Andhra Pradesh High Court - Amravati
Magapu Krishna Kistayya, vs The State Of Andhra Pradesh, on 22 January, 2024
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.2056 of 2010
ORDER:
Assailing the judgment dated 26.10.2010 in Crl.A.No.72
of 2009 on the file of the Family Court-cum-Additional District
& Sessions Court, East Godavari at Rajahmundry, modifying
the conviction and sentence, imposed by the judgment dated
28.04.2009 in C.C.No.1515 of 2006 on the file of the Court of
learned V Additional Judicial Magistrate of First Class,
Rajahmundry, from the charge under Section 326 Indian Penal
Code (hereinafter referred to as "IPC") to the offence under
Section 325 IPC and convicted the accused for the said offence,
the petitioner/accused filed the present criminal revision case
under Section 397 r/w.401 of the Criminal Procedure Code,
1973 (hereinafter referred to as "Cr.P.C.").
2. The revision case was admitted on 03.11.2010 and the
sentence of imprisonment imposed against the petitioner was
suspended, vide orders in Crl.R.C.M.P.No.3018 of 2010.
3. The shorn of prosecution case is that:
i). On 21.02.2005, accused questioned P.W.2 as to
why he propagating in the village that his wife left his
company and went to parental home and picked up
quarrel with him. Again on 23.02.2005 at about
08.00 p.m., when P.W.1 and his brother were going to
sell the milk, accused stopped them and picked up
quarrel. Then neighbors came there and pacified the
matter.
ii). On the same day at about 11.30 p.m., while P.W.1
was returning to home, accused stopped him and bet
him with a stick on the left hand. Then P.W.1 was
shifted to Government Hospital and recorded his
statement by the Head Constable, Outpost Police
Station and sent the same to Seethanagaram Police
Station and the same was registered as a case in
Cr.No.21 of 2005 by P.W.5-ASI and investigated into.
4. After completion of investigation, P.W.8-S.I. of Police, laid
charge sheet and the same was taken on file and numbered as
C.C.No.1515 of 2006 on the file of the Court of learned V
Additional Judicial Magistrate of First Class, Rajahmundry and
after full pledged trial, the trial Court found the petitioner guilty
of the charge under Section 326 IPC and sentenced to undergo
rigorous imprisonment for a period of two (2) years and also pay
fine of Rs.500/-, in-default to suffer simple imprisonment of one
(1) month.
5. Aggrieved by the said judgment, the revision petitioner
preferred an appeal, vide Crl.A.No.72 of 2009, before the Family
Court-cum-Additional District & Sessions Court, East Godavari
at Rajahmundry, and the said appeal was partly allowed
modifying the sentence from the charge under Section 326 IPC
to the offence under Section 325 IPC and accused is convicted
for the said offence and sentenced to undergo rigorous
imprisonment for one (1) year and to pay fine of Rs.2,000/-, in
default to suffer simple imprisonment of three (3) months,
instead of the sentence imposed by the trial Court with a benefit
of, set off under Section 428 Cr.P.C.
6. Against the said judgment of the first Appellate Court, the
present criminal revision case was preferred by the
petitioner/accused.
7. Heard Sri Y.Sudhakar, learned counsel for the
petitioner/accused and Sri S.Dheera Kanishk, learned counsel
attached to the office of State Public Prosecutor for the
respondent-State.
8. Now the point that arises for determination in this
revision is "whether there is any manifest error of law or flagrant
miscarriage of justice in the findings recorded by the trial Court
as well first Appellate Court?"
9. Sri Y.Sudhakar, learned counsel for the petitioner
submits that P.Ws.1 to 3 are interested witnesses, in
particularly, P.Ws.2 and 3 are much interested, because P.W.2
is elder brother and P.W.3 is relative of P.W.1 and Courts below
ought to have disbelieved their testimony; that no independent
witness was examined to prove the commission of alleged
offence by the accused, which is fatal to the prosecution case;
that there is no corroboration to the evidence of P.Ws.2 and 3
and there are material discrepancies in between their
testimonies; that the evidence on record solely is not sufficient
to convict the accused and Courts below ought to have rejected
the evidence of P.Ws.2 and 3, which is highly contradicted with
material particulars; that the evidence of P.W.1 is totally
contradictory with the evidence of P.Ws.2 and 3, in particularly,
P.Ws.2 and 3 deposed that P.W.1 was attacked with a knife by
the accused, whereas P.W.1 deposed that he was attacked with
a stick, but the investigating officer, who was examined as
P.W.5 neither seized stick nor knife as stated by P.Ws.2 and 3
and no efforts were made to seize any material object; that no
incident was occurred and the petitioner/accused was falsely
implicated in this case and Courts below failed to evaluate the
evidence of P.Ws.1 to 3 in proper manner.
10. In support of his contentions, he relied upon a judgment
of the Hon'ble Supreme Court reported in Krishnegowda v.
State of Karnataka1, wherein it was held that "once there is a
clear contradiction between the medical and ocular evidence
coupled with severe contradictions in oral evidence, clear laches
in investigation, then benefit of doubt has to go to accused".
11. He further relied upon Division Bench judgment of this
Court reported in Alla Satyanarayana v. The State of A.P.2,
wherein it was held that "the position of law in cases where
there is a contradiction between medical evidence and ocular
evidence can be crystallised to the effect that though the ocular
testimony of a witness has greater evidentiary value visa-vis
medical evidence, when medical evidence makes the ocular
evidence improbable, that becomes a relevant factor in the
process of evaluation of evidence".
12. He also relied upon another judgment of this Court
reported in Neeladri Venkatgeshwar Rao v. State of A.P.3,
wherein it was categorically observed that "when medical
evidence and ocular evidence do not match each other, the
1 (2017) 13 SCC 98
2 2018 (1) HLT (Crl.) 271
3 2023 (2) ALT (Crl.) 485
Court cannot found any guilt for the charges framed against the
accused".
13. As against the same, Sri S.Dheera Kanishk, learned
counsel attached to the office of State Public Prosecutor for the
respondent submits that there is concurrent finding of fact by
the trial Court as well Sessions Court and it cannot be meddle
in the form of revision and it is settled law that minutest
reexamination of the whole evidence at the revisional stage is
not permissible as held by the Hon'ble Supreme Court in a
judgment reported in State of Maharashtra v. Jagmohan
Singh Kuldip Sing Anand4.
14. He further submits that the evidence of P.Ws.1 to 3 so
clear about the attack made by the accused against P.W.1; that
their evidence clearly established the overtacts of the accused
on P.W.1; that the findings arrived by the trial Court to find the
guilt of the accused, which was confirmed by the Sessions
Court, cannot be set aside or nullified; that even if there is any
variation between the ocular evidence and medical evidence,
preference to be given to the ocular evidence; that admittedly,
P.W.1 sustained fracture, which is possible by a stick, and the
same is proved before the trial Court, resulted conviction
4 (2004) 7 SCC 659
against the accused by the learned Magistrate, which was
confirmed by the learned Sessions Judge by modifying the
sentence from the charge under Section 326 IPC to the offence
under Section 325 IPC.
15. In view of the above rival contentions, this Court closely
perused the evidence on record. Before the trial Court, P.W.1,
who is injured, deposed that in the month of February, 2005 at
11.00 p.m., while he was crossing the house of accused, he was
stopped and beat by the accused with a stick on his left hand
forearm, due to which he sustained fracture injury and on
hearing his cries, neighbors gathered and his father also came
there and took him to the Government Hospital and in the
hospital, police recorded his statement and obtained thumb
impression and he was inpatient about twenty (20) days in the
hospital.
16. During the cross examination, it is elicited that accused
coming from the house situated in front of the house of accused
and beat him and it is also elicited that nearly fifteen (15)
members gathered at the scene of offence and ten (10) minutes
after sustaining injury, his father came to him. Thereafter,
himself and his father went to hospital. Firstly, he went to one
Dr.Chittibabu in the village, thereafter G.G.H., Rajahmundry
and he further deposed that the said Dr.Chittibabu did not give
any treatment to him and on his advice, they went to
Government Hospital.
17. P.W.2, who is the elder brother of P.W.1 by name Battu
Durgarao deposed that while he was in the house, he heard
cries of P.W.1 near the house of accused and then he went there
and found the accused coming from the house of P.W.1 with a
knife. By that time, neighbours intervened, as such, accused left
the place. P.W.1 stated to him that accused beat him with a
stick on the right hand. Then, he shifted P.W.1 to the hospital.
During the cross examination it is elicited that two houses are
there in between his house and accused. After shifting P.W.1 to
the hospital, he did not visit the hospital on the next day of the
incident.
18. One Golla Ramadasu was examined as P.W.3 and he
deposed that at about 11.30 p.m., the incident took place in
front of house of the accused and accused beat P.W.1 with stick
on the left hand. Due to which he sustained fracture injury. At
that time, he intervened and separated P.W.1 and accused, but
accused tried to beat P.W.1 with knife. On that he stopped the
accused and on his advice, P.W.1 went to the hospital.
19. During the cross examination, it is elicited that his house
and house of P.W.1 situated side by side. P.W.1 is his distant
relative. At the time of incident, he was present in front of his
house and on hearing the cries of P.W.1, he went there and
found P.W.1 on the ground and the incident was already
happened. In his presence, accused tried to beat P.W.1 with
knife and the said fact was stated to police by him.
20. P.W.4, who is the Radiologist, deposed that on the request
made by P.M.O., he had taken Ex.P.2 X-ray of P.W.1, which
reveals fracture of left humorous bone in middle 1/3rd and gave
Ex.P.3 opinion. During the cross examination, it is elicited that
with the ordinary stick the fracture mentioned in Ex.P.2 may
not be possible. Ordinary stick is below one (1) cm diameter and
weightless. The injury mentioned in Ex.P.2 can be possible if a
person falls on hard surface from a running bike.
21. P.W.5-ASI, who said to have received Ex.P.1 from G.G.H.
Outpost Police Station, registered Ex.P.4 F.I.R. Then, he secured
the presence of P.Ws.1, 2 and L.W.3-B.Yedukondalu and
recorded their statements and thereafter went to the scene of
offence and prepared Ex.P.5 rough sketch. Thereafter, examined
P.W.3 and on the same day, he arrested the accused and got
sent him to the judicial remand.
22. During the cross examination, P.W.5 deposed that the
house of P.W.1 is not located in the street of the accused house
and he did not go to the house of P.W.1. P.Ws.1 and 2 did not
state about the scene of offence in their statements.
23. P.W.6, who is doctor said to have treated P.W.1 deposed
in his evidence that on 24.02.2005, he examined P.W.1 and
found one injury i.e., Red contusion of above 7 x 2 cm on the
left arm placed oblique on the upper 1/3rd of left arm and he
issued Ex.P.6 wound certificate. During the cross examination,
it is elicited that injury mentioned in Ex.P.6 may not be possible
if beat with a stick and it can be possible if a person falls on
hard surface from the bike.
24. P.W.7 is the retired Head Constable, who said to have
recorded the statement of P.W.1. From him nothing was elicited.
25. P.W.8-S.I. of Police, who filed charge sheet after
completion of investigation.
26. Firstly, according to P.W.1, he received injury in the
hands of accused with a stick. P.W.6-Doctor, who said to be
treated P.W.1, categorically deposed that the injury noted by
him may not be possible if he was beaten with a stick. So the
testimony of doctor is something different to the testimony of
P.W.1.
27. It is not stated by P.W.1 that accused used a different
type of stick, which may be caused a fracture injury. But, both
P.Ws.4 and 6 categorically deposed that P.W.1 can receive the
said injury if he falls on hard surface from the running bike.
Admittedly, on the date of incident, while he was coming on the
vehicle after selling milk, the incident was happened at the
house of accused.
28. P.W.1 in his evidence deposed that ten (10) minutes after
he sustained injury, his father came to him and on his motor
cycle, he along with his father went to the hospital, whereas,
P.W.2, who is brother of P.W.1, deposed that his father shifted
P.W.1 to the hospital, but not by him.
29. More conspicuously found from the testimony of P.W.3
that his house and house of P.W.1 situated side by side and he
is the distant relative of P.W.1 and while he was present in front
of his house that means standing at his house, he heard cries of
P.W.1 and thereafter went to the house of P.W.1, whereas, in
the chief examination he deposed that as if he witnessed the
incident. Further, P.Ws.2 and 3 deposed that accused used
knife, whereas, P.W.1 deposed that he was beaten with a stick.
The inconsistency between the testimonies of P.Ws.1 to 3 is
clearly goes to show that there is any amount of improbability in
the testimony of prosecution witnesses regarding attack made
by the accused against P.W.1. More so, P.W.3 deposed that on
the date of evidence, he was brought to the Court by P.W.1
himself.
30. So the evidence of P.Ws.2 and 3, admittedly, not accepted
by the Sessions Court also and the learned Sessions Judge
categorically observed in paragraph No.11 of the judgment that
there is no consistency in the evidence of P.Ws.1 to 3 with
regard to accused beaten P.W.1 with a stick and further
discussed that P.W.1 deposed that he was beaten with a stick,
whereas, P.Ws.2 and 3 deposed that they found knife in the
hands of accused when they immediately rushed to P.W.1 after
hearing cries. Admittedly, no crime weapon was seized and no
explanation was put forth by the prosecution. The Sessions
Court gave a finding that in such circumstances, giving
preference to the inconsistent ocular evidence with regard to the
crime weapon ignoring the medical evidence, is not the right
exercise resorted to by the trial Court and this Court is also not
going to give any different opinion in this regard than that of the
opinion given by the Sessions Court.
31. So the evidence of P.W.1 alone remains for consideration
and there is a clear variation between the ocular evidence and
medical evidence. In this context, it is relevant to refer a
judgment of the Hon'ble Supreme Court reported in State of
U.P. v. Hari Chand5, in which it was held that "in any event
unless the oral evidence is totally irreconcilable with the medical
evidence, it has primacy".
32. In another judgment of the Hon'ble Supreme Court
reported in Sayed Darain Ahsan @ Darain v. State of West
Bengal6, it was held that "when medical evidence made, ocular
evidence is improbable, that became a relevant factor in the
process of evaluation of evidence, where medical evidence went
so far that, if completely ruled out all possibility of ocular
evidence being true, then ocular evidence might be disbelieved
and that in impugned judgment that, all eyewitnesses had given
a vivid and true account of incident and had seen occurrence on
close range and there was nothing on record suggesting that
they nurtured ill feeling and harboured enmity against appellant
therein and that the evidence of eyewitness was consistent and
found due corroboration from post-mortem report".
33. From the above, it is clear that, if the medical evidence is
not consistent with the ocular evidence in the process of
5 (2009) 13 SCC 542
6 AIR 2012 SC 1286
evaluation of evidence ruled out all possibility of ocular evidence
being true and it has been evaluated so closely.
34. Now, it is right to make a mention the observations of
Hon'ble Supreme Court in Krishnegowda case (referred to
supra) that "when there is a clear contradiction between medical
and ocular evidence coupled with severe contradictions in oral
evidence, clear latches in investigation, then benefit of doubt
has to go to the accused". Herein this case also, except the
evidence of P.W.1, there is no other consistent oral and medical
evidence to support his testimony. The doctors i.e., P.Ws.4 and
6, who examined P.W.1 categorically deposed during the cross
examination that the injury said to be received by P.W.1 may be
received a person falls on hard surface from a running bike.
35. In these circumstances and having regard to the above
discussion, this Court has no hesitation to come to conclusion
that the trial Court as well Sessions Court have not properly
appreciated the evidence on record and not apprised the
evidence on record in a right direction and in the considered
opinion of this Court the conviction and sentence passed
against the petitioner by the trial Court as well Sessions Court
is not in accordance with law. Thereby, they are liable to be set
aside.
36. In the result, the Criminal Revision Case is allowed
conviction and sentence passed against the petitioner/accused,
vide judgment dated 26.10.2010 in Crl.A.No.72 of 2009 on the
file of Family Court-cum-Additional District & Sessions Court,
Rajamahendravaram by modifying the conviction and sentence
imposed by the judgment dated 28.04.2009 in C.C.No.1515 of
2006 on the file of the Court of learned V Additional Judicial
Magistrate of First Class, Rajamahendravaram, are hereby set
aside. The revision petitioner/accused is acquitted of the offence
under Section 325 of IPC. The fine amount paid by the
petitioner, if any, shall be refunded to him.
Interim orders granted earlier if any, stand vacated.
As a sequel, miscellaneous applications pending, if any,
shall stand closed.
_______________________
JUSTICE V.SRINIVAS
Date: 22.01.2024
Krs
THE HON'BLE SRI JUSTICE V.SRINIVAS
CRIMINAL REVISION CASE No.2056 of 2010
DATE: 22.01.2024
Krs
