with 34 IPC. There is no error or contradictory to the evidence on record, as contended by the learned counsel for the petitioners/accused Nos.1 & 2. The evidence on record clearly establishes that the prosecution proved the guilt of^theaccused for the offences punishable under Sections 384 and 385 read with 34 IPC.

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Having heard the learned counsel for the petitioners/accused Nos.1 & 2 as well learned Assistant Public Prosecutor representing the Respondent-State, after examining the evidence on record, PW.5 is the neighbor of PW.1.^Hestated that on 21.11.2004 at about 11.30 a.m., PW1 called him while he was present in his house, when he went to the house of PW.1, at that time, PWs.1 to 4 were present and in their presence,^A1 demanded Rs.25,000/- from PW1, as he committed fraud in the

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amounts of choultry No.1, if PW.1 paid the said amount to him, he will not say anything, otherwise, he would inform the^sameand also publish in the newspapers, at that time when PW.1^askedthe A1 to show his identity card, then, A1 replied that^hehadno identity card. Then, on suspicion, PWs.1 to 5 caught^holdA1and handed over to Ambajipeta police station by submitting^theEx.PI report.

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The testimony of PWs.1 to 5 corroborated with each^other. Nothing was elicited during cross examination to disbelieve^their testimony. Furthermore, P.W.6 mediators corroborated to the testimony of P.W.7 investigating officer regarding^confession of accused No.1 under the cover of Ex.P.2 and seizure of M.0.1 as well confession of accused No.2 under the cover of Ex.P.3 mediators report.

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Reading the above material/evidence placed on record before the Trial Court, their evidence cogently and corroboratively established that the accused on 21.11.2004 visited the house of PW1 at 11.00 a.m. and demanded him to pay Rs.25,000/-, otherwise, they will publish certain allegations against^himintheir newspaper.

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It is settled law as observed by the Hon’ble Supreme^Court in State of Maharashtra v. Jagmohan Singh Kuldip Sing

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Anand\ that “in exercise of revisional powers, this^Courtneed not undertaken in-depth and minutest re-examination of entire evidence, when there is no error in the findings arrived^bythe Trial Court as well first Appellate Court. 15. It is settled law that in view of the concurrent findings^on facts by the Courts below, this Court being Revisional^Courtisnot expected to set aside the same without any material^ofperversity or manifest error in the findings arrived by the Court^below.There IS no material before this Court to discard the trustworthiness^of prosecution witnesses. 16. However, while arguing the matter, learned counsel^forthe petitioners/accused Nos.1 and 2 submits that the incident^was occurred on 18.11.2004 and by this time twenty (20)^yearshave already been lapsed and there are no criminal antecedents.^He further submits that A1 is aged about 65 years and^heishaving wife and he is only bread winner. Likewise, A2 is having^wifeand children. Considering all these things, he prays that for the offences under Sections 384 and 385 read with 34 I^{PCalternative} fine can be imposed against the petitioners/accused^Nos.1&2. 17. He brought to the notice of this Court a Judgment of^the Hon’ble Supreme Court in Nand Ballabh Pant v. State^(Union

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(2004) 7 see 659

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Territory of Delhif, wherein the APEX Court considered^the facts and reduced the period of sentence of imprisonment imposed on the appellate from two (2) months to one (1) month rigorous imprisonment.

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He also brought to the notice of this Court another Judgment of the Hon’ble Supreme Court in Jagdish Chander^v. State of Delhi^, wherein also the APEX Court considered the relevant circumstances and reduced the sentence of imprisonment to that of already undergone but increased the sentence of fine from Rs.500/- to Rs.700/-.

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As well in Mohinder Singh v. State of Haryana"^, the Hon’ble Supreme Court held at paragraph No.2 that “they^arenot inclined to interfere on the merits of the case and at the same time, they cannot lose sight of fact that the occurrence took place more than a quarter of century back and to send the^accusedin prison after 25 years, would be travesty of justice.

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No doubt, in the present case also the incident was^saidto be happened on 18.11.2004 and by this time twenty (20) years have already been lapsed.

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^AIR 1977 SC 892 ^AIR 1973 SC 2127 ^2019(3) Crimes 89

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Having regard to the above discussion and in view of the above pronouncements of the Hon’ble Supreme Court, this Court is of the considered opinion that the conviction is upheld, however, to meet the ends of justice, the sentence of imprisonment is modified to that of fine of Rs.5,000/-(Rupees^Five Thousand Only) each to the petitioners/accused Nos.1 & 2 for the offences under Sections 384 and 385 read with 34 IRC.

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In the result, both the Criminal Revision Cases are allowed in part to the extent of modifying the sentence of imprisonment imposed against the petitioners/accused Nos.1 and 2 to that of fine of Rs.5,000/- (Rupees Five Thousand Only) each^insteadof three (3) years of simple imprisonment for the offences under Sections 384 and 385 read with 34 of I PC. In-default of payment of said fine amount, the petitioners/accused Nos.1 and 2 shall undergo the sentence of imprisonment imposed by the first Appellate Court.

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Interim orders granted earlier if any, shall stand^vacated.

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As a sequel, miscellaneous applications pending, if any,

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shall stand closed.

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//TRUE COPY//

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SD/- K.TATA RAO DEPUTY REGISTRAR SECTION OFFICER

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To.