Andhra Pradesh High Court - Amravati
Kuruva Venkataramappa Another vs State Of A.P. on 17 February, 2021
Bench: Joymalya Bagchi
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
****
CRIMINAL APPEAL No.842 OF 2009
Between:
Kuruva Venkataramappa (A-1),
S/o.K.Mallappa, Aged 38 years
R/o.Peddireddypalli Village,
Chilamathur Mandal,
Anantapur District and another. --- Appellants.
And
State of A.P.,
Rep. by Public Prosecutor,
High Court of A.P., Amaravathi. --- Respondent.
DATE OF JUDGMENT PRONOUNCED : 17.02.2021
SUBMITTED FOR APPROVAL:
HON'BLE SRI JUSTICE JOYMALYA BAGCHI
1. Whether Reporters of Local Newspapers
may be allowed to see the judgment? Yes/No
2. Whether the copy of judgment may be
marked to Law Reporters/Journals? Yes/No
3. Whether His Lordship wish to
see the fair copy of the judgment? Yes/No
________________________
JOYMALYA BAGCHI, J
JB,J
2 Crl.A.No.842 of 2009
* HON'BLE SRI JUSTICE JOYMALYA BAGCHI
+ CRIMINAL APPEAL No.842 OF 2009
% 17.02.2021
# Between:
Kuruva Venkataramappa (A-1),
S/o.K.Mallappa, Aged 38 years
R/o.Peddireddypalli Village,
Chilamathur Mandal,
Anantapur District and another. --- Appellants.
And
State of A.P.,
Rep. by Public Prosecutor,
High Court of A.P., Amaravathi. --- Respondent.
! Counsel for the Appellants : Smt. D.Sangeetha Reddy/
Sri C.Sharan Reddy
^ Counsel for Respondent : Additional Public Prosecutor
< Gist:
> Head Note:
? Cases referred:
This Court made the following :
JB,J
3 Crl.A.No.842 of 2009
HON'BLE SRI JUSTICE JOYMALYA BAGCHI
CRIMINAL APPEAL No.842 OF 2009
(Proceedings taken up through video conferencing)
JUDGMENT:
1. The Appeal is directed against the judgment and order dated
27.07.2009 in Sessions Case No.633 of 2008 by the learned Special
Sessions Judge for trial of cases under Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities Act), Anantapur (for short, 'the learned
Special Sessions Judge') convicting the 1st appellant for commission of
offence punishable under Section 326 of IPC and 2nd appellant under
Section 326 R/w.109 of IPC, sentencing the 1st appellant to suffer
Rigorous Imprisonment for three (3) years and to pay a fine of Rs.5,000/-,
in default to suffer Simple Imprisonment for six (6) months and 2nd
appellant to suffer Rigorous Imprisonment for three (3) years and to pay a
fine of Rs.2,000/-, in default to suffer Simple Imprisonment for six (6)
months with a further direction that a sum of Rs.3,000/-, on realization of
the fine amount of Rs.7,000/-, be paid to PW.1 as compensation under
Section 357 of Cr.P.C.
2. The prosecution case, as alleged against the appellants, is to the
effect that on 22.01.2008 at 12:30 PM, 1st appellant went to S.C. Colony at
Sanaganapalli village; seeing him, PW.2 - H.Yettemma (mother of the
injured - informant, PW.1 - H.A.Venkatesh), complained that residents of
S.C. Colony were not getting drinking water and requested him to provide
a tap. Hearing this, 1st appellant become angry and abused Yettamma by
calling her 'Madiga Lanja', and also intimidated her. She informed the said
incident to her son i.e., PW.1. On the next day around 07:30 PM, PW.1
found the appellants near the beedi bunk (kiosk) of the village. When
PW.1 enquired from the 1st appellant why he had abused his mother, 2nd
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appellant intervened and instigated the 1st appellant to hit him. Thereupon,
the 1st appellant abused him by uttering 'EE MADIGA NAA KODUKUTHO
EMAVUTHUNDI', and picked up a big stone and hit PW.1 on the right
thigh and right hand. This resulted in fracture of the thigh bone. PW.1 was
treated in Government Hospital at Hindupur by PW.11. PW.1 lodged
written complaint resulting in registration of the instant case.
3. In conclusion of the investigation, charge sheet was filed against
the appellants under Section 326 R/w.109 of IPC and also under Section
3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 (for short, 'the act of 1989'). Charges were framed
against the appellants under Section 3(1)(x) of the Act of 1989 and also
under Section 326 of IPC against 1st appellant and under Section 326
R/w.109 of IPC against the 2nd appellant, to which the appellants pleaded
not guilty and claimed to be tried.
4. In the course of trial, prosecution examined 14 witnesses and
exhibited number of documents including the wound certificate, Ex.P-10,
and x-ray films of the injured i.e., Exs.P-11 and 12. Defence of the
appellants was one of innocence and false implication.
5. In conclusion of trial, the learned Special Sessions Judge, while
acquitting the appellants of the charge under Section 3(1)(x) of the Act of
1989, convicted and sentenced the appellants as stated hereinabove.
6. Sri C.Sharan Reddy, learned counsel appearing for the appellants,
argues the genesis of the prosecution case has not been proved beyond
doubt. There is wide variance in the versions narrated by PWs.1 and 2 in
Court when compared with First Information Report or in their earlier
statements. It is further contended that the ocular version of the injured
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witness, PW.1, is not corroborated by medical evidence. He accordingly
prayed for acquittal of the appellants.
7. On the other hand, learned Additional Public Prosecutor argues the
evidence of the injured witness - PW.1 is corroborated not only by her
mother, PW.2, but also with other independent witnesses i.e., PWs.3, 4
and 5. There is no dichotomy between the ocular versions of the
witnesses when compared with the medical evidence. Hence, the Appeal
may be dismissed.
8. I have analysed the evidence on record. PW.1 is the injured and
most vital witness. He deposed on 22.01.2008 at 12 noon, there was an
altercation between the 1st appellant and his mother Yettemma, PW.2,
over scarcity of drinking water in the S.C. Colony; 1st appellant abused his
mother by saying 'Madiga Lanja'. His mother reported the incident to him.
On the next date at 07:30 PM, he met the appellants at the beedi bunk.
When he enquired of the previous day's incident, 2nd appellant abused him
and instigated the 1st appellant to throw a boulder at him. Thereupon, 1st
appellant took up a big boulder and threw it at his right thigh causing
fracture injury. He also threw a stone on the right hand and forehead
causing bleeding injuries. He was shifted to Government Hospital,
Hindupur and thereafter to the Government Hospital at Anantapur. X-ray
was done in the hospital at Anantapur. One Nagaraju scribed the written
complaint, which was lodged before the Police. He proved his thumb
impression, Ex.P-1. He was extensively cross-examined on behalf of the
defence. He stated 1st appellant kicked him and his mother, PW.2. He fell
down in front of the bunk. Thereafter, 1st appellant lifted a stone and threw
it at his right thigh.
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9. PW.2, Yettemma, mother of PW.1, has corroborated the evidence
of his son. In cross-examination, she, however, claimed that the
altercation between herself and the 1st appellant occurred on the day the
appellants had hit the victim. She claimed that the appellants have thrown
the victim on the ground and hit him on the head and hand with a stone.
10. PWs.3, 4 and 5 have also corroborated the version of PW.1.
11. The other impartial witness in the instant case is the doctor, PW.11,
who treated PW.1 at the Government Hospital, Hindupur. He deposed he
examined PW.1 on 23.01.2008 at 11:00 PM and found the following
injuries:
"1. Laceration of size 1 x 1 c.m. over right thigh red in
colour - no bleeding present - deformity present.
2. Pain and swelling over right wrist.
X-ray of right thigh and right fore-arm reveals fracture of distal end
of right femur and fracture of distal end of right radius."
PW.11 opined that the injuries occurred 2 to 6 hours prior to his
examination. They are grievous in nature. He proved the wound
certificate, Ex.P-10. He opined that the injuries could be caused by a
boulder. In cross-examination, he deposed that there was no external
injury over the wrist. He also stated that if boulder is used for hitting on the
wrist, there would be an external injury. He also admitted that the
deformity may be possible due to indirect violence of assault. There was
no external injury on the distal end of the right femur. He proved the x-ray
films i.e., Exs.P-11 and P-12 as well as the prescription signed by him,
Ex.P-13. He admitted there were corrections in the prescription.
12. PWs.12, 13 and 14 are the investigating officers of the case.
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13. Relying on the cross-examination of PWs.1 and 2 and the absence
of external injury noted by the medical witness, PW.11, Mr.C.Sharan
Reddy, learned counsel for the appellants, strenuously argues that the
prosecution case of fracture being caused by throwing of boulder (MO.1)
is improbable. On the other hand, he submits PW.1 in the course of the
scuffle had fallen down and suffered the fracture injury. It is also argued
that there was no quarrel between the parties on the previous night and
the manner and course of the prosecution case has not been proved
beyond doubt. It is true there is some divergence with regard to the
averments in the First Information Report and the depositions of the
witnesses with regard to the altercation between the 1st appellant and
PW.2, Yettemma, over shortage of water supply in the S.C. Colony. While
in the First Information Report it is alleged that the incident occurred on
23.01.2008, in Court PWs.1 and 2 claimed that the incident had occurred
on the previous day. However, such variation in their depositions does not
render the crux of the prosecution case improbable. Evidence of the
aforesaid witnesses un-equivocally shows there was an altercation
between the 1st appellant and PW.2 over shortage of water. PW.1 had
questioned the 1st appellant over such issue. Thereupon, on the instigation
of 2nd appellant, 1st appellant hit PW.1 with a stone on his right thigh and
wrist. As a result, he suffered fracture injury on the right thigh. Hence, I
am of the opinion slight variation with regard to the time of the previous
altercation does not affect the intrinsic value of the depositions of PWs.1
and 2 with regard to the assault by 1st appellant resulting in fracture injury.
The other challenge to the prosecution case is with regard to the
dichotomy between the ocular version vis-a-vis medical evidence. PW.11,
doctor, has proved the wound certificate as well as the x-ray films. It
appears that PW.1 suffered injury on the right hand and a fracture in the
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right thigh. Medical Officer opined that such injury may be caused by the
boulder (MO.1). As no external injuries were noted, it is contended that the
victim may have suffered injuries due to a fall. In this regard reference is
made to the cross-examinations of PWs.1 and 2 that the victim had fallen
down in the course of the scuffle.
14. I have given my anxious consideration to such submission. No
doubt the witnesses claimed that the victim had fallen down in the course
of the skirmish. However, the witnesses also emphatically stated that 1st
appellant had hit the victim (PW.1) with a boulder on the right thigh and
wrist. PW.11, doctor, also accepted that the injuries may be caused by the
boulder. Theoretical possibility that similar injury may also be caused by
fall, in the given circumstances, cannot come to the aid of the defence. It
is settled law that ocular version of an injured witness is to be given due
weightage and can be rejected only if the medical opinion wholly rules out
his version. No such situation has emerged from the facts of the present
case. On the other hand, medical opinion corroborates the version of the
injured witness. In these circumstances, I am of the opinion that the
conviction against the 1st appellant is proved beyond doubt.
15. Coming to the role of 2nd appellant, I find that the evidence with
regard to instigation is an afterthought and not reflected in the First
Information Report lodged by PW.1. There is enmity between the parties
and therefore possibility of false implication of 2nd appellant on such score
cannot be ruled out. Accordingly, I am inclined to extend the benefit of the
doubt to 2nd appellant and acquit him of the charge levelled against him.
Under such circumstances, conviction of 1st appellant under Section 326
IPC is upheld. Conviction of 2nd appellant under Section 326 R/w.109 of
IPC is set-aside.
JB,J
16. Coming to the issue of sentence, I note that the incident occurred in
the course of a quarrel. 1st appellant had been acquitted of the charge
under Section 3(1)(x) of the Act of 1989. He does not have criminal
antecedents. Thus, balancing the aggravating and extenuating
circumstances, I am inclined to modify the sentence imposed on the 1st
appellant. Accordingly, he is sentenced to suffer Rigorous Imprisonment
for a period of two (2) years and to pay a fine of Rs.5,000/-, in default to
suffer Simple Imprisonment for six (6) months more.
17. The period of detention suffered by the 1st appellant during
investigation, enquiry and trial shall be set off against the substantive
sentence imposed upon him in terms of Section 428 of Cr.P.C.
18. In the result, the Criminal Appeal is allowed to the aforesaid extent.
Bail bond of A-1 is cancelled and he is directed to surrender forthwith and
serve out the remainder of the sentence, in accordance with law; failing
which the trial Court shall resort to appropriate processes for execution of
the sentence. Bail bond of 2nd appellant shall be cancelled after a period of
six (6) months in terms of Section 437A of Cr.P.C.
19. As a sequel, miscellaneous applications pending, if any, in this
Appeal shall stand closed.
________________________
JOYMALYA BAGCHI, J
Date: 17-02-2021.
Dsh
