Balli Pothu Raju, vs The State Of A.P., Rep By Pp.,
2023 Latest Caselaw 936 AP

      THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

         CRIMINAL REVISION CASE No.749 of 2009

ORDER:

Questioning the correctness of his conviction, the sole

accused preferred this criminal revision case under Sections

397 and 401 Cr.P.C. seeking to set aside the judgments of the

Courts below. The sole respondent herein is the State.

2. The revision petitioner was prosecuted on the report filed

by the police for a charge under Section 324 I.P.C. on the

allegation that using an iron rod he inflicted injuries on the

body of his wife/PW.2 and his brother-in-law/PW.1. The said

case was tried as C.C.No.361 of 2006 by the learned VI

Additional Munsif Magistrate, Guntur and the accused was

found guilty for the offence under Section 324 I.P.C. and by a

judgment dated 09.09.2008 he was convicted and sentenced to

undergo simple imprisonment for a period of one year on two

counts for inflicting injuries on two individuals. Both the

sentences were ordered to run concurrently.

3. Aggrieved by it, the accused preferred Criminal Appeal

No.300 of 2008. Learned Special Sessions Judge-cum-IV

Additional Sessions Judge, Guntur duly heard the appeal and

by a judgment dated 27.04.2009 it agreed with the finding of

Dr. VRKS, J Crl.R.C.No.749 of 2009

guilt recorded by the trial Court but on facts it reduced the

sentence from one year to four months. With that modification,

the said appeal was disposed of.

4. Aggrieved of it, the accused preferred this revision stating

that the Courts below committed error in appreciating the

evidence and law and reached to incorrect conclusions. In the

grounds of revision, it is stated that the investigating agency did

not seize the weapon of offence and did not exhibit the same

and there was no independent witness to support the case of

prosecution and the evidence available on record was that of the

interested witnesses and even that evidence is inconsistent and

there was omission of examination of a crucial witness by

prosecution and therefore, the guilt of the accused was not

established beyond reasonable doubt, but the Courts below

wrongly held otherwise. It is further contended that the

sentence of imprisonment is excessive. It is for these reasons,

the revision petitioner seeks to upset the judgments of the

Courts below and acquit him of the charge.

5. When this matter was coming up for hearing on

28.10.2022, 01.12.2022, 27.12.2022 and 25.01.2023 learned

counsel appearing for the revision petitioner sought for time to

Dr. VRKS, J Crl.R.C.No.749 of 2009

argue the revision and on all those occasions time was granted

and the matter stood posted finally on 07.02.2023. On that day

none appeared for revision petitioner to argue the case. Thus,

despite availing all the opportunities to submit arguments, the

revision petitioner failed to have any argument submitted on his

behalf. On 07.02.2023 learned Special Assistant Public

Prosecutor appearing for respondent-State submitted his

arguments wherein he supported the judgments of the Courts

below and stated that there are no merits in this revision as the

evidence was properly appreciated by the Courts below and they

reached to appropriate conclusions and the sentence inflicted

was on lower side and sought for dismissal of the revision.

6. Revisional jurisdiction is to preserve the power of the

Court to do justice in accordance with the principles of criminal

jurisprudence. If there are findings or decisions of the Courts

below which are perverse or untenable in law or grossly

erroneous or glaringly unreasonable or where the decision was

based on no material or where the material facts are wholly

ignored or where the judicial discretion is exercised arbitrarily

or capriciously, this Court sitting in revision can interfere with

Dr. VRKS, J Crl.R.C.No.749 of 2009

the judgments of the Courts below vide Sanjaysinh Ramarao

Chavan v. Dattatray Gulabrao Phalke 1.

7. Considering the scope of a criminal revision and

considering the contentions raised by the revision petitioner, the

point that falls for consideration is:

Whether the judgments of the Courts below failed to

notice the fundamental principles of criminal law and perversely

recorded their findings requiring interference?

8. Point: The material on record discloses the following

facts:

The alleged crime incident occurred on 29.08.2006 at

8:00 P.M. Written information was lodged and F.I.R. was

registered by 10:00 P.M. on 29.08.2006 itself. There are two

injured in this case. They were subjected to medical

examination by a Civil Assistant Surgeon, District Hospital,

Tenali in the very same night at 12:15 A.M. on 30.08.2006

(intervening night between 29.08.2006 and 30.08.2006). Soon

thereafter witnesses were examined by the investigating officer

and a rough sketch of the scene of offence was prepared. On

2015 (3) SCC Online SC 123

Dr. VRKS, J Crl.R.C.No.749 of 2009

23.09.2006 the accused was arrested. Thereafter, as

investigation concluded, the Station House Officer, Chebrole

Police Station filed the police report/charge sheet in Crime

No.140 of 2006 before learned VI Additional Munsif Magistrate,

Guntur.

The learned Magistrate took cognizance for the offence

under Section 324 I.P.C. Procured the presence of the accused

by summons and furnished him with copies of documents in

terms of Section 207 Cr.P.C. After hearing both sides and on

scrutiny of the material, it found prima facie material and

charged the accused under Section 324 I.P.C. for causing hurt

to two individuals with dangerous weapon/iron rod and the

charge was read out to accused. The accused denied the factual

allegations and did not plead any specific line of defence and he

pleaded not guilty.

To sustain its case, prosecution examined six witnesses

and got marked Exs.P.1 to P.6. When confronted with the

incriminating material available on record, during the phase of

Section 313 Cr.P.C., the response of the accused was that the

evidence was false and he did not choose to offer any particular

explanation to any of the pieces of the evidence. Defence did

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not choose to adduce any oral, documentary or material

evidence. That evidence was examined by the trial Court and

the learned trial Court considered the arguments led by both

sides and recorded its findings to the following effect:

It stated that it was a love marriage between the accused

and his wife/PW.2 and they were blessed with two children and

for six years prior to registration of crime certain differences

arose between spouses and they fell apart and they were living

separately and both the children were initially with the wife.

Two months prior to the registration of crime one of her sons

was lured by the accused and therefore, he left the company of

his mother. It was in the above factual backdrop, the crime

alleged occurred. With reference to the actual incident, learned

trial Court stated that the crime incident occurred near

Vinayaka Idol in Yadlapati Nagar at 8:00 P.M. on 29.08.2006.

At that time the wife of accused, who is PW.2, and her

brother/PW.1 were going along the road and they found the son

of PW.2 on the road and on noticing that at such odd hour a

child of that age was not expected to be on the road, PW.1

chastised the boy. On noticing it, the accused arrived and he

abused his brother-in-law/PW.1 and his wife PW.2 stating that

Dr. VRKS, J Crl.R.C.No.749 of 2009

it was not within their realm to chastise the boy and he went

further and as he was holding an iron rod he hit on the legs of

PW.1 and caused injuries and when his wife intervened he did

not relent and using the same iron road he inflicted injuries on

her body parts also. When others gathered there the accused

along with his son left the place. Grieved by this, the victims

went to police station and PW.1 lodged written information

which is Ex.P.1. Based on it Ex.P.5-F.I.R. was registered.

Police forwarded the victims to hospital where PW.4-doctor

examined both the victims and issued Exs.P.2 and P.3-wound

certificates, mentioning that the injuries are aged anywhere

between 4 to 6 hours and could have been caused by blunt

object and the injuries suffered by both the victims are simple

in nature. On PW.1 this doctor noticed four injuries and on

PW.2 he noticed three injuries. They are mentioned in the

wound certificates and they were deposed by the witnesses also.

Learned trial Court observed that the oral evidence of PWs.1

and 2 found full support from the medical evidence of PW.4. It

was on that premise it found the accused guilty for the offence

under Section 324 I.P.C. and convicted him and sentenced him

as indicated earlier.

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9. Challenge of the accused before the first appellate Court

wherein the trial Court's judgment was questioned found no

positive response from the learned first appellate Court and the

learned Additional Sessions Judge stated that on all the

material aspects the evidence led by the prosecution was strong

and beyond suspicion. It stated that with reference to the

custody of the child and with whom the child was there by the

time of this offence there were some discrepancies in the

evidence of prosecution witnesses, but in its view such

discrepancies are with reference to motive for the alleged offence

and since the case is based on direct evidence of the crime and

since the evidence was found to be consistent and beyond

reasonable doubt, the failure to prove motive in appropriate

legal terms had no bearing and with such observations it

concluded against the accused and approved the trial Court's

judgment.

10. It is against such findings concurrently held by both the

Courts below, this revision came up for hearing.

11. First point of attack by the revision petitioner is about

non-recovery of crime weapon. This contention was raised

before both the Courts below and was negatived by both the

Dr. VRKS, J Crl.R.C.No.749 of 2009

Courts. In this case the weapon allegedly used by the accused

is an iron rod. That an iron rod is a dangerous weapon

remained undisputed althroughout. This Court has gone

through the evidence of PWs.1 and 2 and the other witnesses.

PWs.1 and 2, who are the victims in this case and are also

direct witnesses to the crime incident, stated on oath that the

accused beat them with iron rod. The doctor/PW.4 stated that

there were injuries on the bodies of PWs.1 and 2 and they could

have been inflicted using a blunt object. An iron rod is a blunt

object is undisputed before this Court as well as before the

Courts below. When these three witnesses were available for

cross-examination, they were cross-examined by the counsel

appearing for the accused, any theory for defence that an iron

rod could not have caused such injuries or that the accused did

not use an iron rod was not suggested. In such circumstances,

it was well within the exercise of jurisdiction of the Courts below

that they concluded saying that accused used the iron rod and

inflicted the injuries on the bodies of PWs.1 and 2. Their

conclusions were based on oral and documentary evidence. It is

undisputed that the iron rod used by the accused was not

recovered and was not exhibited as a piece of material evidence.

Dr. VRKS, J Crl.R.C.No.749 of 2009

The question is whether absence of crime weapon should lead to

a conclusion that there was no crime committed at all. As long

as the actual facts constituting the crime were spoken to by

witnesses and if that evidence was found reliable there was no

need for law, to have the material object/crime weapon

exhibited. Production of a crime weapon would only furnish

corroboration to what was stated on oath by the witnesses. If

crime weapon is produced and witnesses do not depose about

use of such crime weapon by the accused, that could go against

the prosecution. Conversely when the witnesses spoke about

the incident and when the investigating agency failed to recover

the crime weapon, with or without any explanation, that by

itself cannot negate the effect of sworn evidence of witnesses.

Thus, as an abstract principle of law production of a crime

weapon is never a sine qua non to establish the case of

prosecution and failure to produce crime weapon cannot result

in disbelief of other reliable evidence vide State v. Laly @

Manikandan2. Thus, for this reason this Court finds that there

is no legal merit in the contention of the revision petitioner with

reference to non-recovery of crime weapon.

2022 SCC online SC 1424

Dr. VRKS, J Crl.R.C.No.749 of 2009

12. Both the Courts below observed that according to

prosecution PW.5 is an eye witness to the incident, but he

expressed ignorance of the case facts and thus, his evidence

was of no use. Courts below put faith on the oral evidence of

PWs.1 and 2 and also the evidence of PW.3, who is father of

PW.2 and recorded that there was enough proof about the facts

alleged in the charge.

13. The contention of the revision petitioner is that PWs.1 to 3

are interested witnesses and therefore, their evidence ought not

to have been believed. There is no merit in this contention for

the following reasons:

The case is about accused beating PWs.1 and 2. Thus,

PWs.1 and 2 are the victims. In a case where the victims who

are direct witnesses are not examined though they were

available for evidence the consequence would be, normally

against the prosecution. The reason is that they are the prime

witnesses for the case. Therefore, victims being prime witnesses

for the case cannot be termed as interested witnesses. An

interested witness is a witness who for vengeful reasons intend

to see an innocent gets convicted. What was the grievance for a

wife and her brother to have the accused placed in prison. Total

Dr. VRKS, J Crl.R.C.No.749 of 2009

material on record does not indicate any particular grievance

between spouses which could have spurred PWs.1 and 2 to have

a case falsely foisted. Spouses have been living separately for

more than six years by the time of this incident. There was no

particular occasion or reason for PWs.1 and 2 to conceive a plan

and have this accused arrested, prosecuted and punished. The

whole incident occurred when they found child on the road at

8:00 P.M. in the night and feeling responsible they questioned

him and that enraged the accused to pounce upon them. Thus,

it was a crime that occurred out of loss of emotions which was

neither premeditated on part of accused nor conspired on part

of victims. When there was enough evidence from the victims,

fully supported by legal evidence, it was up to the prosecution to

have some more evidence adduced or not. It is in these

circumstances, this Court finds that the approach of the Courts

below is right when they said that no further independent

witness and his evidence was required to decide the charge.

14. One of the contentions is about inconsistency in the

evidence of prosecution witnesses. This Court has gone through

the entire material on record and the judgments of both the

Courts below. On the material facts for which the charge was

Dr. VRKS, J Crl.R.C.No.749 of 2009

framed, there is absolutely no inconsistency in the evidence of

prosecution witnesses. No contradiction was marked and no

omission was recorded at the behest of defence. Thus, the

evidence was consistent. Whatever inconsistency was there

was, only with reference to child of the spouses and his custody

at the material point of time. Both the Courts below rightly

held that child and his custody form part of the motive and not

part of the crime incident and therefore, any failure in

establishing motive has no bearing when the evidence about the

charged facts are consistent and fool proof. Both the Courts

have rightly held it and this Court finds no reason to state

anything contrary.

15. Revision petitioner contends that there was omission to

examine the crucial witness. According to it, the son of the

spouses being a person available at the scene of offence should

have been examined by the prosecution to prove the case. As

could be seen from the record the child was with the accused. If

that be the case, it was well within the capacity of the accused

to have his son examined as a witness which he did not do and

for his omission he offered no reason. It is in these

circumstances, his contention is negatived.

Dr. VRKS, J Crl.R.C.No.749 of 2009

16. Another contention raised in this revision is about

disproportionate sentence. Punishment prescribed under

Section 324 I.P.C. includes sentence of imprisonment which

may extend to three years or with fine or with both. Learned

trial Court inflicted one year simple imprisonment for each of

the counts for hurting each of the two victims with a direction to

run the sentences concurrently. Learned first appellate Court

reduced it to four months and kept the remaining conditions in-

tact. Looking at the length of the sentence that is prescribed

and the period of sentence inflicted, this Court finds that the

Courts below maintained the proportionality of sentence. In

other words it can never be said that the sentence inflicted is

disproportionate on higher side. Therefore, this contention of

revision petitioner is negatived. For the reasons mentioned

above, this Court finds no merit in this revision and the

judgments of the Courts below on facts and law are in

accordance with law, requiring no interference. Point is

answered against the revision petitioner.

17. In the result, this Criminal Revision Case is dismissed

confirming the judgment dated 27.04.2009 of learned Special

Sessions Judge-cum-IV Additional Sessions Judge, Guntur in

Dr. VRKS, J Crl.R.C.No.749 of 2009

Criminal Appeal No.300 of 2008. Revision petitioner/accused-

Balli Pothu Raju shall surrender before the trial Court and

submit himself on or before 24.02.2023, failing which the

learned VI Additional Junior Civil Judge, Guntur, shall take

coercive process against him and see that the sentence inflicted

is enforced.

18. Registry is directed to dispatch a copy of this judgment

along with the lower Court record, if any, to the Court below on

or before 20.02.2023. A copy of this judgment be placed before

the Registrar (Judicial), forthwith, for giving necessary

instructions to the concerned Officers in the Registry.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_____________________________ Dr. V.R.K.KRUPA SAGAR, J Date: 16.02.2023 Ivd

Dr. VRKS, J Crl.R.C.No.749 of 2009

THE HON'BLE JUSTICE Dr. V.R.K.KRUPA SAGAR

CRIMINAL REVISION CASE No.749 of 2009

Date: 16.02.2023

Ivd