Telangana High Court

Mohd Hussain Irshad , Arshad, ... vs The State Of Telangana, Rep Pp., on 20 September, 2023

Bench: Namavarapu Rajeshwar Rao

 THE HON'BLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO

           CRIMINAL REVISION CASE NO.2433 OF 2016

ORDER

This Criminal Revision Case is filed under Sections 397

and 401 of the Code of Criminal Procedure, challenging the

judgment dt.22.09.2016 passed by the I Additional Sessions

Judge, Warangal in Criminal Appeal No.36 of 2016, confirming

the conviction of the revision petitioner for the offence under

Section 324 of the Indian Penal Code, however, modifying the

sentence of imprisonment from a period of (03) years to (06)

months, passed by the I Additional Judicial Magistrate of First

Class, Warangal vide judgment dt.25.04.2016 in C.C No.398 of

2013.

2. For convenience, the parties are hereinafter referred to as

they are arrayed before both the Courts below.

3. The brief facts of the case are as follows:

3.1 It is the case of the prosecution that the de-facto

complainant lodged a complaint on 15.06.2013 at 2:45 am,

stating that in order to perform the marriage of his sister, he

offered his land for sale. One P.Sandeep secured one Rafeeq to

purchase the land. The said Rafeeq entered into an agreement 2 RRN,J CRL.R.C No.2433 OF 2016

of sale with the de-facto complainant and that the accused had

been working as a Junior Assistant in the Urban Police Office,

Warangal and came to know that the de-facto complainant sold

his land and he also informed that he would sell his land for a

higher price and took the phone number of the said Sandeep

and called him, informing that he would sell the land of the de-

facto complainant for a higher price, for which the said

Sandeep did not agree to cancellation of agreement of sale.

While so, on 14.06.2013,the accused called the said Sandeep to

RTC Bus Station,Warangal and the said Sandeep, along with

his friend Anil, came to the bus station. The accused

threatened the said Sandeep, stating that he was working in

the Police Department and called the de-facto complainant and

also instructed him to visit the bus station. The de-facto

complainant reached the bus stand and requested the accused

not to quarrel with the purchaser and Sandeep and asked them

to leave. The de-facto complainant,while taking the accused on

a motorcycle, the accused asked the de-facto complainant to

stop the motorcycle to purchase a pan, as such, the de-facto

complainant stopped the motorcycle and the accused picked up

a boulder and hit the de-facto complainant, due to which,he

lost (02) of his teeth. That one R. Balakrishna and others came 3 RRN,J CRL.R.C No.2433 OF 2016

there and rescued the de-facto complainant, and the accused

fled away.

3.1 Pursuant to the investigation, the Police filed a

chargesheet against the accused for the offence punishable

under section 326 of the Indian Penal Code and the trial was

commenced.

4. To prove the case of the prosecution,PWs1 to 9 were got

examined and exhibits P.1 to P.10 and M.O.1 and 2 were got

marked.

5. On the side of the defence, DW-1 was examined.However,

no exhibits were marked.

6. Upon appreciating the evidence on record, the Trial Court

found the accused guilty for the offence punishable under

section 324 of the IPC instead of section 326 of the IPC and

sentenced the accused to undergo simple imprisonment for a

period of 3 years and also to pay a fine of ₹10,000.

7. Aggrieved by such judgment, the accused preferred an

appeal before the learned Sessions Judge vide Criminal Appeal

No.36 of 2016, and the learned Sessions Judge was pleased to

dismiss the appeal by confirming the conviction but modified

the sentence from (03) years to(06) months. Challenging the 4 RRN,J CRL.R.C No.2433 OF 2016

judgements of both the Courts below, the accused is before this

Court seeking acquittal.

8. Heard the learned counsel for the accused/petitioner and

the learned Assistant Public Prosecutor appearing on behalf of

the complainant/state. Perused the entire material on record.

9. It has been contended by the counsel for the

accused/petitioner that both the Courts below erred in

convicting the accused without appreciating the circumstances

of the case in its totality. It is further contended that both the

Courts below ignored the fact that PWs 2, 3, 4 and 5 turned

hostile and did not support the prosecution case. It is further

contended that the Courts below got carried away by believing

the evidence of PW-1 as he would obviously allege in such a

manner as to find the accused guilty. It was also contended

that the prosecution failed to produce any medical evidence viz.

the registration certificate of the hospital, which the de-facto

complainant claimed to have gone for treatment, and that the

police referred the de-facto complaint to MGM hospital, but no

such proof is submitted. He lastly contended that in all

probabilities and in view of the other grounds, the conviction

and sentence on the accused/ petitioner cannot be sustained

and the revision case deserves to be allowed.

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                                                      CRL.R.C No.2433 OF 2016

10. On the other hand, it has been contended by the learned

Assistant Public Prosecutor appearing for the

respondent/complainant that both the Courts below were

justified in passing the impugned judgements, having carefully

examined each and every aspect involved in the case. It was

further contended that the evidence of PWs-1, 7 and 8, coupled

with M.O1 and 2 which is the stone and the teeth of the de-

facto complainant, was properly appreciated by both the Courts

below and the plea of alibi taken by the accused was rightly

rejected by the Courts below. Therefore, prayed to dismiss the

revision case by confirming the judgements of the Courts below.

11. It is the case of the de-facto complainant that the

accused/petitioner called him to come to RTC bus

stand,Warangal to discuss an issue regarding to a property and

that upon being compelled by the accused, the de-facto

complainant went to the bus station. The quarrel took place

between the accused and other persons and the de-facto

complainant. After a while, when things cooled down, the de-

facto complainant offered to drop the accused on his

motorcycle. While they were travelling, the accused asked the

de-facto complainant to stop the motorcycle and after getting

down, he picked up a boulder and threw it on the face of the 6 RRN,J CRL.R.C No.2433 OF 2016

de-facto complainant, who tried to evade the same. Still, it hit

his mouth, resulting in losing of (02) of his teeth. In his chief

examination, the de-facto complainant stated that he

immediately rushed to the police station and gave a complaint,

and the police referred him to MGM Hospital. However, there is

no whisper in the chief examination of the de-facto complainant

that PW-2 and others came and rescued the de-facto

complainant, as recorded by the Trial Court in its judgement.

12. On carefully observing the evidence of PW-2, it is first

noticed that he turned hostile and PW-2 also did not depose

that he is the eyewitness to the attack and that he went and

rescued the de-facto complainant. PW-2 deposed that he

observed some galatta and has also stated that it was dark and

that he could not identify any person. There is no clarity as to

what the purported evidence of PW-2 was, which the

prosecution tried to rely upon. The Trial Court found that in

view of the admission in the cross-examination of PW-2 that he

noticed PW-1 on the date of the incident and that he admitted

that he went to purchase vegetables near to the RTC bus stand

at 2:00 AM, established the presence of PW-1 and the galata.

This Court is of the opinion that at the end of the day,PW-2

turned hostile and in the very cross-examination itself, which 7 RRN,J CRL.R.C No.2433 OF 2016

the trial court took note of, PW-2 stated that what he had

stated to the police was as stated to him by the de-facto

complainant and that he did not identify any persons as it was

dark. As such, whatever the evidence the prosecution relied

upon from PW-2 is hearsay evidence, and there is no concrete

proof of the same.

13. Coming to the evidence of PWs 3, 4 and 5, it is noticed

that even these three witnesses turned hostile and did not

support the prosecution case. PW-3 is said to be the eyewitness

to the galata, which allegedly took place at the RTC bus stop

between himself, LW 2 and the de-facto. It is pertinent to state

here that LW-2 was also said to be an eye-witness but the

prosecution gave him up. PWs 4 and 5 are the punch

witnesses. PW-3 in his chief examination, denied that he knew

the accused and also deposed that he did not state anything to

the police.PW-4 and PW-5, in their chief examination, deposed

that they were at their respective shops and the police went to

their shops and obtained signatures on the crime details form.

It can be safely said that the prosecution case took a toll when

the very witnesses that the prosecution tried to rely upon,

turned hostile, meaning that PW-4 and 5, who are said to be

the punch witnesses, were not present at the time of the 8 RRN,J CRL.R.C No.2433 OF 2016

investigation and the evidence of PW-3 could hint that galata as

alleged, did not take place. It is from here that discrepancies

arise in evidence of the prosecution witnesses. But the Trial

Court went on to appreciate the evidence of PW-1 coupled with

the evidence of PW-2 by observing that galatta did take place at

2:00 AM at RTC bus stand, Warangal. It is very difficult to

understand whether any galata took place, much less the

alleged attack by the accused on the de-facto complainant,

more particularly in the absence of any eyewitness to the

alleged attack.

14. To satisfy itself regarding the injury, as alleged, sustained

by the de-facto complainant, the trial Court appreciated the

evidence of PW-6/ the doctor who treated the de-facto

complainant and issued a wound certificate vide exhibit P6. It

is observed from the evidence of PW-6 that he issued the wound

certificate by stating that exhibit P6 bears the date

16.03.2013.However, he stated that he treated the de-facto

complainant on 16.06.2013. He further stated that he could not

say when he examined the injured. The cross examination of

PW-6 shows that the hospital in which PW-6 is working is not

registered and that he requires registration from the PMC Act.

He denied the suggestion that he was incompetent to issue the 9 RRN,J CRL.R.C No.2433 OF 2016

wound certificate. He admitted that the cause of injury was

absent in exhibit P6 and that the de-facto complainant was not

referred to any police officer. The Trial Court observed that the

registration of the hospital was not necessary and that PW-6 is

an expert, meaning he had special knowledge, admittedly, being

a dental surgeon, he was competent to examine the injured.

This Court is not impressed with such a view taken by the Trial

Court as when there is a mandatory rule that the dental

hospitals are to be registered, the mere fact that PW-6 is a

dental surgeon and having issued exhibit P6 wound certificate

cannot itself be considered for the purpose of conviction of the

accused.

15. Coming to the evidence of PW-7, the photographer who

had taken photographs of the scene of the offence, he had

deposed in his chief examination that on 15.06.2013, the police

approached him, and he went to Warangal Bus Stand and took

photographs of a stone and teeth at the bus stand. Exhibit P7

is the photograph of teeth and exhibit P8 is the photograph of

the stone. He further stated that he handed over the

photograph to the police along with CD. It was elicited in his

cross-examination that the photographs do not reflect his name

nor that the CD or photographs bear his name or the name of 10 RRN,J CRL.R.C No.2433 OF 2016

the studio. It was also elicited that the photographs and CD do

not show any date and time as to when they were obtained. The

Trial Court observed that the evidence of PW-7clinchingly

proves that immediately after the incident, PW-7 went to the

scene of the offence and took photographs under exhibit P7 and

P8 and the Trial Court also stated that the time and date can be

installed in the cameras as per a person's wish and will and

they can be changed at their choice and merely because the

exhibits P7 and P8 do not contain the date, time or name, the

said photographs cannot be believable. This finding of the Trial

Court does not bear any justification and there is no reasoning

as to how the evidence would suggest that PW-7 immediately

went to the scene of offence when such time and date is not

reflected on exhibits P7 and P8. As a matter of fact, the

photographer could have captured any random stone and the

teeth of the de-facto complainant could also have been placed

there for the purpose of creating exhibits P7 and P8, as argued

by the learned Counsel for the accused/petitioner. Thus, it can

be safely said that the evidence of PW-7 is not enough to bring

home the guilt of the accused.

16. PW-8 is the Police Officer who registered the FIR and is

the first investigating officer. In his chief examination, he 11 RRN,J CRL.R.C No.2433 OF 2016

deposed that he referred the injured to the hospital and

recorded his statement and visited the scene of offence situated

at RTC Bus Stand, Warangal. He also stated that he got the

photographs of the scene of offence with the help of PW- 7 and

drafted the crime details form in the presence of PWs 4 and

5.He also deposed that he seized the stone and broken teeth of

the complainant from the scene of offence. In his cross

examination, he stated that the de-facto complainant came to

the police station with oozing of blood and was in a drunken

state. The admission that PW-1 was in an inebriated state was

not recorded by both Courts below in their judgments. He

further stated that he collected no medical certificates from

MGM Hospital. He also stated that he did not collect any

documents pertaining to the alleged property dispute between

the accused and the de-facto complainant. He denied the

suggestion that the de-facto complainant himself fell down as

he was in a drunken state and due to the same, he received an

injury and lost his teeth. He denied the suggestion that the

accused was not present during the incident.

17. It is observed from the judgement of the Trial Court that

the Trial Court did not give any independent reasoning

appreciating the evidence of PW-8 but had just coupled the 12 RRN,J CRL.R.C No.2433 OF 2016

evidence of PW-8 with other credible witnesses to arrive at the

guilt of the accused. The very admission of PW-8 that the de-

facto compliment was in a drunken state at the time of giving

the complaint can hint that there is a possibility of the de-facto

complainant could have sustained the injury by other means.

This Court does not find any reason as to why the trial court

did not comment on this aspect. When PWs 4 and 5 have

turned hostile by stating that the police obtained their

signatures on the crime details form while they were at their

respective shops, the coupled evidence of PWs 2, 4 and 5

cannot be considered as reliable evidence in the favour of the

prosecution. It may be true that PW-8 secured the presence of

PW-7 and got the photographs of exhibits P7 and P8 but there

is no reason to believe that such evidence is unimpeachable

and very well pertains to the alleged incident.

18. Coming to the evidence on the side of the defence, DW-1

was examined, and he deposed that the accused/petitioner

came to his shop at 10 PM to purchase some furniture and in

order to take measurements, DW-1 and the accused went to the

accused's house by 11pm. He further deposed that he and the

accused watched a movie in the midnight in the house and they

woke up at 5am and went to masjid to offer prayers. As seen 13 RRN,J CRL.R.C No.2433 OF 2016

from the evidence of DW-1, the accused has set up a plea of

alibi that he was never present at the scene of offence at that

time. The Courts below took note of the fact that it is not the

case of the accused that it was highly impossible that the

accused could not have been present at the scene of offence

and he was very much in the proximity of the scene of offence

and no documentary evidence was adduced to support the case

of the defence. Hence, both the Courts below held that the plea

of alibi taken by the accused is not tenable. Be that as it may, it

is the burden of the prosecution to prove the guilt of the

accused beyond all reasonable doubt, still it appears from the

record and in the light of the above reasons of this Court that

there are serious discrepancies in the evidence of the

prosecution witnesses. More so, there are lapses in the

investigation which the defence clearly elicited in the cross

examination of PWs 8 and 9. PW-9 is the Police Officer who filed

a chargesheet. His deposition discloses that many legal aspects

involved with regard to the medical elements are not in order.

19. One aspect which needs attention is that the Trial Court

in its judgment observed that the accused was very much

present in the galata, owing to the very cross examination of

PW-1 that put a suggestion to him that in the bus stand, 14 RRN,J CRL.R.C No.2433 OF 2016

Sandeep and the accused quarrelled with regard to the

agreement entered by PW-1 with both of them. Learned Counsel

appearing for the accused/petitioner relied upon a decision of

the High Court of Gujarat reported in Avadh Bihari Amrutlal

Vs. State of Gujarat 1wherein it was observed as follows:

"7. ....

(iii) .......In cross-examination, more than one suggestions were put to which the Doctor has denied. In case of KHIMJIBHAI KURJIBHAI vs. THE STATE OF GUJARAT, reported in 1982 Cri.L.R.

381, it has been held that

"Suggestion in cross-examination are no evidence. This proposition of law is good both in the case of the prosecution and the defence. Mere hurling of some such suggestions which are denied, can hardly take the place of proof or evidence. The Law of Evidence is alike both for the prosecution and for the defence. If the accused wants to establish a certain fact, he has to lead evidence on that score. Such suspicion cannot have any place in the realm of appreciation of evidence. We reiterate that a suggestion denied by a witness remains only a suggestion and has no evidentiary value at all."

2000 LawSuit(Guj) 615.

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                                                  CRL.R.C No.2433 OF 2016

In view of the above, this Court is of the opinion that a

mere suggestion would not give room to presume that the

accused/petitioner was in the galata at the RTC bus stand.

20. The accused/petitioner filed extensive written arguments

and it is filed in support of seeking a clean acquittal. The

arguments inter alia focus on the alleged motive of the crime. It

is stated that the case is falsely hoisted against the accused as

PW-9 bore a grudge on the accused as the accused. Mere

suggestions in the cross examination of PW-9 and the

allegations against him by way of the written arguments cannot

be considered in the absence of any concrete evidence. If the

accused is of the apprehension that PW-9 bore a grudge and

the case is falsely hoisted, the accused was open to take steps

against PW-9 and any persons as per law. Thus, this Court is

not inclined to appreciate the stand taken by the