Andhra Pradesh High Court - Amravati
This Criminal Revision Case vs Unknown on 16 March, 2023
HON'BLE SRI JUSTICE A.V.RAVINDRA BABU
CRIMINAL REVISION CASE No.1679 OF 2008
ORDER:
This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, 'the Cr.P.C'), is filed by the petitioner, who was the appellant in Criminal Appeal No.11 of 2007, on the file of the Court of I Additional District and Sessions Judge, Srikakulam (for short, 'the learned Additional Sessions Judge'), challenging the judgment therein, dated 13.11.2008, where under the learned Additional Sessions Judge, dismissed the Criminal Appeal, on merits, confirming the conviction under Section 325 of the Indian Penal Code, 1860 (for short, 'the IPC') in C.C. No.522 of 2003 (Old C.C. No.47 of 1999) on the file of the Court of Judicial Magistrate of First Class, Sompeta (for short, 'the learned Magistrate') by reducing the sentence of imprisonment to that of one year from two years but allowed the Appeal insofar as the offence under Section 323 IPC is concerned.
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 case of the prosecution, in brief, in C.C. No.522 of 2003 (Old C.C. No.47 of 1999) pertaining to Crime No.133 of 1999 of Baruva Police Station is as follows:
The accused is resident of Palavalasa village. LW.1 - Kallepally Veeramma is the injured de-facto complainant. LW.2 - Dunna Jaganmohini and LW.3 - Kallepalli Subbarao are the witnesses to the occurrence. LW.4 - Dr. K. Jagan Mohan is the Medical Officer and LW.5 - P. Narayanarao, is the SI of Police, Baruva Police Station and Investigating Officer in this case.
On 06.12.1999 at 05:00 p.m. when LW.1 was about to cook food and she was preparing fish curry in the kitchen of her house, her daughter-in-law viz., Aruna came there and picked up quarrel with LW.1. There was altercation between the mother-in-law and the daughter-in-law. At that time, the accused, who is no other than the son of LW.1, came there and beat with his hand on the right jaw of LW.1, as a result the tooth from the lower right jaw of LW.1 fell down and caused injury. Accused also beat his sister viz., Dunna Jaganmohini, when she interfered.
On the basis of the report of LW.1, SI of Police registered the aforesaid crime for the offences under Sections 326 and 323 IPC and issued FIR. During investigation, the SI of Police recorded the statement of LW.1 and referred her to the Government Hospital, 3 AVRB,J Crl.R.C. No.1679/2008 Baruva with a requisition Memo No.64/99/MLC dated 06.12.1999 for treatment. The Medical Officer - LW.4 treated the injured and sent her to the Dental Assistant Surgeon (DAS) for further treatment. According to the report of DAS, the injuries are grievous in nature and might be due to hit by a hard object. He issued wound certificate to that effect. During investigation, SI of Police visited the scene of offence, observed the same and recorded statements of LWs.2 and 3 and arrested the accused and sent him to remand on 16.12.1999. Investigation discloses that there were disputes between LW.1 and accused for family properties. Hence, he bore grudge against her. Accused did not use any weapon in beating her mother and beat her with hands. Hence, Section 326 IPC was altered to Section 325 IPC. Hence the charge sheet.
4. On appearance of the accused before the Court below and after complying the necessary formalities under Section 207 Cr.P.C., charges under Sections 325 and 323 IPC were framed and explained to him in Telugu for which he pleaded not guilty and claimed to be tried.
5. In order to establish the guilt of the accused, the prosecution examined PWs.1 to 5 and got marked Exs.P-1 to P-5. After closure of the evidence of the prosecution, the accused was 4 AVRB,J Crl.R.C. No.1679/2008 examined under Section 313 Cr.P.C. with reference to the incriminating circumstances in the evidence of the prosecution witnesses for which he denied the same and reported no defence evidence. Ex.D-1 was marked on behalf of the accused during the course of cross-examination of PW.3.
6. The learned Magistrate after hearing both sides and after considering the evidence on record found him guilty of the charges under Sections 325 and 323 IPC and accordingly convicted him under Section 248(2) Cr.P.C. and, after questioning him about the quantum of sentence, sentenced him to suffer Rigorous Imprisonment for two years and to pay a fine of Rs.5,000/- in default to suffer Simple Imprisonment for six months for the offence under 325 IPC and further sentenced him to suffer Simple Imprisonment for one month and to pay a fine of Rs.200/- in default to suffer Simple Imprisonment for two weeks for the offence under Section 323 IPC. Out of the total fine amount of Rs.5,200/- an amount of Rs.3,000/- was awarded to PW.2 - Kallepalli Veeramma as compensation under Section 357(1) Cr.P.C.
7. Aggrieved thereby, the unsuccessful accused preferred the aforesaid Criminal Appeal before the learned Additional Sessions 5 AVRB,J Crl.R.C. No.1679/2008 Judge, Srikakulam. The learned Additional Sessions Judge, after hearing the appeal, dismissed the Criminal Appeal insofar as Section 325 IPC is concerned and modified the sentence of imprisonment as that of one year from that of two years and as it was brought to the notice of learned Additional Sessions Judge the victim was expired, he ordered that the fine amount shall be confiscated to the State. Insofar as the offence under Section 323 IPC is concerned, he allowed the Appeal finding the appellant not guilty of the offence under Section 323 IPC.
8. Aggrieved by the judgment of the learned Additional Sessions Judge in confirming the conviction under Section 325 IPC and imposing the modified sentence of RI of one year and to pay a fine of Rs.5,000/- in default to suffer SI for six months, the unsuccessful appellant therein filed the present Criminal Revision Case.
9. Now, in deciding this Criminal Revision Case, the point that arises for consideration is as to whether the judgment in Criminal Appeal No.11 of 2007, dated 13.11.2008, suffers with any illegality, irregularity and impropriety and whether there are any grounds to interfere with the impugned judgment? 6
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10. POINT: Sri P. Durga Prasad, learned counsel for the revision petitioner, would contend that both the Courts below failed to appreciate the evidence on record in proper perspective and erroneously recorded an order of conviction under Section 325 IPC overlooking the fact that due to previous disputes between the accused and his mother, he was falsely implicated in the case on hand. The evidence adduced by the prosecution before the Court below was inconsistent. The ingredients of Section 325 IPC were not proved by the prosecution. There were material omissions and contradictions in the case of the prosecution as such the Criminal Revision Case is liable to be allowed. In fact, on 02.11.2022, learned counsel for the revision petitioner after advancing arguments sought some more time to get appropriate instructions especially on the ground that the injured was no other than the mother of the accused and incident was happened long back and to see whether the offence can be compounded or not. Later, he did not pursue this matter. Now, as evident from the judgment of the appellate Court even during pendency of the Appeal, mother of the accused died. Probably for this reason, learned counsel was not able to place further information.
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11. Sri Y. Jagadeeswara Rao, learned counsel, representing learned Public Prosecutor, sought to support the judgment of the trial Court on the ground that the prosecution adduced cogent evidence before the Court below to prove the injury on the person of PW.2. PW.2 has spoken about the injuries received by her in the hands of the accused. PW.1, husband of the injured, father of the accused, supported the case of the prosecution. PW.3, daughter of PWs.1 and 2, supported the case of the prosecution. The evidence of PW.2 injured has corroboration from the medical evidence. Both the learned Magistrate and the Additional Sessions Judge rightly looked into the facts and circumstances in proper perspective and rightly held the petitioner guilty of the offence under Section 325 IPC and there are no grounds to interfere with the judgment of the learned Additional Sessions Judge.
12. PW.1, Kalepalli Subba Rao, is no other than the husband of Kallepalli Veeramma. According to him, accused is his son. After the marriage, accused went to his wife's village Bathpuram and resided there. About 7 years back, he returned to his house from where he was doing job. He stayed several days in his house. On one day, wife of the accused quarreled with his wife (PW.1). Then his son beat his wife with a stick on her cheeks and on her jaw. 8
AVRB,J Crl.R.C. No.1679/2008 She sustained injury on lower jaw. A tooth was also broken from the lower jaw. On that day when he returned to house, his wife i.e., LW.1 told him that his son beat her and tooth was broken. On the date of incident, LW.2 - Dunna Jaganmohini was also present and his daughter also informed him about the galata. Then he took his wife to Baruva Police Station and his wife presented a report. Police recorded his statement and shifted his wife to the Government Hospital, where she was treated.
13. PW.2 is no other than the injured and she deposed that 7 years back the incident happened. Aruna is the wife of the accused and her daughter-in-law. On the date of incident, she returned to her house after attending work. By then her daughter Jaganmohini was in the house. She asked Jaganmohini to wash the rice and she went out for getting the water. Then the accused came upon her and beat her on her face on right side with a stick on the ground that she disputed with his wife in respect of cooking food. Again he beat her with his hand on her right side face, which resulted into dislocation of one of her tooth on the lower jaw on her right side face. She received bleeding injury and blood came out from her mouth. When LW.2 tried to rescue her, accused thrown her out. After that her husband came and she informed 9 AVRB,J Crl.R.C. No.1679/2008 the incident to her husband. They went to the Police Station and lodged a report with Police. Ex.P-4 is the report. Police examined her during investigation. She was referred to Baruva Hospital.
14. PW.3 is Jaganmohini, daughter of PWs.1 and 2 and sister of accused, and she corroborated the evidence of PW.2. According to her, there was an altercation between PW.2 and her sister-in-law, wife of the accused. PW.2 was attending cooking work. Accused came to her mother and beat her with a stick on her face on the right side and again beat her with his hand on the same place, which resulted into loss of one tooth in the lower jaw of PW.2. The tooth of PW.2 was dislocated and she suffered bleeding injury. When she intervened, she was pushed out. After PW.1 returned to the house, they narrated the incident to him and after that they went to the Police Station and lodged report. PW.2 was taken to Baruva Hospital for treatment.
15. PW.4 is the Investigating Officer and he has spoken about receipt of the statement from PW.2 i.e., Ex.P-1 and registration of Ex.P-2 FIR. He recorded the statement of PW.2 and sent her to Hospital. He continued investigation on 07.12.1999. He visited the scene of offence where he secured PWs.1 to 3 and recorded their statements. He drafted Ex.P-3 rough sketch of the scene of 10 AVRB,J Crl.R.C. No.1679/2008 offence. He arrested the accused and sent him for remand. The medical officer referred the injured to dental examination. He received the wound certificate issued by Dr. K. Jagan Mohan. After receipt of wound certificate, he took steps to alter the section of law.
16. Turning to the evidence of PW.5 - K. Jagan Mohan, he deposed that on requisition from the Police on 06.12.1999, he examined Kallepalli Veeramma and found dislocation of right third molar tooth from lower jaw. He preserved the tooth and sent to Dental Assistant Surgeon for examination along with the patient for final and expert opinion. According to the report of Dental Assistant Surgeon, x-ray shows marked bone resorption present at third molar and distal root of second molar right lower. The injury is loss lower third molar which is grievous in nature. Ex.P-5 is the wound certificate.
17. There is no dispute about the relationship between the accused and PWs.1 and 2. PW.1 is the father of the accused. PW.2 is the mother of the accused. Further, PW.3 is the sister of the accused. Now, I proceed to analyze the evidence as to whether the evidence adduced by the prosecution before the Court below is convincing so as to sustain conviction under Section 325 IPC and 11 AVRB,J Crl.R.C. No.1679/2008 further proceed to analyze as to whether the judgment of the learned Additional Sessions Judge suffers with any illegality, irregularity and impropriety. Admittedly, even according to the evidence of PW.1, he was not a direct witness to the occurrence. Though he stated that the accused beat his wife with a stick on her cheeks and her jaw as such she sustained injury on lower jaw but his evidence is that after return to his house, his wife informed him about the incident. So, he is a hearsay witness. During cross- examination, he admitted that the accused filed a suit on the file of the Court of Senior Civil Judge, Sompeta for partition.
18. PW.2 is the injured witness. During cross-examination, she stated that the accused filed a suit against her and PW.1 for partition, which is pending on the file of the Court of Senior Civil Judge, Sompeta vide O.S. No.42 of 1997. She stated before the Police that the accused beat her for second time on her right side face with hand for second time (omission). She denied that in order to deny the rights to the accused to claim his share of property, she filed a false case and that no incident took place as spoken by her.
19. PW.3, sister of the accused, during cross-examination deposed that her in-laws house is in Seethanagaram. Whenever 12 AVRB,J Crl.R.C. No.1679/2008 there were disputes between her mother-in-law and her, she used to come down to her parents' house and return to her husband at Seethanagaram. On the same day after the incident she went to the Police Station and she was examined by Police. She denied that accused never beat her mother with a stick and that she is deposing false.
20. Admittedly, according to the evidence of PWs.1 and 2, there was civil litigation between the accused and PWs.1 and 2 as on the date of offence. Pendency of the civil litigation cannot be a ground to disbelieve the evidence of PWs.1 to 3. As seen from the evidence of PW.5, who is the Medical Officer, his evidence corroborates the evidence of PW.2, the injured. He found dislocation of right third molar tooth in lower jaw. According to him, according to the opinion of Dental Assistant Surgeon, x-ray shows that there was bone resorption present at lower third molar and distal root of second molar right lower etc., and medial and distal root of root sockets are seen in the tissues. According to him, injury No.3 is grievous in nature. Nothing is elicited from his mouth during cross-examination to disbelieve his testimony. He deposed in cross-examination that a small pressure is sufficient to dislocate the tooth of an old aged woman. It is to be noticed that as on the 13 AVRB,J Crl.R.C. No.1679/2008 date of offence, PW.2 was of 60 years. So, the accused had knowledge that PW.2 was a feeble woman on account of her age. Accused is no other than the son of PWs.1 and 2. Turning to the contention of the accused that because of enmity on account of civil disputes, he was falsely implicated in this case, this Court would like to make it clear that enmity is a double edged weapon. It may be a reason for false implication or even it can be a reason for commission of the offence. So, the accused has to make out probable circumstances for false implication. He had no probable theory how PW.2, the injured, received injuries. The motive for the offence was that the wife of the accused quarreled with PW.2 on the date of incident and when PW.2 started cooking, accused came upon her and beat her on her face on right side with a stick and further beat her with his hand on the right side face. Accused did not dispute receipt of injuries by PW.2 and did not suggest anything as regards the manner in which PW.2 received injuries. So, the accused has no probable say at all for his alleged false implication.
21. Though there was an allegation that the accused also used stick in the commission of offence but the Police during investigation concluded that the accused attacked PW.2 only with 14 AVRB,J Crl.R.C. No.1679/2008 hand as such laid the charge sheet only under Section 325 IPC. Though, there is every doubt with regard to use of the stick by the accused but in the light of the act of the accused in eliciting an answer from the mouth of Medical Officer, PW.5, the injury received by PW.2 could be possible even by using the hands of the accused, I do not find any inconsistency between the ocular evidence and the medical evidence. The evidence of PW.3, daughter of PWs.1 and 2 and sister of the accused corroborates the evidence of PW.2, the injured. PW.3, the own sister of the accused had no reason whatsoever to depose false against the accused. Having regard to the overall facts and circumstances, the discrepancy, if any, with regard to the accused attacking PW.2 with his hand or with stick is not going to affect the case of the prosecution in any way. Though the defence counsel elicited during cross-examination of PW.3 a contradiction i.e., Ex.D-1 but the outcome of the investigation is that accused caused injury to PW.2 with his hand only. So, as rightly opined by the learned Additional Sessions Judge, Ex.D-1 is of no use to the defence of the accused.
22. Having considered the overall facts and circumstances, I am of the considered view that the learned Additional Sessions Judge 15 AVRB,J Crl.R.C. No.1679/2008 rightly appreciated the evidence on record in proper perspective and confirmed the judgment of the Court below in convicting the accused under Section 325 IPC. The learned Additional Sessions Judge took into consideration the arguments advanced on behalf of the appellant during the course of hearing of the Appeal to the effect that the appellant is repugnant for the things happened and taken into consideration that the victim due to old age died, during pendency of the Appeal, intended to take a lenient view as such modified the Rigorous Imprisonment of two years with that of one year by maintaining the fine of Rs.5,000/- with default sentence. The findings arrived at by the learned Additional Sessions Judge cannot be said to be irregular, illegal or with impropriety. This Criminal Revision Case against the concurrent findings of the Court below as well as the learned Additional Sessions Judge deserves no merits as such I see no reason to interfere with the judgment of the learned Additional Sessions Judge.
23. In the result, the Criminal Revision Case is dismissed.
24. The Registry is directed to take steps immediately under Section 388 Cr.P.C. to certify the order of this Court along with the lower Court record, if any, to the Court below on or before 16 AVRB,J Crl.R.C. No.1679/2008 24.03.2023 and on such certification, the trial Court shall take necessary steps to carry out the sentence imposed against the petitioner herein in C.C. No.522 of 2003 (Odl C.C. No.47 of 1999), dated 11.01.2007, and report compliance to this Court. 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: 16.03.2023 DSH