C.C.No.195 of 2018 1 JFCM/PKD
THE COURT OF THE JUDICIAL MAGISTRATE OF FIRST CLASS,
PENUKONDA
Present: Sri K.Narendra Reddy
Judicial Magistrate of First Class,
Penukonda
Monday the 22 rd day of April, 2019
Calendar Case No.195 of 2018
(Crime No.72 of 2018 of Penukonda Police Station) Between:-
The State of Andhra Pradesh represented by the Sub-Inspector of Police, Penukonda Police Station. …Complainant.
AND
Baba Fakruddin @ Babu S/o Hussain Khan, Nagaluru village of Penukonda Mandal (A-1) (Absconding) …Accused No.1 * * * * * *
This case came on 03.04.2019 for final hearing before me in the presence of
Assistant Public Prosecutor for the state and of Sri. V.Srinivasulu, Advocate for the accused, upon hearing both sides and having perused the material on record, this court delivers the following:
: : J U D G M E N T : :
1.The Sub-Inspector of Police, Penukonda Police Station, filed charge sheet against accused in Crime No.72 of 2018 of Penukonda Police Station, for the offence punishable under section 324, 326, 509 of IPC with the following allegations:-
2.On 10.06.2018 at about 09:30pm, at Nagaluru Village the elder daughter of the defacto complainant/injured by name Nagamani who is mentally challenged women had attended calls of nature in the house situated beside the house of accused and on seeing the same the accused who is the neighbor of defacto complainant abused her in filthy language with an intention to insult the defacto complainant/PW-1 and armed with sickle and hacked on her right hand. On seeing the same, one Uppara Ranganna who is the brother of PW-1 and Vadde Adinarayana,
C.C.No.195 of 2018 2 JFCM/PKD neighbor of PW-1 intervened to rescue Pw-1 and the accused also attacked and bet them with sickle and in that scuffle they also sustained bleeding injuries, then other neighbors and villagers intervened and rescued them from the hands of the accused and shifted PW1-3 to the Government Hospital Penukonda and the accused flee away from the scene of offence. On the statement of injured/PW-1, the Police Penukonda registered a case in Cr.No:72/2018 U/Sec 324, 509 of IPC and PW-8, B.Nagaraju,
Head-Constable Penukonda Police Station secured the presence of the wittinesses to the incident and recorded their statements during the course of investigation and handed over the case file to PW-9 Sub-Inspector of Police Penukonda and he verified the investigation and secured wound certificates from the Medical officer,
Government hospital Penukonda where in it was opined that injury caused to PW-1 is sustained grievous in nature and injuries caused to Pw-2 and PW-3 are simple in nature as such he added a charge U/sec 326 IPC to the existing sections and filed charge sheet into the court by showing the accused as absconded.
3.On 08.08.2018 this court took cognizance of case for the offence punishable under section 324. 326, 509 of Indian Penal Code, against the accused and NBW was issued to secure the presence of the accused before this court to face trial. The Police Penukonda executed the NBW and produced the accused before this court on 08.02.2019
4. On 08.02.2019, copies of documents were furnished to the accused as contemplated under Section 207 Criminal Procedure Code.
5.On 15.02.2019 the accused who was lodged in sub-jail Penukonda has been produced before this court and examined under section 239 of Criminal
Procedure Code for framing charges. After hearing both sides and on considering the entire record, the charge for the offence punishable under section 324, 326, 509 of Indian Penal Code was framed against the accused. The said charge was read
C.C.No.195 of 2018 3 JFCM/PKD -over and explained to them in Telugu, for which they denied, pleaded not guilty and claimed to be tried. Hence, the case was posted for trial.
6.During the course of trial, the prosecution has examined all the listed witnesses as PWs1 to PW9 respectively and got marked Exs.P1 to P6. Accordingly, the prosecution evidence was closed.
7.After closure of the prosecution evidence, accused was examined under section 313 of Criminal Procedure Code by explaining the incriminating prosecution evidence in Telugu, for which he denied the incriminating material and reported no defense evidence.
8.Heard arguments of learned Assistant Public Prosecution and learned defense counsel.
9.Now the point that arises for determination is as follows :-
1) Whether the prosecution is able to establish that the accused had
abused in filthy language and voluntarily caused grievous hurt to PW1
with a dangerous weapon sickle and 326, 509 of Indian Penal Code,
beyond the reasonable doubts ?
2) Whether the accused also caused bleeding injuries to PW-2 and PW-3
and thereby the accused had committed an offence punishable under
section 324I.P.C.?
3) Whether the prosecution is able to establish that the accused had
committed the offences punishable under section 324, 326, 509 of
Indian Penal Code, beyond the reasonable doubts ?
10.In order to substantiate its case, the prosecution has examined all the listed witnesses as PWs1 to PW9 and got marked Exs.P1 to Ex.P6. Among them,
PW1 is the defacto-complainant-cum-injured. PW-2, PW-3 are also another injured persons cum direct witnesses to the incident. PW4, PW6 and PW-7 are the direct witnesses. PW5 is the Doctor, who treated and issued Wound Certificate to PW1 to
PW-3. PW8 is the Head Constable of Penukonda Police Station, who registered and investigated into the case. PW9 is the then Sub Inspector of Police,Penukonda, who
C.C.No.195 of 2018 4 JFCM/PKD verified the investigation and filed charge sheet against the accused. Ex.P1 is the statement of PW1 recorded at hospital. Ex.P2, Ex.P3 and Ex.P4 are the Wound
Certificates of PW1 to PW-3, dt.10.06.2018. Ex.P5 is the First Information Report, dt.11.06.2018 and Ex.P6 is the rough sketch of the scene.
11.The stand of the accused is of total denial.
12.The learned Assistant Public Prosecutor argued that the evidence of injured witnesses PW1 to PW-3 supported by the oral testimony of direct witnesses
PW4 PW-6 and PW-7, as well as the medical evidence clinchingly establishes that the accused had voluntarily caused hurt to PW1 to PW-3 with a sickle and further, the evidence of PWs1 to 3 is cogent and consistent in all the material aspects and therefore, the accused is liable for the offence punishable under section 324, 326 and 509 of Indian Penal Code.
13.On the other hand, the learned defence counsel argued that PW-2 and
PW4 are relative witnesses to the injured PW1 and no motive or intention has been established by the prosecution and the weapon was not seized by the investigation agency and no independent evidence has been brought on record and that PW1 to
PW3 foisted a false case against accused by taking advantage of injuries sustained in a road traffic accident, in view of prior disputes and further the police failed to seize the crime weapons and hence, the accsued is entitled for benefit of doubt.
14.In view of these rival contentions, the entire evidence is perused.
15.POINTS No.1 and No.2 :
The point No.1 and No.2 are answered together for the sake of convenience, as they are inter linked and inter related with each other :
in order to bring home the guilt of the accused for the offence punishable under section 324, 326 of Indian Penal Code, the prosecution has to establish the following ingredients :
C.C.No.195 of 2018 5 JFCM/PKD
1)That PW1 to PW-3 sustained injuries.
2)That Accused caused those injuries to PW1 to PW3 with dangerous weapon and
3) That accused had intentionally or with knowledge or with reason to believe that their acts would like cause hurt to PW1 to PW3.
16.To prove these aspects, the prosecution has relied upon the evidence of
PWs1 to 9. Among them, PW1 is the defacto-complainant-cum-injured. Her evidence goes to show that about 8 months ago, on one day at about 10:00PM the accused came with a sickle in his hand to her house and shouted that the mentally disabled daughter of her had openly defecated in the house as such the bad smell coming due to the same caused much in convenience to them to reside for their comfortable stay in their house which is situated adjacent to the house of PW-1, by shouting he hacked the PW-1 on her right fore arm and caused severe bleeding injury and on hearing her hue and cry, the other neighbors PW2 Ranganna and PW3 adinarayna came there to rescue PW1 and tried to separate the accused from attacking her.
Then the accused grew wiled against them and also caused severe bleeding injuries on their hand and leg with the sickle and then, the villagers came there and shifted them to the hospital. Since she was sustained with grievous injury on her right arm, the doctors of the Government hospital Penukonda advised better medical treatment at Anantapuram and shifted her to the district hospital, Anantapuram. She also stated in her evidence that she could not even attend her daily work due to the injury caused on her right hand.
17.During the course of cross examination she stated that the age of her mentally ill health daughter is about 30 years and she admitted that the house of the accused is situated adjacent to her house. She also admitted that the accused previously on so many occasions chastised her and warned her to take care of her daughter as she being the mentally disabled causing nuisance at the house of the accused. She also further admitted her responsibility to see her daughter not to caused any inconvenience to the neighbors. She also stated that she is aware of the
C.C.No.195 of 2018 6 JFCM/PKD fact that the diseases would spread in the locality due to open defecation and the accused is living by doing coolie work and returns at home in the evening hours and would become tired and rest less due to his physical labour work and cannot tolerate any nuisance of the mental ill health child at that time as he intends to take rest with comfortable stay in his house at the evening hours after completion of his daily labour work. She denied that the accused warned her on the day of incident and despite his instructions, she did not take care of her daughter who is causing nuisance as such he vexed with the attitude of her self and her mentally disabled child. She categorically stated in her cross examination that he did not give any warning or instructions on the day of incident, he directly came to her house with a sickle in his hand and he was is drunken condition, hacked on her right arm with muchukodavali which is generally used for cutting stick. To the suggestion that the accused never caused any injury on her person with sickle and he only came to the house of the compliant with a view to warn them and to instruct her to take care of her daughter from causing nuisance, but herself and other neighbors falsely implicated him in this offence in order to harass him and no such incident had taken place as alleged by them in the complaint, as PW-2 Uppara Ranganna is her relative and there by foisted this case against the accused, for which PW1 denied the suggestion put to her in the cross examination.
18.PW2 who is another injured, deposed that on 10.06.2018 at about 9.00 pm, when he was in his house situated opposite to the house of PW-1/ Complainant, he heard the cries of PW-1 and there by came out of his house and went to the house of PW-1 where he noticed the accused with sickle in his hand and making galata with
PW-1. Then he tried to pacify the galata byb saying smooth words that the daughter of PW1 is a mentally disabled women as such she did not know what she was doing, but the accused did not heed to the words off PW-2 and assaulted on PW-1 with sickle and inflicted injury on her right arm, then he immediately tried to take away the sickle from the hands of the accused and in doing so, he also sustained injury on his right leg, in mean time another neighbor namely Adinarayana who also resisted the acts of the accused against PW-1 was sustained injury on his left hand in mutual
C.C.No.195 of 2018 7 JFCM/PKD pulling of sickle in order to prevent the accused from causing further blow on the person of PW-1.Then villagers came and shifted them to the Government hospital for medical treatment.
19.During the course of Cross examination he stated that PW-1 is his sister and admitted that his brother married the daughter of PW. He also further stated that the entire incident happened at the outside of the house of PW-1 and he sustained injury on his right leg in the assault made by the accused. He pleaded ignorance of whether the accused had chastised and warned his sister (PW1) many times with regard to take care of her mentally ill health daughter who is causing nuisance in the house. He denied that there happened previous quarrels on this issue between the accused and PW1 and the accused warned PW1 on many occasions with regard to the same, aggrieved by the same, himself, his sister and other neighbors preferred false compliant against the accused with a view to harass him. To the suggestion that no such incident as alleged in the complaint was happened nor the accused hacked PW1 with sickle on her right arm and he is speaking false hood to support the version of PW-1, the witness denied the suggestion put to him by the counsel for accused.
20.PW3 who is another injured witness has also deposed that about 6 to 7 months ago at about 09:30PM, while he was in his petti shop which is situated near by the house of PW1, he observed a quarreal that had taken place between PW1 and the accused infornt of the house of the PW1, then on seeing the same, he went there and tried to stop the same, but the accused made assault against PW-1 with sickle, while he was trying to prevent the accused from causing hack injury against PW1, he also sustained a cut injury on his left palm edge. Then the villagers came and shifted them to the Government hospital Penukonda for medical treatment. He further deposed that the Galata took place between PW1 and accused due to open defecation of the mentally ill health daughter of PW1 and caused bad smell and effected inconvience to the accused whose house is situated adjacent to the house of
PW1/ injured. And in the course of preventing the accused from causing hack injury against PW1, himself and PW2 got sustained injuries with the sickle.
C.C.No.195 of 2018 8 JFCM/PKD
21.During the course of cross examination he admitted that previously also the accused and PW-1 used to quarrel each other with regard to nuisance that being created by the mentally ill health daughter of PW1. He further stated in his cross examination that his shop is situated opposite to the house of PW1 and the Galata was taken place between the accused and PW1 in the open place situated between his shop and the house of PW1.At the time of Galata , he tried to take away the sickle forcebly from the hands of the accused and took the same into his hands but the accused again had taken back the sickle from his hands and caused hack injury on the right arm of PW1, in the pulling of the sickle from his hands by the accused, he got cut injury and there is no previous enimity in between himself and the accused.
He categorically admitted that the accused did not intend to cause injury on his person but the injury was caused while taking back the sickle by the accused from his hands forcibly. He stated that he witnessed the accused hacking the right arm of
PW1 with sickle. He denied a suggestion put to him by the counsel for accused that no such incident happened nor the accused caused any injury to any one of them and as is a friend of PW2 who is the brother of PW1, as such he is deposing false to support the version of PW1/ Complainant.
22.PW4 who is said to have witnessed the incident has deposed on oath
before the court that on 10.06.2018 at about 09:30PM while he was in his house
which is situated in the adjacent street of PW1's house, he received a phone call that a Galata was going on in front of House of PW1, then he immediately rushed to the place of offence and witnessed the accused assaulting PW1 on her right hand with sickle, Then he went there and shifted the injured PW1 to PW3 to the hospital in auto.
23.In the cross examination he admitted his relationship with PW1 and stated that he received a phone call from one raju who is the owner of the tractor,under who the accused was engaged as driver of the tractor and the said raju informed him by phone about the Galata and called him to the place of offence. He
C.C.No.195 of 2018 9 JFCM/PKD witnessed that at first, the accused hacked the right arm of PW1 and a little later made assault against PW2 and PW3 when they resisted the acts of the accused and tried to take away the sickle from the hands of the accused and in that process of pulling the sickle from the hands of the accused, PW3 sustained injury. He admitted in his cross examination that he stated before the police while recording his 161
Cr.Pc Statememt during the course of investigation that the accused had assualted
PW2 and PW3 with sickle. He responded to the question posed by the counsel for accused with regard to the a manner of sustaining injury to PW3 and answered that while PW3 was taking away the sickle from the hands of the accused, he got cut injury in his palm.He denied that as he was relative to PW1 and PW2 is speaking false hood to support the version of PW1.
24.Pw5 who is the civil assistant surgeon of Government Hospital,
Penukonda has deposed on oath that on 16.06.2018 at about 11:30PM he examined the PW1/injured and found the following injuries.
1. 11x2x1 cms deep laceration present over right hand and wrist with tendons cut with artery bleeding with exposing muscles of the palm and lower part of the fore arm and the said Iaceration have cut margins.
The Doctor opined that above mentioned wound was grevious in nature, age of wound was about one to two hours prior to my examination and accordingly he issued the wound certificate of PW1 Ex.P2 is the wound certificate.
On the same day at about 10:40PM he also examined the patient by name
Ranganna the following injuries were found.] 1.3x1 Cms curved shap iaceration present on right foot.
He is of the opinion that above mentioned wound was one simple in nature, age of wound was about one to two hours to his examination and accordingly he issued the wound certificate of PW2 Exp3 is the wound certificate. He also further deposed in his testmony before the court that on the same day at about 11:55PM he had examined P.W.3 Adinarayana and found following injuries on the person.
C.C.No.195 of 2018 10 JFCM/PKD 1.6x1x1 Cms Sharp cut injury present over left thecal aspect of the left hand. He opined that above mentioned wound was simple in nature, age of wound was about one to two hours prior to his examination and accordingly he issued the
Ex.P.4 wound certificate of PW3.
During the course of cross examination the doctor admitted that the injuries caused to PW1 and PW3 may be possible due to mishandling of weapon and the injury sustained to PW2 is possible due to his come in contact with sharp stone.
25.PW6 and PW7 who are said to have been the neighbors of PW1 in the locality and witnessed the incident has deposed in one voice before the court that they heard a quarrel from the house of PW1 and on hearing the same they rushed to the place of offence and by the time they reached the place PW1 sustained hack injury in the hands of the accused with the sickle and found that PW2 and PW3 were trying to pull the sickle from the hands of the accused and in that exercise they also sustained cut injuries with the sickle. Then they joined the group of villagers gathered there and hold the accused to prevent him from causing further injuries and shifted PW1 to PW3 to the Government Hospital Penukonda for medical treatment.
26.During the course of cross examination they admitted that they have not witnessed the accused causing injury to PW1 with sickle on her hand and stated that the injuries were caused to PW2 and PW3 while taking away the sickle from the hands of the accused. They denied that they have stated before the police the accused hacked PW2 and PW3 with sickle.
27.PW8 who is the Head Constable of Penukonda Police Station has deposed before the court on oath that he received medical intimation from the
Government Hospital Penukonda at about 07:00AM on 11.06.2018 and on receiving the same, he rushed to the Government hospital Penukonda and recorded the statement of injured victim/PW1 and registered Ex.P5 FIR basing on the Statement of PW1 and there after he recorded the statements of PW2 and PW3 who were also got injured in the assault and reached the scene of offence situated at Nagaluru
C.C.No.195 of 2018 11 JFCM/PKD village and on observing the same he prepared Ex.P6 rough sketch of the scene of offence and secured the presence of the eye witnesses to the incident I.e PW4, PW6 and PW7 on recorded their 161 Cr.PC statements during the course of his investigation and handed over the case file to PW9 sub-Inspector of Police,
Penukonda for further investigation.
28.In his cross examination, he stated that he is not aware of the previous enmity in between the accused and the complainant and admitted the relationship in between PW1 and PW2. He denied the suggestion that the eye witnesses to the incident I.e PW4, PW6 and PW7 had stated while recording their 161 Cr.Pc
Statements that the accused did not hacked the injured and while pulling the sickle from the hands of the accused, the injuries were caused to them. To the suggestion that he never visited the place of offence nor prepared rough sketch of the scence of offence and the entire investigation was conducted in the police station with a view to implicate the accused falsely in this case at the instance of the complainant/ PW1.
During the course of his cross examination he categorically stated that he did not any case property in this case.
29.PW9 who is Sub-inspector of Police Penukonda has deposed before the court that he received case file from PW8 Head constable and took up further investigation in this case and verified the investigation done by PW8, he found it on correct lines. Then he secured Ex.P2 to Ex.P4 wound certificate from the
Government hospital Penukonda, and filed charge sheet against the accused under section 324, 326 and 509 of IPC by showing him as absconded accused. He denied that he did not verify the investigation properly and the investigation was not conducted on proper lines.
DISCUSSOIN, DECISION AND REASONS THEREOF:
30.Before adverting to consider whether the accused voluntarily caused hurt to PW-1/victim by means of dangerous weapon or means is likely to cause death and also caused injuries to P.w.2 and P.W.3 who came for rescue of P.W.1, it is
C.C.No.195 of 2018 12 JFCM/PKD appropriate to mention the ingredential frame work of Sec.324 and Sec.326 I.P.C.
with which the accused was charged.
31. At first,Now this court proceeds to answer the point No.2 basing on the material evidence on record in accordance to the spirit of Sec. 324 IPC in respect of the injuries caused to P.W.2 and P.W.3. Sec.324 IPC which reads thus:
Voluntarily causing hurt by dangerous weapons or means: whoever, except in the case provided for by Sec.334, voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting or any instrument which used 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 of either description for a term which may extend to three years or with fine or with both.
32. As can be seen from the record, Ex.P1 is the statement made by
PW1 during the course of here treatment in the Hospital to the police, on which the entire case is emanated. A Perusal of Ex.P1 statement coupled with the testimony of
PW1 and other injured witnesses PW2 and PW3 discloses that the evidence of PW1 corroborated to the testimony of PW2 and PW3 to some extent that the mentally ill health daughter of PW1 used to practice open defecation and attend the calls of nature in open place, due to which a fouls smell coming there from which causes inconvenience to the accused being the adjacent house owner of PW1/ Victim and there happened quarrels in between PW1 and the accused in this regard, the PW1 used to say with smooth words that her daughter is mentally retorted as such she does not know the consequences of open defecation in order to pacify the quarrels with the accused. While so on 10-6-2018 in the night hours, he came to the house of
PW1 and abused here in filthy language as to how many times he has to caution them to prevent her daughter from practicing open defecation, due to which the
C.C.No.195 of 2018 13 JFCM/PKD unbearable odour was coming and the reek odour and stinking smell is unpleasant and causing inconvenience to them and by scolding in such a way, he grew wild and went to his house and brought a sickle from his house and hacked the right hand fore arm of PW1, due to which, she raised hew and cry, on hearing the same his brother PW2 and another neighbour PW3 came to her rescue , then the accused also gave blow with sickle against them, resulting which they also sustained injuries in the hands of accused.
33.As though it was stated like so by PW1 in Ex.P1 earliest report, when coming to the evidence before the Court, PW2 and PW3 who said to have sustained injuries while rescuing PW1 from the hands of the accused, their say on oath is that on seeing the accused hacking PW1 with sickle, they tried to remove the sickle from the hands of the accused and in that exercise, they sustained cut injuries on the left hand of PW3 and right foot of PW2. The evidence of injured witness PW2 in this regard in his chief examination runs thus “ Then I tried to stop the accused to
cause further injury on the person of PW1, while doing so, I also sustained
injury on my right leg in the hands of the accused”. The other injured PW3 testimony on this aspect which runs thus “I went there and try to stop the
assault made by the accused against the PW1 along with PW2. While doing
so, I also sustained a cut injury on my left palm edge”. The testimony of the direct eye witnesses to the incident PW6 and PW7 who were testified in their cross examination admitted that the injuries were caused to PW2 and PW3 while snatching the sickle from the hands of the accused in order to prevent him from causing further injury on the person of PW1 and with a view to rescue her from the assault of the accused. Their testimony in their cross examination is reproduced hereunder for better appreciation of evidence “I did not state before the Police
that the accused hacked PW2 and PW3, the injuries caused to PW2 and
while pulling the sickle from the hands of the accused by PW2”. Thus, when the evidence of PW6 and PW7 who are direct witnesses to the incident coupled with testimony of injured witnesses/ PW2 and PW3, it is clear that the injured PW2 and
PW3 tried to resist the acts of the accused by taking away the sickle from the hands
C.C.No.195 of 2018 14 JFCM/PKD of the accused, in that process they got cut injuries over the right foot of PW2 and left hand palm of PW3. The oral testimony of eye witnesses in their cross examination reveals that the injuries caused to PW2 and PW3 while removing the weapon from the hands of the accused and in that course of snatching the sickle from the hands of the accused, they got cut injuries on their person. Thus it is revealed from the testimony of prosecution witnesses that PW2 and PW3 got sustained injuries while snatching the sickle from the hands of the accused due to mishandling of the weapon in the process of mutual pulling. Hence it can be safely inferred from the evidence brought on the record that the injuries caused to the person of PW2 and PW3 were not voluntary hurts caused by the accused and the same were caused due to mishandling of the sharp edged weapon while its removal from the hands of the accused by PW2 and PW3. Thus, the charge against the accused under section 324 IPC for attribution of overtacts to PW2 and PW3 cannot be sustained for want of mensrea or guilt mind as the criminal culpability can only be considered when the physical act of the accused was concured with guilty mind or intention. But in this case the cut injuries caused to P.W.2 and P.W.3 proved to be the wounds received while removing the weapon from the hands of the accused due to careless or rough handling of the sharp edged weapon while snatching or pulling from the accused. Thus the prosecution failed to substantiate the charge leveled against the accused under section 324 IPC in respect of injuries caused on the person of PW2 and PW3 as the said acts of the accused does not fall under the required ingredient of section 324 IPC which starts with the heading of “voluntarily caused hurt”. As the said injuries caused due to mishandling of sharp edged weapon in the process of its removal from the hands of the accused, it cannot said that the said act comes under the ambit of section 324 IPC. Thus, the charge against the accused under section 324 IPC attributing inflection of bodily injury to
PW2 and PW3 must fail.
34.When coming to the culpability of the accused for the charge under section 326 IPC is concerned. It is alleged that the accused inflicted a blow on the
C.C.No.195 of 2018 15 JFCM/PKD right fore arm of PW1 with sickle and thereby caused grievous injury on the vital part of PW1 / Victim. Before adverting to appreciate the evidence on the record to decide point No.1, it is apt on my part to have glance on Sec.326 I.P.C. which
reads that thus “ Voluntarily causing grievous hurt by dangerous weapons or
means.- Whoever, except in the case provided for by section 335, voluntarily
caused 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 fine 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 any 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.
35.When this court moved forward to appriciate the evidence in the spirit of the above said offence, In this regard, all the prosecution witnesses in one voice stated on oath before the court that the accused hacked the right hand of PW1 with sickle on 10-6-2018 in the night hours. The testimony of P.W.1/victim to the extent of receiving grievous injury on her right hand fore arm in the hands of the accused with a dangerous weapon like sickle received corroboration from both the injured and direct witnesses testimony. The earliest statement of PW1/victim made to the
Police in the Hospital under Ex.P1 goes to show that the accused hacked PW1 with a sickle on her right hand wrist, on the alarm raised by PW1 with hue and cry had drawn the attention of PW2 and PW3 who are no other than the brother of PW1 and other neighbour of PW1/victim, they came there for her rescue and tried to remove the sickle from the hands of the accused in order to prevent further injury to PW1 and in that scuffle, it appears that PW2 and PW3 sustained injuries while snatching the sickle from the hands of the accused and they got cut injuries on their right leg
C.C.No.195 of 2018 16 JFCM/PKD and left palm with the sickle, in that process due to rough handling of the sharp edged weapon. When coming to the medical evidence, the testimony of PW5 medical Officer who rendered treatment to PW1 in the Government Hospital,
Penukonda read in conjunction with Ex.P2 Wound Certificate, it discloses that the victim/PW1 sustained deep laceration injury with the measurements of 11 x 2 x 1 Cm deep on right hand wrist of PW1 with Tendons cut artery bleeding with exposing muscles of the palm and lower part of fore arm having laceration cut margins. It also reveals that the said injury was caused within one to two hours prior to the examination of the doctor. Admittedly, the PW1 were shifted to Government
Hosptial, Penukonda at 11:30 PM on 10-6-2018 and the Doctor examined PW1 at 11:35 PM as per the wound certificate as such the two hours prior to the same comes to 9;30 PM which exactly tallied with the time of the incident. Thus the medical testimony of PW5 got tallied with the oral evidence of PW1/victim with regard to time and nature of injuries. The doctor opined that the above said injuries are grievous in nature and it is also emanated from the record that the PW1/victim was taken to the District head quarter Hospital at Ananthapuramu for better medical treatment and she also undergone treatment there for the grievous injury caused on her right hand wrist. It is not out of place to mention that the injured/victim/PW1 had shown her right hand to the Court while giving her testimony before the Court and its seems she has been suffering from permanent partial disability of her right hand and she could not move it normally and not in a position to attend the normal chores of life with her right hand and this court is conscious of the fact that
P.W.1/victim has to attend her daily human affairs apart from taking care of her mentally ill health child with that partial disability through out her life which can not be restored to normalcy at any cost. The doctor who was examined as PW5 during his cross examination accepted that there might be a alternate possibility to sustain the said injury in mishandling the sickle and when she was come in to contact with sharp edged weapon, to the suggestion made to him by the counsel for accused. But he did not adduce any evidence that within one to two hours of prior to examination
C.C.No.195 of 2018 17 JFCM/PKD of PW5 Doctor, the injured got sustained such injuries as mentioned in Ex.P2 Wound certificate in another incident other than the alleged incident which was happened on 10-6-2018 at 9:30 PM. No explanation or clarification received from the accused side in this regard as to what was that alternate possibility in which the victim sustained grievous injury on her right hand wrist. The nature of the injury and the manner would go to show that the injury inflicted on PW1 is due to hacking by sharp edged weapon. Thus the testimony of PW5 medical officer received corroboration with the oral evidence of the victim/PW5 and also from other prosecution witnesses.
It is pertinent to note that soon after the alleged incident, she was shifted to
Govermnment Hospital, Penukonda and undergone treatment on the day of incident at 11:30 PM and thereafter she was shifted to District head quarters Hospital,
Ananthapuramu as the said injury caused on her person is severe in nature. Thus the Medical evidence clinchingly establishes that PW1 was found with grievous bleeding injury on her right hand wrist due to hacking with sharp edged weapon. As per as the evidence of PW8 who is investigation officer is concerned, it goes to show that he received medical intimation from the Government Hospital, Penukonda at 11:30 PM soon after the admission of the injured in the hospital and he immediately rushed there and recorded the statement of the injured / PW1 and registered First
Information Report on the basis of her statement in Cr.No.72/2018 of Penukonda
Police Station and took up the investigation. His evidence also shows the formal steps of investigation, which includes the statements of the other injured witnesses
PW2 and PW3 and preparation of Ex.P6 rough sketch of the scene of offence and securing the eye witnesses to the incident, recording their 161 Cr.P.C statements as a part of his investigation. There is no inordinate delay occurred in registering the
FIR in this case to suspect the false implication or concocted version of the incident.
Thus the evidence of investigation officer is formal and reliable and can be believed with regard to his formal steps of investigation taken during the course of investigating this case.
C.C.No.195 of 2018 18 JFCM/PKD
36.On culmination of the entire evidence on record, the evidence of
PW1/victim supported by PW2, PW3 injured witnesses along with the testimony of direct eye witnesses to the incident i.e., PW4, PW6 and PW7 clinchingly reveals that
PW1 sustained injury due to hacking by the accused with sickle on the day of incident.
37.The implied argument of the counsel for accused as can be seen from the suggestion put to the PW1/victim is that the mentally ill health daughter of PW1 causing nuisance by practicing open defecation in the places where ever she wants and due to which reek odour coming to the neighbouring house of the accused which is causing inconvenience to the pleasant stay of the accused. The accused is a daily wage labour and living by doing stone cutting work and used to return the house at late nights after rendering physical labour, in such circumstances the expected general wish of him is to take rest pleasantly, but due to the nuisance and foul smell coming from the house of PW1, he could not take rest properly and unable to live peacefully in his house. As though he warned so many times to the PW1, she did not care his words nor prevented her daughter from causing nuisance, thereby the accused vexed with the attitude of PW1. The argument of the counsel for accused is not acceptable in a civilized society controlled by the law. Even if the nuisance caused by the daughter of PW1 was becoming hurdle to his pleasant stay in his own house, in such case, he would have complain the same to the village
Panchayath or public health authorities for taking necessary steps or he should have redress his grievance through proper forum or take legal action under the provisions of mental health act or any other legal action against PW1 but without resorting to the legal process, taking the law in to his own hands and went to the extent of hacking the right hand wrist of PW1 in violent order is illegal and condemnable in any civilized society . The barbarous and uncivilized, cruel and brutal act of the accused cannot be condoned on the excuse of inconvenience caused by the mentally ill health daughter of PW1 to the accused. In such case if any nuisance was caused
C.C.No.195 of 2018 19 JFCM/PKD to accused due to open defecation of the mentally ill health daughter of P.W.1 and stinking smell coming therefrom, the accused have to inform the sanitation authorities or public health authorities of local body, but without taking any such steps required to be taken by a the citizen governed by the law, he went berserk and turned to be a violent human and hacked the right hand fore arm of the victim without caring for its consequences.
38.Leave apart, the legal evidence brought on the record clearly goes to show that PW1 was inflicted with grievous hacking injury on her right hand wrist by the accused with the sickle. The nature of the injury coupled with facts and circumstances established through evidence of prosecution witnesses would go to show that unless the accused gave a blow with the sickle, It is not possible to sustain such a deep injury which cut the tendons and caused artery bleeding. It shows that to how much extent the accused went berserk and violent order without having any control over his impulse and had taken the extreme step of causing grievous bodily hurt to PW1 with dangerous weapon on the vital part which may cause death. The testimony of PW1 supported by PW2, PW3 and recived corroboration from medical evidence of PW5 doctor and also strengthened by the evidence of direct eye witnesses PW4, PW6 and PW7, this court finds no reason to disbelieve the evidence of prosecution witnesses with regard to the factum of giving sickle blow to the PW1/ victim by the accused and voluntarily caused grievous hurt with the sharp edged deadly weapon which likely to cause death.
39.It is the one of the contention of the counsel for accused that the weapon or the blood stained cloths of the injured were not seized as such th e prosecution case has to be seen doubtfully. The said argument of the counsel for accused is of no force as the evidence of injured witnesses Pws 1 to 3 is found to be consistent, cogent and corroborate all material aspects with regard to causing of injury by the accused with sickle. Though some contradiction and added embellishment was elicited with regard to the sustaining injuries on the person of
PW2 and PW3, there is no inconsistency or doubt with regard to overtacts of the
C.C.No.195 of 2018 20 JFCM/PKD accused against PW1. The evidence of prosecution witnesses clearly and clinchingly establishes the required ingredients of section 326 of IPC for the offence of voluntarily causing grievous hurt to PW1 with deadly weapon. Despite cross examination of PW1 and other prosecution witnesses, nothing was elicited to disbelieve or to shake the credence of the injured witness/ PW1 with regard to specific over tacts made against PW1 by the accused. The question of non-seizure of deadly weapon by the investigation agency does not corrode the evidence of injured witness and her testimony cannot discarded on the ground of the non-seizure of weapon by the Police. The nature of the injury suffered by PW1 which is staring on her person and inherent credence due to the injury present on the body of the victim corroborating with the medical testimony would always stands on the higher seat, as no injured intends to allow the offender Scott free by implicating the accused falsely in this case. At this juncture it is relevant to mention a decision reported in (2010) 10 SCC 259 rendered in between Abdul Sayeed Vs. State of
Madhya Pradesh wherein it was held “ the question of weightage to be
attached to the evidence a witness that was himself injured in the course
occurrence has been extensively discussed by this court. Where a witness to
the occurrence has himself be injured in the incident the testimony of such
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 crime and is
unlikely to spare his actual assailants in order to falsely implicate some one.
Convincing evidence is required to discredit the injured witness.”
40. Similarly in another decision rendered by Hon’ble Apex Court in
between State of Utter Pradesh Vs. Naresh wherein it was held “ the
evidence of injured witness must be given due weight age being a stamped
witness, thus his presence cannot be doubted. His statement is generally
considered to be very reliable and is unlikely that he has spared the actual
assailants in order to falsely implicate some one else. The testimony an
C.C.No.195 of 2018 21 JFCM/PKD
injured witness has its own relevancy and efficacy as he has sustained
injuries at the time and place of occurrence and this lends support to his
testimony to let his testimony that he was present during the occurrence.
Thus the testimony of an injured witness is accorded a special status in law.
The witness would not like or want to let his actual assailant go unpunished
merely to implicate a third person falsely for the commission of offence.
Thus the evidence of injured witnesses should be relied unless there are
grounds for rejection of his evidence on the basis of major contradictions
and discrepancies therein.
41.In the present case unless a sharp edged weapon with voluntary blow was made against PW1, it is not possible to sustain such a injury by the victim.
Though the said weapon was not recovered by the Police, it is needless to say no one would sustain such a grievous injury as mentioned in Ex.P2 wound certificate without using the sharp edged weapon by the assailant.
42.At this point I would like to quote a decision rendered by the Hon'ble
Apex Court on this aspect reported in AIR 2003 SC1164 in between Amarsingh
Vs Balwinder Singh wherein it was held “ If the prosecution case is
established by the evidence adduced, any failure or omission on the part of
the investigating officer cannot render the case of the prosecution
doubtful”.
43.Thus, it is clear from the above decision that if the ocular evidence is reliable and convincing to the mind of the court, the defect in investigation such as non-seizure of weapon used in the offence by the investigation agency would not matter. In this case soon after the incident the injured/PW1 was shifted to the
Government Hospital, Penukonda and the injured while in the Hospital made a statement under Ex.P1 to the Police and on the basis of the same FIR was registered forthwith, the evidence of PW1/victim coupled with the contents of Ex.P1 corroborating with the testimony of other prosecution witnesses about the fact of receiving blow with a sickle by the accused and causing grievous injury on the right hand wrist of PW1 on 10-6-2018 at 9:30 PM. Thus, the oral evidence of PW1 is
C.C.No.195 of 2018 22 JFCM/PKD corroborating with her earliest report with regard to attribution of over tacts against the accused for the offence U/sec. 326 IPC. Expect posing suggestions, nothing worthwhile has been elicited by the counsel for accused which render the evidence of PW1 unbelievable and more over the testimony of PW1/victim received corroboration from the medical evidence of PW5 coupled with Ex.P2 Wound certificate, further more it is revealed from the record and also from the testimony of investigation officer PW9 that the accused was absconding in the village since the date of incident, till his arrest and brought before the Court on execution of NBW to face trial. In this regard the accused unexplained the reason for his absence in the village from the day of incident till the date of his production before the Court.
Thus, the testimony of all the prosecution witnesses is completely corroborating and establishing the culpability of the accused for the offence under section 326 IPC against PW1 and the prosecution has succeeded to bring the accused to the folds of penal liability for causing voluntary bodily hurt to PW1 which is grievous in nature as such he is liable for conviction. Thereby, this Court has no hesitation to hold that the prosecution is able establish the guilt of the accused for the offence punishable under section 326 of Indian Penal Code, beyond the all reasonable doubts.
44. When coming to charge of Sec. 509 IPC. Neither the complainant nor the witnesses on her behalf disclosed the words or the acts or sounds used by the accused in insulting the modesty of defacto complainant and there is no indication of uttering the words or acts indicating the insult to the modesty of P.W.1 in the evidence. Either the evidence of PW1/complainant or her witnesses, is conspicuously silent on this aspect how and with what words or acts or gestures intending that such word or sound shall cause insult or outrage the modesty. P.W.1 or any prosecution evidence did not state the words or sounds used by the accused which insult the modesty of P.W.1 as such the evidence on record is not suffice to substantiate the charge U/Sec. 509 I.P.C.
C.C.No.195 of 2018 23 JFCM/PKD
45.In view of the above discussion, the Court holds that the prosecution failed to establish the guilt of the accused for the offence punishable under section 324 of Indian Penal Code beyond the reasonable doubt, for the overtacts attributed to the accused in respect of the injuries caused on the person of the injured witnesses PW2 and PW3, thereby the point No.1 is decided negative. But the prosecution is able to establish the guilt of the accused for the offence punishable under section 326 of Indian Penal Code and succeeded to attract the accused to the clutches of penal liability for the grievous injury caused to on the person of PW1 /
Victim beyond all reasonable doubts. Accordingly the point No.1 is answered affirmative.
46.In the result, the accused is found not guilty for the offence punishable under section 324,509 of Indian Penal Code and therefore he is acquitted under section 248(1) of Criminal Procedure Code for the said offences.
47.But, the accused is found guilty for the offence punishable under section 326 of Indian Penal Code and therefore, he is convicted under section 248(2) of Criminal Procedure Code for the said offence.
.
Dictated to Stenographer, transcribed by him, corrected and pronounced by
me in open Court, this the 22nd day of April, 2019.
Judicial Magistrate of First
Class, Penukonda.
When the accused is questioned about the sentence, he stated that he is a poor man living by doing coolie work and he has no source to maintian his family and he is having one son who is aged about 15 years and daughter who was already married. His old age parents have been suffering from ailments and his wife has been suffering from neck pain If he was kept behind the bars for long time, entire his family would be put to starvation and he also pleaded mercy in imposing sentence by taking lenient view.
On considering the facts of the case, as the assault is against woman by causing grievous hurt injury on her vital part with deadly weapon resulting into permanent partial disability of her right hand , this court is of the view that it is not a fit case to apply the provisions of Probation of Offenders Act. In view of the submissions of the accused with regard to condition of his family and mitigating circumstances of the case, this court is not inclined to take any lenient view and this court punish the accused which in its view is just and adequate.
C.C.No.195 of 2018 24 JFCM/PKD
48.Considered the submissions advanced by the accused and the learned defense counsel. The accused is in under trial judicial custody since 8-2- 2019 to 21-02-2019 (14 days) as under trial prisoner. in my considered opinion, having taken into consideration of the totality of the circumstances of the case, imposing a sentence of rigorous imprisonment for a period of three years and fine of Rs.5,000/- (Rupees five thousands only) would better serve the ends of justice.
49.In the result, the accused is found guilty for the charge under section 326 IPC and he is convicted u/sec. 248 (2) Cr.P.C. and sentenced the accused to undergo rigorous imprisonment for a period of 3(Three years) and also pay fine of
Rs.5,000/-(Rupees five thousands only) and in default of payment of fine amount he shall undergo simple imprisonment for a period of 3(Three) months and the fine amount paid by accused be given to the victim/P.W1 the case as compensation for the injuries suffered by her in the assault by the accused as contemplated u/sec. 357
Cr.P.C after expiry of appeal time. The convicted accused is told that he has got right to appeal against the judgment of this court before the Hon’ble II Add. District
Judge Hindupur and copies of judgment are furnished to him. Since no case
property has been produced by the police as such passing of property order does not arise in this case. The period of detention already undergone in judicial custody as a under trial prisoner by the accused for total days of 14 days shall be set off from the period of sentence imposed as envisaged u/sec. 428 Cr.P.C.
Typed to my dictation by the Stenographer and corrected and
pronounced by me in open Court on this the 22 nd day of April, 2019.
JUDICIAL MAGISTRATE OF FIRST CLASS
PENUKONDA
C.C.No.195 of 2018 25 JFCM/PKD
Appendix of evidence
Witnesses examined for
Prosecution
PW1:U.Rangamma/victim PW2:U.Ranganna/Injured witness PW3:Vadde Adinarayana/injured witness PW4:U.Phaniraju/direct eye witness PW5:Dr.Anand Babu, Civil Assistant Surgeon, community Health center, Penukonda/Medical witness PW6:C.Gangadharappa/direct eye witness PW7:Vadde Kamalanath/direct eye witness PW8:B.Nagaraju/Investigation Officer PW9:K.Janardhan/Sub-Inspector of Police, Penukonda
Defence
NIL
Exhibits marked for the Prosecution
Ex.P1 - Statement of PW1 recorded at hospital. Ex.P2 - Wound Certificate of PW1, dt.10.06.2018. Ex.P3 -Wound Certificate of PW2, dt.10.06.2018. Ex.P4 -Wound Certificate of PW3, dt.10.06.2018. Ex.P5 - First Information Report, dt.11.06.2018. Ex.P6 - Rough sketch of the scene.
Exhibits marked for the Defence
NIL
Material objects marked on behalf of
ProsecutionDefence
NILNIL
JMFC, Penukonda
C.C.No.195 of 2018 26 JFCM/PKD
IN THE COURT OF JUDICIAL FIRST CLASS MAGISTRATE,
PENUKONDA
CALENDER CASE NO. 195 of 2018
1. Date of offence : 10-06-2018
2. Date of complaint or report: 11-06-2018
3. Date of apprehension of Accused : 10-02-2019
4. Date of release on bail of Accused : 19-02-2019
5. Date of commencement of trial: 18-02-2019
6. Date of close of trial: 02-04-2019
7. Date of sentence or Order: 24-04-2019
8. Explanation of delay if any: -- COMPLAINANT:
The State of Andhra Pradesh represented by the Sub-Inspector of Police, Penukonda Police Station. ACCUSED:
Baba Fakruddin @ Babu S/o Hussain Khan, Nagaluru village of Penukonda Mandal
Section of Law: Under section 324. 326, 509 of Indian Penal Code
Finding of Court : In the result, the accused is found guilty for the charge under section 326 IPC and he is convicted u/sec. 248 (2) Cr.P.C. and sentenced the accused to undergo rigorous imprisonment for a period of 3(Three years) and also pay fine of Rs.5,000/-(Rupees five thousands only) and in default of payment of fine amount he shall undergo simple imprisonment for a period of 3(Three) months and the fine amount paid by accused be given to the victim/P.W1 the case as compensation for the injuries suffered by her in the assault by the accused as contemplated u/sec. 357 Cr.P.C after expiry of appeal time. The convicted accused is told that he has got right to appeal against the judgment of this court before the Hon’ble II Add. District
Judge Hindupur and copies of judgment are furnished to him. Since no case
property has been produced by the police as such passing of property order does not arise in this case. The period of detention already undergone in judicial custody as a under trial prisoner by the accused for total days of 14 days shall be set off from the period of sentence imposed as envisaged u/sec. 428 Cr.P.C..
Sentence/Order: 22-04-2019.
Judicial First Class Magistrate Penukonda
Copy submitted to the Hon’ble II Addl. District and Sessions Judge, Hindupur.