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THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU
CRIMINAL APPEAL NO.568 OF 2009 JUDGMENT:-
This is a Criminal Appeal filed on behalf of the Appellants/Accused Nos.4 to 6 in S.C.No.8 of 2008 (Old S.C.No.18 of 2007), on the file of the Special Judge for Trial of SCs & STs (POA) Act, 1989, Srikakulam, questioning the judgment, dated 29.04.2009, where under the learned Special Judge for Trial of SCs & STs (POA) Act, 1989, Srikakulam, found the present appellants guilty of the offence under Section 323 of the Indian Penal Code ("IPC" for short) and sentenced them to suffer simple imprisonment for a period of six months each and to pay fine of Rs.500/- each in default to suffer simple imprisonment for a period of 15 days.
2) The present appellants faced trial in the said case for the charges under Section 3(1)(x) of SCs & STs (POA) Act and Section 323 of IPC and the learned Special Judge acquitted the present appellants of the offences alleged under Section 3(1)(x) of SCs & STs (POA) Act, but convicted them under Section 323 of IPC and sentenced them as above.
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3) The case of the prosecution before the trial Court according to the charge sheet filed by the State, represented by the Sub-Divisional Police Officer, Palaknonda in Crime No.9 of 2007 under Section 324 r/w 34 of IPC and Sections 3(1)(x)(xi) of SCs & STs (POA) Act, 1989 is as follows:
(i) The defacto-complainants L.W.1-Deesari Satyamdora, L.W.2-Deesari Gademma and L.W.3-Jalumuru Guramma are residents of Madhavarayapuram Village of Santhakaviti Mandal. They belonged to ST-Konda Dora by caste. The accused Gulivindala Krishna and 9 others are residents of the same village and belonged to Kapu community.
(ii) The complainants L.W.1-Deesari Satyamdora, L.W.2- Deesari Gademma and L.W.3-Jalumuru Guramma, all are Scheduled Tribes. They reported that they along with others are engaged as coolies for forming of new gravel road in front of the house of Girada Swamy Naidu. While attending their coolie works, accused Gulivindala Krishna, Chowdari Yerramnaidu and Chowdari Suryanarayana came one after another and abused L.W.1-Deesari Satyam Dora in filthy language. A.4 caught hold of his mother i.e., L.W.2-Deesari Gademma's hand, A.5 caught hold of her tuft of hair and dragged her on the ground and A.6 3 abused her in filthy language. A.7, A.8, A.9 and A.10 caught hold of her tuft of hair, dragged on ground and abused in filthy language by touching her caste name. They pushed her down, as such, she received injuries. Konchada Simhachalam, one of the accused, placed his towel around the neck of L.W.3- Jalumuru Guramma and abused her by touching her caste name. Basing on the report, L.W.12 registered a crime and investigated into. The Superintendent of Police, Srikakulam has appointed Sub-Divisional Police Officer, as investigating officer. L.W.14-Sub-Divisional Police Officer took the investigation from L.W.12. He visited the scene of offence and recorded the statements of witnesses. He obtained caste certificates of L.Ws.1 to 3 from L.W.10. He examined the scene of offence in the presence of mediators. The Medical Officer-L.W.11 examined the injured and issued wound certificates. The injured were referred to hospital after registration of F.I.R. by L.W.11. The investigation reveals that Accused Nos.1 to 10 are responsible for abusing and insulting L.Ws.1 to 3 in the name of their caste. Hence, the charge sheet.
4) The learned Judicial Magistrate of First Class, Rajam, took cognizance and committed the case to the Court of 4 Sessions and thereafter it was numbered as S.C.No.8 of 2008. On appearance of the accused before the trial Court and after following the procedure under Section 228 of Code of Criminal Procedure ("Cr.P.C." for short), charges under Section 3(1)(x) of SCs & STs (POA) Act against accused Nos.1 to 10, charge under Section 3(1)(xi) of the said Act against Accused Nos.4, 5, 6, 9 and 10 and further charges under Section 323 r/w 34 of IPC against Accused Nos.1 to 3 and 7 and 8 and further charge under Section 3 (1)(xi) of the said Act against the Accused Nos.1 to 3, 7 and 8 were framed read over and explained to them in Telugu by the Special Judge for Trial of SCs & STs (POA) Act, for which they pleaded not guilty and claimed to be tried.
5) During the course of trial, on behalf of the prosecution before the trial Court, P.Ws.1 to 14 were examined and Exs.P.1 to P.16 were marked and M.O.1 was marked. After the closure of the evidence of the prosecution, accused were examined under Section 313 Cr.P.C., for which they denied the incriminating circumstances and stated that they have no defence witnesses. The learned Special Judge on hearing both sides and on considering the oral and documentary evidence, found Accused Nos.1 to 3 and 7 to 10 not guilty of the offence 5 under Section 323 r/w 34 of IPC and further found not guilty of Accused Nos.1 to 10 under Section 3(1)(x) of SCs & STs (POA) Act, 1989 and acquitted them under Section 235 (1) of Cr.P.C. The learned Special Judge found Accused Nos.4 to 6 guilty of the offence under Section 323 of IPC and after questioning them about the quantum of sentence, sentenced them to suffer simple imprisonment for a period of six months each and to pay a fine of Rs.500/- each in default to suffer simple imprisonment for 15 days. Aggrieved by the same, the unsuccessful Accused Nos.4 to 6 filed the present appeal.
6) It is to be noticed that the prosecution in S.C.No.8 of 2008 did not file any appeal as against the order of acquittal of the learned Special Judge. So, the scope of the appeal before this Court is very limited to that effect whether the prosecution before the trial Court is able to prove the offence under Section 323 of IPC against the present appellants beyond reasonable doubt. In other words, the prosecution should establish that Accused Nos.4 to 6 caused hurt to P.W.2, the mother of the defacto-complainant.
7) Turning to the evidence of P.W.1 one day about two years back at 10-00 A.M. after hearing cries at Ramamandiram, 6 he went there and found so many persons are gathered and pelting stones on each other and he received stone injury on his right leg, right hand and all over body. He cannot say the names of the persons, who pelted stones. Accused are not present there. Police came there and obtained his signature on a paper. Ex.P.1 contains his signature. P.W.1 did not support the case of the prosecution. Prosecution got declared him as hostile. During the course of cross examination, he denied the contents of Ex.P.1 and further denied that he stated before the police as in Ex.P.2.
8) Coming to the evidence of P.W.2, the injured witness, she deposed in support of the prosecution case. According to her, one day about two years back at 10-00 A.M. she was attending the coolie work, near Ramamandiram for forming the metal road. P.W.1 and L.W.3-Guramma are also there. Then, A.5, A.6 and A.4 came there and obstructed from attending the work and removed the basket from her head. A.4 to A.6 beat her with stones and she received injuries on her right shoulder, right and left legs. She also received injuries on all over her body and then she fell down. Police came to the scene of offence and took her to the hospital. P.W.1 and L.W.3 7 also received injuries. They were shifted to the hospital. Police obtained report from P.W.1 and L.W.3. Ex.P.1 contains her thumb impression.
9) Coming to the evidence of P.W.3, he did not support the case of the prosecution. Prosecution got declared her as hostile. Her evidence is also similar as that of the evidence of P.W.1. During the course of cross examination, she denied that she stated only before the police as in Ex.P.3. P.W.4 did not support the case of the prosecution. Prosecution got declared him as hostile. During the course of cross examination, he denied that he stated before the police as in Ex.P.4. P.W.5 did not support the case of the prosecution. Prosecution got declared him as hostile. During the course of cross examination, he denied that he stated before the police as in Ex.P.5. P.W.6 also did not support the case of the prosecution. Prosecution got declared him as hostile. During the course of cross examination, he denied that he stated before the police as in Ex.P.6.
10) The evidence of P.W.7 is relating to measuring of the disputed site with the help of Surveyor and it has nothing to 8 do with the actual incident alleged to be happened for causing injuries to P.W.2 and other witnesses.
11) Coming to the evidence of P.W.8, he was a mediator and he was present at the time of observation of the scene of offence by Head Constable on 24.01.2007. He spoken about the seizure of M.O.1 stones. Ex.P.7 is the mediators report.
12) Coming to the evidence of P.W.9, he testified that he worked as Tahsildar, Santhakaviti and at request of DSP, Palakonda, he issued caste certificates of P.Ws.1 to 3. He further deposed that he recommended the Revenue Divisional Officer to issue such certificates. Exs.P.8 to P.10 are the caste certificates signed by him and Revenue Divisional Officer and they are relating to P.Ws.1 to 3.
13) P.W.10, the Head Constable, deposed that P.Ws.1 to 3 lodged Ex.P.1 and he registered it as a case and submitted F.I.R. and Ex.P.11 is F.I.R. He visited the scene of offence, prepared observation report in the presence of mediators and also prepared rough sketch and took the photographs and sent the injured to the hospital.
14) P.W.11 is the person, who accompanied DSP during investigation and scribed the statements of witnesses. 9
15) P.W.12 is the Sub-Inspector of Police, who obtained the caste certificates of P.Ws.1 to 3 and further he spoken about arrested of A.1 to A.5, A.9 and A.10 and later forwarding them before DSP for interrogation, etc.
16) P.W.13 is the Medical Officer, who examined P.Ws.1 to 3 and issued wound certificates.
17) P.W.14 is then Sub-Divisional Police Officer, Palakonda, who spoken about the investigation according to the proceedings of the Superintendent of Police. He verified the investigation done by Head Constable and observation report and search proceedings. He visited the scene of offence and examined P.Ws.1 to 7. P.Ws.1, 3 to 7 stated before him as in Exs.P.2 to P.6. He obtained caste certificates of P.Ws.1 to 3 and also their wound certificates. He arrested A.1 to A.4, 9 and 10 and sent them for remand. Later, he arrested A.5 to A.8 and sent them for remand. Later, he filed charge sheet.
18) The learned counsel appearing for the appellants wound contend that the judgment of the learned Special Judge in convicting the appellants for the offence under Section 323 of IPC is without any basis. The evidence of P.W.2 and also wound certificate issued by P.W.13 are totally inconsistent. The injuries 10 claimed to be sustained by P.W.1 does not tally with the medical evidence. The trial Court erroneously relied upon the oral testimony of P.W.2. The evidence of P.W.2 runs contra with the contents of Ex.P.1 as regards the weapon used. Hence, the very conviction of the appellants before the trial Court is not maintainable. He would further contend that in the event of confirmation of the conviction of the trial Court and dismissal of this Criminal Appeal, the Court may took lenient view by converting the sentence of imprisonment as that of fine, as presently the appellants are in advanced.
19) The Advocate by name Sri Y. Jagadeeswara Rao, representing the learned Public Prosecutor, would contend that the learned Special Judge scanned the entire evidence on record and he taken proper care and caution to arrive at truth and ultimately after detailed scanning only, the present appellants were convicted under Section 323 of IPC and they were acquitted on other allegations and even the trial Court took a lenient view of the punishment, as such, appeal is liable to be dismissed.
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20) The charge against A.4 to A.6 i.e., the present appellants in so far as the offence alleged under Section 323 of IPC is concerned, runs that on 21.04.2007 at 10-00 A.M. they along with other accused voluntarily caused hurt to P.W.2 by caught holding of her hand and tuft of hair and dragged her on the ground.
21) For better appreciation, it is pertinent to look into the Ex.P.1, the report lodged by P.W.1 in so far as the overt acts attributed against the A.4 to A.6 are concerned as caused injuries to P.W.2 i.e., the mother of P.W.1. As seen from Ex.P.1, the substance of the allegations in so far as the present appellants is to the effect that Vavilapalli Appanna (A.4) caught hold of the hand of the mother (mother of defacto-complainant- Deesari Ugadamma) and Girada Adinarayana (A.5) caught hold of her tuft of hair and dragged to some extent with abuse and Chowdari Sanyasi (A.6) also beaten her. This is the substance of the allegations.
22) Now, as pointed out, the evidence of P.W.2 is as if A.4 to A.6 beat her with stones and she received injuries on her right shoulder, right and left legs and also received injuries on all over her body and she fell down. So, admittedly, when 12 contents in Ex.P.1 alleged that A.4 to A.6 caught hold of P.W.2 and dragged her on the ground, but P.W.2 deposed as if A.4 to A.6 beaten her with stones and she received injuries on her right shoulder. During the course of cross examination of P.W.2, she denied that A.4 to A.6 did not cause any injuries to her as stated by her in the evidence and they did not remove the basket from her head and she is deposing false. She further denied that she received injuries on her body due to hurling of stones in between the persons in the mob at Ramalayam.
23) As pointed out, except P.W.2, other witnesses turned hostile. In so far as the evidence of P.W.1 is concerned, there is Ex.P.1 to test the veracity of P.W.2 because Ex.P.1 was lodged by her son and further the wound certificate, the evidence of the medical officer and the investigating officer. As already pointed out, P.W.2 denied the fact that A.4 to A.6 did not cause injuries to her with stones, as stated in her chief examination. Now the accused got elicited during the course of cross examination P.W.14, the investigating officer and he deposed in cross examination that P.W.2 did not state before him that A.4 to A.6 beat her with stones and received injuries on 13 her right shoulder and left leg and removed the basket from her head.
24) Now coming to the medical evidence i.e., P.W.13 coupled with Ex.P.14, the wound certificate, P.W.2 received injuries 4 in number, they are:
(1) Contusion on the left shoulder about 1½"x3/4"x 1/2". (2) Abrasion on the left side of stomach about 1" x 3/4". (3) Abrasion on the left back 2" x 1".
(4) Contusion on the right calf muscles about 2"x 1"x 3/4"
and she complain of pain. If really she received injuries with stones or with any other weapon, the nature of the injuries would have been different. It is on this count, the contention of the appellants is that the evidence of P.W.1 has no support from medical evidence.
25) It is to be noticed that simply because other witnesses turned hostile to the case of the prosecution, the case of the prosecution cannot be thrown out when one of the injured supported the case of the prosecution. Apart from this, when there are improvements in the evidence of a particular witness, it is also, it is the duty of the Court to sift the grain from the chaff. If such an exercise is done, it is quietly evident that the 14 injuries received by P.W.2 were not on account of any stones, etc., but, in all probability, those injuries should have been by the fact that she was dragged to ground by A.4 to A.6. From the evidence of P.W.2 coupled with Ex.P.1 and evidence of P.W.14, it is quietly evident that the injuries sustained by P.W.2 can be attributed to A.4 to A.6. It is a case where other witnesses turned hostile to the case of the prosecution for the reasons best known to them, P.W.2, the mother of P.W.1, supported the case of the prosecution. She was aged about 63 years as on the date of evidence.
26) Having regard to the above, this Court is of the considered view that the evidence of P.W.2 insofar receipt of injuries in the incident is convincing and if the evidence of investigating officer, medical officer and Ex.P.1 is considered, those injuries must have been on account of the act alleged against A.4 to A.6 i.e., dragging her to the ground by catching hold of her tuft of hair. A perusal of the judgment of the trial Court reveals that the trial Court took pains in arriving at a just conclusion of the case. The trial Court took pains to sift the grain from the chaff and while exonerating of the accused and 15 other charges analyzed the evidence properly and recorded an order of conviction against the present appellants.
27) Having regard to the evidence on record and in the light of the above, the evidence on record is believable in so far as the offence alleged under Section 323 of IPC against the present appellants is concerned. Hence, I hold that the prosecution before the trial Court was able to prove the offence under Section 323 of IPC as against the present appellants is concerned and the learned Special Judge for Trial of SCs & STs (POA) Act, 1989, Srikakulam, rightly convicted the appellants.
28) Now turning to the contention of the learned counsel for the appellants that on account of the advancement of the age of the present appellants, the sentence of imprisonment can be converted into as sentence of fine, it is pertinent to look into Section 323 of IPC.
323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
30) A perusal of Section 323 of IPC reveals that the Court has discretion to impose sentence of imprisonment or fine 16 or both. There is no dispute that the accused pleaded mercy before the trial Court and the trial Court declined to give benefits under the Probation of Offenders Act. Now the contention of the appellants is that due to their advancement of age, it is not desirable to keep them in prison, as the offence that was proved by the prosecution is under Section 323 of IPC.
31) Admittedly, it is a case where according to the prosecution at the time of date of offence, first appellant (A4) was aged about 70 years, second appellant (A5) was aged about 42 years and third appellant (A6) was aged about 45 years. The incident in question was happened in the year, 2007. So, a period of 15 years is expired subsequent to the date of offence. So, at present the appellants (A.4 to A.6) are in the age group of around 85 years, 57 years and 60 years respectively.
32) Having regard to the facts and circumstances, I am of the considered view, that it is desirable, in the ends of justice, to convert the sentence imposed against the appellants by the trial Court as that of fine.
33) In the result, the appeal is allowed in part setting aside the sentence of imprisonment for a period of six months each imposed against the appellants by the Special Judge for 17 Trial of SCs & STs (POA) Act, 1989, Srikakulam in S.C.No.8 of 2008 (Old S.C.No.18 of 2007), dated 29.04.2009 and modifying the sentence imposed against the appellants/A.4 to A.6 as that of fine of Rs.1,000/- (Rupees one thousand only) each in default to suffer simple imprisonment for three (03) months each. The judgment of the trial Court in other aspects shall stands confirmed.
34) 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 appellants/A.4 to A.6 in S.C.No.8 of 2008 (Old S.C.No.18 of 2007), dated 29.04.2009 and to report compliance to this Court.
Consequently, miscellaneous applications pending, if any, shall stand closed.
________________________ JUSTICE A.V. RAVINDRA BABU Dt. 14.11.2022.
PGR 18 THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU CRL. APPEAL NO.568 OF 2009 Date: 14.11.2022 PGR