Andhra HC (Pre-Telangana)
Sugali Sankaramma And Ors. vs Vanna Venkateswarlu And Ors. on 20 January, 2004
Equivalent citations: 2004(1)ALD(CRI)869, 2004CRILJ2584
JUDGMENT S.R.K. Prasad, J.
1. The State has preferred the appeal against the judgment rendered in Sessions Case No. 91 of 1994 by the Assistant Sessions Judge, Atmakur, dated 10-4-1997, acquitting all the accused. The de facto complainant, P.W. 1 Sugali Sankaramma, preferred revision against the judgment of the acquittal after obtaining leave. Both the cases are being disposed of together.
2. A brief resume of background of facts is as follows :
On 29-6-1993 at about 5.00 p.m., P.W. 1 Sugali Sankaramma went to fetch water from the public tap in front of Sri Eswara Temple and was waiting for her turn. She put her vessel under the tap to fetch water and in the mean time, A-1 kept his vessel by keeping the vessel of the P.W. 1 aside, for which she objected and removed the vessel. Then A-1 abusing her in filthy language dragged her saree and saying as to who would come to her rescue, picked up cartpeg from nearby cart and beat on her right hip and right thigh and while warding off the blows, she received injuries on her both wrists and in the mean time A-1 to A-7 formed into an unlawful assembly with the common object to assault and outrage the modesty of P.W. 1, A-2 to A-7 joined A-1 armed with 'Mullu Karras'. A-1, A-2 and A-4 questioning the audacity of the de facto-complainant, abused her and dragged her saree and A-2 be at on her right shoulder with stick, A-4 dragged her saree and in the process caused injuries on her left leg and she fell down. Then A-3 to A-7 beat one blow each with stick on her right fore arm, right thigh, left leg and on her neck and also beat her with hands and legs and in the mean time Sugali Nageswara Naik, Sugali Nagamma and some others witnessed the incident and they rescued her.
On the strength of a report given by her. Station House Officer, Pamulapadu Police Station registered Crime No. 11 of 1993 and charge sheeted the accused for the offence under Sections 147, 148, 324 and 354 read with 149, IPC.
3. The charges under Sections 147, 148 and 324, IPC against A-1 to A-7, under Section 354, IPC against A-1, A-2 and A-4 and under Section 354 read with Section 149, IPC against A-3, A-5 to A-7, were framed and explained to them in Telugu to which they pleaded not guilty for the offence.
4. The prosecution in all examined 7 witnesses. PW. 1 Sugali Sankaramma is the victim. P.W. 2 Sugali Nageswara Naik is the brother of P.W. 1. P.W. 3 Sugali Nagamma is the mother of P.W. 1. P.W. 4-A, Seshalah is the resident of Bhanumukkala village. P.Ws. 2 to 4 are the eye-witnesses to the incident. P.W. 5. C. Hussain Sab, was Assistant Sub-Inspector, who took up the investigation and prepared Ex. P3 Rough Sketch of the scene of offence, P.W. 6 Dr. T. Venugopal is the Medical Officer, who has examined P.W. 1 and issued Ex. P. 4-Wound Certificate, having found ten injuries. He opined that she received simple injuries. P.W. 7 S. A. Rasool, the then Sub Inspector of Police, Pamulapadu Police Station, spoke about the investigation and filing of the charge-sheet.
5. The learned Assistant Sessions Judge disbelieved the evidence of P.Ws. 1, 2, 3 and 4 and acquitted the accused for the respective charges. Aggrieved by the same, the State preferred the appeal, whereas the de facto-complainant preferred the revision.
6. The points that arise for consideration are :
1. whether the judgment of acquittal rendered by the Assistant Sessions Judge is perverse;
2. whether there is any proper appraisal of the evidence by the Assistant Sessions Judge; and
3. whether there is any miscarriage of Justice that occurred in this case.
7. It is mainly contended by the prosecutor that there is ocular evidence of P.W. 1, supported and corroborated by P.Ws. 2 and 3 and the Court cannot discard the evidence as total falsehood, since medical evidence shows existence of injuries on the body of P.W. 1. It is unlikely that the injuries will be self-inflicted and it only indicates happening of an occurrence or event. It is further contended that the approach made by the Assistant Sessions Judge is itself perverse and there is no proper appreciation of evidence, which lead to miscarriage of justice.
8. It is contended by the learned counsel appearing for the accused/respondents that there is no perversity in the Judgment of the lower Court and the Assistant Sessions Judge has appraised the evidence of all the witnesses and has closely scrutinized the evidence.
9. The learned counsel appearing for the accused has placed reliance on the judgments, Muthu Naicker v. State of Tamil Nadu, ; Hart Obula Reddi v. State of A. P., ; Sevi v. State of Tamil Nadu, ; and Budhwa v. State of M. P., .
10. It is also contended by the learned counsel for the accused that there is a tendency in group rivalries and enmities to rope in innocent persons and the accused are entitled to benefit of doubt in this case, since there is shifting of scene of offence from the bore and independent eye-witnesses are not examined.
11. Before proceeding to consider the respective contentions canvassed, it is necessary to note the guidelines provided by the Supreme Court for appreciation of the evidence placed before the Court, where existed group rivalries and enmities in between the complainants and the accused.
12. The earliest decision rendered by the Apex Court is Muthu Naicker v. State of Tamil Nadu. , and has followed the principles laid down in Masalti v. State of U. P., regarding the appreciation of evidence in cases where the occurrence happens in a village involved in rival factions. The relevant portion at paras 6 and 7 read as follows :
"6. Where there is a melee and a large number of assailants and number of witnesses claim to have witnessed the occurrence from different places and at different stages of the occurrence and where the evidence as in this case is undoubtedly partisan evidence, the distinct possibility of innocent being falsely included with guilty cannot be easily ruled out. In a faction ridden society where an occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is partisan is to shut one's eyes to the realities of the rural life in our country. Large number of accused would go unpunished if such an easy course is charted. Simultaneously, it is to be borne in mind that in a situation as it unfolds in the case before us, the easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and is to be eschewed and, therefore, the evidence has to be examined with utmost care and caution. It is in such a situation that this Court in Masalti v. State of U. P. , adopted the course of adopting a workable test for being assured about the role attributed to every accused. To some extent it is inevitable that we should adopt that course.
7. Before we proceed to look into the evidence it is also necessary to make it clear that whenever in uneventful rural society something unusual occurs, more so where the local community is faction ridden and a fight occurs amongst factions, a good number of people appear on the scene not with a view to participating in the occurrence but as curious spectators. In such an event mere presence in the unlawful assembly should not be treated as leading to the conclusion that the person concerned was present in the unlawful assembly as a member of the unlawful assembly. Vicarious liability would attach to every member of the unlawful assembly if that member of the unlawful assembly either participates in the commission of the offence by overt act or knows that the offence which is committed was likely to be committed by any member of the unlawful assembly in prosecution of the common object of the unlawful assembly and becomes or continues to remain a member of the unlawful assembly. If one becomes a member of the unlawful assembly and his association in the unlawful assembly is clearly established, his participation in commission of the offence by overt act is not required to be proved if it could be shown that he knew that such offence was likely to be committed in prosecution of the common object of the unlawful assembly. But while finding out whether a person was a curious spectator or a member of an unlawful assembly it is necessary to keep in mind the life in a village ordinarily uneventful except for small squabbles where the village community is faction ridden and when a serious crime is committed people rush just to quench their thirst to know what is happening. In this case we will have occasion to point out that there are accused who are convicted with the aid of Section 149, IPC but in respect of whom we have no doubt in our mind that they were mere spectators and could hardly be said to be members of the unlawful assembly."
13. The Apex Court once again has considered the aspect of interested and partisan witness who depose before the Court, and has laid down the guidelines for appreciation of the evidence in Hari Obula Reddi v. State of A. P., the relevant portion at para 12 reads as follows :
"12.... But it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probably, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon, Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probably. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the Court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his , interested testimony. We may again emphasize that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations."
14. It is also stated by the Apex Court in Sevi v. State of Tamil Nadu, at para 3 as under :
"3. One of the disturbing features of the case is the strange conduct of P.W. 15 the Sub-Inspector of Police. According to him, he was told by P.W. 10 on the telephone that there was some rioting at Kottaiyur and that some persons were stabbed. He made an entry in the general diary and proceeded to Kottaiyur taking with him the FIR book, the hospital Memo book etc. This was indeed very extraordinary conduct on the part of the Sub-Inspector of Police. If he was not satisfied with the information given by P.W. 10 that any cognizable offence had been committed he was quite right in making an entry in the general diary and proceeding to the village to verify the information without registering any FIR. But, we have yet not come across any case where an Officer Incharge of a Police Station has carried with him the FIR book. The First Information Report book is supposed to be at the Police Station House all the time. If the Sub-Inspector is not satisfied on the information received by him that a cognizable offence has been committed and wants to verify the information his duty is to make an entry in the general diary, proceed to the village and take a complaint at the village from some one who is in a position to give a report about the commission of a cognizable offence. Thereafter, the ordinary procedure is to send the report to the Police Station to be registered at the Police Station by the Officer Incharge of the Police Station. But, in deed, we have never come across a case where the Station House Officer has taken the First Information Report book with him to the scene of occurrence. According to the suggestion of defence the original First Information Report, which was registered was something altogether different from what has been put forward as the First Information Report and that the present report is one which has been substituted in the place of another, which was destroyed. To substantiate their suggestion the defence requested the Session Judge to direct the Sub-Inspector to produce the First Information. Report book in the Court so that the counterfoils might be examined. The Sub-Inspector was unable to produce the relevant FIR book in Court notwithstanding the directions of the Court. The FIR book, if produced, would have contained the necessary counterfoils corresponding to the FIR produced in Court. The Sub-Inspector when questioned stated that he searched for the counterfoil book but was unable to find it, an explanation which we find impossible to accept. We cannot imagine how any FIR book can disappear from a Police Station. Though he claimed that relevant entries had been made in the general diary at the station the Sub-Inspector did not also produce the general diary in Court. The production of the general diary would have certainly dispelled suspicion. In the circumstances, we think that there is great force in the submission of the learned Counsel for the accused that the original FIR has been suppressed and, in its place some other document has been substituted. If that is so, the entire prosecution case becomes suspect. All the eyewitnesses or partisan witnesses and notwithstanding the fact that four of them were injured we are unable to accept their evidence in the peculiar circumstances of the case. Where the entire evidence is of a partisan character impartial investigation can lend assurance to the Court to enable it to accept such partisan evidence. But where the investigation itself is found to be tainted the task of the Court to shift the evidence becomes very difficult indeed. Another feature of the case which makes us doubt the credibility of the witnesses is the photographic and somewhat dramatic account which they gave of the incident with minute details of the attack on each of the victims. According to the account of the witnesses it was as If each of the victims of the attack came upon the stage one after the other to be attacked by different accused in succession, each victim and his assailant being followed by the next victim and the next assailant. Surely the account of the witnesses is too dramatic and sounds obviously invented to allow each witness to give evidence of the entire attack. But the witnesses themselves admit in cross-examination that they were all attacked simultaneously. If so, it was impossible for each of them to have noticed the attack on every one else. One other important feature of the case which remains unexplained by the prosecution witnesses is the injuries found on A4. According to A4 the prosecution party came to his house and attacked him and the prosecution party were injured in that incident, suggesting thereby that he acted in exercise of his right of private defence. He, however, excludes the presence of the other accused. Whether his version is true or not, the fact remains that he did not sustain some injuries which have remained unexplained. Having regard to all these special features of this case, we do not think that the High Court was justified in setting aside the acquittal of the appellants and convicting them. The appeals are, therefore, allowed. The appellants, if not on bail, will be released forthwith. If they are on bail, their bail bonds will stand cancelled."
15. It is clearly laid down by the Apex Court in the aforesaid decisions that evidence of interested witness cannot be discarded and when a occurrence happens in a village involving in rival factions, it has to be scrutinized carefully and closely. It is also clearly stated by the Apex Court that where an occurrence takes place involving rival factions it is but inevitable that the evidence would be of a partisan nature. In such a situation to reject the entire evidence on the sole ground that it is interested is to shut one's eyes to the realities of the rural life in our country. It has to be borne in mind that in such situation easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and has to be eschewed and, therefore, the evidence has to be examined with utmost care and caution.
16. It is also stated by the Apex Court that the Court has to Judge the substratum of the story narrated by the witness is subject to be interested in a faction village, is consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case. It is also to Judge whether it will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the Court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source.
17. The Apex court has also approved the workable test laid down in Masalti v. State of U. P., 1965 (1) Cri LJ 226 (supra 2), about the role attributed in appreciating the evidence of partisan witness. The test laid down is to judge about the role attributed to every accused and whether the same has been proved before the Court. Hence, it is clear that the Court has to Judge the evidence of partisan witness hailing from a faction village with great care and caution. One of the workable tests is to Judge the role attributed to each of the accused and the extent of which has been proved by the prosecution by placing the evidence either directly or by circumstances supported by corroborative evidence.
18. In the light of the principles laid down by the Apex Court, I proceed to deal with this case : When a female witness comes to the Court supported by medical evidence, it is not easy for the Court to dub it as falsehood. The Court has to scrutinize the evidence with due care and caution. The object of the Court is only to arrive at the truth before accepting the testimony of the victim. It is not the law that corroboration is required in respect of ocular evidence. Any single witness, whose testimony is reliable, is sufficient to arrive at a finding of guilt. In spite of all these things, the lower Court has extended the benefit of doubt to the accused disbelieving the entire version of P. W. 1. The very approach made by the Assistant Sessions Judge is not correct and it is not within the guidelines provided by the Supreme Court in the aforesaid decisions. It is clear that the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (for short 'the Act') has come into force from 1989.
19. The victim is a Sugali woman and belongs to Scheduled Tribe category. It is not known why the accused were not prosecuted under the said Act. Instead of prosecuting them under the said Act, the prosecution has been laid under Section 354, IPC. It shows that there is no proper application of mind by the Assistant Sessions Judge in conducting the case and miscarriage of justice obviously occurred in this case. The Investigating Officer did not bestow proper attention to the provisions of the said Act and did not judge its applicability. The Court has blindly took the cognizance of offence under Section 354, IPC.
20. It is clearly stated by Supreme Court that the aggravative form of the offence under Section 354, IPC in respect of Scheduled Castes and Scheduled Tribes falls under the S.C. and ST. PA Act. It is also well settled law that when there is a possibility of reaching two conclusions, the appellate Court need not interfere with the finding of acquittal rendered by the Court below. It has to be seen whether two views can be culled out on the strength of the evidence placed before the Court. I state that the victim has come to the Court with a specific case that she was beaten by a cart peg or a stick with 'Mullu Karras'. It is supported by medical evidence. The victim has spoken as to the person who caused the blows. Can it be totally ignored? Is there a possibility of taking a different view in appreciating her evidence as she has spoken falsehood?
21. The learned counsel appearing for the revision petitioner contends that there is no need for the illiterate witness to speak falsehood with concocted evidence. Whereas the learned counsel appearing for the accused contends that the incident happened in a faction village and the so-called Baleswaraiah was not examined and in whose house, the victim was residing. It is also contended that (sic) giving a report the husband was not accompanied by the de facto-complainant in this case and it throw doubt about P.W.'s Version.
22. Adverting to the said contentions, it is in the evidence of P.W. 1 that her husband is a Sankara Naik and she was residing in the same house and her husband was a resident of Mustepalle. On the date of the incident, her husband went to another village. When the Court asked her husband's name, she gave out her father's name as Sugali Bodaka Naik. It is in the evidence of P.W. 7, there is a faction in between A-2 and Baleeswaraiah in that village and P.W. 4 is also figure as one of the accused along with Baleeswaraiah. Baleeswaraiah's son was also cited as a witness in this case.
While commenting upon the evidence, the Assistant Sessions Judge has observed as follows :
".........The motive part for the commission of offence and the nature of offence are not so serious as that of the story narrated by P.W. 1. The question of assault on a single lady, to whatever community she belongs, by seven persons particularly in a broad day light, that too in the presence of hundred people is a point which cannot be believed so easily unless there is trustworthy and corroborative evidence. P.Ws. 2 and 3, the brother and mother of P.W. 1 were present there at that time, why they could not separate or rescue P.W. 1 from the accused also creates doubt and suspicion whether the offence took place as narrated by P.Ws. 1 to 3."
23. This approach of the lower Court is also wrong. P.W. 1 never stated that at the time of placing the binde, her mother and her brother accompanied her and they were standing there. When such is the case, simply because the presence of P.W. 2 and others are doubtful, the total version cannot be discarded as utter falsehood. The Court has to judge the evidence and try to separate the chaff from the grain, and truth from the falsehood. Simply because a witness speaks, half truth in respect of an incident, it does not lead to falsehood of other witnesses, if truthful version can be separated from the falsehood, there is no reason why it cannot be accepted. When it is reliable. It is now well settled that discrepancies do occur in truthful witness and that too when illiterate and rustic witness hailing from the village depose before the Court, it has to be remembered that she was deposing before the Court after a long lapse of time and not immediately after the occurrence of the event. No doubt. It is not possible for an Illiterate rustic witness to dictate the incident to a Police Officer, who is said to have prepared the report on the strength of dictation given by her. But FIR is not be all and the end in all. The FIR is meant for moving the criminal machinery into action, but it is not a substantive evidence. Obviously, P.W. 2 is the brother of P.W. 1. The FIR is marked but the contradiction is not marked. The accused is always at liberty to bring it to the notice of the contradiction found in the FIR and rely on it though it is not marked as contradiction. When corroborative evidence is forthcoming regarding the injuries and eye-witness speaks about the actual persons, who have caused the overt acts, it cannot be rejected outright.
24. According to the evidence of P.W. 5, P.Ws. 1, 3 and 2 came to the Police Station and gave report to him and the same is recorded to the dictation of P.W. 1. That means a report was given and he recorded the same. The reasons given by the lower Court for disbelieving the version of P.W. 1, when it is corroborated by medical evidence appears to be perverse. There is a wrong approach made in appreciating ocular evidence. If the ocular evidence is Judged with the medical evidence, it is clear that she sustained injuries and the same were noticed by the Doctor, P.W. 6 when she was sent immediately after the incident by the Police.
25. I also find that the reasons given by the lower Court in falling to appreciate the ocular evidence are not based on sound principles. Even if P.Ws. 2 and 3 have not witnessed the incident, the Court has to see how a female could sustain so many injuries. That part of the evidence has not been properly appreciated by the lower Court. In that view of the matter, I am of the considered opinion that miscarriage of justice occurred due to failure in appreciating the ocular testimony and applying the test laid down by the Supreme Court in appreciation of the evidence of witness hailing from faction villages, referred to supra.
25A. It is next to be considered to what extent the evidence and versions of P.Ws. 1, 2 and 4 are reliable. The Court has to keep in view of the fact that there is a tendency in the faction villages to rope in innocent persons. It has to see whether there is any corroboration forthcoming in respect of the versions given out by P.W. 1. It has also to see whether the substratum of the story narrated by witness, is consistent with the other evidence on record, and it has to be judged with the human events, the surrounding circumstances and inherent probabilities of the case. It has also to see whether it is possible for a prudent person to believe the same. The Court has to separate the truth from the falsehood by separating embellishments and exaggerations found in the evidence and after separating the same whether that portion of the, evidence can be believable or not. The incident is said to have occurred in a village. The victim is a lady. The Court can always take judicial notice of the petty quarrels that take place for securing water from the tap. It is a natural thing. When the people from low caste want to take water in the first instance, the upper caste people would naturally create troubles. Though our Constitution speaks of equality of all men and women, it is still to be achieved throughout nook and corner of the country and in villages in particular. One has to remember that the caste system in the society has not been eliminated. Differences do exist in between haves and have note. It is at the stage of transformation into another society. But there is no law, which prohibits the usage of caste. It is not totally prohibited to claim a person belonging to a particular caste as per Hindu customs. They are not abolished totally under the Constitution. Normally woman folk go with binde to fetch water. The male who went there with binde claim priority and wants to show masculine superiority thinking that women are powerless. It is but natural for the man hailing from upper caste to exhibit his superiority and claim his right to collect water in the first instance against others. If things are viewed in this angle, it is but natural that the incident must have occurred. Any prudent person with a basic knowledge of the social atmosphere or scenario of the villages in this country and its atmosphere will certainly accept the same since the object in the Constitution to achieve equality of woman and man, and total abolition of caste and existence of casteless society has not yet been achieved. Viewed from this angle, the evidence of P.W. 1, who is a rustic female belonging to Scheduled Tribe, appears to be reliable and trust-worthy. It is the version of P.W. 1 that A-1 picked out cart peg and dealt blows and thereafter A-2 to A-7 came there. It is clear that A-2 to A-7 were not there at the time of the incident of beating by A-1. They were said to have come into the picture only later. The evidence of P.W. 1 shows that A-3, A-5 to A-7 beat with sticks and they also kicked with legs and beat with hands. No specific overt acts were attributed except beating with sticks, mullukarras and with legs and hands. It is the case of P.W. 1 in Ex. P-1 report that A-1 beat her on buttocks, on the upper portion of right leg and on the hands when she tried to ward off the blows. It is clear from the evidence of P.W. 1 that A-1 was responsible for beating on the legs, on the buttocks and on the hands. If the injuries are found, it must have been caused by A-1. A-2 is said to be the Sarpanch and A-7 is said to be an ex-dealer. It is hot the case of P.W. 1 that they were witnessing the incident they came subsequently. The possibility of roping themselves, namely, A-2 to A-7 cannot be ruled out in this case since no specific overt acts are attributed except stating that they beat with sticks and kicked her with legs and hands that part of the incident spoken to by P.W. 1 regarding A-2 to A-7 are concerned appears to be not believable, since A-1 has already beat her and took charge of the situation. Viewed from this angle that the version of P.W. 1 relating to beating by hands and legs by A-2 to A-7 cannot be believed.
26. Coming to the aspect of corroboration, corroboration is forthcoming through medical evidence and res gestae evidence. Soon after the incident, P.W. 1 said to have reported to P.W. 2. Though it is not possible to believe his witnessing the entire incident, it is also clear from the evidence of P.W. 3 that P.W. 1 went and narrated the incident to P.W. 2 as well to P.W. 3. P.W. 6, who examined P.W. 1, found the following injuries, as can be seen from Ex. P. 4, wound certificate.
1. Contusion over right shoulder vertical in position about 5 cm. x 3 cm. red in colour.
2. Contusion over right fore arm horizontal oval swelling about 4 cm x 2 cm in size red in colour.
3. Minor lenior abrasion over ventral aspect of the left wrist about 31/2 cm in length.
4. Contusion over back of the neck oval swelling about 3 cm x 1 cm in red in colour.
5. Contusion over medial and lower end of right thigh about 5 cm x 3 cm bluish red in colour oval swelling hard in consistency.
6. Contusion over left knee about 3 cm x 2 cm horizontal red in colour.
7. Contusion over back of the right thigh about 5 cm x 4 cm bluish red in colour rectangular in shape.
8. Contusion over left knee about 3 cm x 2 cm bluish red in colour horizontal in direction.
9. Contusion over right glutial region about 8 cm x 3 cm bluish red in colour hard in consistency.
10. Contusion over right wrist about 3 cm x 2 cm oblique bluish red in colour.
27. The contentions canvassed by the learned counsel appearing for the accused are that the alleged incident took place near, the boring where she attempted to take water and not at the taps and hence there is shifting of scene of offence. Obviously, it is in the evidence of P.W. 3 that there are borings in the village, but there is no water in the said bores. These contentions of the learned counsel have to be Judged with the evidence of investigating officer, who visited the scene of occurrence and prepared a sketch Ex. P.2. The investigating officer did not find any borings at the place of alleged incident. Hence. I disagree with the said contention canvassed by the counsel for the accused. Even according to P.W. 3, there were borings in the village, but water was not there. One has to remember that the incident took place in Rayalaseema area in Andhra Pradesh where there is shortage of drinking water and depletion of ground-water etc. It is also in the evidence of P.Ws. 1, 3 and the investigating officer that bore well existing near the house of P.W. 1 is dried up. If the entire evidence are taken into consideration, I am of considered view that there is no bore near the temple and the incident took place near the tap and there is no shifting of scene of offence. It is irrelevant for the purpose of this case as to the number of marriages underwent by P.W. 1 and about her illicit intimacy with Baleeswaraiah etc. It is clear from the judgment of the Court below that the decisions cited by the Additional Public Prosecutor are not properly quoted and only head notes are extracted. There is no application of mind in this case by the lower Court.
In S. G. Gundegowda v. State, 1996 Cri LJ 852 (Kant) it was held as under :
"'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derived some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye-witness in the circumstances of a case cannot be said to be 'interested'".
28. In Naurangi Lal v. State of U. P., 1996 Cri LJ 81 it was held with regard to Evidence Act, 1872 -- Section 3-interested witness that testimony of partisan or interested witness cannot be discarded on that ground. Testimony of such witness cannot be equated with that of tainted witness. It must be examined with more care and caution.
29. In Krishna Pillai v. State of Kerala, , it was held as under :
"The prosecution evidence no doubt suffers from inconsistencies here and discrepancies there but that is a short coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies etc. go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
In Sidhan v. State of Kerala, 1986 Cri LJ 470, it was held :
"Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. If on the other hand these witnesses have given evidence with mechanical accuracy that much have been a reason to contend that they were giving tutored versions. Minor discrepancies on facts which do not affect the main fabric need not be taken into account by the Courts if the evidence of the witnesses is found acceptable on broad probabilities.''
30. The principles that can be culled out from the aforesaid decisions are minor discrepancies and inconsistencies cannot give (sic) importance. The Court has to see whether inconsistencies can go to the root of the matter and affect the truthfulness of the witnesses while keeping in view that discrepancies are inevitable in case of evidence of rustic and illiterate villagers, who speak them after long lapse of time. It is also observed in Sidhan v. State of Kerala (1986 Crl LJ 470) (supra) that minor discrepancies need not be taken into account by the Courts if the evidence of the witnesses is found acceptable on broad probabilities. It is now well settled that the evidence has to be scrutinized closely with care and caution and they cannot be discarded outright. It can be seen that corroboration is forthcoming in the shape of res gestae evidence and in the shape of medical evidence. P.W. 6 has recorded in his report that P.W. 1 sustained injuries due to beating with sticks. In all probability sticks must have been used in this case. The evidence of P.W. 1 appears to be believable in so far as the overt acts attributed to A-1 are concerned regarding causing of injuries. The intention to outrage the modesty is lacking in this case for the fact that dragging of sari was mentioned twice at the time of first incident and also at the time of second incident. The comment made by the counsel for the accused is about the failure to accompany the husband of P.W. 1 to the police station at the time of giving report. The lower Court has come to the conclusion that the victim received injuries at the hands of her second husband. This is not based on sound reasoning. The victim herself stated as to the person who caused injuries. Res gestae evidence goes to show that immediately she narrated the incident to her mother, P.W. 3 as to who caused the injuries. There is no need for P.W. 3 to speak falsehood in this case. P.W. 2 also corroborated the res gestae evidence. In that view of the matter, there is no justification in giving a finding that she received injuries in the hands of her second husband. The non-recovery of binde and the non-examination of independent witness cannot lead to the conclusion ipso facto that P.W. 1 spoke falsehood. The question is how far the evidence of P.W. 1 is acceptable? In so far as the version of P.W. 1 is concerned, it is acceptable to the extent of A-1 beating P.W. 1 when she objected for removing the binde from the tap. I also find her evidence is corroborated. The individual overt act attributed to A-1 is clearly believable and established in this case. A strange contention has been raised in the grounds of appeal by the de facto complainant that the Court ought to have conducted de novo trial. Perhaps the ignorance of the provisions of the Code of Criminal Procedure leads to raise such contentions. There is no need to conduct de novo trial by the successor in office. That is the law under the old Code. It has already been amended. The successor in office is entitled to continue the evidence and conduct the sessions case as per Section 326 of Criminal Procedure, Code (New) 1973.
31. To sum up on a reappraisal of the entire evidence, I find that the evidence of P.W. 1 is believable to the extent of A-1 beating P.W. 1. I also find that there is no intention to outrage the modesty of P.W. 1 and there is intention of beating her with sticks and cause injuries. All the injuries are simple in nature. In view of causing injuries by A-1, the offence is made out only under Section 323, IPC. I also find that the explanation given by P.W. 1 regarding delay in lodging the complaint is acceptable one. The learned Assistant Sessions Judge is not justified in arriving at the finding of not guilty in this case in spite of ocular evidence and the injured speaking to the injuries and naming the persons who caused her the injuries, which lead to miscarriage of justice.
32. I also find that A-1 alone is guilty for the offence under Section 323, IPC and he is not guilty for the remaining offences. Insofar as A-2 to A-7 are concerned, they are not guilty and they are entitled to be acquitted as their participation is doubtful including the causing of injuries etc. Hence, the judgment of the Court below insofar as acquitting A-2 to A-7 is concerned, is confirmed and the acquittal given to A-1 is set aside. He is found guilty for the offence under Section 323, IPC. He has to be heard with regard to the quantum of sentence by examining him. A-1 is not available immediately before this Court. Hence, the matter is sent back to the Assistant Sessions Judge, Atmakur for examination of A-1 about the quantum of sentence and the learned Assistant Sessions Judge shall resubmit the record to this Court within fifteen days from the date of receipt of the Judgment and records, so that this Court can award suitable sentence to A-1 for the offence under Section 323, IPC.
33. The Registry is directed to send the record along with the copy of the judgment to the Assistant Sessions Judge, Atmakur with a direction that it shall return the record soon after completion of the examination of A-1 about the quantum of sentence under Section 235(2), Cr. P.C.
34. The matter shall be placed before this Court once again for awarding quantum of sentence soon after receipt of the records from the lower Court.
4-3-2004 Today the matter is listed for hearing about the quantum of sentence soon after receipt of the record from the Assistant Sessions Judge, Atmakur after examining the accused under Section 235(2), Cr. P.C. The accused pleads that he has got two children and aged old parents. He has to maintain them and he is living by agriculture and a lenient view may be taken. The learned Public Prosecutor contends that deterrent punishment may be given. Whereas the learned counsel for the accused pleads for mercy and let off with imposition of fine.
Adverting to the said contentions, there was no previous conviction against the accused. The offence alleged is under Section 323, IPC. Taking into consideration the above circumstances, I convict and sentence the accused to pay a fine of Rs. 1000/-, in default of payment of fine Simple Imprisonment for two months.
The criminal appeal and the revision are, accordingly, disposed of.