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The Public Prosecutor Vs. Kapu Chiniah and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1978CriLJ396
AppellantThe Public Prosecutor
RespondentKapu Chiniah and ors.
Excerpt:
.....out, what precisely was the prejudice that arose out of the joint trial has not been stated by the learned magistrate, 16. no doubt section 218, cr. pc which says that no finding, sentence or order by a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby, section 323, cr. but the fact remains that the entire series of attacks, which took place in a matter of one or two hours, were so connected together as to form, single transaction and eo, this case comes clearly within the ambit of section 220 of the..........muslim and caused injuries to one buchanna who was hiding there. some of the accused beat him. the accused persons also beat p. w. 10 in the house of jabbar with sticks.4. after this incident, bal reddy, one of the injured, went to pargi police station and lodged a complaint and crime no. 32/75 was registered. mai reddy, however, went to kosgi police station through the medical officer of the hospital there. crime no. 22/75 was registered there and was subsequently transferred to pargi police station and was registered as crime no. 34/75. buchanna, another injured person, went to kodan-ga police station through the hospital there where crime no. 27/75 was registered which was also transferred to pargi police station where it was registered as crime no. 33/75. the two later crime numbers.....
Judgment:

Sambasiva Rao, J.

1. A question relating to rejoinder of charges arises in this case for consideration.

2. This is an appeal by the State against the acquittal by the Judicial First Class Magistrate at Pargi on the ground that the provisions of Section 218, Cr, P. C. are mandatory and that there should have been separate charges for the distinct offences.

3. The respondents were charged with offences punishable Under Sections 148, 452, 325, 324, r/w, Section 149, IPC The prosecution alleged: There are two factions in the village of Dirsampalli within the jurisdiction of Pargi Police Station. One group was led by Kapu Chinnayya and the other by Mai Reddy. On 21st of April, 1975 in the night one person belonging to the group of Mai Reddy was assaulted by a person belonging to the other group. On 22nd of April, 1975 at about 7 A.M., people belonging to Mai Reddy group attacked one Nagaiah of the other group and caused him inj uriea At about 2 P. M., on the same day persons belonging to the same group attacked Lambadi Tanda and Mai Reddy opened fire on Lambadas in which three persons received pellet injuries. This challenge was taken up by Kapu Chinnayya's faction and they chased Mai Reddy party people. As they fled Mai Reddy, Bal Reddy and Narasimhulu concealed themselves within the house of one Jabbar. Some of the accused entered into the house by removing the door planks and indiscriminately beat Narasimhulu, Mai Reddy and Bal Reddy with sticks and stones and caused them injuries on their persons. Details as to who beat which injured person and with what weapons are also described in the charge-sheet. Then the accused proceeded further and entered the house of one Sangappa and inflicted injuries on his person with sticks. Thig is alleged to have been done by all the accused. Then they entered the house of Chandra Reddy, beat him and inflicted injuries with sticks. Some of the accused participated in this beating. Thereafter, they entered the house of Bichappa and there he was beaten by some of the accused. One Madiga Bug-gappa was also beaten in his house by some of the accused. Thereafter they entered the house of Eswaraiah and some of the accused caused injuries to him. Thereupon they entered the house of a Muslim and caused injuries to one Buchanna who was hiding there. Some of the accused beat him. The accused persons also beat P. W. 10 in the house of Jabbar with sticks.

4. After this incident, Bal Reddy, one of the injured, went to Pargi Police Station and lodged a complaint and crime No. 32/75 was registered. Mai Reddy, however, went to Kosgi Police Station through the Medical Officer of the Hospital there. Crime No. 22/75 was registered there and was subsequently transferred to Pargi Police Station and was registered as Crime No. 34/75. Buchanna, another injured person, went to Kodan-ga Police Station through the Hospital there where Crime No. 27/75 was registered which was also transferred to Pargi Police Station where it was registered as Crime No. 33/75. The two later Crime numbers were merged with the Original Crime No. 32/75 of Pargi Police Station. The injured Jabbar had gone to the Osmania Hospital at Hyderabad and a medical certificate was issued in regard to the injuries on his body.

5. During the course of investigation it was brought out that the accused persons, in pursuance of their common object, have committed the offences punishable under the sections stated above.

6. The accused denied having committed the offences and pleaded not guilty.

7. Thereupon, the learned Magistrate took up the case for trial. The prosecution examined as many as 17 witnesses and marked 11 documents as Exs. P-l to P-ll. The accused, in their turn, examined 3 witnesses and marked six documents as Exs. D-l to D-6 to rebut the case of the prosecution. The accused were also examined Under Section 313, Cr.PC wherein they have stated that on account of party factions the entire case had been foisted against them by the complainant. They also set up another theory that all the injured persons had been beaten by the Harijans and Telan-gas of their village. It also appears from the judgment of the lower Court that arguments on both sides were also heard at length. Thereupon, the lower Court delivered the judgment having formulated the point for consideration as 'Whether the prosecution has proved the case against the accused persons Under Sections 148, 452, 324, 325, r/w Section 149, I.P.C. as alleged by it?'

8. After examining the evidence the lower Court observed, in Para. 7 thus:-

Therefore, the only section which is applicable is Section 147, I. P. C, as there is ample evidence in the record that the accused persons have formed into an unlawful assembly with a common object of taking revenge on the injured. P.Ws., who happen to be the party members of their rival group. Therefore, Section 147 proved aganist the accused persons are concerned.

9. Then taking up the charge Under Section 452, the learned Magistrate said:

Therefore, the offence under Section 452 has also been proved against all the accused persons.

10. In so far as charge Under Section 325 was concerned, the lower Court fouitfl:

Therefore, here in this case the evidence of P. W. 3 reveals that accused No. 1 has caused grievous hurt to him, i.e., on account of his beating he has sustained a fracture of right humerus and fracture midshaft of right ulna. Therefore, accused No. 1 is guilty of Section 325, I.P.C.

11. The lower Court did not think that the charge Under Section 324 was made out. But instead, it held,

I only hold that the injuries are of simple nature and as such the accused persons are only liable Under Section 323, IPC

12. Then concluding that part of the judgment, the learned Magistrate said :

Therefore, in the above perspective, when the entire evidence of prosecution is scrutinised, the injured P. Ws. 1 to 10 in their statements did not state the actual participation of accused No. 8 in the actual beating but the presence of this witness is stated by the P. Ws. in their evidence. Therefore, Under Section 149, IPC he is liable to be punished for the offences Under Sections 147, 452 and 324. IPC

13. Having said all this, the learned Magistrate proceeded to state ki para. 8 :

Now coming to the legal aspect of the case the learned defence counsel raised a point at this stage regarding the joint trial of the accused for numerous incidents which are said to have been done by the accused persons at different times and states that the joint trial of all the accused persons in one case for numerous offences committed by many of the accused at each time and that too on 10 occasions here in this case will prejudice the case of the accused persons and it is improper under the provisions of the Criminal Procedure Code and he insists for the individual trials for each assault of each P. W. 1....

14. The learned Magistrate also took notice of the contention of the A.P.P.O., that thig was a case which comes Under Section 220, Cr.PC The learned Magistrate thereafter pointed out that the injured persons made complaints separately in different police stations and that some of the injured persons chose to file complaints in pursuance of the assault on them by the accused persons. In the course of investigation, the Investigating Officer has gathered the information of causing assault on all the other prosecution witnesses apart from P. Ws, 1, 5 and 10. The filing of the joint charge-sheet against all the accused persons in the opinion of the learned Magistrate, 'will naturally prejudice the case of the accused persons in their proper defence of their case as it being of numerous incidents roped in one case and moreover the statements of P. Ws. 1 to 10 will not state that all the 13 accused persons have participated in the commission of offence at all the places and, therefore, I am of the opinion that the joint trial for all these incidents is bad in law and required to be splitted

Therefore, he concluded it by saying

I hold that the separate trial for each incident is an apt thing so far as this case is concerned.

Having said this, he acquitted the accused.

15. The re'sume' I have given above is that of the judgment of the learned Magistrate. It is indeed strange that having completed the trial, heard the arguments and pronounced that the accused were guilty of certain offences, the learned Magistrate changed his mind at the fag-end of the judgment because the learned defence counsel raised an argument at that stage that prejudice to the accused might be caused on account of the joint trial. It is stranger still that the learned Magistrate has chosen to acquit the accused, without even leaving it open to the prosecution to launch separate cases. It is surprising that when the witnesses for the prosecution as well as for the defence were examined, no difficulty was felt either by the Court or by the prosecution or by the defence counsel on account of the joint trial. The judgment itself shows that the question of alleged prejudice was raised at the late stage of the arguments. That was patently an afterthought on the part of the learned defence counsel. How the joint trial has actually caused prejudice is not stated by the learned Magistrate. Curiously he merely observed

In my opinion (joint trial) will naturally prejudice the trial of the case in the proper perspective.

Obviously the apprehension on the part of the learned Magistrate is that the joint trial might in future cause prejudice and not that it has already caused prejudice. Be that as it may, as I have already pointed out, what precisely was the prejudice that arose out of the joint trial has not been stated by the learned Magistrate,

16. No doubt Section 218, Cr.PC requires that for every distinct offence of which any person is accused there shall be a separate charge and every such charge shall be tried separately. At the same time, Section 220(1), Cr.PC lays down:

If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with, and tried at one trial for every such offence.

17. Now I must also make a reference to Section 464, Cr.PC which says that no finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless in the opinion of the Court of Appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby, Section 323, Cr.PC enumerates persons who may be charged jointly. Clause (a) thereof reads:

Persons accused of the same offence committed in the course of the same transaction.

18. Now, going by the findings of the lower Court, it is manifest that the accused formed themselves into an unlawful assembly with the common object of taking revenge on the injured persons who happened to be the party members of their rival group. This they did in the afternoon of 22nd of April, 1975 when the opposite faction belonging to the prosecution witnesses had attacked Nagayya and caused him injuries and also attacked Lambada Tanda where the elder of that faction Mai Reddy fired a gun on account of which some persons were injured. As per the findings of the Lower Court it is clear that the party of the accused began to take revenge on the opposite faction in retaliation of the above incidents. Then they proceeded to attack the persons belonging to the opposite faction. The Lower Court found that they formed themselves into an unlawful assembly with the common object of taking revenge on the opposite party. In the course of implementing that common object, they attacked various injured persons wherever they were hiding themselves and wherever they were found. In these circumstances, I think that the whole act of retaliation by the party of the accused constitutes one single transaction. It may be that while beating one vic- tim, only some of the accused participated and while beatimg another, some others participated, and while beating some others, all the accused have participated. But the fact remains that the entire series of attacks, which took place in a matter of one or two hours, were so connected together as to form, single transaction and eo, this case comes clearly within the ambit of Section 220 of the Code of Criminal Procedure.

19. In Aftab Ahmad Kham v. State of Hyderabad : 1954CriLJ1155 , a similar case arose where an accused person had committed a series of acts. The Supreme Court held that the incidents related in the evidence left no manner of doubt that from the moment the accused started from the police Station, he committed a series of acts involving killing, injurimg people, unlawfully confining others and extorting money from one of them. As the series of act9 attributed to the accused constituted one transaction in which the offences were committed, the case fell squarely within the purview of Section 235 of the old Code now corresponding to Section 220 Cr.PC What 1 have said above receives full support from this decision of the Supreme Court.

20. Certain observations of Mudhol-kar, J in State of Andhra Pradesh v. Ganeswara Rao : [1964]3SCR297 also render support to the view I have taken. The following passage at page 1861 is material:

Therefore, even if the expression 'same transaction' alone had been used in Section 235 (1) (old Code), it would have meant a transaction consisting either of a single act or of a series of connected acts. The expression 'same transaction' occurring in els. (a), (c) and (d) of Section 239 as well as that occurring in Section 235 (1) ought to be given the same meaning according to the normal rule of construction of statutes. Looking at the matter in that way, it is pointless to inquire further whether the provisions as Section 239 are subject to those of Section 235 (1). The provisions of Sub-sections (2) and (3) of Section 235 are enabling provisions and quite plainly can have no overriding effect. But it would be open to the Court to resort to those provisions even in 'the case of a joint trial of several persons permissible Under Section 239.

21. Therefore, I am firmly of the opinion that the case comes squarely Under Section 220 Cr.PC and therefore, a single trial is quite valid in the circumstances of the case. In any case, as laid down by Section 464 Cr.PC no finding of a Court of competent jurisdiction shall be deemed invalid merely on the ground of misjoinder of charges etc. unless in the opinion of the Court of Appeal, a failure of justice has in fact been occasioned thereby. Sitting as a Court of Appeal, I see no failure of justice on account of the misjoinder of charges even supposing there was one. All the incidents formed part of the one act of retaliation perpetrated by the party of the accused against the group of party of the prosecution witnesses and this retaliation took place in a matter of one or two hours, after the accused had formed themselves into an unlawful assembly with the common object of injuring the prosecution witnesses and their party. The fact that three of the injured persons have given reports in three different Police Stations and that some of the injured persons have not given any complaints has not in any way clouded the issue or caused any prejudice to the defence of the accused. It should be particularly remembered that the evidence is one and the same describing the incidents which took place within a space of one or two hours in pursuance of the common object of unlawful assembly of the accused. If only some of the accused have beaten some of the prosecution witnesses, the defence is not in any way complicated. Which accused has beaten which prosecution witness has to be considered on the basis of the evidence. Surprisingly, the lower Court did not find any difficulty in coming to its conclusions on this aspect of the matter. I fail to see, in the light of this, any prejudice whatever that has been caused on account of the trial which has taken place.

22. Sri Ayyapu Reddy appearing for the accused-respondents invites my attention to Section 386 which relates to the power of the appellate Court. What all it provides is that the appellate Court after perusing such record and hearing the appellant or his pleader and the Public Prosecutor may dismiss the appeal or may in an appeal from an order of acquittal reverse such order and direct that such, further inquiry be made or that the accused be retried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law. The appeal before me is an appeal against an order of acquittal. I have come to the conclusion that this order of acquittal is totally unwarranted under the law. In fact in my judgment the learned Magistrate has passed an order of acquittal on a misconception of the law, I am, therefore, empowered to reverse that order and direct that further inquiry be made or that the accused be retried or committed for trial, as the case may be, or I may myself find the accused guilty and pass sentence on him according to law. These are the several alternatives that are open to me.

23. Sri Ayyapu Reddy relying on the decision of the Supreme Court in Ramek-bal v. Madan Mohan, : 1967CriLJ1076 submits that there is a long lapse of time and it may not be desirable to order retrial. In this case one and half years have elapsed since the lower Court has rendered its judgment. I do not think it is such a lapse of time as would cause any injustice. What is important is that the trial Court has completed the trial, examined all the witnesses and even heard arguments at great length. It has even recorded its findings on facts and the offences alleged against the accused. Only on question of law it changed its mind and acquitted the accused.

24. In these circumstances, I am satisfied that this is a ease where the order of acquittal passed by the Lower Court should be set aside and where I should direct the Lower Court to hear further arguments of the prosecution as well as the defence counsel and pass such order as it might deem fit. I set aside the order of acquittal in so far as it is based on the misconception of law. In other respects, it will be open for the lower Court to continue the further inquiry that is to say, to hear arguments on both sides and decide the matter according to the merits.

25. In the result, the order of acquittal is set aside and the matter is remitted back to the trial Court for further inquiry as directed above. The trial Court while continuing the further inquiry shall not understand this judgment of mine as having expressed any opinion on the actual merits of the case in regard to the guilt of the accused.


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