Andhra Pradesh High Court - Amravati
K.Sridhar, vs The State Of Ap Rep By Its Pp Hyd., on 24 January, 2023
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL REVISION CASE No.1105 OF 2008
ORDER:
This Criminal Revision Case came to be filed, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), by the petitioner herein, who was the first accused (A-1) in Calendar Case No.5 of 2004 on the file of the Court of II Additional Munsif Magistrate, Tenali (for short, 'the learned Magistrate') and first appellant in Criminal Appeal No.396 of 2006 on the file of the Court of XI Additional District and Sessions Judge (Fast Track Court) Guntur at Tenali (for short, 'the learned Additional Sessions Judge'), challenging the judgment, dated 25.07.2008, in the said Criminal Appeal, where under the learned Additional Sessions Judge, allowed the same insofar as the second appellant therein was concerned but dismissed the Appeal confirming the conviction of the first appellant, under Section 326 of the Indian Penal Code, 1860 (for short, 'the IPC') imposed in C.C. No.396 of 2006.
2. The parties to this Criminal Revision Case will hereinafter be referred to as arrayed before the trial Court, for the sake of convenience.
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3. The petitioner along with accused No.2 (A-2) faced charge before the Court below under Section 326 R/w.34 IPC and the petitioner herein along with A-2 were convicted under Section 248(2) Cr.P.C. for the charge under Section 326 R/w.34 IPC and sentenced to suffer Simple Imprisonment for two years and to pay a fine of Rs.3,000/- in default to suffer Simple Imprisonment for three months each. When the present petitioner along with A-2 filed Criminal Appeal No.396 of 2006, it was disposed of as above. Challenging the same, the unsuccessful first appellant therein approached this Court by way of this Criminal Revision Case.
4. The case of the prosecution, in brief, before the Court below, according to the substance of the charge sheet in C.C. No.5 of 2004 is that A-2 purchased a thatched house belonging to one Dukkula Udaya Bhaskara Rao and started residing in the said house situated in Donepudi village since 7 or 8 years prior to the date of incident. Since 2 years prior to the date of incident, the de- facto complainant started residing in a house for rent, which is located between the south east corner of the house of the accused. On 06.11.2003 at about 06:30 a.m. the de-facto complainant climbed coconut tree to cut the coconuts. At that time, the wife of A-1 was taking bath in her bathroom and on seeing the de-facto 3 AVRB,J Crl.R.C. No.1105/2008 complainant, she ran away into her house. After some time, he was sitting in front of his house on a pial. A-1 went there with a knife and attacked him and tried to hack him across his head. The de-facto complainant put his hand to avert the blow and the knife fell on the left lower arm, which resulted into bleeding injury. Then, he fell down. Then, A-1 again attacked him by hacking with the same knife below knee and caused bleeding injury. At that time, A-2 was also along with A-1 holding an axe. The persons present there witnessed the incident and shifted the injured to Kollur village and from there to hospital for treatment. The statement of the de-facto complainant was recorded in Crime No.70 of 2003 originally under Section 307 R/w.34 IPC and investigated into. On 12.11.2003, both the accused were arrested and sent for remand. LW.13 issued wound certificate opining that the injury No.1 is grievous in nature. Hence, the charge sheet.
5. The Court below took cognizance of the case under Section 326 R/w.34 IPC and on appearance of the accused and after completing the formalities under Section 207 Cr.P.C, examined both the accused under Section 239 Cr.P.C, for which they denied the offence. Then a charge under Section 326 R/w.34 IPC was 4 AVRB,J Crl.R.C. No.1105/2008 framed and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.
6. During the course of trial, on behalf of the prosecution PWs.1 to 11 were examined and Exs.P-1 to P-15 and further MOs.1 to 4 were marked.
7. After closure of the evidence of the prosecution, both the accused were examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence of the prosecution witnesses, for which they denied the same and did not let in any defence evidence. However, Exs.D-1 and D-2 were marked, during the course of cross-examination of PWs.3 and 5.
8. The learned Magistrate, after hearing both sides and on consideration of the material available on record, found both the accused guilty of the charge under Section 326 R/w.34 IPC and convicted them under Section 248(2) Cr.P.C, questioned them with regard to the quantum of sentence and accordingly sentenced them to suffer Simple Imprisonment for two years and to pay a fine of Rs.3,000/- each in default to suffer Simple Imprisonment for three months each.
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9. Aggrieved thereby, both the accused preferred the aforesaid Criminal Appeal before the learned Additional Sessions Judge (FTC), Guntur at Tenali, which came to be dismissed on merits insofar as the revision petitioner herein is concerned. The learned Additional Sessions Judge allowed the same insofar as the second appellant therein is concerned. Challenging the same, the unsuccessful appellant therein filed the present Criminal Revision Case.
10. Now the point that arises for consideration is as to whether the judgment in Criminal Appeal No.396 of 2006, dated 25.07.2008, insofar as the revision petitioner, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the judgment of the appellate Court?
11. Sri A. Lalith, learned counsel, representing learned counsel for the petitioner, would contend that the evidence of PWs.1 to 4 is interested in nature. Their evidence has no corroboration from any independent source. PW.5 is a chance witness, whose presence at the time of incident is highly doubtful. There were previous disputes between the de-facto complainant party and the petitioner as such the evidence of PWs.1 to 4 is not believable. Though the prosecution did not cite and examine any Radiologist, 6 AVRB,J Crl.R.C. No.1105/2008 both the Courts below erroneously convicted the petitioner under Section 326 IPC without there being any evidence as to the fracture. The evidence of PW.8-Medical Officer is not at all convincing to assume the fracture. Though the prosecution claimed that some workers were working at the spot, for laying pipeline but the Investigating Officer did not examine them and if they were working there, they could have been termed as direct witnesses to the occurrence and their non-examination is fatal to the case of the prosecution. There was delay of 22 hours in lodging the report to the Police which remained un-explained, as such it is fatal to the case of the prosecution. The Court below did not consider the evidence of PWs.8 and 10. He would further submit that the petitioner herein, at the time of filing this Revision case, was aged 27 years and almost since 14 years this Revision has been pending and the sentence imposed against the petitioner by the Courts below is also harsh. He would further submit that the Criminal Revision Case is liable to be allowed.
12. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, would submit that the offence in question was happened in a broad day light and PWs.2 and 3 being wife and mother of PW.1-injured their presence at the scene 7 AVRB,J Crl.R.C. No.1105/2008 of offence was quite natural and further PWs.4 and 5 also supported the case of the prosecution and the nature of the injury received by PW.1 was spoken by him and absence of radiologist opinion cannot be taken as infirmity in the case of the prosecution and both the Courts below recorded sound reasons while convicting the petitioner, as such the Criminal Revision Case is liable to be dismissed.
13. PW.1 is the injured witness. Admittedly, the fact remained is that according to the averments in the charge sheet and according to the answers from the cross-examination of PWs.1 to 3, there were previous disputes between the injured and the accused. On that count, the testimony of PWs.1 to 3 cannot be disbelieved. Enmity is a double wedged weapon. It is settled law that enmity may be a factor for commission of offence or for false implication. So, merely because there were disputes between the de-facto complainant and petitioner, there is no hard and fast rule that there is a false implication. So, the prudent course is to analyze the evidence of PWs.1 to 3 with care and caution.
14. Turning to the testimony of PW.1, apart from the speaking of earlier disputes with regard to the boundary etc., he spoken to the fact that A-1 brought a knife on that day i.e., on 06.11.2003 from 8 AVRB,J Crl.R.C. No.1105/2008 his back and on seeing LW.2-Sunkara Siva Kumari raised cries. Then, he (PW.1) turned back and raised his hand and the accused hacked with a knife on his left hand. His hand was cut and it was hanging with some flesh joining with the body. When LW.2 tried to take him into the house by holding him, he fell down on the ground and then A-1 again beat him with the same knife on his both legs. He sustained bleeding injuries. He found A-2 standing along with A-1 with an axe. On hearing his cries, his family members gathered there. He was taken to Police Station. But, on seeing the severity of the injury, Police asked him to go to the hospital immediately. Then, he was shifted by the people to the Trauma Hospital, Guntur where the Police came there and recorded his statement. Ex.P-1 is his statement.
15. PW.2 is the wife of the injured, who supported the evidence of PW.1 apart from speaking of the earlier disputes with regard to the incident in question. She deposed that on 06.11.2003 at 07:00 a.m he and PW.1 were sitting on the pial situated in front of her house. One panchayat pump was being laid there. PW.1 was discussing with the people who were processing the said work, A-1 brought a knife and tried to hack PW.1 on his head. Then she raised alarm and then PW.1 raised his left hand and A-1 hacked 9 AVRB,J Crl.R.C. No.1105/2008 the left hand of PW.1. Due to that blow, even the bone was cut off. He lifted PW.1 to the near doorstep and both of them fell down. Then, again A-1 beat him with knife on the legs of PW.1, who sustained injuries on his legs. A-2 was also there with an axe. They went to Kollur and from there they went to Guntur, Peoples Trauma Hospital. The Police came to the hospital and examined her.
16. PW.3 is the mother of the injured, whose evidence on the material aspects is that on 06.11.2003 in the morning at about 06:30 or 07:00 a.m, she heard the cries of PW.1. Then, she reached there and found PW.1 with bleeding injury on his left hand. A-1 and A-2 were found there. He found a knife in the hand of A-1. A-2 was armed with an axe. PW.2 caught hold of PW.1 and again both of them fell down. Then, A-1 hacked PW.1 with knife on his legs. She raised huge cries. They took PW.1 to Police Station and from there to Peoples Trauma Hospital, Guntur.
17. PW.4 deposed that about two years prior to the date of his examination in the month of November at 06:30 a.m. while she was present in the house, she heard some disputes going on. She came out. She noticed A-1 hacking PW.1 with a knife on his left hand. The hand of PW.1 was completely severed from the body 10 AVRB,J Crl.R.C. No.1105/2008 excepting the skin and she found it hanging from the part of the elbow. Again A-1 hacked PW.1 with knife on his leg. A-2 was there holding an axe.
18. PW.5 stated that she heard gallata from the house of PW.1. She proceeded to their house. She noticed A-1 hacking PW.1 with a knife and found A-2 standing by holding an axe.
19. PW.6 is a mediator to the observation of the scene of offence and he testified about the same and according to him Ex.P-2 is the scene observation report.
20. PW.7 is the photographer, who took photographs at the instance of Police at the scene of offence and Ex.P-3 is the cover and Exs.P-4 to P-7 are the photographs and Exs.P-8 to P-11 are the corresponding negatives.
21. PW.8 is the Medical Officer, whose evidence is that on 06.11.2003, PW.1 was admitted in their hospital at 11:30 a.m, brought by Udaybhaskara Rao. He examined him and found the following injuries:
1) A lacerated injury of size 10 x 5 cm is present on the left forearm above the wrist joint. Clinical fracture on left ulna.11
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2) An lacerated injury of 3 x 1 cm is present on the left leg on the anterior aspect.
He opined that the injury No.1 is grievous in nature. He issued Ex.P-12 wound certificate.
22. PW.9 is another mediator to the observation of scene of offence and he testified the same.
23. PW.10 is the Head Constable, whose evidence is that on 06.11.2003 at 07:30 p.m, he received hospital intimation from Peoples Trauma and Emergency Hospital, Guntur under Ex.P-13 and went there and recorded the statement of PW.1 under Ex.P-1. He forwarded it to Station House Officer, Kollur on point of jurisdiction.
24. PW.11 is the Investigating Officer, who spoken about the investigation.
25. It is to be noticed that the learned Magistrate, Guntur as well as the learned Additional Sessions Judge (FTC), Guntur at Tenali on appreciation of the evidence on record found the present petitioner guilty of the offence under Section 326 IPC. It is altogether a different aspect that when the learned Magistrate found both accused guilty of the offence under Section 326 12 AVRB,J Crl.R.C. No.1105/2008 R/w.34 IPC, the learned appellate Judge allowed the Appeal insofar as the second appellant and dismissed the Appeal insofar as the first appellant (A-1) is concerned holding that the offence under Section 326 IPC is proved. So, the simple aspect that has to be looked into by this Court is whether the evidence on record is sufficient to say that the petitioner herein (A-1) hacked PW.1- injured and caused grievous injury.
26. PWs.1 to 3 were subjected to probing cross-examination. They withstood the cross-examination. There is no dispute about the injuries received by PW.1 on the fateful day. The evidence of Medical Officer coupled with the wound certificate reveals the nature of the injuries received by PW.1. The prosecution did not cite and examine any Radiologist. But, the evidence of PWs.1 to 3 minutely explained the nature of the injury received by PW.1 and almost the wrist part of the hand of PW.1 was severed and it was hanging after A-1 hacked PW.1. PW.8, the Medical Officer was cross-examined by the accused and he deposed in cross- examination that he opined that PW.1 sustained injury and according to Ex.P-12, injury No.1 found on PW.1 is grievous in nature as he sustained fracture. He deposed that there is a possibility that if a person falls from certain height, there is a 13 AVRB,J Crl.R.C. No.1105/2008 possibility for fracture. He stated that he did not mention in Ex.P-12 whether PW.1 fell from certain height and received injury. PW.1 was conscious and coherent at the time of admission and he never fell unconscious. It is to be noticed that grievous injury is dependent upon the depth and width of the injury. According to PW.8, there was a fracture of ulna. Nothing is suggested to PW.8 that there was no fracture. On the other hand, accused got elicited an answer that fracture could be possible by fall. It is not suggested to PW.1 that he received injury by fall. It is to be noticed that there was a laceration on the hand of PW.1, according to Ex.P-12 wound certificate. PWs.1 to 3 minutely detailed out the nature of the injuries received. Hence, simply because the prosecution did not examine any Radiologist, it cannot be held that the injury received by PW.1 is simple in nature. This Court is not persuaded to accept the arguments of learned counsel for the petitioner in this regard.
27. Though PWs.2 and 3 are the wife and mother of the injured and though they are interested in nature, their evidence cannot be disbelieved simply because their evidence is interested in nature. The offence in question took place at the house of PW.1. So, the wife of PW.1 i.e., PW.2 was a natural witness. Similarly, on hearing 14 AVRB,J Crl.R.C. No.1105/2008 the cries of PW.1, PW.3 went there and witnessed the occurrence. So, her presence was also found natural. Apart from the evidence of PWs.1 to 3, even PW.4 supported the case of the prosecution. Though PW.5 was said to be a chance witness but during the course of cross-examination of PW.5 there remains nothing to disbelieve her testimony. In my considered view, the evidence of PWs.1 to 3 stood to the test of scrutiny. Accused had no say before PW.1 explaining the manner in which PW.1 received injuries, if at all A-1 was not responsible for the said injury.
28. As seen from Ex.P-1, the motive for the offence was set up as that of the previous disputes and further with an explanation that on the fateful day when PW.1 climbed the coconut tree to cut the coconuts, the wife of A-1 was taking bath in the bathroom and in fact he did not witness her but she might have suspected that he observed her. This is said to be another reason of the motive. Though PW.1 did not speak this issue in the chief-examination but it is elicited in cross-examination about the said aspect in Ex.P-1. Even the evidence of PW.2 means that A-1 suspected that PW.1 might have witnessed his wife when she was taking bath. It is to be noticed that when the bathroom of A-1 was open top, one cannot found fault for climbing coconut tree besides bathroom or 15 AVRB,J Crl.R.C. No.1105/2008 nearer to the bathroom to cut the coconuts. Apart from this, it is well settled that when the case is based upon the direct evidence, motive plays a little role. Even otherwise, PWs.1 to 3 spoken about the previous disputes and it is elicited from the mouth of PW.1 in his cross-examination about the contents in Ex.P-1 as if A-1 might have suspected that PW.1 witnessed when his wife was taking bath etc., So, the prosecution, in my considered view, adduced proper evidence to establish the motive which has no role at all in appreciating the evidence when the case is based upon the direct evidence.
29. Another line of contention of the petitioner is that though there were some workers working in attending pipeline work etc., according to the case of the prosecution, they were not cited by the Investigating Officer and it is fatal. Here, PW.1 was not cross- examined as to the presence of the so called workers. PW.2, during the cross-examination, explained that nobody were coming forward to speak about the incident. It is to be noticed that it is not at all elicited from the mouth of PW.11-Investigating Officer as to why he did not examine the so called workers. So, in the absence of establishing the names of workers that were said to be present, accused cannot take any advantage by contending that 16 AVRB,J Crl.R.C. No.1105/2008 their non-examination is fatal. The evidence of PWs.1 to 3 amply proved the overt act against A-1 and this Court has no reason to disbelieve the case of the prosecution in this regard.
30. Another line of contention of the petitioner that there was delay in lodging the report, PW.1 categorically deposed that when firstly they went to the concerned Police Station, seeing the nature of the injury received by him, Police asked them to go to the Hospital immediately and then he went to the Peoples Trauma Care Hospital, Guntur and after that Police came there and recorded his statement. There is evidence of PW.10 that having recorded the statement of PW.1 in the evening he forwarded the same to the concerned Police on point of jurisdiction. So, the delay in obtaining a statement from PW.1 and consequent registration of FIR is amply explained by the prosecution. The explanation of the prosecution in this regard is convincing.
31. The contention of the revision petitioner that the Courts below failed to appreciate the evidence of PWs.8 and 10 deserves no merit. Having regard to the overall facts and circumstances, this Court is of the considered view that the learned Magistrate, Tenali as well as the learned Additional Sessions Judge (FTC), Tenali rightly believed the evidence let in by the prosecution. The 17 AVRB,J Crl.R.C. No.1105/2008 evidence on record amply proves the offence under Section 326 IPC against the petitioner beyond reasonable doubt. Having regard to the overall facts and circumstances, by any stretch of imagination, it cannot be held that the judgment, dated 25.07.2008, in Criminal Appeal No.396 of 2006 on the file of the Court of XI Additional District and Sessions Judge (FTC), Guntur at Tenali suffers with any illegality, irregularity and impropriety. In fact, the learned Additional Sessions Judge (FTC), Tenali furnished proper reasons throughout in confirming the judgment insofar as dismissing the Appeal against as A-1 is concerned. The learned appellate Judge, in my considered view, rightly analyzed the evidence on record and rightly dismissed the Criminal Appeal insofar as the present revision petitioner is concerned. Under these circumstances, I see no reason to interfere with the well reasoned judgment of the appellate Court.
32. In the result, the Criminal Revision Case is dismissed.
33. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the judgment of this Court to the trial Court and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner (A-1) in C.C. No.5 of 2004, dated 21.09.2006 and to 18 AVRB,J Crl.R.C. No.1105/2008 report compliance to this Court. Registry is directed to dispatch a copy of this order along with the Lower Court record, if any, to the Court below on or before 28.01.2023. A copy of this order be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry.
Consequently, Miscellaneous Applications pending, if any, shall stand closed.
________________________________ JUSTICE A.V.RAVINDRA BABU Date: 24.01.2023 DSH