Crl.A.No.4/2022 Dated: 16.11.2022
IN THE COURT OF THE II ADDL.DISTRICT & SESSIONS JUDGE, FOR
TRIAL OF OFFENSES AGAINST WOMEN, SRIKAKULAM.
Present:- Sri G.Chakrapani, II Addl. District & Sessions Judge, Srikakulam.
WEDNESDAY, THIS THE 16th DAY OF OCTOBER, 2022
Criminal Appeal.No.4/2022
From What Court the Appeal is :Prl. Assistant Sessions Judge, preferredSrikakulam
Number of the case in that :S.C.No.45 of 2018 Court
Number of the Appeal:4/2022
Name and description of the :Sri Busi Srinivasarao @ Pepsi Srinu, Appellant s/o Anandharao, aged 37 years, Telega Kapu by caste, r/o D.No.4-10- 122, Nanubala Street, Srikakulam.
.Appellant/Accused No.1
Name of the Respondent:The State of Andhra Pradesh, representedbyitsPublic Prosecutor, Srikakulam.
The sentence and order under:A.1 is found guilty for the offences which it was imposed in thepunishable under sections 307, 450, lower Court.427 and 324 of Indian Penal Code. Hence, he is convicted under section 235 (2) of Code of Criminal Procedure for the offences punishable under sections 307, 450, 427 and 324 of Indian Penal Code. A.1 is sentenced to undergo R.I for a period of three years and pay fine of Rs.1000/-, IDSI for a period of one month for the offence punishable u/sec. 307 of IPC and further sentenced to undergo R.I for a period of one year and pay fine of Rs.1000/-, IDSI for a period of one month for the offence punishable u/sec. 450 of IPC, further sentenced to undergo S.I for a period of six months and pay fine of Rs.500/-, IDSI for a period of one month for the 2
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offence punishable u/sec.324 of IPC and further sentenced to pay fine of Rs.500/-, IDSI for a period of one month for the offence punishable u/sec.427 of IPC. All the sentences shall run concurrently.
The remand period of A.1 from 01.03.2017 to 15.03.2017 shall be set off u/sec.428 of Cr.P.C.
Whether confirmed/modified or:Reversed Reversed, if modified the modification
Date of presentation:01.02.2022
Date of filing:01.02.2022
Notice issued by Court to:01.02.2022 appear
Bail bonds if appellant has : -- been let out on bail
Appellant ordered to appear: 15.03.2022
Date of hearing: 27.10.2022
Date of judgment: 16.11.2022
This petition came on 16.11.2022 for final hearing before me in the presence of Sri G.Ramarao, Advocate for the petitioner/accused No.1 and
Sri K.Affisu Naidu, learned Additional Public Prosecutor for state- respondent and having heard both side and having stood over till this day for consideration, this court made the following:
JUDGMENT
The 1st accused in S.C 45/2018 on the file of Principal Assistant
Sessions Judge, Srikakulam, who by the conviction and sentence dated
07.01.2022 was sentenced to suffer Rigorous Imprisonment for a period of three years and fine of Rs.1,000/- IDSI for one month for the offence punishable u/sec. 307 of IPC and Rigorous Imprisonment for one month 3
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and fine of Rs.1,000/-, IDSI for one month for the offence u/sec.450 of
IPC and to suffer Simple Imprisonment for a period of six months and pay fine of RS.500/-, IDSI for one month for the offence u/sec.324 of IPC and fine of Rs.500/- IDSI for one month for the offence u/sec.427 of IPC in
Crime No.18/2017 of II Town Police Station, Srikakulam, preferred this appeal.
02.The facts leading to preferring this appeal in brief are as under: The
Inspector of Police, II Town Police Station, Srikakulam filed charge sheet against A.1 to A.12 alleging that on 26.02.2017 at about 3.00 p.m., A.1 went to Minerwa Hotel, Srikakulam and gave order to one Medaboyina
Muralikrishna, who was in the cash counter, for chicken biryani and on that he was informed that it was not readily available and it would take time and on that A.1 took a token from him and waited and that a little later, A.1 enquired about the said Muralikrishna about Biryani, which lead to a serious discussion between them and that at that time A.1 entered into the cash counter and slapped the said Muralikrishna and also damaged the C.C Camera with a glass stool handle and on that noticing the same, the Defacto-complainant Magupalli Chinnarao interfered to pacify the issue and however, A.1 quarreled with the said Chinnarao also.
It is further alleged that at the intervention of others, A.1 left that place and however, as he was intoxication state, he fell down on the road and received bleeding injuries on his mouth and however, about 30 minutes later, he came along with the other accused, entered into the hotel with a view to eliminate the Defacto-complainant Chinnarao and A.1 shouted loudly to kill him and threatened him with dire consequences and picked up a steel water mug and beat Chinnarao on his head and caused heavy bleeding injury and on A.2 also picked out a small knife from his pocket 4
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and stabbed the Defacto-complainant and in the scuffle, the said knife fell on the ground and later when others gathered there, the accused sculked away from the spot and A.1 to A.12 beat the Defacto-complainant and five others with hands and legs and however, they escaped unhurt and the
Defacto-complainant was shifted to RIMS Hospital, Srikakulam and admitted for treatment. It is further alleged that basing on the statement recorded by the Assistant Sub Inspector of Police at the hospital, the above crime was registered and that later the Inspector of Police visited the hospital and recorded the statement of the Defacto-complainant, seized his “T” shirt containing blood stains and examined the wife of the
Defacto-complainant and later visited the scene of offence, got drafted ascene observation report on 22.05.2017 at 8.00 a.m. in the presence of mediators and also drew its rough sketch and got it photographed and he examined witnesses also there and recorded the statements. It is further alleged that the Inspector of Police arrested A.3 to A.9 and sent them to the Court for judicial custody and however, they were enlarged on bail and he arrested A.1 also on 01.03.2017 and sent him to the Court for judicial custody and later A.11 was arrested and they were all released on bail and A.10 surrendered before the Court and obtained anticipatory bail and A.12 was produced before the Court in pursuance of P.T. Warrant. A.2 was at large. It is further alleged that the doctor, who treated the Defacto- complainant opined that the injuries on his person are simple in nature and issued a wound certificate accordingly. T shirt, Steel mug etc., were sent to chemical analysis and investigation discloses that the accused committed the above offences, for which they are liable to be punished.
Hence, this case.
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03.Later this case was taken on file by the I Additional Judicial
Magistrate of I Class, Srikakulam for the offences punishable under
sections 307, 450, 427, 342, 324, 323, 506 read with 34 of Indian Penal
Code and later this case was committed under section 209 of Cr.P.C to the Court of Sessions Judge,Sessions division Srikakulam, as the offence u/sec.307 of IPC is triable exclusively by a Court of sessions. Later the case was made over to Prl. Assistant Sessions Court, Srikakulam for disposal according to law.
04.The accused were examined u/sec.228 of Cr.P.C and charge was framed for the offences punishable u/sec. 307, 450, 427, 341, 324, 323 and 506 of IPC against A.1 and charge u/secs. 450, 307, 341, 324, 323 read with 34 of IPC against A.3 to A.11. Read over and explained to the accused in Telugu. They pleaded not guilty and claimed to be tried.
05.During the course of the trial, on behalf of the prosecution, P.W.1 to
P.W.14 are examined and Ex.P.1 to Ex.P.10 and M.O.1 to M.O.5 are marked. On behalf of the accused Ex.D.1 to Ex.D.6 are marked.
06.After closure of the prosecution evidence, the accused were examined u/sec.313 of Cr.P.C, during which they denied the incriminating evidence available against them. Later they reported no defence evidence.
07.After hearing on both sides and considering the evidence on record, the learned Prl. Assistant Sessions Judge, Srikakulam found A.1 only guilty and convicted and sentenced him as mentioned supra. The other accused were acquitted.
08.Aggrieved by the conviction and sentence of A.1, he preferred this appeal mainly on the grounds that there is discrepancy with regard to the 6
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seat of injury, the shape of injury and the evidence of the prosecution witnesses. It is further pointed out that the investigating agency wantonly did not collect the C.C. T.V footage and in fact, the said incident occurred at 1.45 p.m. on 26.06.2017 and that the investigating agency suppressed the material details and no test identification parade was conducted and that as per the evidence of P.W.3 the incident took place outside the restaurant, which is a grave contradiction. The learned defence counsel would argue that when there are cases and counter cases, it has to be investigated into by the same Investigating Officer and however, it was not done so and that there was grave suppression of material information as in Ex.D.1 to Ex.D.6 and as the prosecution has suppressed the material facts, the accused deserves to be acquitted by extending benefit of doubt.
09.Heard both sides.
10.Now the points arise for determination are………
1. Whether there is suppression of material information by the prosecution and the same is fatal to the case or not?
2.Whether the conviction and sentence of appellant/A.1 for the offences punishable u/secs.307, 450, 427, 341, 324, 323 and 506 of Indian Penal Code, are sustainable or not?
3.Whether there are grounds to interfere with the conviction and sentence of the Trial Court and to what extent?
11.Point Nos.1 to 3: As per the case of the prosecution, the incident took in two parts. The 1st part is that at about 3.00 p.m., on 26.02.2017,
A.1 went to the scene of offence hotel and ordered for Biryani and that after some time, they informed him about its non-availability and therefore, he grew wild and slapped one Murali sitting in the cash counter 7
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and that later others interfered and pacified A.1 and later A.1 went away and came along with the other accused around 4.00 p.m. and beat the
Defacto-complainant Magupalli Ginnirao with a water can and that A.2 picked out a knife also with an intention to kill them and thus, they committed the said offences.
12.The case of the accused is total denial and they contend that in fact, they(the hotel staff) beat A.1 in the said incident and however, to parry off the consequences of it, using political influence, this case is foisted against them.
13.To prove the guilt of the accused, the prosecution examined the
Defacto-complainant as P.W.1. He would depose that on 26.02.2017 between 3 to 3.30 p.m., while he was present in the kitchen of Minerwa
Hotel as chef, he heard some noise and on that he came to the cash counter, where he found two persons and that Srinu/A.1 raised a dispute there for Biryani and on that he informed them that the counter was already closed and then he paid the amount and went away. He further deposed that at about 4.00 p.m., A.1 along with 10 others came to the hostel and that one Jyothi caught hold his hands and A.1 beat him with a steel mug at the centre of the head and went away. P.W.1 identified A.1,
A.3 and A.4 in the Court hall at the time of his chief examination. He would, however, further depose that A.1, A.3 to A.11 also came to the hotel at the time of offence.
14.During his cross-examination he would admit that no test identification parade was conducted and that by the time he was admitted in the hospital i.e. RIMS Government General Hospital, Srikakulam. A.1 was already admitted there. It was further elicited that they used to close 8
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the lunch session at 3.00 p.m. and on that day also they closed the same at 3.30 p.m. and that on that day by 3.00 p.m. Biryani was finished. He would further depose that the C.C T.V camera placed in their hotel was in working condition by the date of the incident.
15.P.W.1 did not depose anything that the accused broke away the
C.C. T.V Camera there or that A.2 picked out a knife to kill them or that he was taken outside the hotel and was beaten. According to the prosecution, though A.2 picked out a knife, in the scuffle it fell down. The said knife was marked as M.O.4. In fact, P.W.1 did not identify the presence of A.2 at all in the said incident.
16.The evidence of P.W.2, who is the wife of P.W.1 is not very much material for the purpose of this case, since she is not an eyewitness.
According to her after coming to know that her husband was admitted in the hospital with injuries, she went there.
17.In fact, P.W.3 is a key witness, since according to the prosecution in his presence, the whole incident took place. He would depose that on 26.02.2017 at about 3.30 p.m., one person came to their hotel for Biryani and however it was already finished and therefore, he informed the same to him and however he did not hear him and that the said person damaged the C.C. T.V. camera with an iron rod and that P.W.1 and other workers in the hotel came and tried to pacify the matter and that half an hour later i.e. at about 4.00 p.m. nearly 10 persons came to the restaurant, took away P.W.1 outside the restaurant and however that he has not witnessed how many persons beat him and with which weapon.
He further deposes that he cannot identify the said persons and that the
Police seized the iron rod and the C.C. T.V. Camera.
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18.It is not the evidence of P.W.3 that P.W.1 was beaten with a steel mug on his head. He too did not depose anything about the use of a knife by the accused in the said incident. According to the prosecution, P.W.1 was beaten with a steel mug on his head, by A.1 by picking up the same from the table there. Thus, according to the prosecution, the said steel mug belongs to the said hotel only and that A.1 suddenly picked up the same and beat P.W.1 on his head. The said thing indicates that the said incident must have taken place inside the hotel only because the said steel mug is supposed to be there on the table of the hotel and not outside. In fact, P.W.1 did not depose that he was taken outside the hotel, where as P.W.3 would depose that P.W.1 was taken outside the hotel and was beaten. The evidence of P.W.3 is in fact providing several contradictions in the evidence of the prosecution. I have not seen any reason for such contradictions to exit, if really the said incident had taken place, as alleged by them.
19.According to the accused, A.1 went for Biryani at about 1.45 p.m. to the said hotel and that there they took money from him and later they did not give him Biryani and when he asked the same, he was beaten by them and that as he went to the hospital and was admitted for treatment, as a counter blast, this case is foisted. According to the accused, if really,
A.1 broke the C.C T.V camera there, it would have been totally damaged and that evidently, there is no such damage to the said C.C. T.V. Camera and that P.W.1 either did not depose anything about the damage to the said C.C. T.V camera by the accused and therefore, it is clear that the investigating agency suppressed the material information relating to the said incident. The accused would argue that if the C.C. T.V. camera footages are placed before the Court, the truth of assault on A.1 would 10
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come out and therefore, to avoid the same the investigating agency cooked up the story of breaking of C.C.T.V. Camera by the accused and that same is not relied on.
20.P.W.4 was examined as eyewitness to the incident and however, he would depose that there was exchange of heated words at that time and that he did not see the whole incident. Therefore, the learned Additional
Public Prosecutor examined him u/sec.154 of Indian Evidence Act, as he turned as a hostile witness.
21.P.W.5 would depose that at about 3.00 p.m. on that day a customer came and raised a dispute for Biryani with his cashier P.W3 and that later at about 4.00 p.m. nearly 10 persons came and beat P.W.1 with a steel mug. He did not depose anything about the damage to the C.C. T.V.
camera or picking out of knife by the accused to kill anyone there. Thus, so far all the prosecution witnesses i.e. P.W.1 to P.W.5 did not depose about the alleged knife used by the accused.
22.The evidence of P.W.6 is similar to the evidence of P.W.5 and however he would depose that the accused damaged the C.C. T.V.
Camera with a steel rod and that at about 4.00 p.m. again 10 to 15 persons came and beat P.W.1 and however he has not seen the said incident.
23.P.W.7 would depose that on that day at about 3 to 3.30 p.m., three or four persons came to the cash counter and one person beat P.W.1 with a steel mug, while two persons caught hold of him. He too did not depose anything about the damages to the C.C. T.V. Camera or use of a knife by the accused in the said incident.
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24.P.W.8 and P.W.9 were examined as eyewitnesses to the incident and however they did not support the case of the prosecution, although they would depose that some incident occurred on that day.
25.The prosecution examined P.W.10 as a person who acted as a mediator, while the scene of offence was observed under Ex.P.4 and
M.O.2 CC TV Camera and Steel Mug were seized from the scene of offence.
26.P.W.11 is the doctor, who examined P.W.1 and treated him.
27.P.W.12 is the Traffic Constable, who carried the seized articles to
RFSL, Visakhapatnam for chemical analysis.
28.P.W.13 is the Sub Inspector of Police who rushed to the hospital and recorded the statement of P.W.1 on the requisition given by CMO,
RIMS Hospital, Srikakulam in Ex.P.6. He identified the said statement of
P.W.1 recorded by him in Ex.P.1.
29.P.W.14 is the Inspector of Police, he conducted investigation and filed charge sheet.
30.Thus, the prosecution examined P.W.1 to P.W.9 as eyewitness to the incident and out of them, P.W.4, P.W.8 and P.W.9 did not support the case of the prosecution totally and therefore, the learned Additional Public
Prosecutor put questions in the nature of the cross-examination to them.
31.As seen already, the evidence of P.W.2 is not helpful to prove the guilt of the accused since she is not an eyewitness to the incident. None of the eyewitness i.e. P.W.1, P.W.3, P.W.5 to P.W.7 deposed anything with regard to the use of M.O.4 knife by the accused. Absolutely there is no evidence as to who used the said weapon and how it was used. The 12
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alleged eyewitnesses did not whisper anything about M.O.4 knife. In fact, in Ex.P.1 report given by P.W.1 to the Police, it is mentioned that around 3.00 p.m., a customer (Should be A.1 according to the prosecution) came to their hotel and gave order for Biryani and on that P.W.3 told him that it would take some time and that after some time again the said person asked him and then the said Murali again told him that he is already told that it would take time and on that he quarreled with the said Murali and beat him and on that P.W.1 interfered and sent him away and that half an hour later some persons came to the said hotel and A.1 showed them
P.W.1 stating that P.W.1 beat him and on that they beat him with hands and picked some drink bottles and attacked him with the said bottles to kill him and that in the meantime, A.1 beat him with a steel jug on his head and in the mean time, one of those persons by name Santosh, who accompanied the other accused asked them to leave P.W.1, as he is a person known to him and accordingly, they left him. In Ex.P.1 report which is the earliest version of the prosecution also, there is no reference about
M.O.4 knife. The F.I.R need not be an encyclopedia of all the aspects relevant to the crime. But when such report was given with all details, I have not seen any reason for missing of such important detail like M.O.4 knife in the said report.
32.Thus, the fact remains that there is no reference about M.O.4 knife in Ex.P.1 report and later none of the prosecution witnesses did depose that any of the accused used the said knife in the said attack. The said fact indicates that as M.O.4 knife was not at all used by the accused in the said incident, none of the prosecution witnesses did depose the same and for the said reason only, there was no mention about the same in
Ex.P.1 report. Yet by developing the case, the prosecution incorporated 13
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the use of M.O.4 by the accused in the said incident. The said fact indicates that as the investigating agency wanted to register a more serious crime on the accused, they planted M.O.4 for the purpose of this
Court, as an after thought and therefore, neither in Ex.P.1 report nor in the evidence of alleged eyewitnesses of the prosecution, there is any reference about M.O.4 knife. This is a clear case of impleading the accused in a bigger case u/sec.307 of IPC, by planting M.O.4 knife although the accused did not use such knife in the said incident. But for the said knife, this case would have been tried by a Court of Judicial
Magistrate of I Class only. By planting the said knife, the investigating
agency made this case a Sessions case. In fact in Ex.P1 report it is mentioned that the accused beat them with glass bottles to kill them, but no such bottles are seized by the police, nor any witness deposed about the same. It seems as no such bottles were used in the said incident none of the prosecution witnesses deposed about the same. In fact planting of bottles is a cumbersome process, as an afterthought M.O 4 knife was planted subsequently.
33.The defence side exhibited Ex.D.1 to Ex.D.6 stating that the said incident in fact, took place at about 1.45 p.m. at the said hotel, in which
A.1 was beaten severely and therefore, to suppress the said information, the C.C. T.V footage was not filed and however the receiving of injuries by
A.1 around 1.45 p.m. at the said hotel is established by reason of Ex.D.1 to Ex.D.6. Ex.D.1 shows that A.1, was admitted in Government General
Hospital, Srikakulam at 4.35 p.m on 26.02.2017. Ex.D.2 is copy of Section 161 Cr.P.C statement of A.1 in a case investigated basing on a report given by him to the Police. As per the said statement, the said incident occurred at 1.45 p.m on that day. Ex.D.3 is copy of the F.I.R relating to the 14
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case registered based upon the report given by A.1. It seems it was registered in Crime No.19/2017 of II Town Police Station, Srikakulam and it shows that the time of offence is 1-45 p.m. Ex.D.4 is copy of wound certificate of A.1, it shows that he was examined at 4.50 p.m and that it was informed to them that A.1 was beaten by known persons at Minerwa hotel at 1.50 p.m. on 26.02.2017. The said document shows that A.1 received two injuries, which have to be considered as grievous in nature as per section 319 of Cr.P.C. One injury is loss of second right incisor tooth and the other is fracture over right hypo conarium. The said wound certificate, it was opined that both the said injuries are grievous in nature.
Ex.D.5 is referred charge sheet closing the case for want of evidence.
Ex.D.6 is the mediators report regarding the scene of offence. As per the said record, the said incident took place at 1.50 p.m. and not in between 3.00 to 3.30 p.m or at 4.00 p.m.
34.It is already seen that as per the evidence of prosecution witnesses, their lunch session will be closed by 3.00 p.m itself and that they make
Biryani prior to taking order of itself. When lunch session will be closed by 3.00 p.m. obviously Biryani would have to be made at least before 2.00 p.m. Therefore, making any person waiting for Biryani on the ground that it is being prepared at 3.00 p.m. should not happen. They would not make any such Biryani at 3.00 p.m., when they close the counter by 3.00 p.m.
Therefore, the case of the prosecution that P.W.3 asked A.1 to wait for
Biryani after 3.00 p.m. is improbable because the counter must have been closed by that time. According to the accused the said incident took place at 1.50 p.m. and not at 3.00 p.m and therefore, to suppress the said fact the C.C.T.V footage was not placed by the prosecution before the Court.
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35.The prosecution filed the photos of C.C.T.V camera in Ex.P.9. It is shown that it is hanging to the wall. According to the prosecution as A.1 broke and damaged the said C.C.T.V Camera with the help of an iron rod, it got removed from its holder and started hanging there. But P.W.10 would admit that the said C.C.T.V. camera has no damage at all. When such Camera was beaten with an iron rod, making it separate itself from the wall, I do not understand how there would not be any damage on such
Camera. Without such damage, it is not at all possible for it to get removed from the roof and start hanging. The very fact that it has no such damage, but has been hanging there, clearly indicates that it was removed cautiously from the wall and made it hung and therefore, there was no damage to it. The said fact clearly indicates that the said C.C.T.V.
Camera was made to hang to the wall only to suppress the relevant information which would be available by such camera and mislead the
Court.
36.If the reason or suppression of such information is examined it would only indicate that A.1 was beaten around 1.50 p.m by the hotel staff and caused grievous injuries to him on that day and later the accused attacked the said hotel staff i.e. P.W.1 and however to exculpate the said hotel staff from all criminal liability the such C.C.T.V. Camera is shown to have been damaged in the hands of A.1. It is already seen that it was not damaged. Even assuming for a moment that it was damaged by A.1 or anyone else, still, it would not be a ground to consider that C.C.T.V.
Footage could not be available because of the said damage to the
C.C.T.V. Camera, because the said information would be stored in the hard disc and not in the camera and therefore, even if the said camera is damaged, the investigating agency, still would have the relevant C.C.T.V 16
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footage, which can be retrieved from the hard disc. But the investigating agency did not do so and the said fact indicates that in order to suppress the relevant information, may be, to exculpate the hotel staff, the said
C.C.T.V footage was suppressed.
37.Thus, the probability of visiting the said hotel for Biryani before 2.00 p.m. by any customer, the suppression of the C.C.T.V footage, the presence of injuries on the person of A.1 which are grievous in nature stated to have been inflicted around 1.50 p.m. at the hotel of the Defacto- complainant and also planting of M.O.4 knife, clearly indicate that the investigating agency in order to help the hotel staff, suppressed the relevant information and not having been satisfied with the same, they even tried to implicate the accused in a bigger offence by planting M.O.4 knife.
38.Ex.D.4 shows that A.1 received grievous injuries, whereas, as per
Ex.P.5 wound certificate, qua the evidence of P.W.11 indicates that P.W.1 received only a simple injury. The learned defence counsel for the appellant/A.1 would contend that as per the evidence of P.W.11, P.W.1 received injury on his occipital region, whereas, as per the evidence of
P.W.1, he received the said injury, at the centre of his head i.e. parietal region and therefore, the same is creating doubt in the case of the prosecution. I consider, when P.W.1 received injury on his head and when occipital region is back side of head, evidence of P.W.1 that he received injury on the centre of the head cannot be considered as a grave infirmity.
When P.W.1 was beaten with a mug, which is sufficiently large to cover occipital region as well as parietal region, the evidence of P.W.1 that he received injury on the centre of the head cannot be considered as a 17
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discrepancy in the evidence of the prosecution witnesses. It would be understood as a discrepancy, if it were the evidence of P.W.1 that he received the said injury on his frontal region. It seems he received injury on his occi-parietal region, such mild infirmity arose as to the seat of the injury. The same needs to be ignored.
39.In the charge sheet of this case the investigating agency mentions that A.1, who was in drunken condition at the time of incident, fell on the road and as such he received some injuries. I consider, it is a rare possibility for anyone to receive such injury on his nose and mouth only, due to fall in a drunken state. There is every likelihood of some injuries to be inflicted on the knees and forehead also of such person. More over by involuntary reflex one would protect his face with his hands at the time of such fall even in drunken condition. Therefore, it is clear that A.1 received grievous injuries in the said incident, whereas P.W.1 received a simple injury and however the investigating agency in order to help the hotel staff, wanted to implicate the accused in a larger case and therefore, it planted M.O.4 knife, so as to mitigate the relative rigor of the case against the hotel staff. But the fact remains is that not only the relevant information against the hotel staff is suppressed, but the accused were implicated in a higher case by planting M.O.4. With such kind information
before the Court, even if it is a fact that the accused also attacked the
hotel staff in the said incident, the same would not impel the Court to convict the accused for the offences alleged. Clearly section 307 of IPC has no application to the fact of this case and more over because of suppression of relevant information by the prosecution/investigating agency, the information as to who is the aggressor has become opaque and hence, I consider the appellant/A.1 is entitled to benefit of doubt.
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40.In fact, during the cross-examination of P.W.1 and others the learned defence counsel elicited the nexus between the hotel management and the persons having political power at the relevant time indicating that such nexus might have contributed exculpation of the hotel staff from the incident, while inculpating the accused in an offence much larger than what they have committed. Under the above circumstances, I consider it is not proper to believe the case of the prosecution, so as to find the accused guilt any of the offence and therefore, the conviction of the accused/A1 for the offences under sections 307, 450, 427 and 324 of
Indian Penal Code is liable to be set aside and consequent thereto the sentence must also has to be set aside leading to acquittal of A.1 in the above case and accordingly the conviction and sentence of trial Court are liable to be set aside. Thus, I answer the above points.
In the result, the appeal is allowed setting aside the conviction and sentence dated 07.01.2022 in S.C.45/2018 on the file of Prl. Assistant
Sessions Judge, Srikakulam for the offences punishable under sections
307, 450, 427 and 324 of Indian Penal Code and consequent thereto the
A.1 is acquitted for the said offences under section 235 (1) of Cr.P.C.
M.Os.1 to 5 and unmarked property, if any in this case shall be destroyed after the appeal time is over. Fine amount, if any paid shall be refunded to the petitioner/accused on their application, after the appeal time is over.
Dictated to stenographer, transcribed by him, corrected and
pronounced by me in open court this the 16th day of November, 2022.
II Addl. District & Sessions Judge, For trial of offences against Women, Srikakulam.
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Appendix of evidence.
witnesses examined and documents marked.
No oral or documentary evidence is adduced on either side.
II Addl. District & Sessions Judge, For trial of offences against Women, Srikakulam.
Copy to Prl. Assistant Sessions Judge, Srikakulam. Copy to the Accused.
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//True Copy//
Chief Administrative Officer, II Addl. District & Sessions Judge’s Court, Srikakulam.