V.Appanna And 2 Others, ... vs State, Rep. By P.P., High Court Of ...
2022 Latest Caselaw 8694 AP

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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.

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

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

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

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,

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

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

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.

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

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.

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

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

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

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

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

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

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

THE HON'BLE SRI JUSTICE A.V. RAVINDRA BABU

CRL. APPEAL NO.568 OF 2009

Date: 14.11.2022

PGR