CC.434 OF 2015 Date: 19.11.2019
Prl.JMFC, Penukonda
IN THE COURT OF THE PRINCIPAL JUDICIAL MAGISTRATE OF I CLASS
AT PENUKONDA
PRESENT: SRI A.RADHA KRISHNA MURTHY
JUDL. MAGISTRATE OF I CLASS, MADAKASIRA
FAC : PRL.JUDICIAL MAGISTRATE OF I CLASS, PENUKONDA
TUESDAY, THE NINETEENTH DAY OF NOVEMBER
TWO THOUSAND AND NINETEEN
C.C.No. 434 OF 2015
BETWEEN:
The State of AP, rep.by Station House Officer, Penukonda Police Station. … Prosecution AND
01. Talari Thimmanna (Case is abated since died)
02. T.Jagan @ Jagan Mohan (Case is abated since died)
03. T.Adinarayana
04. Talari Ramanna
05. T.Ramanjineyulu
06. T.Aswartha Narayana
07. Talari Anjinappa @ Dubba Anjinappa
08. Sugali Rathna Bai
09. T.Ramesh
10. T.Somasekhar … Accused
This Case is coming on 04.11.2019 before me for final hearing in the presence of Sri M.Nagesh, learned Assistant Public Prosecutor for State, Sri D.V.Siva Reddy, learned Counsel for the Accused, upon hearing both sides and having stood over the matter for consideration, till this day, the Court delivered the following:
:: J U D G M E N T ::
1.This is a case filed by the Sub Inspector of Police of Penukonda
Police Station against the Accused Nos.1 to 10 in Cr.No.96 of 2015 for the offences punishable under Sections 147, 148, 428, 324, 326 read with 149 of
Indian Penal Code, 1860 (hereinafter referred to as IPC for the sake of brevity).
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2. CASE OF PROSECUTION, IN NUTSHELL :
Bestha Venkata Ramanappa and Lakshmi Devi are Husband and wife and they were blessed with three sons and among them their Second son by name Sudhakar along with his wife and children are residing with
Venkata Ramanappa and Lakshmi Devi. The 1st Accused and the said
Venkata Ramanappa have disputes regarding the Pathway and civil case is pending before the Civil Court.
2.2On 15.09.2015 at about 09:00 AM while the said Venkata
Ramanappa, Lakshmi Devi and Sudhakar were in the house, the Accused
Nos.1 to 7 and some others, armed with sticks and sickles, trespassed into the house of Venkata Ramanappa and beat the said Venkata Ramanappa,
Lakshmi Devi and Sudhakar. As a result, Venkata Ramanappa received bleeding injury to the right side of head, scratch injury to his right shoulder and swelling injury to his left shoulder. Lakshmi Devi sustained bleeding injury to the right side of head, scratches to her right hand fingers and invisible injuries to all over her body. Sudhakar received injuries on his forehead, back side of head and left side of head. Sudhakar also received bleeding injuries to his left hand index finger and invisible injuries to his body.
The neighbors shifted them to the Government Hospital at Penukonda for
Treatment. KM.Linganna, the then SI of Police recorded Ex.P-1/Statement of the said Venkata Ramanappa in the hospital.
2.3Basing on Ex.P-1/Statement, KM Linganna (PW-8) registered the case, issued Ex.P-7/FIR, examined and recorded the statements of the witnesses. KM Linganna visited the Scene of Offence and seized MO-1 to MO- 3 under Ex.P-8/Police Proceedings. KM Linganna also prepared Ex.P-9/Rough
Sketch of the Scene. KM Linganna arrested the Accused Nos.1 to 10 and enlarged them on station bail. After completion of investigation, KM
Linganna filed Charge Sheet by adding Sec.326 IPC basing on the Wound
Certificates. Hence, the Charge.
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3.On receipt of Charge Sheet, the Court took the case into cognizance against the Accused Nos.1 to 10 for the offences punishable under Sections 147, 148, 324, 326 read with 149 of IPC and assigned
C.C.No.434 of 2015. On appearance of the Accused Nos.1 to 10, copies of case documents were furnished to them as contemplated under Sec.207 of
Cr.P.C. The Accused Nos.1 to 10 were examined under Sec.239 of Cr.P.C and they denied the Accusation. Charges of the offences under Sections 147, 148, 324, 326 read with 149 of IPC were framed against Accused Nos.1 to 10, read over and explained to them in Telugu, for which the Accused Nos.1 to 10 pleaded not guilty and claimed to be tried.
4.During Trial, the Prosecution has examined PWs.1 to 8 and got exhibited Exs.P-1 to P-9 and MO-1 to MO-3.
5.After closure of the prosecution side evidence, the Accused
Nos.1 to 10 were examined under Sec.313 Cr.P.C and the incriminating material available in the evidence of prosecution witnesses was read over and explained to the Accused Nos.1 to 10 in Telugu, for which they denied the same in toto and reported no defence on their behalf. Hence evidence of
Accused Nos.1 to 10 was closed.
6.Heard the arguments of learned Assistant Public Prosecutor and the learned Counsel for the Accused.
7.Perused the record.
8.According to the case of the Prosecution, PW-1 to PW-3 are the
Victims; PW-4, PW-6 & PW-7 are the eyewitnesses; PW-5 is the doctor who treated and PW-8 is the Investigation Officer. All the testimonies of the PW-1 to PW-8 are very much available on record in the form of depositions and the same are not reproducing here to avoid repetition.
9.Now the points germane for my determination are :
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1. Whether the Accused Nos.3 to 10 along with the Accused
Nos.1 & 2 were formed into an unlawful assembly armed with stones
and sticks and trespassed into the house of PW-1 to PW-3 on
15.09.2015 at about 09:00 AM in Gonipeta village of Penukonda
Mandal ?
2. Whether the Accused Nos.3 to 10 along with Accused
Nos.1 & 2 are voluntarily caused hurt to PW-1 & PW-3 with MO-1 to
MO-3/Sticks on 15.09.2015 at about 09:00 AM ?
3. Whether the Accused Nos.3 to 10 along with Accused
Nos.1 & 2 are voluntarily caused grievous hurt to PW-2 with MO-1 to
MO-3/Sticks on 15.09.2015 at about 09:00 AM ?
4. Whether the Accused Nos.3 to 10 are liable for conviction for the offences U/sec.147, 148, 324, 326 of IPC ?
10. P O I N T No.1 : Whether the Accused Nos.3 to 10 along with
the Accused Nos.1 & 2 were formed into an unlawful assembly
armed with stones and sticks and trespassed into the house of
PW-1 to PW-3 on 15.09.2015 at about 09:00 AM in Gonipeta village
of Penukonda Mandal ?
10.1The learned Assistant Public Prosecutor would contend that from the Testimonies of PW-1 to PW-3 coupled with Ex.P-1/Statement, it is evident that on 15.09.2015 at about 9:00 AM, the Accused Nos.3 to 10 along with the
Accused Nos.1 and 2 were formed into an unlawful assembly armed with stones and sticks and trespassed into the house of PW-1 to PW-3 and thereby the Accused Nos.3 to 10 have committed the offence under Section 147 and 148 of IPC.
10.2In order to convict the Accused Nos.3 to 10 for the offences under
Section 147 and 148 of IPC, the Prosecution has to establish that on
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Prl.JMFC, Penukonda 15.09.2015 at 9:00 AM, the Accused Nos.3 to 10 along with the Accused
Nos.1 and 2 were formed into an unlawful assembly as defined under Section 141 of IPC and they were armed with sticks and trespassed into the house of
PW-1 to PW-3 in order to beat them.
10.3In order to prove the guilt of the Accused Nos.3 to 10 for the offences stated supra, the Prosecution has placed its reliance upon the
Testimonies of PW-1 to PW-3 and PW-8 coupled with Ex.P-1/Statement,
Ex.P-7/FIR and MO.1 to MO.3.
10.4It is the evidence of PW-1 to PW-3 that on 15.09.2015 at 9:00 AM, while they were having meal, the Accused Nos.1 to 10 came to their house in the mob and trespassed into their house with sticks. During Cross
Examination PW-1 to PW-3 denied the suggestion that the Accused never trespassed into their house and they preferred false report against the
Accused with an ill-intention to grab the land of Accused. PW-1 further denied the suggestion that he did not mention in Ex.P-1/Statement and he did not state to PW-8 about the names of Accused Nos.8 to 10. PW-2 denied the suggestion that he did not state before PW-8 that the Accused assaulted them while they were having meal in their house. PW-2 denied the suggestion that no Galata took place on the date of incident nor the Accused assaulted them and the Accused never came to their house. PW-3 deposed in his cross examination that she did not state before PW-8 that she served food to PW-1 to PW-3 and sat in front of her house on the day of incident.
PW-3 denied the suggestion that the Accused never made any assault against them and this case was foisted with a view to a grab the land of
Accused. PW-8 deposed in his Cross Examination that PW-2 did not state
before him that the Accused assaulted them while they were having meal.
PW-8 admitted that Ex.P-7 does not disclose the names of Accused
Nos.8 to 10.
10.5The learned Counsel for the Accused would contend that from the
Testimonies PW-1 to PW-3 coupled with PW-8, it is very clear that there are
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Prl.JMFC, Penukonda omissions in the Testimonies of PW-1 to PW-3 and if at all the Accused
Nos.3 to 10 along with the Accused Nos.1 and 2 were formed into an unlawful assembly, armed with sticks and stones, trespassed into the house of PW-1 to
PW-3, PW-1 would have mentioned the names of Accused Nos.8 to 10 in
Ex.P-1/Statement and Ex.P-7/FIR would have contain the names of Accused
Nos.8 to 10 and non-disclosure of the names of Accused Nos.8 to 10 in Ex.P- 1/Report falsifies the contentions of PW-1 to PW-3.
10.6The learned Counsel for the Accused also placed his reliance on the Judgment of Hon’ble Supreme Court in Darshan Singh & Others – Vs –
State of Punjab 1, it was observed that “The fact that the names of some Accused are not mentioned in the
FIR is a circumstance which the Prosecution has to explain, though no rule of law stipulates that an Accused whose name is not mentioned in an FIR is entitled to an acquittal.” 10.7A perusal of Ex.P-1/Statement of PW-1 discloses the names of
Accused Nos.1 to 7 and it was mentioned in Ex.P-1 that some other persons along with the Accused Nos.1 to 7 have trespassed into the house of PW-1 to
PW-3. According to the evidence of PW-1 and PW-8, it is evident that PW-8 received the Hospital intimation under Ex.P-6, proceeded to the Government
Hospital at Penukonda and recorded Ex.P-1/Statement of PW-1. There is no dispute with regard to the same. Thus, PW-1 gave Ex.P-1/Statement while undergoing treatment. An ordinary prudent person does not expect that the patient is in a position to narrate the exact incident what was happened and all the names of the persons who attacked him. Further, PW-1 to PW-3 categorically stated to PW-8 the names of all the Accused persons while recording their statements under Section 161 of Cr.P.C. Further, in entire
Cross Examination of PW-1 to PW-3, it was not elicited the reason for non- disclosure of the names of Accused Nos.8 to 10 in Ex.P-1/Statement. Further, 11983 CRI.L.J 985 SC
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Prl.JMFC, Penukonda it is settled legal position that FIR is not an encyclopedia and it need not contains every minute detail of the alleged incident.
10.8In V.K.Misra and another – Vs – State of Uttarakhand 2 , it was held “FIR is not expected to contain all details of Prosecution case. It would be sufficient if broad facts Prosecution case are stated in FIR. Unless there are sufficient indications of fabrications, Prosecution version cannot be doubted, merely on the ground that FIR does not contain details.” 10.9It is true, admittedly there are disputes between PW-1 and the
Accused with regard to the pathway. PW-1 to PW-3 categorically deposed that on 14.09.2015 the Accused made fencing by Thorny bush obstructing the Rastha proceeding towards Settipalli Village. PW-1 and PW-2 also deposed that on 15.09.2015 they called media people and took them to the disputed site and photographed the same. It is the evidence of PW-1 that while taking photographs of the Rastha which was fenced by the Accused,
Accused Nos.2 and 5 went there and made Galata with him. PW-2 testified that at that time some altercation took place between PW-1 and Accused
No.2. In Cross Examination, it was suggested to PW-1 that the Accused put
Thorny Fencing in their own land to safeguard the crop from cattle and they did not cause any obstruction to Rasta. Thus, from the said suggestion, it is clear that the Accused put Thorny bushes. Further, when there is direct evidence with regard to the alleged incident, the motive loses its importance.
From the Cross Examination of PW-1 to PW-3 it is not the case of Accused that
PW-1 has inimical terms with the Accused Nos.1 to 7 only and he has no inimical terms with the Accused Nos.8 to 10 and therefore PW-1 did not mention in Ex.P-1/Statement the names of Accused Nos.8 to 10 and it is also not the case of Accused that wantonly PW-1 suppressed the name of Accused
Nos.8 to 10 while giving statement under Ex.P-1 to PW-8. In the absence of any such contention, nothing can be attributed to PW-1 for non-disclosing the names of Accused Nos.8 to 10 to PW-8 while recording the Statement under 22015(2) ALD (Crl.) 533 SC (FB)
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Ex.P-1. In the light of the above Full Bench Judgment of the Hon’ble Supreme
Court in V.K.Misra’s case stated supra and in view of the above discussion this Court is of the considered opinion that mere non-disclosure of the names of Accused Nos.8 to 10 in Ex.P-1/Statement, is not fatal to the Prosecution case and it does not jettison the entire evidence of PW-1 to PW-3. Therefore, the Testimonies of PW-1 to PW-3 are believable and trustworthy.
10.10It is the evidence of PW-1 to PW-3 that the Accused Nos.1 to 10 were trespassed into their house with sticks. It is the evidence of PW-8 that he seized MO-1 to MO-3/Sticks from the scene of offence under Ex.P-8/Police
Proceedings. During Cross Examination PW-8 deposed that he did not issue any Notice either to Panchayat Secretary or to Village Sarpanch or Ward member or neighbouring house owners while conducting Ex.P-8. PW-8 denied the suggestion that MO-1 to MO-3 were planted for the purpose of this case and he did not seize them at the Scene of Offence.
10.11The learned Counsel for the Accused would contend that if at all
PW-8 seized MO-1 to MO-3 from the Scene of Offence, he would have summoned either Panchayat Secretary or Village Sarpanch or Ward Member and hence the evidence of PW-8 cannot be believed.
10.12It is true, that PW-8 deposed as such in his cross examination.
According to evidence of PW-1 to PW-3, the alleged incident took place in their house. PW-8 has mentioned in Ex.P-8 that he seized MO-1 to MO-3 under Ex.P-8 since elders were unavailable at that time. PW-8 denied the suggestion that the village people gathered at the Scene of Offence immediately he went there. Thus, from the said suggestion, it is the case of the Accused that though the Village People were gathered, PW-8 did not take their signatures on Ex.P-8. If at all the said statement is true, PW-8 would have seized MO-1 to MO-3 from the Scene of Offence in presence of the village people. Further, nothing was attributed to PW-8 in entire cross examination about the necessity to PW-8 to plant MO-1 to MO-3 in this case and it was also not elicited the specific interest to PW-8 to bring sticks from
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Prl.JMFC, Penukonda out side and to seize as material objects in this case. In the absence of any such attributions, the evidence of PW-8 cannot be disbelieved.
10.13The learned Counsel for the Accused would contend that the entire evidence of PW-1 to PW-3 is silent with regard to the specific overt acts of each of the Accused Nos.3 to 10 and in the absence of the same, the
Accused Nos.3 to 10 cannot be convicted for the offence under Sections 147 and 148 of IPC. The learned Counsel for the Accused placed his reliance on the Judgment of Hon’ble Supreme Court reported as Baladin – Vs – State of
U.P 3 and Another Judgment of Hon’ble Supreme Court reported as Ishwar
Singh and Ilam Singh – Vs – State of U.P 4.
10.14The entire Testimonies of PW-1 to PW-3 are very specific with regard to the presence of the Accused Nos.3 to 10 at the time of alleged incident. It is settled legal position that it is not necessary to prove overt act against a person who is alleged to be a member of an unlawful assembly. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessarily. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it.
10.15In Sanjeev Kumar Guptha – Vs – State of Uttar Pradesh 5, it was observed that “For common object, it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.” 3Laws (SC) 1955 10 10 4Laws (SC) 1976 8 32 5(2015) 11 SCC 69
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Prl.JMFC, Penukonda 10.16In this case on hand all the Accused persons are belong to one family and according to the Testimonies of PW-1 to PW-3, all the Accused persons, armed with sticks, attacked them once by trespassing into their house and beat them and caused injuries.
10.17In view of the above discussion, this Court holds that on 15.09.2015 at 9:00 AM, the Accused Nos.3 to 10 along with the Accused
Nos.1 and 2 were formed into an unlawful assembly, armed with sticks and trespassed into the house of PW-1 to PW-3. This point is answered according in favour of the Prosecution and against the Accused.
11. P O I N T No.2 : Whether the Accused Nos.3 to 10 along with
Accused Nos.1 & 2 are voluntarily caused hurt to PW-1 & PW-3 with
MO-1 to MO-3/Sticks on 15.09.2015 at about 09:00 AM ?
11.1The learned Assistant Public Prosecutor would contend that from the Testimonies of PW-1 to PW-6 and PW-8 coupled with Ex.P-1, Ex.P-2 and Ex.P-4 and MO-1 to MO-3, it is evident that on 15.09.2015 at about 9:00
AM, the Accused Nos.3 to 10 voluntarily caused hurt to PW-1 and PW-3.
11.2It is the evidence of PW-1 that Accused No.8 kicked PW-3 and
Accused No.3 beat PW-3 with stick and shouted against him in the filthy language. PW-1 further deposed that on hearing the same, he and PW-2 came out of the room and on seeing him, the Accused beat him with sticks.
PW-1 also stated that the Accused No.7 beat him with stick on the right side of his head; the Accused No.5 beat him with stick on his right shoulder;
Accused No.2 beat him with stick on his left shoulder. During Cross
Examination, PW-1 denied the suggestion that he did not state before PW-8 that Accused No.8 beat PW-2 with stick and shouted in filthy language. PW-1 further stated that he did not state before PW-8 that Accused No.3 beat PW-2 with stick and denied the suggestion that he did not state before PW-8 about the other overt acts against the Accused as stated above.
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Prl.JMFC, Penukonda 11.3It is the evidence of PW-2 that the Accused No.8 kicked PW-3 with legs and when questioned, all the Accused beat him, PW-1 and PW-3 with sticks. PW-2 also testified that in the said commotion, PW-1 and PW-3 also sustained injuries. PW-2 also testified that Accused Nos.2, 3, 6, 9 and 10 were holding sticks in their hands at the time of assault. During Cross
Examination PW-2 denied the suggestion that they foisted this case against the Accused by taking advantage of their receiving injuries caused in the
Tractor accident.
11.4A careful perusal the evidence of PW-2 discloses the corroboration with the evidence of PW-1 with regard to the injuries said to have received by PW-1 and PW-3. PW-3 testified that Accused No.8 kicked her on her stomach and Accused No.3 beat her on her head with stick and caused injury on her head. PW-3 further deposed that in the said assault,
PW-1 and PW-2 also received injuries. From the Cross examination of PW-3, it is not the case of the Accused that PW-3 did not receive any injuries. Even from the Cross Examination of PW-1 and PW-2 also the Accused did not deny the injuries, but according to the Accused, PW-1 and PW-2 received injuries in the Tractor accident. But, PW-1 and PW-2 categorically deposed that Finance
Company took the Tractor and they never transported the sand from their village to Penukonda. Further, according to the Cross Examination, it is also the case of the Accused that PW-1 and PW-2 used to transport the sand by lifting the same from the lands of the Accused and when the Accused resisted the same, PW-1 used to threaten and beat them. If at all the said contention is true, the Accused would have elicited on the aspect as to when PW-1 lifted the sand from the land of the Accused and if lifted, whether the Accused made a Complaint to the Police and if complained, what would be the result of the case. In the absence of any such Cross Examination, the mere suggestion cannot be believed and as such the said contention of the
Accused; is unbelievable. Further, the Testimonies of PW-2 and PW-3 are corroborated with the evidence of PW-1 with regard to the alleged incident and with regard to the injuries received by PW-1 and PW-3.
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Prl.JMFC, Penukonda 11.5The learned Counsel for the Accused would contend that there are so many omissions in the Testimonies of PW-1 to PW-3 on the material aspects and they were confronted to PW-8 and therefore those omissions are amounting to material contradictions and hence the Testimonies of PW-1 to
PW-3 are to be disbelieved. The reliance is placed upon the Judgment of
Hon’ble Supreme Court reported as Ravulapalli Kondaiah – Vs – State of
AP 6 , and contended that “Eyewitness stating facts in his testimony for the first time in Court not stated in statement to Investigation Officer can be rejected as an after thought.” 11.6The learned Counsel for the Accused also relied upon the
Judgment of Hon’ble Supreme Court reported as State of UP – Vs – Ashok
Dixit and Another 7, and contended that material omissions in the testimonies of the Prosecution witnesses are fatal to the Prosecution.
11.7This Court has carefully gone through the above judicial precedents. In Ravulapalli Kondaiah’s case stated supra, there is inconsistency with regard to the material object said to have used by the
Accused. In Ex.P-1/Report, PW-1 had not particularized the path laid by each of the thee accused in the assault of the Deceased. Further, PW-1 impovised his evidence regarding the weapon carried by the Accused No.4 and the precise part attributed to A-4 to A-6 each, in belabouring the Deceased.
11.8In Ashok Dixit’s case stated supra, the child witness aged 9 ½ years was examined two days after occurrence and hence it was held that the evidence of child witness must find adequate corroboration before it is relied on. Further, in the said case, the offence took place at about 9:00 PM in the house of PW-1, the house was dark as there was no electricity and two
Police Officers took position behind the Verandah of the house of PW-1 along with his two sons stood near the grill of the western verandah and hence the identification of the Accused itself became a question.
6AIR 1975(SC) 216 72000 (1) ALT (Crl.) 303
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Prl.JMFC, Penukonda 11.9In this case on hand, the incident took place at about 9:00 AM and as such the question of identification of the Accused by PW-1 to PW-3 would not arise. Further, there is no inconsistency between the testimonies of PW-1 to PW-3 with regard to the sticks said to have used by the Accused.
It is true, PW-8 deposed in his Cross Examination that PW-1 did not state
before him about the specific overt acts against each of the Accused. PW-8
also deposed that PW-2 did not state before him that the Accused assaulted them while they were having meal and PW-3 did not state before him that the
Accused No.3 beat her on her head with sticks. But, those omissions cannot take away the entire testimonies of PW-1 to PW-3. According to Ex.P- 1/Statement, all the Accused together attacked PW-1 to PW-3 and in such circumstances, one cannot expect that PW-1 to PW-3 must state the specific overt acts against each of the Accused persons. Further, credibility of testimony, oral and circumstantial, depends considerably on a judicial evaluation of the totality, not isolated scrutiny. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial; if a case has some flaws, inevitable because human beings are prone to err, it is argued that it is too imperfect. Proof beyond a reasonable doubt is a guideline, not a fetish and guilty men cannot get away with it because truth suffers from infirmity when projected through human process. Further, there is a gap of 5 years from the date of incident and to the date of deposing evidence by PW-1 to PW-3 and therefore omissions are bound to occur. Hence, merely because there are omissions in the
Testimonies of PW-1 to PW-3, is not the sole ground to reject the evidence of
PW-1 to PW-3 in its entirety.
11.10The learned Counsel for the Accused would contend that there is no consistency between the testimonies of PW-1 and PW-3 and PW-5 with regard to the injuries said to have received by PW-1 and PW-3 and it is fatal to the Prosecution case. In order to support the said contention, the learned Counsel for the Accused placed his reliance on the Judgment of
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Hon’ble Supreme Court in Ram Narain Singh and Jaggar Singh – Vs –
State of Punjab 8, wherein it was held that “Medical evidence is inconsistency with ocular evidence and no explanation for inconsistency discredit the entire case.” 11.11This Court has carefully gone through the above case-law.
In the above case, the Eyewitnesses to the incident, first time deposed before the Hon’ble Sessions Court about the injuries on the Deceased and the evidence of Eyewitnesses was inconsistent with the medical evidence with regard to the gunshots of the Deceased. Further, as per the Ballistic expert, in case if it is a straight fire, and if the right arm is kept just infront of the chest, then it is possible that the injuries could be caused by one single fire.
11.12In this case at hand, according to the evidence of PW-1, he received injuries on the right side of his head, on his shoulders. According to the evidence of PW-5 coupled with Ex.P-2/wound Certificate, PW-1 had injuries on his both legs and over right parietal region. It is the evidence of
PW-3 that in said assault, she received injury on her head. It is the evidence of PW-5 coupled with Ex.P-3/Wound Certificate, PW-3 had laceration over mid frontal region. Thus, the medical evidence of PW-5 coupled with Ex.P-2 and
Ex.P-3 is corroborated with the evidence of PW-1 and PW-3 who are the victims. Further, according to the evidence of PW-5, PW-1 and PW-3 were examined on 15.09.2015 at about 10:15 AM and the testimonies of PW-1 to
PW-3 reflect that the incident of happened that on the same day at about 9:00 AM and immediately after the incident, they were shifted to the government Hospital at Penukonda. Therefore, this Court did not find any inconsistency between the testimonies of PW-1 to PW-3 and PW-5 with regard to the injuries said to have received by PW-1 and PW-3. Moreover, the testimony of PW-5 and Exs. P-2 and P-3 are very clearly that the injuries sustained by PW-1 and PW-3 are simple in nature. Further, PW-5 categorically deposed in her evidence that the injuries as mentioned in Ex.P-2 and P-3 are possible due to blunt object. According to the evidence of PW-1 to PW-3, the
Accused beat PW-1 and PW-3 with MO.1 to MO.3/Sticks. It was not suggested 8Laws (SC) 1975 7 20
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Prl.JMFC, Penukonda to PW-5 that the injuries as mentioned in Ex.P-2 and P-3 are not possible with the sticks. In the absence of any such suggestion, the sticks can be considered as blunt objects and PW-1 and PW-3 received injuries in the hands of the Accused Nos.3 to 10.
11.13All the above attending circumstances lead to conclude that on 15.09.2015 the Accused Nos.3 to 10 along with Accused Nos.1 and 2 are voluntarily caused hurt to PW-1 and PW-3 with MO.1 to MO.3/Sticks. This point is answered accordingly in favour of the Prosecution and against the
Accused.
12. POINT NO.3 : Whether the Accused Nos.3 to 10 along
with Accused Nos.1 & 2 are voluntarily caused grievous hurt to PW-
2 with MO-1 to MO-3/Sticks on 15.09.2015 at about 09:00 AM ?
12.1In order to prove the above said point, the Prosecution has placed its reliance upon the testimonies of PW-1 to PW-6 and PW-8 coupled with Ex.P-1/Statement, Ex.P-2/Wound Certificate and MO.1 to MO.3/Sticks.
12.2The learned Counsel for the Accused placed his reliance on
Judgment of Hon’ble Supreme Court reported as Sudhir and Another – Vs –
State of MP 9, wherein it was held “when there are several infirmities in the testimony of victim, then the conviction cannot be sustained solely based upon the testimony of victim”.
12.3This Court has carefully read the above case-law. In the above
Judgment, the conviction was laid down solely upon the evidence of the victim/Kamal and three out of five Accused were acquitted. In this case on hand, apart from the testimonies of PW-1 to PW-3, there is other evidence i.e., PW-4 and PW-6 and PW-7 to corroborate the testimonies of PW-1 to PW-3 9AIR 1985 SC 515,
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Prl.JMFC, Penukonda with regard to the injuries. Hence, with great respect, the above case-law is not applicable to the present case on hand.
12.4It is the further contention of the learned counsel for the Accused that PW-1 to PW-3 are the same family members, PW-4 , PW-6 and PW-7 are the interested witnesses and hence their evidence cannot be believed.
12.5It is the evidence of PW-1 and PW-2 that PW-4 and PW-6 shifted
PW-1 to PW-3 to the Government Hospital at Penukonda. It is the evidence of
PW-4 that about 3 years ago on one day at about 9:00 AM, PW-7 informed him that PW-1 to PW-3 were sustained injuries in the assault and then he went to the house of PW-1 to PW-3 and found them with injuries. PW-4 further testified that then he and PW-7 shifted PW-1 to PW-3 to the
Government Hospital at Penukonda in the Auto of PW-6. During Cross
Examination PW-4 admitted that he did not witness the assault and he had no personal knowledge about the same and he came to know about the incident through PW-7. Thus the evidence of PW-4 is corroborated with the evidence of PW-1 to PW-3 with regard to their shifting to the Hospital.
Further, PW-4, though is not an Eyewitness to the incident, his evidence can be considered to the extent of his shifting of PW-1 to PW-3 to the Hospital in the Auto of PW-6. It is the evidence of PW-6 that about 3 ½ years ago on one day PW-4 and PW-7 came to the Auto stand and informed him that PW-1 to
PW-3 are sustained injuries, engaged his Auto on hire to shift them to the
Government Hospital at Penukonda and they shifted PW-`1 to PW-3 to the
Hospital. During Cross Examination PW-6 deposed that on the day of the incident there were three Autos stationed at Auto stand and denied the suggestion that he did not state before PW-8 that PW-4 and PW-7 hired his
Auto to shift PW-1 to PW-3 to the Hospital. It was not suggested to PW-8 about the said statement of PW-6. Further, from the entire cross examination
PW-4 and PW-6, it is not the case of Accused that they have inimical terms with them so that PW-4 and PW-6 deposed against them. Moreover, PW-6 is a natural witness who shifted PW-1 to PW-3 to the Hospital and nothing could
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Prl.JMFC, Penukonda be elicited in the Cross Examination of PW-4 and PW-6 to impeach their credit worthiness. Therefore, the testimonies of PW-4 and PW-6 are trustworthy.
12.6The learned Counsel for the Accused would contend that PW-7 did not support the Prosecution case and turned hostile and hence her evidence is not helpful to the Prosecution case.
12.7It is true, PW-7 deposed that about 4 years ago on one day she went to the house of PW-1 to fetch water and by that time, PW-1 to PW-3 were with injuries and immediately she shifted PW-1 to PW-3 to the
Government Hospital at Penukonda and PW-7 did not depose any incriminating evidence against the Accused. But, according section 154 of
Indian Evidence Act 1872, the evidence of a hostile witness, which is favourable to the Prosecution, can be considered. Further, the evidence of
PW-7 is remained unchallenged so far as shifting of PW-1 to PW-3 to the
Hospital. Therefore, the evidence of PW-7 is also corroborated with the
Testimonies of PW-4 and PW-6 with regard to their shifting of PW-1 to PW-3 to the Hospital at Penukonda.
12.8The learned Counsel for the Accused would contend that from the evidence of PW-8 coupled with Ex.P-9, it is very clear that one Nanjunda
Reddy, Narasimha Reddy, Venkata Reddy, Digivinti Venkataramanappa,
T.Narayanappa, B.Sreenivasulu are the neighbours of the Scene of Offence and PW-8 did not examine them and it is fatal to the Prosecution case.
12.9It is true, PW-8 deposed in his Cross examination that he did not examine the above named persons. It is also true that according to the evidence of PW-8, the houses of PW-4, PW-6 and PW-7 are at a distance from the Scene of Offence. But, PW-1 to PW-3 stated to PW-8 while recording their statements under Section 161 of Cr.P.C that PW-4 and PW-7 shifted them to the Hospital in the Auto of PW-6. When such are the statements of PW-1 to
PW-3, mere non-examination of the above named persons, are of no consequence and this Court opines that it is not fatal to the Prosecution case
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Prl.JMFC, Penukonda more particularly when it is not the case of Accused that PW-4, PW-6 & PW-7 have inimical terms with them. Therefore, the said contention of the learned
Counsel for the Accused cannot be countenanced.
12.10It is the evidence of PW-1 that in the commotion, the Accused
Nos.6, 9 and 10 beat PW-2 with stick on his forehead, back side of head and also caused cut injury to his index finger. During Cross examination PW-1 denied the suggestion that he did not state the said statement before PW-8.
It is true the said omission is confronted to PW-8 and PW-8 deposed that
PW-1 did not state before me the said statement. But, PW-1 categorically stated in his statement under Section 161 of Cr.P.C, that all the Accused attacked him and PW-2 with sticks and beat them indiscriminately and in the said commotion, PW-2 received the above said injuries. Further, PW-2 testified that all the Accused beat him, PW-1 and PW-2 and in the said altercation, he sustained injury on his forehead, back side of head and on the left index finger. PW-2 also testified that in the said assault, his left index finger got amputated. Further, it was suggested to PW-2 that he sustained those injuries in the tractor accident. Thus, from the said suggestion, it can be inferred that there is no dispute as to the fact of receiving injuries PW-2.
Further, the evidence of PW-1 is corroborated with the evidence of PW-2 in respect of the injuries sustained by PW-2.
12.11According to the evidence of PW-5 coupled with Ex.P- 4, PW-2 had laceration over mid frontal region, laceration over left parietal region, abrasion over right parietal region, contusion over left leg and laceration over left index finger. PW-5 also deposed that PW-2 was referred to Victoria Hospital at Bangalore for better treatment and the left index finger amputated and according Ex.P-4 the said amputation was grievous in nature.
Thus, the evidence of PW-5 coupled with Ex.P-4 is corroborated with the testimony of PW-1 and PW-2 with regard to the injuries sustained by PW-5.
During Cross Examination of PW-5, though deposed that the injuries mentioned in Ex.P-4 may be possible due to Tractor accident, this Court already held at Point No.2 that the said contention is unbelievable.
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Prl.JMFC, Penukonda 12.12All the above attending circumstances lead conclude that on 15.09.2015 the Accused Nos.3 to 10 along with the Accused Nos.1 and 2 beat PW-2 with MO.1 to MO.3/Sticks and caused grievous hurt. This point is answered accordingly in favour of the Prosecution and against the Accused. .
13. POINT NO.4: Whether the Accused Nos.3 to 10 are liable for
conviction for the offences U/sec.147, 148, 324, 326 of IPC ?
13.1In view of the findings and observations of this Court on Points
Nos.1 to 3, it is very clear that the Accused Nos.3 to 10 were formed into an unlawful assembly armed with sticks on 15.09.2015 at about 09:00 AM, trespassed into the house of PW-1 to PW-3, voluntarily caused hurt to PW-1 &
PW-3 and caused grievous hurt to PW-3 and thereby the Accused Nos.3 to 10 are liable for conviction for the offences stated supra.
14.IN THE RESULT, the Accused Nos.3 to 10 are found Guilty of the Offences U/sec.147, 148, 324, 326 of IPC and accordingly they are
Convicted under Section 248(2) of Cr.P.C.
15.M.O-1 to MO-3 shall be destroyed after appeal time is over.
Typed to my dictation by Stenographer Grade III, corrected and
Pronounced by me in open Court, on this the 19th day of November 2019.
JUDL. MAGISTRATE OF I CLASS,
MADAKASIRA
FAC: PRL.JUDICIAL MAGISTRATE OF I CLASS
PENUKONDA
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Prl.JMFC, Penukonda
16.Heard the Accused Nos.3 to 10 on quantum of sentence to be imposed against them.
17.Accused No.3 stated that he live by doing Coolie work and he has no dependents and prayed the Court to show mercy on him.
18.Accused No.4 stated that he is aged about 76 years and he is suffering with Oldage ailments and prayed the Court to take lenient view.
19.Accused No.5 stated that he is suffering with stomachache since 3 years and he is unable to attend any work and prayed the mercy of the
Court.
20.Accused No.6 stated that he has oldaged parents, wife and six months baby and he is the sole breadwinner of his family. He further stated that if he is put under incarceration, his dependents will suffer a lot and prayed the Court to take lenient view.
21.Accused No.7 stated that he lives by doing Cultivation and prayed the Court to take lenient view.
22.Accused No.8 stated that she is aged about 55 years, she is suffering with kidney problems and prayed the mercy of the Court.
23.Accused No.9 stated that he is working as a Mason, he has three months son and oldaged parents and prayed the Court to show mercy on him.
24.Accused No.10 stated that he is working as a Mason, he has parents and their responsibility is on his shoulders and prayed the mercy of the Court.
25.The Prosecution did not place on record any material before the
Court to show there are previous convictions to credit of the Accused Nos.3 to
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10. The Offences proved against the Accused Nos.3 to 10 are under Secs.147, 148, 324 and 326 of IPC for trespassing into the House of PW-1 to PW-3 and caused Grievous Injuries and hence, this Court is not inclined to extend the benefit of Provisions of the Probation of Offenders Act-1958 or Sec.360 of
Cr.P.C.
26.The learned APP submitted to impose Maximum Punishment prescribed for the Offences proved against the Accused Nos.3 to 10.
27.The learned Counsel for the Accused Nos.3 to 10 submitted to consider the Offences proved against the Accused Nos.3 to 10 as first
Offence and impose Fine instead of imposing Sentence.
28.By taking into consideration the submissions of the learned APP and learned counsel for Accused Nos.3 to 10 and the period for which the
Accused Nos.3 to 10 languished to the Court and the mitigating circumstances, this Court is of the considered view that instead of imposing maximum punishment prescribed for the each offence, imposing lesser punishment and fine would meet the ends of Justice.
29.Hence, the Accused Nos.3 to 10 are sentenced to undergo
RIGOROUS IMPRISONMENT for SIX MONTHS and shall pay a fine of
Rs.500/- each in default they shall undergo a Simple Imprisonment for
TWO WEEKS for the offence Under Sec.147 of IPC.
30.The Accused Nos.3 to 10 are sentenced to undergo RIGOROUS
IMPRISONMENT for ONE YEAR and shall pay a fine of Rs.1,000/- each in default they shall undergo a Simple Imprisonment for ONE MONTH for the offence Under Sec.148 of IPC.
31.The Accused Nos.3 to 10 are sentenced to undergo RIGOROUS
IMPRISONMENT for ONE AND HALF YEAR and shall pay a fine of
Rs.1,000/- each in default they shall undergo Simple Imprisonment for
ONE MONTH for the offence under Sec.324 of IPC.
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32.The Accused Nos.3 to 10 are sentenced to undergo RIGOROUS
IMPRISONMENT for TWO YEARS and shall pay a fine of Rs.2,000/- each in default they shall undergo Simple Imprisonment for TWO MONTHS for the offence under Sec.326 of IPC.
33.The total fine amount is of Rs.36,000/- (Rupees Thirty Six
Thousand only). Out of the fine amount collected an Amount of Rs.10,000/- (Rupees Ten Thousand only) shall be paid to PW-1, an Amount of Rs.10,000/- (Rupees Ten Thousand only) shall be paid to PW-3 and an Amount of
Rs.15,000/- (Rupees Fifteen Thousand only) shall be paid to PW-2 towards
Compensation under Section 357 of Cr.P.C and the remaining Amount of
Rs.1,000/- (Rupees One Thousand only) shall be paid to State for defraying the Expenses incurred in the Prosecution, after Appeal time is over.
34.The period of detention already undergone by the Accused Nos.3 to 10 (NIL) shall be set off under Section 428 of Cr.P.C.
35.All the substantive sentences shall run concurrently.
36.The Copy of Judgment is furnished to the Accused Nos.3 to 10, at free of cost, as provided under Sub Section (1) of Section 363 of Cr.P.C.
37.The Accused Nos.3 to 10 were informed about their right to prefer an Appeal against the Conviction and Sentence of this Court.
Typed to my dictation by the Stenographer Grade III, corrected and
pronounced by me in the open Court on this the 19th day of November 2019.
JUDL. MAGISTRATE OF I CLASS,
MADAKASIRA
FAC: PRL.JUDICIAL MAGISTRATE OF I CLASS
PENUKONDA
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APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For Prosecution For Accused
PW-1BC Venkata Ramanappa
PW-2Sudhakar
PW-3B.Lakshmi Devamma:: NONE ::
PW-4G.Obulesu
PW-5 Dr.Joshna
PW-6G.Nagaraju
PW-7Bestha Subba Lakshmamma
PW-8KM Linganna
DOCUMENTS MARKED
For Prosecution
Ex.P-1Statement of PW-1
Ex.P-2 Wound Certificate of PW-1
Ex.P-3 Wound Certificate of PW-3
Ex.P-4Wound Certificate of PW-2
Ex.P-5161 Cr.P.C Statement of PW-7
Ex.P-6Medical Intimation
Ex.P-7Printed FIR
Ex.P-8Police Proceedings
Ex.P-9Rough Sketch
MATERIAL OBJECTS MARKED
For Prosecution
MO-1 to Three Sticks MO-3
JUDL. MAGISTRATE OF I CLASS,
MADAKASIRA
FAC: PRL.JUDICIAL MAGISTRATE OF I CLASS
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Prl.JMFC, Penukonda
PENUKONDA
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