Ganesh Agre, Hyd., vs State Of Telangana, Rep Pp.,
2023 Latest Caselaw 638 Tel

                              1                         RRN,J
                                                Crl. RC.No.639 of 2015

THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO


         CRIMINAL REVISION CASE No.639 OF 2015


JUDGMENT:

This Criminal Revision Case is directed against the

judgment rendered by the learned Metropolitan Sessions Judge,

Hyderabad, in Crl. Appeal No.1135 of 2014 dt.16.04.2015,

confirming the conviction and sentence of rigorous imprisonment

for one year and a fine of Rs.500/- for the offence punishable

under Section 326 of Indian Penal Code imposed against the

revision petitioner/accused No.2 by the learned XVI Additional

Chief Metropolitan Magistrate, Hyderabad, in C.C.No.568 of 2012

dt.25.10.2014.

2. The brief facts of the prosecution case are that on

28.06.2012 at about 2130 hours when the complainant G.

Krishna (PW-2) and Mahesh (PW-3) went to Gopi Hotel for having

dinner. Accused No.1 to 3 went there and called PW.3 to come

out from the Hotel and when PW-3 came out from the Hotel, the

accused beat him with his hands and after coming to know the

same, Vidyavan (PW-1) came to Gopi Hotel and took his brother

(PW-2) Krishna to his house and proceeded to the police station 2 RRN,J Crl. RC.No.639 of 2015

and complained orally about the incident, for which, when PW-2

was alone in his house, the accused went to his house carrying

iron rod and enquired about PW-3 and beat PW-2 with hands

and an iron rod, due to which, PW-2 sustained bleeding injuries

on his left leg and, thereby, accused Nos.1 to 3 committed the

offence punishable under Section 326 r/w 34 I.P.C.

3. The prosecution to prove its case examined PWs 1 to

14 and got marked Ex.P1 to P9, and M.O.1. On behalf of the

accused, neither oral nor documentary evidence was adduced.

Upon completion of the trial, the trial Court found the accused

Nos.1 and 3 guilty for the offence punishable under Section 323

I.P.C. instead of Section 326 I.P.C., and found the revision

petitioner/accused No.2 guilty for the offence punishable under

Section 326 I.P.C. Accordingly, convicted and sentenced as

stated supra. Aggrieved by the said judgment, the revision

petitioner/accused No.2 preferred an appeal before the learned

Metropolitan Sessions Judge, Hyderabad, vide Crl. Appeal

No.1135 of 2014 and the Appellate Court vide its judgment

dt.16.04.2015 confirmed the conviction and sentence passed by

the trial Court. Hence, the present criminal revision is filed by

the revision petitioner/accused No.2.

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                                                                Crl. RC.No.639 of 2015

4.           Heard   the   learned         Counsel        for    the      revision

petitioner/accused      No.2    and       the   learned    Assistant        Public

Prosecutor for the respondent/State and perused the material

available on record.

5. Learned Counsel for the revision petitioner/accused

No.2 had mainly contended that the ingredients to constitute the

offence under Section 326 I.P.C. are not made out by any reliable

evidence and the witnesses i.e. PWs 1 to 4 are all relatives, highly

interested and discrepant in material particulars and there is no

direct witness other than PW-9. He further contended that the

medical records issued by PWs 10 and 11 do not disclose the

names of the accused and M.O.1 (iron rod) was not recovered

from the possession of revision petitioner/accused No.2.

Accordingly, prayed to allow the revision.

6. On the other hand, the learned Assistant Public

Prosecutor submitted that the Appellate Court by taking into

consideration the material available on record, rightly rendered

its judgment by confirming the judgment of the trial Court, and

no interference is required by this Court. Accordingly, prayed to

dismiss the revision.

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                                                  Crl. RC.No.639 of 2015

7. A perusal of the record goes to show that PW2 is the

victim and complainant and stated that he and PW-3 went to

Gopi Hotel and were having meals. Accused No.1 called PW-3

from outside the Gopi Hotel and PW-3 went outside, then

accused Nos.1 to 3 beat him indiscriminately, for which, PW-2

went outside and tried to rescue PW-3, but accused Nos.1 to 3

beat PW.2 also. He further stated that while he was alone

present in his house at about 10.00 p.m. on the same day,

accused Nos.1 to 3 came to his house and accused No.1 abused

him in filthy language and accused No.2 armed with an iron rod,

beat him on his left leg and went away.

PWs 1 and 3 who are circumstantial witnesses

corroborated the version of PW.2 and stated that pursuant to the

attack by the accused at Gopi Hotel, they dropped PW.2 at his

house and went to the Police Station to report the said incident.

While so, upon receiving a phone call from Hari that PW.2 was

attacked by the accused and his left leg was broken, PWs 1 and 3

along with a police constable rushed to the house of PW.2 and

shifted him to Osmania General Hospital for treatment. Nothing

is elicited in the cross-examination of PWs 1 to 3 to discredit

their evidence.

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                                                    Crl. RC.No.639 of 2015

8. The evidence of PW.4 is crucial as she is the

eyewitness who has seen the attack by the accused, specifically

accused No.2 beating PW.2 with an iron rod. She deposed that

on 28.05.2012 at about 11.00 p.m. while she was standing in

front of her house, she noticed accused No.2 beating PW.2 with

an iron rod and accused Nos.1 and 3 joined accused No.2 and

beat PW-2 with hands.

9. In this case, PW.2 is the victim and complainant. He

stated that himself and PW.3 went to Gopi Hotel and were having

meals. Accused No.1 called PW.3 from the outside the Gopi Hotel

and when PW-3 went out from the Hotel, accused Nos.1 to 3 beat

him indiscriminately, for which, he came out from the Hotel and

try to rescue PW-3, accused Nos.1 to 3 also beat him. PW-3 is

the witness who was present along with PW-2 deposed that by

the time of the incident, himself and PW-2 were in Gopi Hotel to

have meals, then accused No.2 came there and asked him to

come out from the Hotel, for which, he came out from the Hotel.

A perusal of the evidence of both witnesses shows PW-2 stated

that accused No.1 called PW-3, whereas PW-3 stated that

accused No.2 called him. So, there is inconsistency in the

evidence of both witnesses with regard to that calling of a person.

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                                                  Crl. RC.No.639 of 2015

Likewise, coming to the evidence of PW-2, he stated that while he

was alone present in his house at about 10.00 p.m. on the same

day, accused Nos.1 to 3 came to his house and accused No.1

abused him in filthy language, accused No.2 armed with an iron

rod beat him on his left leg and accused Nos.1 and 3 beat him

with hands indiscriminately and went away. Coming to the

evidence of PW.4, who is stated to be an eyewitness, deposed that

on 28.05.2012 at about 11.00 p.m. while she was standing in

front of her house, she noticed accused No.2 beating PW-2 with

an iron rod, the accused No.2 and 3 joined accused No.1 and

beat PW.2 with hands. Then the police came to the spot and

stopped the accused and shifted PW.2 to the Hospital.

There is a discrepancy between the evidence of PW-2 and

PW-4 with regard to the time of the attack on PW-2. PW-2 stated

that the incident took place at about 10.00 p.m., whereas PW-4

stated that it was about 11.00 p.m. The further inconsistency in

the testimonies is that PW.2 stated that accused Nos.1 to 3 beat

him indiscriminately and went away, whereas PW-4 stated that

the police came to the spot and stopped the accused and shifted

PW.2 to the Hospital. Moreover, the Appellate Court, despite

acknowledging that the only direct witness to the altercation at 7 RRN,J Crl. RC.No.639 of 2015

Gopi Hotel, i.e PW-9, did not support the case of the prosecution,

raises a reasonable doubt as to the involvement of the accused in

the said offence. Both the Trial Court and Appellate Court took

note of the fact that PWs 1, 3 and 4 admitted in their cross

examination that they are relatives of PW-2 but merely being

relatives would not affect the prosecution's case when their

evidence is consistent. However, as discussed above, there is

serious inconsistency in the version of the witnesses.

10. The Court is obliged to assess the evidence on the test

of probability. Though wide discretion is given to the Court to

consider the matters before it, such an evidence has to be sifted

carefully before recording satisfaction. It is not the quantum, but

what matters is the quality. The Courts below found the evidence

of PWs 1 to 4 acceptable. When the offence is heinous, the

Court is required to put the material evidence under a higher

scrutiny. On a careful consideration of the reasoning given by

the Courts below, this Court finds that sufficient care has not

been taken in the assessment of the statements made by PWs 1

to 4. Both the Courts below convicted the revision petitioner

without looking into the inconsistent testimony of the crucial

witnesses. The benefit of doubt would, therefore, have to be 8 RRN,J Crl. RC.No.639 of 2015

extended to the revision petitioner as the prosecution failed to

establish the guilt of the revision petitioner beyond all reasonable

doubt.

11. For the aforementioned reasons, the conviction and

sentence rendered by the Courts below cannot be sustained and

the same is liable to be set aside.

12. In the result, the Criminal Revision Case is allowed.

The conviction and sentence imposed on the revision petitioner

by the learned Metropolitan Sessions Judge, Hyderabad, in Crl.

Appeal No.1135 of 2014 dt.16.04.2015, confirming the conviction

and sentence of rigorous imprisonment for one year and fine of

Rs.500/- for the offence punishable under Section 326 of Indian

Penal Code imposed against the revision petitioner/accused No.2

by the learned XVI Additional Chief Metropolitan Magistrate,

Hyderabad, in C.C.No.568 of 2012 dt.25.10.2014, is set aside.

The revision petitioner/accused No.2 is acquitted of the charged

offence. Since the revision petitioner/accused no.2 is on bail, his

bail bond is hereby cancelled. The fine amount paid by the

revision petitioner/accused No.2 , if any, shall be returned to 9 RRN,J Crl. RC.No.639 of 2015

him. M.O.1 i.e. iron rod, shall be destroyed after the expiry of

appeal time.

As a sequel, pending miscellaneous applications, if any

shall stand closed.

_____________________________________ NAMAVARAPU RAJESHWAR RAO,J

8th day of February, 2023 BDR