Dasari Ram Babu, Ano., vs Thestate By The Circle Inspector ...
2023 Latest Caselaw 980 AP

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

           CRIMINAL REVISION CASE No.1040 of 2009

ORDER:

Invoking Sections 397 and 401 Cr.P.C. this criminal

revision case is filed by two convicts assailing the judgments of

Courts below in convicting them and sentencing them for the

offence under Section 326 I.P.C. Respondent herein is the

State.

2. The Sub-Inspector of Police, Karvetinagar Police Station of

Chittoor District investigated into Crime No.69 of 2003 and laid

charge sheet for the offences under Sections 307 and 326 I.P.C.

before the learned Judicial First Class Magistrate, Puttur. That

was registered as P.R.C.No.2 of 2004. On securing the presence

of the accused, copies of documents in terms of Section 207

Cr.P.C. were furnished to them. After hearing both sides, in

terms of Section 209 Cr.P.C., the learned Magistrate committed

the case and forwarded the accused to the Court of Sessions.

When it was made over to learned Assistant Sessions Judge,

Puttur in S.C.No.164 of 2004, the accused and prosecution

were heard and based on the material charges under Sections

307, 326 and 324 I.P.C. were framed, read over and explained

to them in Telugu. The accused denied the truth of the

Dr. VRKS, J Crl.R.C.No.1040 of 2009

allegations and pleaded not guilty. During trial PWs.1 to 11

were examined and Exs.P.1 to P.18 were marked and M.Os.1 to

6 were exhibited. Accused were examined under Section 313

Cr.P.C. where the incriminating material available on record

was confronted to them. They denied the truth of it. In defence,

the accused did not choose to adduce any evidence. After

considering the evidence on record and the arguments on both

sides, learned trial Court recorded its findings stating that

grievous injuries were caused to the victim/PW.2 by these two

accused using billhooks/M.Os.5 and 6. It observed that from

the evidence it did not find any intention on part of the accused

to kill the victim. Therefore, it acquitted them of the charge

under Section 307 I.P.C. It found that out of three injuries

sustained by the victim/PW.2, two injuries were grievous as

they resulted in fractures and therefore, it found both the

accused guilty for the charge under Section 326 I.P.C. Since

the charge under Section 326 I.P.C. established, it thought that

the charge under Section 324 I.P.C. did not survive and

therefore, acquitted them of the charge under Section 324 I.P.C.

For the offence under Section 326 I.P.C., as it found the

accused guilty, it convicted them and sentenced each of them to

Dr. VRKS, J Crl.R.C.No.1040 of 2009

undergo rigorous imprisonment for five years and also pay a

fine of Rs.1,000/-, failing which they were directed to undergo

simple imprisonment for six months. The period of remand

underwent by the accused were given set off in terms of Section

428 Cr.P.C. The convicts challenged that judgment in Criminal

Appeal No.88 of 2006. The learned III Additional Sessions

Judge, Tirupati on hearing the arguments on both sides and on

considering the evidence on record, rendered its judgment on

22.06.2009 wherein it agreed with the findings of the trial Court

and confirmed the guilt and conviction of the accused for the

offence under Section 326 I.P.C. When it came to the sentence,

it recorded at para No.17 of its judgment that during the course

of arguments, the appellants/defence prayed the Court to

reduce the sentence from five years to one year. The reasons for

reduction were also recorded and then the learned Sessions

Judge reduced the punishment from five years to one year and

kept in-tact the component of fine along with its default

sentence.

3. It is that judgment which is challenged in this revision by

both the convicts stating that the Courts below went on to

accept the evidence of PWs.1 and 2 which remained not

Dr. VRKS, J Crl.R.C.No.1040 of 2009

supported by any independent witness. Police did not record

the statement of PW.2 under Section 161 Cr.P.C. The panch

witnesses for scene of observation report, arrest mahazar of

accused and report concerning recovery of crime weapons did

not support the prosecution version. PW.1 is the very brother of

PW.2 and is thus an interested witness. That there was an

earlier enmity between parties because of another case in

C.C.No.126 of 2003 on the file of learned Judicial Magistrate of

First Class, Puttur and therefore, absence of independent

witnesses is a vital defect. The evidence on record is

contradictory. That these revision petitioners are responsible

ryots and have no earlier criminal record. For all these reasons,

the learned counsel for revision petitioners submit that the

judgments of the Courts below shall be set aside and these

revision petitioners be acquitted.

4. As against it, the arguments of the learned Special

Assistant Public Prosecutor are to the effect that not recording

of statement of PW.2 by the investigating officer does not have

any bearing on the merits of the case and that the version of

PW.2 that he sustained the injuries in the hands of the accused

found full support from the direct witness/PW.1 and on most of

Dr. VRKS, J Crl.R.C.No.1040 of 2009

the particulars concerning the actual offence that took place,

the evidence of PW.3 lent support and the learned trial Court as

well as first appellate Court rightly put faith on the evidence

adduced by prosecution and the conclusions arrived at by both

the Courts below are in accordance with facts and law requiring

no interference in this revision.

5. Having heard the learned counsel on both sides, the

points that fall for consideration in this revision are:

1. Whether the Courts below were incorrect in accepting the evidence? and

2. Whether the judgments of the Courts below suffer from irregularity or illegality or impropriety requiring interference in this revision?

6. Points:

In all criminal trials, the scheme of the law is to permit a

fair trial and an appropriately heard first appeal. In the case at

hand, the procedure adopted for trial and the procedure

adopted in hearing the appeal are in accordance with law and

they were never challenged by the revision petitioners on any

such grounds. To see and preserve the principles of criminal

jurisprudence, revisional power is vested with this Court under

Dr. VRKS, J Crl.R.C.No.1040 of 2009

Section 397 Cr.P.C. to scrutinize and verify the correctness,

legality or propriety of any finding entered into by the Courts

below. The powers that can be exercised by appellate Court are

different from the powers that can be exercised by a revisional

Court. It is in the backdrop of these legal principles, this

revision has to be considered.

7. The facts established from evidence and the facts that are

not disputed by the revision petitioners require a brief narration

here.

The accused, the victim and the prime witnesses are all

agriculturists. The crime incident occurred in the agricultural

fields at about 5:00 P.M. in the evening of 12.12.2003. These

agricultural lands situate in Padiri Kuppam Dalithawada Village

of Karvetinagar Mandal, Chittoor District. At the relevant time,

the victim/PW.2 was attending his agricultural operations in his

lands and the work he was attending was seedling. His

brother/PW.1 was irrigating sugarcane crop in his adjacent

land. Both the accused were cutting sugarcane crop in their

own adjacent agricultural fields and they also engaged coolies

and they were also attending the said work. It was in that

setting the crime incident allegedly occurred. The version of the

Dr. VRKS, J Crl.R.C.No.1040 of 2009

victim/PW.2 was that both the accused holding billhooks came

upon him from behind and attacked him and A.1 caused injury

on his head and on the back of his right shoulder and A.2 with

billhook caused injury on the back of right elbow. On receiving

these injuries PW.2 fell down and went unconscious. Soon he

was shifted to hospital by PW.1 and others and he was admitted

in Government Hospital, Puttur. The hospital authorities sent

Ex.P.3 intimation to police and the police party arrived at and

they found the victim unconscious. Then the victim's brother

PW.1 gave his Ex.P.1-statemet and the police reduced it into

writing and they registered Crime No.69 of 2003 and Ex.P.14 is

F.I.R. The victim was attended to by PW.6/doctor at 9:00 P.M.

and he issued Ex.P.4-wound certificate. It is on these facts one

could notice that within four hours from the time of offence

F.I.R. was registered and requisite medical attention was

provided to the victim. Learned trial Court on analyzing all this

evidence recorded a finding that in the given facts and

circumstances there was absolutely no delay in lodging F.I.R.

and therefore, there was no possibility of any concoction for

anything that is narrated in Ex.P.1.

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8. The doctor, who treated the victim, deposed as PW.6 and

disclosed the injuries he noticed on the body of PW.2. They are:

1. A lacerated injury over the vault of skull extending from right parietal to left parietal region transverse and irregular, fresh and bleeding measuring 10 cms x 2 cms x Bone deep.

2. An incised injury over the back of right shoulder 2 cms x ½ cm size.

3. An incised injury over the back of right elbow joint 2 cms x 2 cm x skin deep.

9. Considering the nature of the injuries, the victim was

subjected to examination by Radiologist and the said Radiologist

testified as PW.9 and through him the X-ray Films and X-ray

report in Exs.P.11 and P.12 were marked. The evidence of these

two medical men/PW.6 and PW.9 coupled with Exs.P.11, P.12

and Ex.P.4-wound certificate indicate fracture of scalp and

fracture of right forearm of PW.2. Both the doctors stated that

they were grievous injuries. During the course of trial, when

PW.6 was in the witness box, he was shown M.Os.5 and 6-

billhooks and the doctor verified them and said that such

weapons could cause the kind of injuries he noticed on the body

of PW.2. The record of the trial Court's judgment would show

Dr. VRKS, J Crl.R.C.No.1040 of 2009

that for 18 days PW.2 was in the hospital and was unconscious.

PW.11 was the investigating police officer and in his evidence he

stated that on arresting the accused they confessed and led

them to a place from where they procured and handed over

M.Os.5 and 6-billhooks and he seized them under the cover of

Ex.P.8-Mahazar. Both the trial Court as well as the first

appellate Court considered all this evidence and recorded

observations that the evidence was clinching and

unimpeachable.

10. One point of attack from the learned counsel for revision

petitioners is that PW.2, who is the victim in this case, was

never examined by police during the course of investigation and

his statement was never recorded and that is one flaw which

goes to the route of the case. The fact that his statement was

not recorded is seen from the judgments of the Courts below.

Both the Courts did not record any finding since this point was

never argued before the Courts below. Section 161 Cr.P.C.

empowers an investigating police officer to orally examine any

person acquainted with the facts of case and as per Section

161(3) Cr.P.C., the police officer was at liberty as it was his

discretion to reduce into writing any such statement from any of

Dr. VRKS, J Crl.R.C.No.1040 of 2009

those witnesses who he examined orally. Section 162(1) Cr.P.C.

mandates the police officer not to obtain signature of the

deponent whose statement he had recorded under Section

161(3) Cr.P.C. This Section 162(1) Cr.P.C. further makes it

clear that those statements recorded by the police during the

course of investigation shall not be used for any purpose during

the course of trial except as is provided further by the provision.

The provision further makes it clear that such former

statements of witnesses made to police could be used by the

accused for the purpose of contradicting the witness, but the

prosecution cannot use such statements for the purpose of

corroborating the sworn evidence of a witness in the Court.

Cross-examination is an effective tool and it is mostly applied to

impeach the credibility of a witness. Credibility of a witness

could be impeached by utilizing any former written statement of

the witness or by other methods. In a case like the present one,

where the former statement of a witness was not chosen to be

reduced into writing by police, the only inconvenience caused to

the defence is that it had no opportunity to contradict the

version of the witness in the Court utilizing the former

statement. Excepting that there is no other use of former

Dr. VRKS, J Crl.R.C.No.1040 of 2009

statement for the purpose of trial. The defence is no way

handicapped in using its skilful ways of cross-examination in

impeaching the credibility of PW2. A valid investigation and

trial are not dependent on existence of written statement of

every witness tendered by the prosecution. Learned counsel for

revision petitioners has not brought to the attention of this

Court any particular statute or precedent to the effect that in

the absence of a former statement of a victim recorded under

Section 161 Cr.P.C., the investigation and trial is vitiated.

Therefore, the failure of investigating agency in not recording

the statement of the victim who was for a long time unconscious

by itself did not cause any particular prejudice to anyone.

Therefore, such lapse has no legal bearing.

11. PW.1 is the de facto complainant and he is the brother of

the victim/PW.2. His evidence is that, while he was attending

his agricultural operations, the accused who were attending

agricultural operations in their own fields reached to the spot of

offence and they attacked PW.2 who was attending his own

agricultural operations. He stated that he saw both the accused

wielding billhooks causing such grave serious injuries on the

body of PW.2. This evidence was accepted by both the Courts

Dr. VRKS, J Crl.R.C.No.1040 of 2009

below as it served the purpose of supporting the version of

PW.2. Learned counsel for revision petitioners criticized this

evidence stating that PW.2 is an interested witness. Be it noted,

mere relationship between witnesses does not make one witness

an interested witness. A witness ceases to be neutral and could

be categorized as interested only when the material is shown

that he is prepared to speak falsehood and implicate an

innocent. Both the Courts below after narrating the evidence

exhaustively, have categorically recorded a finding that the

evidence established presence of the accused with billhooks at

the scene of offence. It is never the evidence of the accused that

they were not at the scene of offence and they were not with

billhooks at the relevant time. Revision petitioners/accused

Nos.1 and 2 did not show any circumstances to enable both the

Courts below to have any doubt in their mind that the injuries

of PW.2 could have been sustained for any other reason other

than what was spoken to by PW.2. There seemed no material to

disbelieve the testimony of PW.1 to call him an interested

witness. The approach of the Courts below cannot be found

fault with. Therefore, the contention raised by the revision

petitioners that the evidence of PW.1 shall be discarded on the

Dr. VRKS, J Crl.R.C.No.1040 of 2009

ground that he is an interested witness is an argument that has

no merit.

12. PW.3 is another neighbouring ryot. His evidence was

considered especially by both the Courts below and they stated

that he spoke every fact except as to accused causing such

injuries on PW.1. His evidence indicated to the Courts below

the presence of accused and the accused holding billhooks and

the victim/PW.2 being present in his own lands and the victim

was found unconscious with serious bleeding injuries. This is

an independent witness who is unrelated and not inimical to

either accused or to the prosecution witnesses. Courts below

recorded that evidence of PW.2 established the overt acts on

part of accused and the evidence of PW.3 served the slot of

circumstantial evidence. It is in the context of this evidence and

the approach of the trial Court and the first appellate Court, the

contention of the revision petitioners that there is no

independent evidence is an argument without merit.

13. The two panch witnesses admitted their signatures on all

panchanams, but stated to the Court that such signatures of

them were obtained from them by the police at police station.

Utilising this aspect of the matter the contention of the revision

Dr. VRKS, J Crl.R.C.No.1040 of 2009

petitioners is that, that is one vital aspect which fatally effects

the credibility of prosecution version. There is absolutely no

merit in this contention. These witnesses were to speak about

police verifying the scene of offence, arresting the accused and

recovering crime weapons from them. Thus, they are post-

incident witnesses. Whether they support or do not support the

evidence of investigating officer has no bearing when the Courts

have to consider the credibility of the prosecution version about

the overt acts attributed against the accused with reference to

the victim. At any rate both the Courts below considered that

the hostility of those panch witnesses has in no manner dented

the credibility of the prosecution version. Such an approach is

not against law.

14. The discussion made above indicates and the contentions

raised by the revision petitioners do show that they failed to

show any particular irregularity or illegality or impropriety on

part of the Courts below in arriving at their judgments. A mere

reappreciation of evidence is not what is called for in a revision.

A reading of the grounds of revision and the arguments

submitted by the learned counsel merely focused on making

this Court to reappreciate the evidence and nothing more. The

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well written judgments of Courts below do not require any

corrections. The judgments of the Courts below which

concluded that with dangerous weapons these two accused

caused grievous hurt to the victim is correct and convicting the

revision petitioners for the offence under Section 326 I.P.C. is

appropriate. The sentence that was inflicted by the trial Court

was reduced to its 1/5th by the learned first appellate Court as

it acted upon the mercy prayers of these revision petitioners.

Therefore, there is no further need to revise the length of

sentence and the fine inflicted on them. With these reasons, the

points are answered against the revision petitioners.

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

Revision petitioners/A.1-Dasari Ram Babu and A.2-Dasari

Ramesh @ Ramesh Babu shall surrender before the trial Court

and submit themselves on or before 28.02.2023, failing which

the learned Assistant Sessions Judge, Puttur shall take coercive

process against them and see that the sentence inflicted is

enforced.

16. Registry is directed to dispatch a copy of this order along

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

before 23.02.2023. A copy of this order be placed before the

Dr. VRKS, J Crl.R.C.No.1040 of 2009

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: 21.02.2023 Ivd

Dr. VRKS, J Crl.R.C.No.1040 of 2009

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

CRIMINAL REVISION CASE No.1040 of 2009

Date: 21.02.2023

Ivd