K.Sridhar, vs The State Of Ap Rep By Its Pp Hyd.,
2023 Latest Caselaw 314 AP

        HON'BLE SRI JUSTICE A.V.RAVINDRA BABU

        CRIMINAL REVISION CASE No.1105 OF 2008

ORDER:

This Criminal Revision Case came to be filed, under Sections

397 and 401 of the Code of Criminal Procedure, 1973 (for short,

'the Cr.P.C'), by the petitioner herein, who was the first accused

(A-1) in Calendar Case No.5 of 2004 on the file of the Court of II

Additional Munsif Magistrate, Tenali (for short, 'the learned

Magistrate') and first appellant in Criminal Appeal No.396 of 2006

on the file of the Court of XI Additional District and Sessions

Judge (Fast Track Court) Guntur at Tenali (for short, 'the learned

Additional Sessions Judge'), challenging the judgment, dated

25.07.2008, in the said Criminal Appeal, where under the learned

Additional Sessions Judge, allowed the same insofar as the second

appellant therein was concerned but dismissed the Appeal

confirming the conviction of the first appellant, under Section 326

of the Indian Penal Code, 1860 (for short, 'the IPC') imposed in

C.C. No.396 of 2006.

2. The parties to this Criminal Revision Case will hereinafter be

referred to as arrayed before the trial Court, for the sake of

convenience.

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3. The petitioner along with accused No.2 (A-2) faced charge

before the Court below under Section 326 R/w.34 IPC and the

petitioner herein along with A-2 were convicted under Section

248(2) Cr.P.C. for the charge under Section 326 R/w.34 IPC and

sentenced to suffer Simple Imprisonment for two years and to pay

a fine of Rs.3,000/- in default to suffer Simple Imprisonment for

three months each. When the present petitioner along with A-2

filed Criminal Appeal No.396 of 2006, it was disposed of as above.

Challenging the same, the unsuccessful first appellant therein

approached this Court by way of this Criminal Revision Case.

4. The case of the prosecution, in brief, before the Court below,

according to the substance of the charge sheet in C.C. No.5 of

2004 is that A-2 purchased a thatched house belonging to one

Dukkula Udaya Bhaskara Rao and started residing in the said

house situated in Donepudi village since 7 or 8 years prior to the

date of incident. Since 2 years prior to the date of incident, the de-

facto complainant started residing in a house for rent, which is

located between the south east corner of the house of the accused.

On 06.11.2003 at about 06:30 a.m. the de-facto complainant

climbed coconut tree to cut the coconuts. At that time, the wife of

A-1 was taking bath in her bathroom and on seeing the de-facto

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complainant, she ran away into her house. After some time, he

was sitting in front of his house on a pial. A-1 went there with a

knife and attacked him and tried to hack him across his head. The

de-facto complainant put his hand to avert the blow and the knife

fell on the left lower arm, which resulted into bleeding injury.

Then, he fell down. Then, A-1 again attacked him by hacking with

the same knife below knee and caused bleeding injury. At that

time, A-2 was also along with A-1 holding an axe. The persons

present there witnessed the incident and shifted the injured to

Kollur village and from there to hospital for treatment. The

statement of the de-facto complainant was recorded in Crime

No.70 of 2003 originally under Section 307 R/w.34 IPC and

investigated into. On 12.11.2003, both the accused were arrested

and sent for remand. LW.13 issued wound certificate opining that

the injury No.1 is grievous in nature. Hence, the charge sheet.

5. The Court below took cognizance of the case under Section

326 R/w.34 IPC and on appearance of the accused and after

completing the formalities under Section 207 Cr.P.C, examined

both the accused under Section 239 Cr.P.C, for which they denied

the offence. Then a charge under Section 326 R/w.34 IPC was

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framed and explained to them in Telugu for which they pleaded

not guilty and claimed to be tried.

6. During the course of trial, on behalf of the prosecution

PWs.1 to 11 were examined and Exs.P-1 to P-15 and further

MOs.1 to 4 were marked.

7. After closure of the evidence of the prosecution, both the

accused were examined under Section 313 Cr.P.C with reference

to the incriminating circumstances appearing in the evidence of

the prosecution witnesses, for which they denied the same and did

not let in any defence evidence. However, Exs.D-1 and D-2 were

marked, during the course of cross-examination of PWs.3 and 5.

8. The learned Magistrate, after hearing both sides and on

consideration of the material available on record, found both the

accused guilty of the charge under Section 326 R/w.34 IPC and

convicted them under Section 248(2) Cr.P.C, questioned them with

regard to the quantum of sentence and accordingly sentenced

them to suffer Simple Imprisonment for two years and to pay a

fine of Rs.3,000/- each in default to suffer Simple Imprisonment

for three months each.

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9. Aggrieved thereby, both the accused preferred the aforesaid

Criminal Appeal before the learned Additional Sessions Judge

(FTC), Guntur at Tenali, which came to be dismissed on merits

insofar as the revision petitioner herein is concerned. The learned

Additional Sessions Judge allowed the same insofar as the second

appellant therein is concerned. Challenging the same, the

unsuccessful appellant therein filed the present Criminal Revision

Case.

10. Now the point that arises for consideration is as to whether

the judgment in Criminal Appeal No.396 of 2006, dated

25.07.2008, insofar as the revision petitioner, suffers with any

illegality, irregularity and impropriety and whether there are any

grounds to interfere with the judgment of the appellate Court?

11. Sri A. Lalith, learned counsel, representing learned counsel

for the petitioner, would contend that the evidence of PWs.1 to 4 is

interested in nature. Their evidence has no corroboration from any

independent source. PW.5 is a chance witness, whose presence at

the time of incident is highly doubtful. There were previous

disputes between the de-facto complainant party and the

petitioner as such the evidence of PWs.1 to 4 is not believable.

Though the prosecution did not cite and examine any Radiologist,

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both the Courts below erroneously convicted the petitioner under

Section 326 IPC without there being any evidence as to the

fracture. The evidence of PW.8-Medical Officer is not at all

convincing to assume the fracture. Though the prosecution

claimed that some workers were working at the spot, for laying

pipeline but the Investigating Officer did not examine them and if

they were working there, they could have been termed as direct

witnesses to the occurrence and their non-examination is fatal to

the case of the prosecution. There was delay of 22 hours in lodging

the report to the Police which remained un-explained, as such it is

fatal to the case of the prosecution. The Court below did not

consider the evidence of PWs.8 and 10. He would further submit

that the petitioner herein, at the time of filing this Revision case,

was aged 27 years and almost since 14 years this Revision has

been pending and the sentence imposed against the petitioner by

the Courts below is also harsh. He would further submit that the

Criminal Revision Case is liable to be allowed.

12. Sri Y. Jagadeeswara Rao, learned counsel, representing

learned Public Prosecutor, would submit that the offence in

question was happened in a broad day light and PWs.2 and 3

being wife and mother of PW.1-injured their presence at the scene

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of offence was quite natural and further PWs.4 and 5 also

supported the case of the prosecution and the nature of the injury

received by PW.1 was spoken by him and absence of radiologist

opinion cannot be taken as infirmity in the case of the prosecution

and both the Courts below recorded sound reasons while

convicting the petitioner, as such the Criminal Revision Case is

liable to be dismissed.

13. PW.1 is the injured witness. Admittedly, the fact remained is

that according to the averments in the charge sheet and according

to the answers from the cross-examination of PWs.1 to 3, there

were previous disputes between the injured and the accused. On

that count, the testimony of PWs.1 to 3 cannot be disbelieved.

Enmity is a double wedged weapon. It is settled law that enmity

may be a factor for commission of offence or for false implication.

So, merely because there were disputes between the de-facto

complainant and petitioner, there is no hard and fast rule that

there is a false implication. So, the prudent course is to analyze

the evidence of PWs.1 to 3 with care and caution.

14. Turning to the testimony of PW.1, apart from the speaking of

earlier disputes with regard to the boundary etc., he spoken to the

fact that A-1 brought a knife on that day i.e., on 06.11.2003 from

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his back and on seeing LW.2-Sunkara Siva Kumari raised cries.

Then, he (PW.1) turned back and raised his hand and the accused

hacked with a knife on his left hand. His hand was cut and it was

hanging with some flesh joining with the body. When LW.2 tried to

take him into the house by holding him, he fell down on the

ground and then A-1 again beat him with the same knife on his

both legs. He sustained bleeding injuries. He found A-2 standing

along with A-1 with an axe. On hearing his cries, his family

members gathered there. He was taken to Police Station. But, on

seeing the severity of the injury, Police asked him to go to the

hospital immediately. Then, he was shifted by the people to the

Trauma Hospital, Guntur where the Police came there and

recorded his statement. Ex.P-1 is his statement.

15. PW.2 is the wife of the injured, who supported the evidence

of PW.1 apart from speaking of the earlier disputes with regard to

the incident in question. She deposed that on 06.11.2003 at 07:00

a.m he and PW.1 were sitting on the pial situated in front of her

house. One panchayat pump was being laid there. PW.1 was

discussing with the people who were processing the said work, A-1

brought a knife and tried to hack PW.1 on his head. Then she

raised alarm and then PW.1 raised his left hand and A-1 hacked

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the left hand of PW.1. Due to that blow, even the bone was cut off.

He lifted PW.1 to the near doorstep and both of them fell down.

Then, again A-1 beat him with knife on the legs of PW.1, who

sustained injuries on his legs. A-2 was also there with an axe.

They went to Kollur and from there they went to Guntur, Peoples

Trauma Hospital. The Police came to the hospital and examined

her.

16. PW.3 is the mother of the injured, whose evidence on the

material aspects is that on 06.11.2003 in the morning at about

06:30 or 07:00 a.m, she heard the cries of PW.1. Then, she

reached there and found PW.1 with bleeding injury on his left

hand. A-1 and A-2 were found there. He found a knife in the hand

of A-1. A-2 was armed with an axe. PW.2 caught hold of PW.1 and

again both of them fell down. Then, A-1 hacked PW.1 with knife on

his legs. She raised huge cries. They took PW.1 to Police Station

and from there to Peoples Trauma Hospital, Guntur.

17. PW.4 deposed that about two years prior to the date of his

examination in the month of November at 06:30 a.m. while she

was present in the house, she heard some disputes going on. She

came out. She noticed A-1 hacking PW.1 with a knife on his left

hand. The hand of PW.1 was completely severed from the body

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excepting the skin and she found it hanging from the part of the

elbow. Again A-1 hacked PW.1 with knife on his leg. A-2 was there

holding an axe.

18. PW.5 stated that she heard gallata from the house of PW.1.

She proceeded to their house. She noticed A-1 hacking PW.1 with

a knife and found A-2 standing by holding an axe.

19. PW.6 is a mediator to the observation of the scene of offence

and he testified about the same and according to him Ex.P-2 is the

scene observation report.

20. PW.7 is the photographer, who took photographs at the

instance of Police at the scene of offence and Ex.P-3 is the cover

and Exs.P-4 to P-7 are the photographs and Exs.P-8 to P-11 are

the corresponding negatives.

21. PW.8 is the Medical Officer, whose evidence is that on

06.11.2003, PW.1 was admitted in their hospital at 11:30 a.m,

brought by Udaybhaskara Rao. He examined him and found the

following injuries:

1) A lacerated injury of size 10 x 5 cm is present on the

left forearm above the wrist joint. Clinical fracture on

left ulna.

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2) An lacerated injury of 3 x 1 cm is present on the left

leg on the anterior aspect.

He opined that the injury No.1 is grievous in nature. He

issued Ex.P-12 wound certificate.

22. PW.9 is another mediator to the observation of scene of

offence and he testified the same.

23. PW.10 is the Head Constable, whose evidence is that on

06.11.2003 at 07:30 p.m, he received hospital intimation from

Peoples Trauma and Emergency Hospital, Guntur under Ex.P-13

and went there and recorded the statement of PW.1 under Ex.P-1.

He forwarded it to Station House Officer, Kollur on point of

jurisdiction.

24. PW.11 is the Investigating Officer, who spoken about the

investigation.

25. It is to be noticed that the learned Magistrate, Guntur as

well as the learned Additional Sessions Judge (FTC), Guntur at

Tenali on appreciation of the evidence on record found the present

petitioner guilty of the offence under Section 326 IPC. It is

altogether a different aspect that when the learned Magistrate

found both accused guilty of the offence under Section 326

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R/w.34 IPC, the learned appellate Judge allowed the Appeal

insofar as the second appellant and dismissed the Appeal insofar

as the first appellant (A-1) is concerned holding that the offence

under Section 326 IPC is proved. So, the simple aspect that has to

be looked into by this Court is whether the evidence on record is

sufficient to say that the petitioner herein (A-1) hacked PW.1-

injured and caused grievous injury.

26. PWs.1 to 3 were subjected to probing cross-examination.

They withstood the cross-examination. There is no dispute about

the injuries received by PW.1 on the fateful day. The evidence of

Medical Officer coupled with the wound certificate reveals the

nature of the injuries received by PW.1. The prosecution did not

cite and examine any Radiologist. But, the evidence of PWs.1 to 3

minutely explained the nature of the injury received by PW.1 and

almost the wrist part of the hand of PW.1 was severed and it was

hanging after A-1 hacked PW.1. PW.8, the Medical Officer was

cross-examined by the accused and he deposed in cross-

examination that he opined that PW.1 sustained injury and

according to Ex.P-12, injury No.1 found on PW.1 is grievous in

nature as he sustained fracture. He deposed that there is a

possibility that if a person falls from certain height, there is a

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possibility for fracture. He stated that he did not mention in

Ex.P-12 whether PW.1 fell from certain height and received injury.

PW.1 was conscious and coherent at the time of admission and he

never fell unconscious. It is to be noticed that grievous injury is

dependent upon the depth and width of the injury. According to

PW.8, there was a fracture of ulna. Nothing is suggested to PW.8

that there was no fracture. On the other hand, accused got elicited

an answer that fracture could be possible by fall. It is not

suggested to PW.1 that he received injury by fall. It is to be noticed

that there was a laceration on the hand of PW.1, according to

Ex.P-12 wound certificate. PWs.1 to 3 minutely detailed out the

nature of the injuries received. Hence, simply because the

prosecution did not examine any Radiologist, it cannot be held

that the injury received by PW.1 is simple in nature. This Court is

not persuaded to accept the arguments of learned counsel for the

petitioner in this regard.

27. Though PWs.2 and 3 are the wife and mother of the injured

and though they are interested in nature, their evidence cannot be

disbelieved simply because their evidence is interested in nature.

The offence in question took place at the house of PW.1. So, the

wife of PW.1 i.e., PW.2 was a natural witness. Similarly, on hearing

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the cries of PW.1, PW.3 went there and witnessed the occurrence.

So, her presence was also found natural. Apart from the evidence

of PWs.1 to 3, even PW.4 supported the case of the prosecution.

Though PW.5 was said to be a chance witness but during the

course of cross-examination of PW.5 there remains nothing to

disbelieve her testimony. In my considered view, the evidence of

PWs.1 to 3 stood to the test of scrutiny. Accused had no say before

PW.1 explaining the manner in which PW.1 received injuries, if at

all A-1 was not responsible for the said injury.

28. As seen from Ex.P-1, the motive for the offence was set up

as that of the previous disputes and further with an explanation

that on the fateful day when PW.1 climbed the coconut tree to cut

the coconuts, the wife of A-1 was taking bath in the bathroom and

in fact he did not witness her but she might have suspected that

he observed her. This is said to be another reason of the motive.

Though PW.1 did not speak this issue in the chief-examination but

it is elicited in cross-examination about the said aspect in Ex.P-1.

Even the evidence of PW.2 means that A-1 suspected that PW.1

might have witnessed his wife when she was taking bath. It is to

be noticed that when the bathroom of A-1 was open top, one

cannot found fault for climbing coconut tree besides bathroom or

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nearer to the bathroom to cut the coconuts. Apart from this, it is

well settled that when the case is based upon the direct evidence,

motive plays a little role. Even otherwise, PWs.1 to 3 spoken about

the previous disputes and it is elicited from the mouth of PW.1 in

his cross-examination about the contents in Ex.P-1 as if A-1 might

have suspected that PW.1 witnessed when his wife was taking

bath etc., So, the prosecution, in my considered view, adduced

proper evidence to establish the motive which has no role at all in

appreciating the evidence when the case is based upon the direct

evidence.

29. Another line of contention of the petitioner is that though

there were some workers working in attending pipeline work etc.,

according to the case of the prosecution, they were not cited by the

Investigating Officer and it is fatal. Here, PW.1 was not cross-

examined as to the presence of the so called workers. PW.2, during

the cross-examination, explained that nobody were coming

forward to speak about the incident. It is to be noticed that it is

not at all elicited from the mouth of PW.11-Investigating Officer as

to why he did not examine the so called workers. So, in the

absence of establishing the names of workers that were said to be

present, accused cannot take any advantage by contending that

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their non-examination is fatal. The evidence of PWs.1 to 3 amply

proved the overt act against A-1 and this Court has no reason to

disbelieve the case of the prosecution in this regard.

30. Another line of contention of the petitioner that there was

delay in lodging the report, PW.1 categorically deposed that when

firstly they went to the concerned Police Station, seeing the nature

of the injury received by him, Police asked them to go to the

Hospital immediately and then he went to the Peoples Trauma

Care Hospital, Guntur and after that Police came there and

recorded his statement. There is evidence of PW.10 that having

recorded the statement of PW.1 in the evening he forwarded the

same to the concerned Police on point of jurisdiction. So, the delay

in obtaining a statement from PW.1 and consequent registration of

FIR is amply explained by the prosecution. The explanation of the

prosecution in this regard is convincing.

31. The contention of the revision petitioner that the Courts

below failed to appreciate the evidence of PWs.8 and 10 deserves

no merit. Having regard to the overall facts and circumstances,

this Court is of the considered view that the learned Magistrate,

Tenali as well as the learned Additional Sessions Judge (FTC),

Tenali rightly believed the evidence let in by the prosecution. The

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evidence on record amply proves the offence under Section 326

IPC against the petitioner beyond reasonable doubt. Having regard

to the overall facts and circumstances, by any stretch of

imagination, it cannot be held that the judgment, dated

25.07.2008, in Criminal Appeal No.396 of 2006 on the file of the

Court of XI Additional District and Sessions Judge (FTC), Guntur

at Tenali suffers with any illegality, irregularity and impropriety. In

fact, the learned Additional Sessions Judge (FTC), Tenali furnished

proper reasons throughout in confirming the judgment insofar as

dismissing the Appeal against as A-1 is concerned. The learned

appellate Judge, in my considered view, rightly analyzed the

evidence on record and rightly dismissed the Criminal Appeal

insofar as the present revision petitioner is concerned. Under

these circumstances, I see no reason to interfere with the well

reasoned judgment of the appellate Court.

32. In the result, the Criminal Revision Case is dismissed.

33. 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

petitioner (A-1) in C.C. No.5 of 2004, dated 21.09.2006 and to

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report compliance to this Court. 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 28.01.2023. A copy of this order be

placed before the Registrar (Judicial), forthwith, for giving

necessary instructions to the concerned Officers in the Registry.

Consequently, Miscellaneous Applications pending, if any,

shall stand closed.

________________________________ JUSTICE A.V.RAVINDRA BABU Date: 24.01.2023 DSH