1 Fair Judgment in CRLA.401/2017, dt.25.10.2021
IN THE COURT OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE
EAST GODAVARI DISTRICT AT KAKINADA
Present: Sri G. Manohara Reddy, III Additional District and Sessions Judge,
Monday, this the 25th day of October, 2021
CRIMINAL APPEAL No.401 of 2017
From what court the appeal is : V Additional Judicial Magistrate of Preferred First Class, Kakinada.
Number of the case in that Court : C.C.No.627 of 2015
Number of the Appeal : C.A.No.401 of 2017
Name and Description of the : Muppidi Uday Kumar, Appellants (Accused No.1) S/o.Pullayya, Aged 32 years, D.No.3-113, Ambedkar Veedhi, Ganganapalli Village, Kakinada Rural Mandal.
Name and description of the : State: Sub Inspector of Police, Respondent. Indrapalem Police Station: Represented by the Additional Public Prosecutor, Kakinada. The sentence and order under which : In the result, A.1 is found guilty for it was imposed in the lower Court. the offence punishable U/Sec.326 of IPC and accordingly A.1 is convicted for the offence punishable U/sec. 248(2) Cr.P.C for the offence punishable u/sec.326 of I.P.C. and A.1 is sentenced to undergo Rigorous Imprisonment for Two years and also to pay fine of Rs.2,000/- and in default of payment of fine he shall undergo SI for two months for the offence punishable under section 326 of IPC. Mo.1-Iron rod is ordered to be destroyed after appeal time.
Whether confirmed / modified or : Confirmed Reversed, if modified the modification
Date of Presentation : 21-09-2017
Date of Filing : 21-09-2017
Notice issued by Court to Appear : 23-09-2017
Bail Bonds if Respondents has been : --- let out on bail
Respondents orders to appear : 25-10-2017
Date of Hearing : 11-10-2021
Date of Judgment : 25-10-2021 2 Fair Judgment in CRLA.401/2017, dt.25.10.2021
This criminal appeal coming on 11-10-2021 for final hearing before me in the presence of Sri Kamuju Srinivasa Rao, Advocate for Appellant / Accused No.1 and Learned Additional Public Prosecutor for Respondent / Complainant and the matter having stood over for consideration till this day, this Court delivered the following:
:: J U D G M E N T ::
1. This is an appeal preferred by the Appellant / Accused No.1 against Calendar and Judgment dated 11-09-2017 in C.C.No.627 of 2015 passed by V Additional
Judicial Magistrate of first class, Kakinada wherein and where under the trial court
found Accused No.1 is found guilty for the offence punishable U/Sec.326 of I.P.C. and accordingly Accused No.1 is convicted for the offence punishable U/sec.248(2) Cr.P.C for the offence punishable u/sec.326 of I.P.C. and Accused No.1 is sentenced to undergo Rigorous Imprisonment for Two years and also to pay fine of Rs.2,000/- and in default of payment of fine he shall undergo S.I. for two months for the offence punishable under section 326 of I.P.C.
2. Initially, the Accused No.1, A2 and A3 are charge sheeted in Cr.No.118/2015 of
Indrapalem Police Station for the offences under section U/sec.326 r/w 34 of
I.P.C.(After full-fledged trial the trial court convicted A1 only but, A.2 and A.3 are acquitted U/sec.248(1) Cr.P.C for the offence punishable U/sec.326 r/w 34 I.P.C.)
3. The parties, are arrayed as depicted in the charge sheet for the sake of convenience.
4. The provenance of case facts as seen from the material available on record is that: On 24-05-2015 at about 4-30 p.m., while P.W.1-Sana Anandarao was present in his vegetables shop in Ganganapalli village turning, A1 to A3 went to the said shop of PW.1 and asked P.W.3-Kalabathula Annavaram to bring petrol for which, he refused.. Upon that A1 slapped P.W.3. When PW.1 questioned the same, A1 beat P.W.1 with MO.1- Iron Rod on his left hand and caused fracture injury. The Accused No.2 and 3 interfered and kicked P.W.1 with legs. Later P.W.2 came there and shifted P.W.1 to Government General Hospital, Kakinada and admitted for better treatment. Thus, the case of prosecution is that the A.1 to A.3 in furtherance of their common intention voluntarily caused simple and grievous hurts to PW1/ complainant.
3 Fair Judgment in CRLA.401/2017, dt.25.10.2021
Basing on the said Ex.P.1 statement of P.W.1, a case in Cr.No.118/2015 u/sec.324 r/w 34 of I.P.C. was registered by P.W.10-S.I. of Police. During the course of investigation P.W.10-S.I. of Police visited the scene of offence, prepared rough sketch, examined the witnesses, recorded their statements. After receipt of wound certificate of injured, the section of law was altered to 326 r/w 34 of I.P.C. and after completion of investigation, he filed charge sheet against the accused persons.
5. Basing on the material available on record, this case was taken on file for the offence punishable under U/sec.326 r/w 34 of IPC against accused persons / A1 to A3. (After full- fledged trial the trial court convicted A1 only but, A.2 and A.3 are acquitted
U/sec.248(1) Cr.P.C for the offence punishable U/sec.326 r/w 34 I.P.C.)
6. On appearance of the accused persons / A1 to A3, copies of documents are furnished as contemplated under section 207 Cr.P.C. (After full-fledged trial the trial court convicted A1 only but, A.2 and A.3 are acquitted U/sec.248(1) Cr.P.C for the offence punishable U/sec.326 r/w 34 I.P.C.).
7. The accused persons / A1 to A3 are examined under Section 239 Cr.P.C. and the charge against the accused persons for the offense U/sec.326 r/w 34 of I.P.C. was framed, read over and explained to them in Telugu for which they pleaded not guilty and claimed to be tried. (After full-fledged trial the trial court convicted A1 only but, A.2 and A.3 are acquitted U/sec.248(1) Cr.P.C for the offence punishable U/sec.326 r/w 34
I.P.C.).
8. During the course of trial, the prosecution has examined P.Ws.1 to 10 and got marked Ex.P-1 to P-10 and M.O.1. The learned Assistant Public Prosecutor has given up the examination of L.W.5 / Rayudu Appalaraju, L.W.6 / Shaik Moulana and L.W.12 /
R.S.Narayana, Head Constable, respectively and reported no further evidence.
Accordingly, their evidence deemed to be closed.
8. After completion of prosecution evidence, the matter posted for 313 Cr.P.C., where all the incriminating material available against accused persons read over and explained to them in Telugu and they denied the incriminating material, accused persons reported no defence evidence.
4 Fair Judgment in CRLA.401/2017, dt.25.10.2021
9. Given, the evidence let in by the prosecution the trial court passed the impugned Judgment wherein and where under Accused No.2 and A3 are found not guilty for the offence punishable under section 326 r/w 34 of I.P.C. and accordingly A.2 and A.3 are acquitted U/sec.248(1) Cr.P.C for the offence punishable U/sec.326 r/w 34
I.P.C. and they are set at liberty. Their bail bonds shall stands cancelled after 6 months.
However, A.1 is found guilty for the offence punishable U/Sec.326 of I.P.C. and
accordingly A.1 is convicted for the offence punishable U/sec.248(2) Cr.P.C for
the offence punishable u/sec.326 of I.P.C. and A.1 is sentenced to undergo
Rigorous Imprisonment for Two years and also to pay fine of Rs.2,000/- and in default of payment of fine he shall undergo S.I. for two months for the offence punishable under section 326 of I.P.C. The fine amount of Rs.2,000/- is paid by the Appellant / A1 in trial court.
10. Feeling aggrieved, the Accused No.1 preferred the present appeal challenging the impugned Judgment dated 11-09-2017 in C.C.No.627/2015 passed by V
Additional Judicial Magistrate of First Class, Kakinada.
11. The Appellant has raised the following grounds in the Appeal.
1.The trial court has not at all con`sidered appellant. The Ex.P1 to P10 cooked up fabricated manufacture in police station. So prosecution had failed totally to prove any offence against the appellant. The trial court did not take into consideration the genuine version of the appellant that the Ex.P1 to P10 create only this case purpose.
2.The trial court ought to have given benefit of doubt in favour of the appellant. The fruits of benefit of doubt not being enjoyed by the appellant even though there are ample opportunity. The trial court jumped into haphazard, erroneous conclusions.
3.The concocted irrelevant evidence the theory of prosecution the trial court accepted which is truly absurd where as the genuine version of the defence counsel became a far cry in the desert of lower court.
5 Fair Judgment in CRLA.401/2017, dt.25.10.2021
4.It is explicit, obvious that there has been a futile attempt made to agog voice of downtrodden, victims in the society by the white collared executives of the society.
5.Since above all it is an invasion attempted by inimical personnel who occupied higher rungs in the society to curb, wipe-out weaker section in the society hence it is survival war between a few mighty poor innocent section of the society.
6.However, the trial court should not have considered the prosecution version based on legal semantics, in a parochial manner here the trial court failed to think beyond law where it took shelter in the tagged the appellant as an accused in this case ignoring prevailing intricacies in the society usually the lower court relied on the prosecution there is no credence to the defence side evidence it amounts to prejudiced and biased one on the part of the lower court thus the prosecution failed in toto to prove any sort of offence beyond doubt against the appellant the benefit of doubt enjoyed by the appellant was ignored by the trial court. Which completely relied on the piecemeal, fabricated version of the prosecution thus the trial court quickly jumped in to haphazard, erroneous hasty conclusions.
7.It explains elaborately and clearly the trial court pre determined and developed anathema and apathetic against appellant. The case foisted against appellant on figment of imagination effecting vengeance that will be demolished, dismantled at the time of hearing the appeal. The myth will be exploded.
12. In view of the above grounds the Appellant / A1 urged before this court to set aside the calendar and Judgment dated 11-09-2017 passed by the V Additional
Judicial Magistrate of First Class, Kakinada in C.C.No.627 of 2015 by acquitting the
Appellant / A1 for the offences under section 326 of I.P.C.
13. I have heard arguments of learned counsel for the Appellant and learned
Additional Public Prosecutor for Respondent.
14. Given, the appeal grounds and contentions of the both counsels, the points for determination are:
6 Fair Judgment in CRLA.401/2017, dt.25.10.2021 1. Whether, the prosecution has established the guilt against the
Appellant / Accused No.1 beyond all reasonable doubts?
2. Whether, the finding of the trial court needs any interference?
POINT No: 1:
15. In order to prove its case, in the trial court, the prosecution examined PW1 to
PW10 and got marked Ex’s. P.1 to P.10. M.O.1-Iron Rod is also marked. P.W.1 is said to victim/injured, P.W.2 is brother of P.W.1 cum circumstantial witness, P.W.3, P.W.4 and P.W.6 are said to eye witnesses, P.W.5 and P.W.7 are said to mediators for scene observation, P.W.8 is doctor, P.W.9 is Radiologist and P.W.10 is Investigating officer.
Ex.P.1 is statement of PW.1 basing on which this case is registered. Ex.P.2 is signature of P.W.5 on Scene Observation report, Ex.P.3 is sec.161 Cr.P.C statement of
P.W.6, Ex.P.4 is signature of P.W.7 on mediators report, Ex.P.5 is wound certificate of
P.W.1, Ex.P.6 is Four X-Ray Films, Ex.P.7 is original FIR, Ex.P.8 is hospital intimation,
Ex.P.9 is Rough Sketch and Ex.P.10 is Scene observation report.
16. The learned Assistant Public Prosecutor argued that, the evidence of P.Ws 1 to 10, coupled with documentary evidence Ex.P.1 to P.10 is consistent, cogent, convincing to show that at relevant time the A.1 to A.3 in furtherance of their common intention beat
P.W.1 with an iron rod and caused grievous injuries to PW.1, as such the prosecution proved beyond all reasonable doubt that, the accused persons committed the offence punishable under Section 326 r/w 34 of IPC.
17. Further the learned counsel for the accused contended that since there are existing disputes in between parties as such, the evidence of PWs.1 and 2 cannot be made basis for conviction of accused. On the other hand the learned A.P.P. submitted that mere existence of enmity cannot be made basis to discard the evidence of injured witnesses and further, submitted that there are no existing disputes between the parties.
18. It is settled principles of law that the enmity is a double edged weapon which can be motive for the crime and also the ground for implication of the accused person.
However, the court cannot discard the evidence of victim at threshold on the ground of enmity between the parties. In case of inimical witnesses the court must be careful and it is required to scrutinize the evidence of inimical witnesses with a nexus care to find out whether the testimony of witnesses inspires the confidence to be acceptable 7 Fair Judgment in CRLA.401/2017, dt.25.10.2021 notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity held to be a double edged weapon may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that there were some disputes between the accused and the victims or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime cannot be made a basis to discard or reject the testimony of the eye-witnesses, the deposition of whom is otherwise consistent and convincing.
19. It is the evidence of PW1 who is the victim is that on 24-05-2015 about 4.15 p.m., he along with PW.3-Annavaram were opening his Vegetable shop situated at
Ganganapalli Center, Kovvada Village. The P.W.1 further deposed that at first instance,
A2 and A3 came to his shop and A1 followed them on his motor cycle and the same was stopped by A1 near to his shop. The P.W.1 further deposed that A1 asked PW.3-
K.Annavaram to go and bring Petrol for his motor cycle, for which the PW.3-
K.Annavaram refused to go for Petrol as it was time for their business. The P.W.1 further deposed that A1 beat P.W3-K.Annavaram on his cheek saying that if he insisted to bring Petrol, PW.3-K.Annavaram refused to bring the same and when he interfered, the A1 also beat him with his hand and in the mean time, PW4-D.Surayanarayana came to his shop and asked him to sell Potatoes, upon that he started weighing the Potatoes for LW4-D.Suryanarayana by sitting infront of the weighing Kata. The P.W.1 further deposed that at that time, A2 caught hold his hair and he dragged him and scattered 8 Fair Judgment in CRLA.401/2017, dt.25.10.2021 the weighing stones and Vegetables. Then, A1 picked up an iron rod from said shop and beat him on his leg at first instance. The P.W.1 further deposed that again the A1 beat him with an iron rod on his left hand back side of Palm and caused fracture injuries, as a result of which the two bones in his left hand Palm was broken and sustained huge pain, as such he made hues and cries. The P.W.1 further deposed that upon gathering public, the accused persons went away and he was taken to
Government General Hospital, Kakinada where police recorded his Ex.P.1-Statement.
The PW.1 identified MO1 is Iron Rod with which the A.1 alleged to have beat PW.1.
Thus, the above evidence of P.W.1 is that the A1 picked up an iron rod and beat P.W.1 on his leg and also beat P.W.1 on his left hand back side palm and caused fracture injuries. The learned counsel for accused cross examined P.W.1 at length in depth but nothing was elicited to doubt the evidence of P.W.1 which is showing that
A1 voluntarily caused grievous hurt with M.O.1-Iron Rod. Further, the facts suggested to P.W.1 during his cross examination is also corroborated with the evidence of P.W1.
It was suggested to P.W.1 that “the so called incident was taken place near to the vegetable shop of P.W.1”. Further it was suggested to P.W.1 that “A2 and A3 came to scene of offence when they saw while P.W.1 beating A1”. FurthP.Ws.8 and 9 coupled with the documentary evidence under Exs.P5 and P6 is categorically establishing that at relevant time, P.W.1 sustained fracture of 4th and 5th Metacarpal Bones and that
P.Ws.8 and 9 categorically opined that the above injuries of P.W.1 are grievous in nature. The P.Ws.8 and 9 was cross examined for accused but nothing was elicited to show that P.W.1 was not sustained fracture at relevant time. Further it was suggested to P.W.1 that “they also beat A2 and A3 with same iron rod with which A1 beat
P.W.1. It was surprised to note that the said suggestion put to P.W.1 that the P.W.1 and others also beat A2 and A3 with the same rod with which A1 beat P.W.1. So, said suggestion put to PW.1 making it clear that accused also admitted that A1 beat P.W.1 with said iron rod. Except that nothing was elicited during the cross examination of
P.W.1 to doubt the evidence of P.W.1. Further, the evidence of P.W.1 is corroborated by the evidence of other witnesses and also medical evidence on record to show that at relevant time, the A1 voluntarily caused grievous hurt to P.W.1 with M.O.1-Iron rod.
9 Fair Judgment in CRLA.401/2017, dt.25.10.2021
P.W.1 is injured witness deposed about the assault of accused over him. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by Apex Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.
"Convincing evidence is required to discredit an injured witness" In Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280 Hon'ble Apex court held:
“ Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".
On the other hand as already discussed, the evidence of PW.1 even after test of cross examination is appearing to be true and believable. Further the evidence of PW.1 is corroborated by independent eye witnesses and also corroborated by medical evidence on record. In view of above discussion and for the reasons stated above this court is of considered opinion that the evidence of PW.1 is appearing to be wholly reliable and consistent with his Ex.P.1 statement.
20. It is the evidence of PW2 who is the brother of P.W.1 is that on 24-05-2015 at about 5-30 p.m., he received phone call from P.W.1 and he informed that there happened some altercation between him and the persons belongs to Ganganapalli village, upon that he went to shop of P.W.1 and found P.W.1 with injuries, then he shifted P.W.1 to Government General Hospital, Kakinada. Here according to the accused, they were falsely implicated in this case in view of previous disputes. If really the PW2 wants to implicate the accused into false case, the P.W.2 should have also deposed that he also witnessed the incident. But the own brother of P.W.1 categorically deposed that he went to scene of offence only on receipt of information of the incident and shifted his brother. If really, the P.Ws.1 and 2 wanted to implicate the accused into false cases, PW.2 should have deposed something else but the evidence of P.W.2 is 10 Fair Judgment in CRLA.401/2017, dt.25.10.2021 showing that he deposed fairly that he went to scene of offence only on information and found P.W.1 with injuries and shifted P.W.1 to hospital. Therefore, the evidence of
P.W.1 and P.W.2 is inspiring the confidence and after test of cross examination also, their evidence is appearing to be true and believable. It was suggested to P.W.2 that on the date of incident, the P.W.1, P.W.2 and others beat A1 at their shop. Further, the fact suggested to P.Ws.1 and 2 is also showing the presence of A.1 to A3 at the scene of offence at relevant time and also establishing the happening of the incident.
21. It is the evidence of PW3 who used to work in the shop of P.W.1 and who is the eye witness to the case of prosecution. The P.W.3 is also deposed that A1 to A3 came to their shop and asked him to bring petrol for which he refused. The P.W.3 further deposed that A1 asked P.W.1 to send P.W.3 to get petrol and when P.W.1 refused, A1 beat P.W.1. The P.W.3 also deposed that A1 picked up iron spoke and beat P.W.1, as a result of which the P.W.1 sustained injury on his left hand back side palm and sustained injury. The P.W.3 further deposed that when A1 raised iron spoke to beat
P.W.1 on the leg of P.W.1, P.W.1 kept his hand at his leg, as such P.W.1 sustained injury on the back of palm of left hand and thereafter P.W.1 was shifted to hospital.
Thus, the above evidence of P.W.3 is also showing that at relevant time, A1 voluntarily caused grievous hurt to P.W.1 with M.O.1-Iron Spoke. The learned counsel for accused cross examined P.W.3 also, and nothing was elicited to doubt the presence of P.W.3 at the scene of offence. The learned counsel for accused suggested to P.W.3 that at present, he is not working in said vegetable shop and that the P.W.3 had acquaintance with P.W.1 even prior to joining into his shop. The said facts suggested to P.W.3 is showing that the accused also admitted that P.W.3 worked at the shop of P.W.1 at relevant time. Except that nothing was elicited to doubt the evidence of P.W.3.
Therefore, the evidence of P.W.3 even after test of cross examination is categorically establishing that A1 voluntarily caused hurt to P.W.1 with dangerous instrument like
M.O.1.
22. It is the evidence of PW4 who is the independent eye witness and his evidence is also showing that A1 picked up an iron rod from the vegetable shop of P.W.1 and hurled the same, as a result of which the said iron rod caused injury on the hand of P.W.1. The presence of P.W.4 was also not denied during the course of cross examination of 11 Fair Judgment in CRLA.401/2017, dt.25.10.2021
P.W.4. Further, nothing was elicited to doubt presence of P.W.4. Therefore, the evidence of P.W.4 even after test of cross examination is corroborating with the evidence of P.W.1 to show that at relevant time, the A1 beat P.W.1 with iron rod and voluntarily caused grievous injury with dangerous weapon.
23. Further, P.W.8 categorically deposed in his evidence is that on 24-05-2015 at about 5-52 p.m., he examined P.W.1 and found the following injuries.
1. The P.W.1 complained pain in Chest, Abdomen and left hand. The
X- Ray of left hand revealed fracture of 4 th and 5 th Metacarpal Bones.
The P.W.8 further deposed that the Radiologist Report and duty Orthopedician report revealed the fracture of 4th and 5th Metacarpal Bones of P.W.1 and he issued
Ex.P.5 wound certificate. The PW.8 opined that the injury of PW.1 is grievous in nature. The evidence of P.W.1 injured witness is corroborated by medical evidence on record.
24. Further, the P.W.9 Radiologist deposed in his evidence is that on 24-05-2015 he had taken X-Rays of Sana Anandarao(P.W.1) at Chest, Skull and left hand of P.W.1 and Abdomen and the X-Ray left hand discloses fracture of 4 th and 5 th Metacarpal
Bones and he opined that the injury is grievous in nature and the four X-Ray Films of P.W.1 are marked as Ex.P6.
25. The above evidence of P.Ws.8 and 9 coupled with the documentary evidence under Exs.P5 and P6 is categorically establishing that at relevant time, P.W.1
sustained fracture of 4 th and 5 th Metacarpal Bones and that P.Ws.8 and 9
categorically opined that the above injuries of P.W.1 are grievous in nature. The
P.Ws.8 and 9 was cross examined by the counsel for accused but nothing was elicited to show that P.W.1 was not sustained fracture at relevant time.
26. It is the evidence of P.W.10 Investigating Officer is that on 25-05-2015 at about 8-00 a.m., he received Ex.P1-Statement of P.W.1 along with hospital intimation, basing on which he registered a case in Crime No.118/2015 under section 324 r/w 34 of IPC and issued Ex.P7-FIR and after completion of investigation, charge sheet is filed.
P.W.10 further deposed during the course of scene observation, he seized
M.O.1- Iron Rod under the cover of Ex.P10-Scene Observation Report in the presence 12 Fair Judgment in CRLA.401/2017, dt.25.10.2021 of mediators. But the P.W.5 and P.W.7 who are mediators of Scene Observation
Report did not support the case of prosecution and they simply deposed that police obtained the signature on Scene observation report at the police station. In this case, the P.W.1 identified M.O.1 as the crime weapon. Further, nowhere the accused denied that M.O.1 is the weapon that was used by A1 to cause grievous injury to
P.W.1. On the other hand, it was suggested to P.W.1 that “they also beat A2 and
A3 with the same rod with which the A1 beat him”. It shows that the accused
also admitted that M.O.1 is the Iron Rod used by A1. In the above circumstances, the evidence of P.W.5 and P.W.7 did not cause any dent to the recovery of M.O.1 at the scene of offence. Therefore, though P.W.5 and P.W.7 turned hostile, their evidence cannot be taken into consideration in view of the above circumstances.
27. Case of the accused is one of total denial.
28. The counsel for the appellant filed written arguments as mentioned thus:
1.A conspectus of the case of the prosecution is that on 24.05.2015 at about 4.30 p.m. the PW1 was present in his vegetables shop at
Ganganapalli centre, the Accused No.1 to 3 are said to have gone to the said shop and asked PW3 Kollabathula Annavaram to bring petrol. For which, PW3 refused. When PW1 questioned the same, then A1 beat PW1 with an iron rod on his left hand and caused fracture injury. The A2 and
A3 interfered and beat PW1 with hands and legs, then PW2 came there and shifted PW1 to Government General Hospital.
2.The case of the accused is total denial. With the above factual backdrop the prosecution has examined as many as 10 witnesses and Ex.P1 to P10 documents and M.O.1 were marked.
3.It is further submitted that the story set out in First Information Report substantively differs from what the witness deposed in the court as PW1.
4.In the First Information Report, PW1 stated as “When Accused No.1 was questioning Annavaram why he would not bring petrol Accused No.1 beat
Annavaram with hands, then PW1 went in their middle and questioned
Accused No.1 why he was beating Annavaram. Then, Accused No.2 and 3 13 Fair Judgment in CRLA.401/2017, dt.25.10.2021 had strewn vegetables helter skelter and also threw the balance and weight scales. Then Accused No.1 took up a crowbar available nearby, and was about to poke him. Then PW1 shielded his hand to ward off the poke. The crowbar hit on the hand of PW1 causing injury. Surprisingly the prosecution has not seized the said crowbar or iron rod as the case may be.
5.If that is the story in the first information report, PW1 particularly to chief examination, particularly to the above incident. As per the deposition of
PW1 when PW1 intervened between Accused No.1 and Annavaram LW4
D.Suryanarayana came to buy potatoes. PW1 went back to his seat to sell potatoes. In fact he weighed potatoes sitting in his seat before the weighing balance. He further deposed that, then Accused No.2 held his hair and dragged him out and had strewn vegetables and weighing stones. Then, Accused No.1 picked up an iron rod and beat PW1 on his leg at first instance, and in second instance again beat with iron rod on left hand back side of the palm and caused fracture injuries.
6.From the above said part of First Information Report and part of the deposition, the following contradictory instances are vivid and visible on record.
a) As per F.I.R., when PW1 intervened between Accused No.1 and
Annavaram all the three accused had strewn the vegetables and the balance helter-skelter. Whereas as per the deposition of Accused No.1 beat PW1 with hand.
b) As per F.I.R., PW1 was dragged by three persons whereas as per the deposition, PW1 was dragged by Accused No.2 only.
c) As per F.I.R. vegetables and the balance were thrown by three persons. But as per the deposition, Accused No.2 only had strewn away the vegetables and weighing stones ….. (whether the balance was thrown away, stones were thrown away by one person or three persons)
d) As per F.I.R., the Accused No.1 had picked up a crowbar and poked
PW1 then PW1 tried to ward off the poke with his hand, then he 14 Fair Judgment in CRLA.401/2017, dt.25.10.2021 received a bleeding injury…. Whereas in deposition PW1 stated as “then Accused No.1 picked up an iron rod from my shop and beat me on my left hand palm and caused fracture injury ….” Whether it is an iron rod or a crowbar the prosecution has not explained, and whether it is a bleeding injury or a fracture injury, again the prosecution has not explained.
7.The very chief examination of PW1 itself differs from the story that is set out in the F.I.R. substantively. Two are different stories. The trial court missed to appreciate the above aspects.
8.PW2 is none other than own brother of PW1. He is the shifter of PW1 to
General Hospital. The PW3, Annavaram said to be a worker in the shop of
PW1. He gave a different version in his deposition. As per him, when he refused to bring petrol. Accused No.1 is alleged to have asked PW1 also to send PW3 to bring petrol. He is also said to have refused. Then
Accused No.1 beat him, later Accused No.1 picked up a slender oosa and beat PW1.
9.Firstly a crowbar, secondly an iron rod, now the M.O. is an iron oosa. The story narrated by PW3 is totally against the story set out in F.I.R. Thus, there is a contradiction between two witnesses i.e., PW1 and PW3.
10.P.W.4 is a resident of Ganganapalli village. He is a follower of Mummidi
Rajababu against whom and PW4 and others the accused gave report under SC and ST (POA) Act, and the case is pending for a long time.. The said case was filed prior to the present case. This aspect has a support from the evidence of PW10, the investigation officer who stated as “It is true the Accused No.1 filed criminal case against Mummidi Rajababu.” 11.PW5,PW6 and PW7 turned hostile and did not support the case of the prosecution.
12. It is the contention of the accused on the injuries sustained by PW1 is that: the injuries sustained by PW1 were old injuries. In view of such a strong contest the age of injury assumes much importance in the context of the case. In the wound certificate issued by PW8, the age of injury column discloses one hour, apparently there are no bleeding injuries to 15 Fair Judgment in CRLA.401/2017, dt.25.10.2021
PW1. The prosecution abandoned the story of bleeding injury and setup fracture injuries. Certificate issued by PW8 does not disclose any injuries except the fractures. How PW8 mentioned in injury column time of injury when there are no injuries, but fractures.
13.The PW8 further says that radiologist report and the duty orthopaedic doctor’s report revealed the fractures. Those two report must have been filed before the Hon’ble Court. But, the prosecution did not file those two reports for the reasons must known to the prosecution itself. Wound
Certificate does not disclose how many days the PW1 underwent treatment. The doctor did not bring case sheet today to the court as stated in cross examination.
14.Adverting to PW9 who is a radiologist, four X-Ray films were marked in his evidence as Ex.P6. First his name is not mentioned in the X-rays.
There is no other report. Admittedly PW9 did not give any report at the earliest point of time. When questioned in the cross examination PW9 stated that he was giving evidence basing on the wound certificate issued by PW8.
15.Only three X-rays were mentioned in the wound certificate. Surprisingly a forth x-ray came into existence. Either the doctor or the radiologist could not give proper explanation for it. PW8 specifically stated in the cross examination that he gave opinion after perusal of radiologist opinion. The word perusal clinches that there is a written opinion which the prosecution has suppressed.
16. Beyond all the above lacunae, both the doctors did not speak anything about how the injuries would be caused. The prosecutor also did not put the question on his aspect to the doctors. Whether the injuries sustained by PW1 were caused by a crowbar, iron rod or slender oosa is left unanswered. The trial court also missed to appreciate this aspect.
17. Thus the case of the prosecution suffers from implicit contradictions and intrinsic infirmities… The prosecution has miserably failed to establish any case against the first accused also. The trial court already acquitted
Accused No.2 and 3 basing on the same evidence.
16 Fair Judgment in CRLA.401/2017, dt.25.10.2021
The counsel for the Appellants relied upon the decisions reported in:
(1)2011 (2) A.L.D. Crl.672.
(2)2008 (1) ALT Crl.35 SC.
30. On the other hand the learned Additional Public Prosecutor represented on behalf of Respondent / State / S.I. of Police, Indrapalem Police Station argued that the Judgment of the trial court is on correct lines and the trial court rightly convicted the Appellant / A1 for the offence levelled against him and that there is no need to interfere with the Judgment of the trial court and prays to confirm the
Judgment of trial court by confirming the sentence passed by the trial court.
31.In view of the rival contentions, I have more carefully and thoroughly perused the record. The submissions of learned Counsel for the Appellant /A1 and on the submissions of learned Additional Public Prosecutor for the State have heard and considered. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
32. In order to decide the present case, it is pertinent to discuss the
legal provisions i.e., Section 326 I.P.C. under which the Appellant / A1 has
been convicted.
Sec.326 of IPC. Voluntarily causing grievous hurt by dangerous weapons or
means—
Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
33. Let us now appreciate the evidence available on record in the light of the aforesaid legal provisions.
17 Fair Judgment in CRLA.401/2017, dt.25.10.2021
I have very carefully and vigilantly considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint.
On careful verification of the evidence recorded by the trial court, the evidence of
P.Ws.1 to 4, P.Ws.8 to 10 coupled with the documentary evidence under Exs.P1, P5 to P10 and M.O.1 are consistent, cogent and convincing to show that at relevant time, the Appellant / A1 voluntarily caused grievous hurt to P.W.1 with M.O.1 which is dangerous instrument. All the material witnesses were cross examined for accused but nothing was elicited to doubt the evidence on record against Appellant / A1.
The evidence of PW.1 even after cross examination is appearing to be true and believable. Further the evidence of PW.1 is corroborated by independent eye witnesses and also corroborated by medical evidence on record. In view of above discussion and for the reasons stated above this court is of considered opinion that the evidence of
PW.1 is appearing to be wholly reliable and consistent with his Ex.P.1 statement.
The P.W.2 deposed that he will also witness the incident. But the own brother of
P.W.1 categorically deposed that he went to scene of offence only on information of the incident and shifted his brother. If really, the P.Ws.1 and 2 wanted to implicate the accused into false cases, PW.2 should have deposed something else but the evidence of P.W.2 is showing that he deposed fairly that he went to scene of offence only on information and found P.W.1 with injuries and shifted P.W.1 to hospital.
Therefore, the evidence of P.W.1 and P.W.2 is inspiring the confidence of the court.
The P.W.3 also deposed that A1 picked up iron spoke and beat P.W.1, as a result of which the P.W.1 sustained injury on his left hand back side palm and sustained injury. The P.W.3 further deposed that when A1 raised iron spoke to beat
P.W.1 on the leg of P.W.1, P.W.1 kept his hand at his leg, as such P.W.1 sustained injury on the back of palm of left hand and thereafter P.W.1 was shifted to hospital.
Thus, the above evidence of P.W.3 is also showing that at relevant time, A1 voluntarily caused grievous hurt to P.W.1 with M.O.1-Iron Spoke.
It is the evidence of PW4 who is the independent eye witness and his evidence is also showing that A1 picked up an iron rod from the vegetable shop of P.W.1 and hurled 18 Fair Judgment in CRLA.401/2017, dt.25.10.2021 the same, as a result of which the said iron rod caused injury on the hand of P.W.1. The presence of P.W.4 was also not denied during the course of cross examination.
Therefore, the evidence of P.W.4 even after test of cross examination is corroborating with the evidence of P.W.1 to show that at relevant time, the A1 beat P.W.1 with iron rod and voluntarily caused grievous injury with dangerous weapon.
The P.W.8- Doctor categorically deposed in his evidence is that on 24-05-2015 at about 5-52 p.m., he examined P.W.1 and found the following injuries.
1. The P.W.1 complained pain in Chest, Abdomen and left hand. The
X- Ray of left hand revealed fracture of 4 th and 5 th Metacarpal Bones.
The P.W.8 further deposed that the Radiologist Report and duty Orthopedician report revealed the fracture of 4th and 5th Metacarpal Bones of P.W.1 and he issued
Ex.P.5 wound certificate. The PW.8 opined that the injury of PW.1 is grievous in nature. The evidence of P.W.1 injured witness is corroborated by medical evidence on record.
The P.W.9 Radiologist deposed in his evidence is that on 24-05-2015 he had taken X-Rays of Sana Anandarao(P.W.1) at Chest, Skull and left hand of P.W.1 and
Abdomen and the X-Ray left hand discloses fracture of 4 th and 5 th Metacarpal
Bones and he opined that the injury is grievous in nature and the four X-Ray Films of P.W.1 are marked as Ex.P6.
The above evidence of P.Ws.8 and 9 coupled with the documentary evidence under Exs.P5 and P6 is categorically establishing that at relevant time, P.W.1
sustained fracture of 4 th and 5 th Metacarpal Bones and that P.Ws.8 and 9
categorically opined that the above injuries of P.W.1 are grievous in nature.
34. Be that as it may, the evidence of PW1 to 9 inspires confidence to prove the accusation against the Appellant / A1. Having carefully gone through the evidence of PW1 to 9 and contents of Ex.P1 to P10 shows specific incidents to prove the offence under section 326 I.P.C. against the Appellant / A1.
35. The testimony of PW1 to 9 are trustworthy witnesses to establish the essential elements under section 326 of I.P.C. Therefore, the prosecution successfully prove the guilt against the accused No.1 beyond all reasonable doubts and accordingly point No.1 answered negative to the Appellant.
19 Fair Judgment in CRLA.401/2017, dt.25.10.2021
Furthermore, the trial court taking lenient view by imposing less imprisonment of two years only and also to pay fine of Rs.2,000/- for the offence punishable under section 326 of I.P.C. Even though, as per the Indian Penal Code the punishment prescribed for the offence punishable under section 326 I.P.C. is “Imprisonment for life, or imprisonment for 10 years and fine.”
POINT NO.2:
36. In view of the answer in Point No.1, I hold that I do not find any material irregularity or perversity in the impugned Judgment and there is no valid legal reasons to interfere well reasoned Judgment of the trial court. Accordingly point is answered.
37. In the result, the appeal is dismissed by confirming the Calendar and Judgment of the trial court dt:11-09-2017 in C.C.No.627/2015 passed by the V Additional Judicial
First Class Magistrate, Kakinada. Accordingly, Accused No.1 is found guilty for the offence
punishable U/Sec.326 of I.P.C. and Accused No.1 is convicted U/sec.248(2) Cr.P.C for the offence punishable u/sec.326 of I.P.C. and Accused No.1 is sentenced to undergo Rigorous Imprisonment for Two years and also to pay fine of Rs.2,000/- (Rupees two thousand only) and in default of payment of fine he shall undergo S.I. for two months for the offence punishable under section 326 of
I.P.C. [Fine amount of Rs.2,000/- (Rupees two thousand only) was paid by the Appellant / A1.
Vide Receipt No.1325, dated 11.09.2017 in the trial court]. The remand period undergone by the appellant / A1 for the period from 15-06-2016 to 17-06-2016 (three days) is set off under section 428 of Cr.P.C. The property order with regard to M.O.1 passed by the trial court holds good after expiry of revision period. Further, the appellant / A1 is explained his right of revision against the above conviction and sentence before Hon’ble
Appellate Court. He can seek legal aid in preferring revision as per the provision of
Legal Services Authority Act. Therefore, the office is hereby directed to prepare conviction warrant against Appellant /A1 and further directed to supply copy of
Judgment to the appellant / A1 on free of cost.
Typed to my dictation, corrected and pronounced by me in the open court on this the 25th day of October, 2021.
Sd/-G.Manohara Reddy,
III ADDL. SESSIONS JUDGE,
KAKINADA.
20 Fair Judgment in CRLA.401/2017, dt.25.10.2021
APPENDIX OF EVIDENCE
No oral or documentary evidence is adduced on either side
Sd/-G.Manohara Reddy,
III ADDL. SESSIONS JUDGE,
KAKINADA.
1) Copy to the Registrar (Vigilance) High Court of Andhra Pradesh, Amaravathi.
2) Copy to the Prl. District Court, Rajamahendravaram.
3) Copy to the V Additional Judicial First Class Magistrate Court, Kakinada.