Kuturu Kondaiah v. The State Through Police P.S Dharmaram.

HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY CRIMINAL REVISION CASE No.784 of 2004 ORDER:

This revision case is filed under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, 'Cr.P.C.'), questioning the propriety, legality and irregularity of the judgment, passed by the Assistant Sessions Judge, Peddapalli, in S.C.No.721 of 1998 and affirmed by the I Additional District Judge at Karimngar in Crl.A.No.78 of 2002, sentencing the petitioner/accused to undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- for the offence under Section 354 IPC with default sentence while setting of the remand period.

2.

The case of the prosecution before the Assistant Sessions Court is that PWs.1 and 2 are wife and husband respectively, PW.6 is the sister of PW.2 and PW.3 is the neighbour of the victim-PW.1. They are all residents of the same village and area. 3.

On 21.07.1998 at about 2200 hours the complainant-A. Laxmi along with her husband-A.Rajanarsaiah and the sister of the complainant were sleeping in front of their house, the accused came to her house for smoking beedi, which was collected from PW.1. When her husband went inside for drinking water, the accused pressed the breast of victim with an intention to outrage her modesty and when she raised hue and cry, the accused ran away from the house. On hearing the cries of the victim, her husband and neighbours rushed to

- 2 - the scene of offence and noticed the accused fleeing away from the spot.

4.

PW.2 made a complaint to the police, on the strength of the same, a case in Crime No.56 of 1998 for the offence under Section 354 IPC was registered and issued F.I.R. During investigation, the Investigating Agency examined the witnesses and recorded their statements, inspected the scene of offence and prepared rough sketch of the scene of offence and later arrested the accused at 18:00 hours on 24.07.1998 and remanded him to judicial custody. As the investigation revealed that the petitioner committed the offence, a charge sheet is filed before the Judicial Magistrate of First Class, Sulthanabad, and in turn, the Court after following necessary procedure, committed the case under Section 209 Cr.P.C. to the Sessions Division and in turn, the Sessions Judge made over the case to the Assistant Sessions Judge, Peddapalli, for disposal in accordance with law.

5.

After securing the presence of the accused by the Sessions Court, upon hearing Additional Public Prosecutor and counsel for the accused, framed a charge for the offence punishable under Section 354 IPC, read over and explained to him, he pleaded not guilty claimed to be tried.

6.

During trial, PWs.1 to 6 were examined, marked Exs.P.1 and P.2. After closure of the prosecution evidence, the accused was

- 3 - examined under Section 313 Cr.P.C. explaining the incriminating material that appeared against the petitioner in testimony of prosecution witnesses, he denied, while contending that the evidence of prosecution witnesses false. Upon hearing arguments, the accused was found guilty by the Assistant Sessions Court and convicted him for the offence under Section 354 IPC and sentenced him as stated above.

7.

Aggrieved by the order, an appeal was preferred before the Sessions Court and the I Additional District Judge by its judgment and calendar, dated 02.04.2004, confirmed the conviction and sentence recorded by the trial Court.

8.

Aggrieved by the concurrent findings recorded by the trial Court and I Additional District Judge, the present revision case under Sections 397 and 401 Cr.P.C. is filed on various grounds. 9.

The main endeavour of the petitioner is that there is inconsistency in the statement of PWs.1 and 2 with regard to the delay in lodging the complaint, but the trial Court and appellate Court did not consider the discrepancy in the statements of PWs.1 and 2 and previous statement recorded under Section 161 Cr.P.C. and committed an error in accepting the explanation offered by PWs.1 and 2 for the abnormal delay that caused in lodging the complaint and, therefore, acceptance of the delay itself is fatal to the prosecution case.

- 4 - 10.

It is also contended that the sentence imposed by the trial Court is excessive and that the trial Court and appellate Court would have apply Probation of Offenders Act while releasing the petitioner, but committed an error.

11.

During hearing, Sri Bankatlal Mandhani, learned counsel for the petitioner, would contend that the petitioner while imposing sentence, the Court has to take into consideration of the age and other circumstances, like under what circumstances the petitioner committed such an offence, mental condition of the accused etc., But, the trial Court and appellate court did not consider those aspects, imposed sentence of imprisonment for two years along with fine and it is contrary to the principle laid down by the Apex Court in Kanwar Pal Singh Gill v. State (Admn. UT Chandigarh) through Secy. And another1. He further contended that the discrepancy in the evidence of PWs.1 and 2 regarding the delay is a serious lacuna in the evidence of prosecution and the possibility of implicating this petitioner due to acquaintance with them cannot be ruled out and, therefore, the trial Court and appellate Court committed a serious error in finding the petitioner guilty and convicting and sentencing him to imprisonment for two years and to pay a fine of Rs.500/- for the offence under Section 354 IPC.

12.

Learned Additional Public Prosecutor for the State of Telangana submitted that the powers of this Court are limited under 1 (2005) 6 SCC 161

- 5 - Sections 397 and 401 Cr.P.C. and the concurrent findings of fact recorded by the Sessions Court and appellate Court cannot be interfered, unless, the fact findings are totally perverse and without any evidence. Therefore, keeping in mind the limits of jurisdiction of this Court, the Court has to decide the propriety or legality of the order passed by the trial Court, affirmed by the appellate Court while exercising power under Sections 397 and 401 Cr.P.C. and prayed to dismiss the revision.

13.

Considering rival contentions and perusing the material available on record, the points that would arise for consideration in this revision are:

1. Whether the delay in lodging the complaint by the PWs.1 and 2 is accepted properly, if not, is it fatal to the case of the prosecution?

2. Whether the sentence imposed by the trial Court and affirmed by the appellate Court is in consonance, if not, whether the sentence is liable to be reduced or converted to any other sentence under law?

POINT No.1 :

14.

The contention raised before this Court is that the incident took place on 21.07.1998 at about 22:00 hours, whereas the complaint was lodged on 24.07.1998. Thus, there is delay of three days in lodging the complaint. Of course, the explanation for the delay before the trial Court and appellate Court based on the facts and circumstances of the case, however, pointed out certain discrepancies in various paras of

- 6 - the judgment more particularly in para 14 of the judgment of the Assistant Sessions Court regarding the discrepancy. But, ultimately concluded that the explanation offered by the PWs.1 and 2 is sufficient cause to believe their version with regard to the occurrence of the incident.

15.

Delay is a matter of serious consequence since there is a possibility of false implication due to consultation or otherwise. But, in the present case, the offence punishable under Section 354 IPC, which involves not only the prestige of the victim but also the prestige of entire family members and it would be a stigma not only on the victim but also on the members of the family. Therefore, before giving or lodging such complaint, the victim and other family members would think about social stigma and on the other hand the incident occurred in a village and it appears they proposed to settle the matter in the village in the local panchayat, but no purpose was served, consequent upon failure of panchayat, lodged the complaint to the police.

The discrepancies pointed out in the evidence are minor discrepancies and which would not go to the root of the case. On the other hand, there was no cross-examination to the effect that the petitioner was falsely implicated due to consultation and in the absence of any such suggestion in the cross-examination of PWs.1 and 2, it is difficult to accept the contention of the petitioner.

- 7 - for the delay is a fact finding recorded by the trial Court and confirmed by the appellate Court.

16.

The power of the High Court under Sections 397 and 401 Cr.P.C. is limited and the High Court possess the general power of superintendence over the actions of the Courts subordinate to it which the discretionary power when administered on administration side, is known as the power of superintendence and on the judicial side as the power of revision. In exercise of the discretionary powers conferred on the High Court under the provisions of this Section, the High Court can, at any stage, on its own motion, if it so desires and certainly when illegalities and irregularities resulting injustice are brought to its notice, call for the records and examine them. The words in Section 435 are, however, very general and they empower the High Court to call for the record of a case not only when it intends to satisfy itself about the correctness of any finding, sentence or order but also as to the irregularity of any proceeding of any subordinate Court as held by the Apex Court in Janata Dal v. H.S.Chowdhary and others2. 17.

Similar view is expressed by the Full Bench of Apex Court in Krishnan and another v. Krishnaveni and another3, wherein at paras 6 and 7 of the judgment, the Supreme Court consider the scope of powers of the High Court under Section 401 Cr.P.C. and held that "Section 401 of the code gives to every High Court power of revision 2 AIR 1993 SC 892 3 1997 (4) SCC 241

- 8 - Sub-Section (1) of the said section provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledges the High Court may in its discretion, exercise any of the power conferred on a court of Appeal by Sections 386, 389 and 391 and on a court of Sessions by section 307 Apart form the express powers under Section 397 (1) the High Court has been invested with Suo motu power under Section 401 to exercise revisional power.

In addition, Section 482 saves inherent powers of the High Court Postulating that "nothing in this code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice" Section 483 enjoins upon every high Court to so exercise its continuous superintendence over the courts of judicial magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cased by such magistrates.

It is, therefore, clear that the power of the High Court of continuous supervisory jurisdiction is of paramount importance to examine correctness, legality or propriety of any finding, sentence or order recorded or passed as also regularity of the proceedings of all inferior criminal courts.

- 9 - recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior criminal courts to the High Court and Courts of judicial Magistrate are inferior criminal courts to the sessions judge. ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e.

to examine the Correctness, legality or propriety of any finding sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional. power of the high Court merely conserves the power of the high Court to see that justice is done is accordance with the recognised rules of criminal jurisprudence and that its subordinates courts do not exceed the jurisdiction or abuse the power vested in them under the code or to prevent abuse of the process of the inferior criminal courts or to prevent miscarriage of justice".

18.

Thus, from the law lay down by the Apex Court, the powers of this Court are limited and the ultimate result would be to prevent abuse of process and power vested on the trial Courts and subordinate Courts is to see that the Courts do not exceed the jurisdictional limits. In the present case, concurrent finding recorded by the appellate Court

- 10 - and when such findings were recorded by the trial Court, this Court cannot interfere with such fact findings when it is based on evidence on record though there is any amount of inconsistency. But, such fact findings cannot be interfered with by this Court while exercising the power under Section 397 and 401 Cr.P.C.

19.

When an offence which involved the family prestige, the delay if explained can never be a ground to throw the case over board, more particularly when the evidence is consistent except minor inconsistencies as the witnesses are rustic villagers came from rural areas, therefore, such inconsistencies are insignificant, such can be over looked, it is a guaranteed of truth. Hence, it is not a ground to reverse the findings recorded by the trial Court and affirmed by the appellate Court.

POINT No.2:

20.

The second contention raised before this Court is that the alleged offence occurred during night. The petitioner was aged 26 years by the date of alleged offence and after the occurrence, petitioner did not involve in other crimes so far. Therefore, a lenient view has to be taken to such petitioner, apart from the ground that the children of the petitioner became majors. He placed reliance of judgment of the Supreme Court in Kanwar Pal Singh Gill v. State (Admn., UT Chandigarh) through Secy. And another4. The main endeavour of the counsel for the petitioner is that due to lapse of time 4 (2005) 6 SCC 161

- 11 - and when the petitioner became old, his children became major, the Court has to consider the request and pass appropriate orders by imposing appropriate sentence applying the provisions of Probation of Offenders Act. The identical question came up in Kanwar Pal Singh Gill's case, wherein the Apex Court took a lenient view ordering payment of compensation of Rs.2,00,000/- to the victim, while converting sentence of imprisonment into observation under the provisions of Probation of Offenders Act.

21.

Section 354 I.P.C. originally including under Schedule-I of the Cr.P.C. cognizable and even bailable that was triable by any Magistrate. In fact, as per the Central Legislation covered by Criminal Law (Amendment) Act 2013 (Act 13 of 2013, , which came into force with effect from 03.02.2013, with punishment not less than one year but which may extend to five years and shall also be liable to pay fine. When such minimum punishment is prescribed under the Act, the Court has to take into consideration aggravating and mitigating circumstances while imposing sentence.

22.

In Rajendra Pralhadrao Wasnik v. The State of Maharashtra5, the Apex Court sets out the Mitigating Circumstances hereinbelow:

1. The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in 5 AIR 2012 SC 1377

- 12 - contradistinction to all these situations in normal course.

2. The age of the accused is a relevant consideration but not a determinative factor by itself.

3. The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

4. The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

5. The circumstances which, in normal course of life, would render such a behavior possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behavior that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

6. Where the Court upon proper appreciation of evidence is of the view that the crime was not committed in a pre-ordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness though prosecution has brought home the guilt of the accused.

- 13 - While determining the questions relateable to sentencing policy, the Court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence.

23.

In Shailesh Jasvantbhai & Anr vs State Of Gujarat & Ors6, the Apex Court held that in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration for imposing sentence by the Courts. The law regulates social interests, arbitrates conflicting claims and demands. Security of persons and property of the people is an essential function of the State.

It could be achieved through instrumentality of criminal law. Undoubtedly, there is a crosscultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins.

- 14 - be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of 'order' should meet the challenges confronting the society. Friedman in his Law in Changing Society stated that: 'State of criminal law continues to be- as it should be-a decisive reflection of social consciousness of society.' Therefore, in operating the sentencing system, law should adopt the corrective machinery or deterrence based on factual matrix. By deft modulation, sentencing process be stern where it should be, and tempered with mercy where it warrants to be.

The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. 24.

But, no mitigating circumstances are brought to the notice of this Court. On the other hand, in the present case, the petitioner is a person who developed acquaintance with the family members of the victim and taking advantage of the acquaintance, he came to the house of the victim and PW.2 and when he took advantage of absence of

- 15 - husband, who went inside the house for drinking water, the petitioner resorted to such heinous act against the victim which would be a stigma not only on the victim but also on the family members. Therefore, taking a lenient view by application of the provisions of Probation of Offenders Act is not sufficient since the offence is a heinous offence against the society at large. In such case, taking into consideration of age as on the date of commission of offence and other circumstances subsequent to the incident, the sentence of imprisonment is reduced to one year from two years for the offence punishable under Section 354 IPC while confirming the fine imposed by the trial Court and affirmed by the appellate Court. Therefore, the sentence is reduced by considering mitigating circumstances, under which the petition committed such an offence, which I pointed out in the earlier paras.

25.

With the above modification, the criminal revision case is disposed of.

26.

Miscellaneous petitions pending, if any, shall stand closed. _________________________________ M. SATYANARAYANA MURTHY, J 1st August 2017.

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