THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO
CRIMINAL REVISION CASE NO.2433 OF 2016
ORDER
This Criminal Revision Case is filed under Sections 397 and 401 of the Code of Criminal Procedure, challenging the judgment dt.22.09.2016 passed by the I Additional Sessions Judge, Warangal in Criminal Appeal No.36 of 2016, confirming the conviction of the revision petitioner for the offence under Section 324 of the Indian Penal Code, however, modifying the sentence of imprisonment from a period of (03) years to (06) months, passed by the I Additional Judicial Magistrate of First Class, Warangal vide judgment dt.25.04.2016 in C.C No.398 of 2013.
2. For convenience, the parties are hereinafter referred to as they are arrayed before both the Courts below.
3. The brief facts of the case are as follows:
3.1 It is the case of the prosecution that the de-facto complainant lodged a complaint on 15.06.2013 at 2:45 am, stating that in order to perform the marriage of his sister, he offered his land for sale. One P.Sandeep secured one Rafeeq to purchase the land. The said Rafeeq entered into an agreement 2 RRN,J CRL.R.C No.2433 OF 2016 of sale with the de-facto complainant and that the accused had been working as a Junior Assistant in the Urban Police Office, Warangal and came to know that the de-facto complainant sold his land and he also informed that he would sell his land for a higher price and took the phone number of the said Sandeep and called him, informing that he would sell the land of the de- facto complainant for a higher price, for which the said Sandeep did not agree to cancellation of agreement of sale. While so, on 14.06.2013,the accused called the said Sandeep to RTC Bus Station,Warangal and the said Sandeep, along with his friend Anil, came to the bus station. The accused threatened the said Sandeep, stating that he was working in the Police Department and called the de-facto complainant and also instructed him to visit the bus station. The de-facto complainant reached the bus stand and requested the accused not to quarrel with the purchaser and Sandeep and asked them to leave. The de-facto complainant,while taking the accused on a motorcycle, the accused asked the de-facto complainant to stop the motorcycle to purchase a pan, as such, the de-facto complainant stopped the motorcycle and the accused picked up a boulder and hit the de-facto complainant, due to which,he lost (02) of his teeth. That one R. Balakrishna and others came 3 RRN,J CRL.R.C No.2433 OF 2016 there and rescued the de-facto complainant, and the accused fled away.
3.1 Pursuant to the investigation, the Police filed a chargesheet against the accused for the offence punishable under section 326 of the Indian Penal Code and the trial was commenced.
4. To prove the case of the prosecution,PWs1 to 9 were got examined and exhibits P.1 to P.10 and M.O.1 and 2 were got marked.
5. On the side of the defence, DW-1 was examined.However, no exhibits were marked.
6. Upon appreciating the evidence on record, the Trial Court found the accused guilty for the offence punishable under section 324 of the IPC instead of section 326 of the IPC and sentenced the accused to undergo simple imprisonment for a period of 3 years and also to pay a fine of ₹10,000.
7. Aggrieved by such judgment, the accused preferred an appeal before the learned Sessions Judge vide Criminal Appeal No.36 of 2016, and the learned Sessions Judge was pleased to dismiss the appeal by confirming the conviction but modified the sentence from (03) years to(06) months. Challenging the 4 RRN,J CRL.R.C No.2433 OF 2016 judgements of both the Courts below, the accused is before this Court seeking acquittal.
8. Heard the learned counsel for the accused/petitioner and the learned Assistant Public Prosecutor appearing on behalf of the complainant/state. Perused the entire material on record.
9. It has been contended by the counsel for the accused/petitioner that both the Courts below erred in convicting the accused without appreciating the circumstances of the case in its totality. It is further contended that both the Courts below ignored the fact that PWs 2, 3, 4 and 5 turned hostile and did not support the prosecution case. It is further contended that the Courts below got carried away by believing the evidence of PW-1 as he would obviously allege in such a manner as to find the accused guilty. It was also contended that the prosecution failed to produce any medical evidence viz. the registration certificate of the hospital, which the de-facto complainant claimed to have gone for treatment, and that the police referred the de-facto complaint to MGM hospital, but no such proof is submitted. He lastly contended that in all probabilities and in view of the other grounds, the conviction and sentence on the accused/ petitioner cannot be sustained and the revision case deserves to be allowed.
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10. On the other hand, it has been contended by the learned Assistant Public Prosecutor appearing for the respondent/complainant that both the Courts below were justified in passing the impugned judgements, having carefully examined each and every aspect involved in the case. It was further contended that the evidence of PWs-1, 7 and 8, coupled with M.O1 and 2 which is the stone and the teeth of the de- facto complainant, was properly appreciated by both the Courts below and the plea of alibi taken by the accused was rightly rejected by the Courts below. Therefore, prayed to dismiss the revision case by confirming the judgements of the Courts below.
11. It is the case of the de-facto complainant that the accused/petitioner called him to come to RTC bus stand,Warangal to discuss an issue regarding to a property and that upon being compelled by the accused, the de-facto complainant went to the bus station. The quarrel took place between the accused and other persons and the de-facto complainant. After a while, when things cooled down, the de- facto complainant offered to drop the accused on his motorcycle. While they were travelling, the accused asked the de-facto complainant to stop the motorcycle and after getting down, he picked up a boulder and threw it on the face of the 6 RRN,J CRL.R.C No.2433 OF 2016 de-facto complainant, who tried to evade the same. Still, it hit his mouth, resulting in losing of (02) of his teeth. In his chief examination, the de-facto complainant stated that he immediately rushed to the police station and gave a complaint, and the police referred him to MGM Hospital. However, there is no whisper in the chief examination of the de-facto complainant that PW-2 and others came and rescued the de-facto complainant, as recorded by the Trial Court in its judgement.
12. On carefully observing the evidence of PW-2, it is first noticed that he turned hostile and PW-2 also did not depose that he is the eyewitness to the attack and that he went and rescued the de-facto complainant. PW-2 deposed that he observed some galatta and has also stated that it was dark and that he could not identify any person. There is no clarity as to what the purported evidence of PW-2 was, which the prosecution tried to rely upon. The Trial Court found that in view of the admission in the cross-examination of PW-2 that he noticed PW-1 on the date of the incident and that he admitted that he went to purchase vegetables near to the RTC bus stand at 2:00 AM, established the presence of PW-1 and the galata. This Court is of the opinion that at the end of the day,PW-2 turned hostile and in the very cross-examination itself, which 7 RRN,J CRL.R.C No.2433 OF 2016 the trial court took note of, PW-2 stated that what he had stated to the police was as stated to him by the de-facto complainant and that he did not identify any persons as it was dark. As such, whatever the evidence the prosecution relied upon from PW-2 is hearsay evidence, and there is no concrete proof of the same.
13. Coming to the evidence of PWs 3, 4 and 5, it is noticed that even these three witnesses turned hostile and did not support the prosecution case. PW-3 is said to be the eyewitness to the galata, which allegedly took place at the RTC bus stop between himself, LW 2 and the de-facto. It is pertinent to state here that LW-2 was also said to be an eye-witness but the prosecution gave him up. PWs 4 and 5 are the punch witnesses. PW-3 in his chief examination, denied that he knew the accused and also deposed that he did not state anything to the police.PW-4 and PW-5, in their chief examination, deposed that they were at their respective shops and the police went to their shops and obtained signatures on the crime details form. It can be safely said that the prosecution case took a toll when the very witnesses that the prosecution tried to rely upon, turned hostile, meaning that PW-4 and 5, who are said to be the punch witnesses, were not present at the time of the 8 RRN,J CRL.R.C No.2433 OF 2016 investigation and the evidence of PW-3 could hint that galata as alleged, did not take place. It is from here that discrepancies arise in evidence of the prosecution witnesses. But the Trial Court went on to appreciate the evidence of PW-1 coupled with the evidence of PW-2 by observing that galatta did take place at 2:00 AM at RTC bus stand, Warangal. It is very difficult to understand whether any galata took place, much less the alleged attack by the accused on the de-facto complainant, more particularly in the absence of any eyewitness to the alleged attack.
14. To satisfy itself regarding the injury, as alleged, sustained by the de-facto complainant, the trial Court appreciated the evidence of PW-6/ the doctor who treated the de-facto complainant and issued a wound certificate vide exhibit P6. It is observed from the evidence of PW-6 that he issued the wound certificate by stating that exhibit P6 bears the date 16.03.2013.However, he stated that he treated the de-facto complainant on 16.06.2013. He further stated that he could not say when he examined the injured. The cross examination of PW-6 shows that the hospital in which PW-6 is working is not registered and that he requires registration from the PMC Act. He denied the suggestion that he was incompetent to issue the 9 RRN,J CRL.R.C No.2433 OF 2016 wound certificate. He admitted that the cause of injury was absent in exhibit P6 and that the de-facto complainant was not referred to any police officer. The Trial Court observed that the registration of the hospital was not necessary and that PW-6 is an expert, meaning he had special knowledge, admittedly, being a dental surgeon, he was competent to examine the injured. This Court is not impressed with such a view taken by the Trial Court as when there is a mandatory rule that the dental hospitals are to be registered, the mere fact that PW-6 is a dental surgeon and having issued exhibit P6 wound certificate cannot itself be considered for the purpose of conviction of the accused.
15. Coming to the evidence of PW-7, the photographer who had taken photographs of the scene of the offence, he had deposed in his chief examination that on 15.06.2013, the police approached him, and he went to Warangal Bus Stand and took photographs of a stone and teeth at the bus stand. Exhibit P7 is the photograph of teeth and exhibit P8 is the photograph of the stone. He further stated that he handed over the photograph to the police along with CD. It was elicited in his cross-examination that the photographs do not reflect his name nor that the CD or photographs bear his name or the name of 10 RRN,J CRL.R.C No.2433 OF 2016 the studio. It was also elicited that the photographs and CD do not show any date and time as to when they were obtained. The Trial Court observed that the evidence of PW-7clinchingly proves that immediately after the incident, PW-7 went to the scene of the offence and took photographs under exhibit P7 and P8 and the Trial Court also stated that the time and date can be installed in the cameras as per a person's wish and will and they can be changed at their choice and merely because the exhibits P7 and P8 do not contain the date, time or name, the said photographs cannot be believable. This finding of the Trial Court does not bear any justification and there is no reasoning as to how the evidence would suggest that PW-7 immediately went to the scene of offence when such time and date is not reflected on exhibits P7 and P8. As a matter of fact, the photographer could have captured any random stone and the teeth of the de-facto complainant could also have been placed there for the purpose of creating exhibits P7 and P8, as argued by the learned Counsel for the accused/petitioner. Thus, it can be safely said that the evidence of PW-7 is not enough to bring home the guilt of the accused.
16. PW-8 is the Police Officer who registered the FIR and is the first investigating officer. In his chief examination, he 11 RRN,J CRL.R.C No.2433 OF 2016 deposed that he referred the injured to the hospital and recorded his statement and visited the scene of offence situated at RTC Bus Stand, Warangal. He also stated that he got the photographs of the scene of offence with the help of PW- 7 and drafted the crime details form in the presence of PWs 4 and
5.He also deposed that he seized the stone and broken teeth of the complainant from the scene of offence. In his cross examination, he stated that the de-facto complainant came to the police station with oozing of blood and was in a drunken state. The admission that PW-1 was in an inebriated state was not recorded by both Courts below in their judgments. He further stated that he collected no medical certificates from MGM Hospital. He also stated that he did not collect any documents pertaining to the alleged property dispute between the accused and the de-facto complainant. He denied the suggestion that the de-facto complainant himself fell down as he was in a drunken state and due to the same, he received an injury and lost his teeth. He denied the suggestion that the accused was not present during the incident.
17. It is observed from the judgement of the Trial Court that the Trial Court did not give any independent reasoning appreciating the evidence of PW-8 but had just coupled the 12 RRN,J CRL.R.C No.2433 OF 2016 evidence of PW-8 with other credible witnesses to arrive at the guilt of the accused. The very admission of PW-8 that the de- facto compliment was in a drunken state at the time of giving the complaint can hint that there is a possibility of the de-facto complainant could have sustained the injury by other means. This Court does not find any reason as to why the trial court did not comment on this aspect. When PWs 4 and 5 have turned hostile by stating that the police obtained their signatures on the crime details form while they were at their respective shops, the coupled evidence of PWs 2, 4 and 5 cannot be considered as reliable evidence in the favour of the prosecution. It may be true that PW-8 secured the presence of PW-7 and got the photographs of exhibits P7 and P8 but there is no reason to believe that such evidence is unimpeachable and very well pertains to the alleged incident.
18. Coming to the evidence on the side of the defence, DW-1 was examined, and he deposed that the accused/petitioner came to his shop at 10 PM to purchase some furniture and in order to take measurements, DW-1 and the accused went to the accused's house by 11pm. He further deposed that he and the accused watched a movie in the midnight in the house and they woke up at 5am and went to masjid to offer prayers. As seen 13 RRN,J CRL.R.C No.2433 OF 2016 from the evidence of DW-1, the accused has set up a plea of alibi that he was never present at the scene of offence at that time. The Courts below took note of the fact that it is not the case of the accused that it was highly impossible that the accused could not have been present at the scene of offence and he was very much in the proximity of the scene of offence and no documentary evidence was adduced to support the case of the defence. Hence, both the Courts below held that the plea of alibi taken by the accused is not tenable. Be that as it may, it is the burden of the prosecution to prove the guilt of the accused beyond all reasonable doubt, still it appears from the record and in the light of the above reasons of this Court that there are serious discrepancies in the evidence of the prosecution witnesses. More so, there are lapses in the investigation which the defence clearly elicited in the cross examination of PWs 8 and 9. PW-9 is the Police Officer who filed a chargesheet. His deposition discloses that many legal aspects involved with regard to the medical elements are not in order.
19. One aspect which needs attention is that the Trial Court in its judgment observed that the accused was very much present in the galata, owing to the very cross examination of PW-1 that put a suggestion to him that in the bus stand, 14 RRN,J CRL.R.C No.2433 OF 2016 Sandeep and the accused quarrelled with regard to the agreement entered by PW-1 with both of them. Learned Counsel appearing for the accused/petitioner relied upon a decision of the High Court of Gujarat reported in Avadh Bihari Amrutlal Vs. State of Gujarat 1wherein it was observed as follows:
"7. ....
(iii) .......In cross-examination, more than one suggestions were put to which the Doctor has denied. In case of KHIMJIBHAI KURJIBHAI vs. THE STATE OF GUJARAT, reported in 1982 Cri.L.R.
381, it has been held that "Suggestion in cross-examination are no evidence. This proposition of law is good both in the case of the prosecution and the defence. Mere hurling of some such suggestions which are denied, can hardly take the place of proof or evidence. The Law of Evidence is alike both for the prosecution and for the defence. If the accused wants to establish a certain fact, he has to lead evidence on that score. Such suspicion cannot have any place in the realm of appreciation of evidence. We reiterate that a suggestion denied by a witness remains only a suggestion and has no evidentiary value at all."1
2000 LawSuit(Guj) 615.
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In view of the above, this Court is of the opinion that a mere suggestion would not give room to presume that the accused/petitioner was in the galata at the RTC bus stand.
20. The accused/petitioner filed extensive written arguments and it is filed in support of seeking a clean acquittal. The arguments inter alia focus on the alleged motive of the crime. It is stated that the case is falsely hoisted against the accused as PW-9 bore a grudge on the accused as the accused. Mere suggestions in the cross examination of PW-9 and the allegations against him by way of the written arguments cannot be considered in the absence of any concrete evidence. If the accused is of the apprehension that PW-9 bore a grudge and the case is falsely hoisted, the accused was open to take steps against PW-9 and any persons as per law. Thus, this Court is not inclined to appreciate the stand taken by the accused/petitioner with regard to clean/honourable acquittal. However, this Court is of the opinion that the prosecution failed to prove its case beyond a reasonable doubt and the accused/petitioner is entitled to be acquitted.
21. In the result, the Criminal Revision Case is allowed. The judgment dt.22.09.2016 passed by the I Additional Sessions Judge, Warangal in Criminal Appeal No.36 of 2016 and the 16 RRN,J CRL.R.C No.2433 OF 2016 judgment dt.25.04.2016 passed by the I Additional Judicial Magistrate of First Class, Warangal in C.C No.398 of 2013 are hereby set-aside and the accused/petitioner is acquitted of the said offence. As the accused/petitioner is on bail, his bail bonds shall stand closed. M.O.1 and M.O.2 shall be destroyed after the appeal period. The fine amount, if any paid by the accused, shall be returned to him. No order as to costs.
As a sequel, pending miscellaneous applications, if any, shall stand closed.
_____________________________________ NAMAVARAPU RAJESHWAR RAO, J 20th September 2023 BDR