1
IN THE COURT OF X ADDITIONAL SESSIONS JUDGE:: TIRUPATI.
Present: Sri B. Raveendra Babu,
III Additional District and Sessions Judge, FAC., X Additional District and Sessions Judge Tirupati.
Wednesday, the Eighth (8th) day of January, Two Thousand Fourteenth
Criminal Appeal No. 16 of 2012
in C.C.No..173 of 2008 (On the file of III Additional Judicial Magistrate of First Class, Tirupati)
Between:
1 K.Rukmangadha Naidu, 2 K.Chandrasekhar Naidu,
3 T.Rama Naidu....Appellants/A1 to A3
And:
The State rep. by Station House Police Station, Tiruchanur Police
Station. .. Respondent/Complainant.
Judgment in Criminal Appeal No. 16 of 2012
From which court the appeal is Judicial Magistrate of First Class Court, preferred Sathyavedu.
Number of the case in that C.C.No. 173 of 2008 Court Number of the appeal before C.A.No. 16 of 2012 this court Name and description of the 1 K.Rukmangadha Naidu, S/o. K.Munaswamy appellant. Naidu, Hindu, 42 years, 2 K.Chandrasekhar Naidu, S/o. K.Munaswamy Naidu, Hindu, 55 years, 3 T.Rama Naidu, S/o. Late Chinnasubba Naidu @ Chengama Naidu, Hindu, 70 years.
All are residing at Mittameeda Kandriga,Tirupati Rural Mandal, Chittoor District. The offence under which U/Sec. 324, 324 r/w 34 IPC. appellant/accusedwas convictedandsentence A1 is found guilty for the offence punishable imposed. Under Sec. 324 IPC, A2 and A3 are found guilty for the offence punishable U/S. 324 r/w 34. A1 to A3 are convicted Under Sec. 248(2) Cr.P.C and A1 is sentenced to pay a fine of Rs.10,00000 for the offence U/S. 324 IPC, A2 and A3 are sentenced to pay fine of Rs.5,00000 each for the offence punishable U/S. 324 r/w 34 IPC, in 2 default of payment of fine A1 to A3 shall undergo simple imprisonment for a period of three months each. Whether the appeal confirmed, In the result, Criminal Appeal is partly modified or reversed, if allowed setting aside the conviction and modified, the modification. sentence, dated 15122011 passed against appellants 2 and 3/A2 and A3 by III
Additional Judicial Magistrate of 1st Class,
Tirupati in C.C.No.173/2008. Appellants/A2 and A3 are found not guilty for the offence punishable Under Sec. 324 r/w 34 IPC and they are acquitted of the same U/S. 386(b)(i) Cr.P.C. Bail bonds of appellants 2 and 3/A2 and A3 and their sureties shall stand canceled. Appeal is partly dismissed confirming the conviction and sentence, dated 15122011 passed against the 1st appellant/ A1 by III Additional Judicial Magistrate of 1st Class, Tirupati in C.C.No.173/2008.
Fine amount, if any, paid by the appellants 2 and 3/A2 and A3 before trial court shall be refunded to them, after expiry of appeal time
Date of presentation :12012012
Date of admission :12012012
Date of hearing :03012014
Date of sentence or order : 08012014
This appeal coming on 03012014 for final hearing before me in the presence of Sri P.Ravi, Advocate for the Appellants/A1 to A3 and Sri P.C. Rajendra Kumar, Learned Additional Public Prosecutor for State and having stood over for consideration till this day, this court delivered the following:
J U D G M E N T
1.A1 to A3 in CC.No. 173/2008 filed this appeal against
Judgment, conviction and sentence, dated 15122011 passed by learned
III Judicial Magistrate of First Class, Tirupati, whereby 1st appellant/A1 is found guilty for the offence punishable U/S. 324 IPC and appellants 2 and 3/A2 and A3 are found guilty for the offence punishable U/S. 324 r/w 34
IPC. 1st Appellant/A1 is sentenced to pay a fine of Rs.10,00000 for the 3 offence punishable U/S. 324 IPC, appellants 2 and 3/A2 and A3 are sentenced to pay fine of Rs.5,00000 each for the offence punishable U/S.
324 r/w 34 IPC, in default of payment of fine A1 to A3 shall undergo simple imprisonment for a period of three months each.
Learned Magistrate awarded Rs.15,00000 to PW1 out of fine amount, U/S. 357 Cr.P.C.
2Case of the prosecution is that A1 to A3 are blood relatives.
There are disputes between PW1 and accused regarding landed property at
Mittameeda Kandriga, Tirupati rural Mandal. On 15012008 at about 400 p.m, PW1 and his younger son PW2 went to their field at Mittameeda
Kandriga village. Pws1 and 2 noticed cattle of A3 grazing the crop of
PW1. PW2 sent away cattle from their field and raised quarrel with A3 as to why he allowed his cattle to graze their crop. On hearing cries of PW2,
A3 came near PW2 and took out a stick and beat PW2 with that stick, on his back and caused bleeding injury. On seeing the same PW1 questioned
A3 as to why he beat his son PW2. A1 and A2 also came there and joined with A3. A1 took out a stick and beat PW1 with the said stick, on his front side of head and caused bleeding injury. A2 pushed down PW1, as a result, he fell down and sustained injury on his right eye brow and right knee. On hearing cries of PW1 and 2, Pws3 and 4 came there and rescued Pws1 and 2 from the hands of accused. PW1 was shifted to Sri
Venkata Ramnarayan Ruya Government General Hospital, Tirupati and admitted there for treatment.
Basing on Ex.P1 statement of PW1 recorded by PW8, a case in Crime No. 8/2008 Under Sec.324 r/w 34 IPC was registered by PW8 on 15012008 at 700 p.m, and issued Ex.P6 First Information Report.
4
On 1612008 at 100 p.m, A1 to A3 were arrested by PW8 and seized stick from the possession of A1 under a cover of mahazar in the presence of PW6 and Dhanumjayulu Naidu. PW8 forwarded accused to court for the purpose of remand. PW7 treated injured PW1 and issued wound certificate stating that injury is simple in nature. On completion of investigation PW10 filed charge sheet in this case against A1 to A3 for the offence punishable Under Sec. 324 and 324 r/w 34 IPC before III
Additional Judicial Magistrate of First Class, Tirupati.
3Learned III Additional Judicial Magistrate of First Class,
Tirupati, took cognizance of the offence Under Sec 324, r/w 34 IPC and registered case as C.C.No. 1173/2008.
4.Learned Magistrate, on appearance of appellants/A1 to A3, examined them Under Sec. 239 Cr.P.C. Appellants/A1 to A3 denied the offence. Upon considering the material on record, after hearing both sides learned Magistrate framed charges Under Sec. 324 IPC against A1 and
A3, charge U/S.323 IPC against A2, read over and explained to appellants/A1 to A3, for which they pleaded not guilty and claimed to be tried.
5. In order to prove the above said charges, prosecution placed the evidence of PWs1 to 11 and got marked Exs.P1 to 8 and M.Os1 to 5.
6PW1 is the defacto complainant and injured in this case. He deposed that A1 to A3 are blood relatives. He deposed that on 1512008 at about 400 p.m, he along with PW2 went to the agricultural fields. He deposed that at that time cattle of A3 were grazing the crop in his field.
Immediately PW2 asked A3 as to why he allowed his cattle to graze his crop. A3 abused PW2 and beat PW2 with a stick on the back side. He 5 deposed that on seeing the same PW1 went there and questioned A3 as to why he beat PW2. After noticing the same, A1, who was in the adjacent field came and beat him with a stick on his head. Due to which, he sustained bleeding injury. He deposed that A2 pushed him down, due to which he fell down ad sustained injuries on his right eye brow. He deposed that A3 is the son of his sister. A1 and A2 are his brother's sons.
He deposed that Pws3 and 4 witnessed the incident. He deposed that police recorded his statement in the hospital and Ex.P1 is his statement.
PW2 deposed that on 15012008 at about 400 p.m, he along with PW1 went to agricultural fields. He deposed that at that time A3 was grazing the crop in the field. He deposed that he asked A3 about grazing crop in his field. He deposed that PW3 raised quarrel, abused him and beat him on his back with a stick. He deposed that on noticing the same PW1 questioned as to why he beat PW2. He deposed that at that time A1 came with a stick and beat his father PW1 on his head. He deposed that A2 also present at that time and pushed down PW1 and he fell down. He deposed that PW1 sustained bleeding injury. He deposed that Pws3 and 4 were present at that time and they shifted PW1 to hospital.
PW3 deposed that on 1512008 while he was grazing the cattle in the field of Swamy, he found PW3 fell on ground with injuries.
He deposed that he shifted PW1 to hospital with the assistance of PW2.
PW4 deposed that on one day while he was returning on his motor cycle, he found PW1 was ly8ing on the road with injuries.
This witness was treated as hostile by prosecution with the permission of court and his previous statement is marked as Ex.P2.
6
PW5 deposed that he signed on arrest panchanama.
Signature of PW5 on arrest panchanama is marked as Exs.P3.
This witness was treated as hostile by prosecution with the permission of court.
PW6 deposed that police obtained his signature on panchanama. Signature of witness on panchanama is marked as Ex.P4.
This witness was treated as hostile by prosecution with the permission of court.
PW7 deposed that he examined PW1 and found the following injuries.
1 A Lacerated injury of size 5 x 1cm skin deep on the left parietal region.
Xray shows no bony injury.
PW7 further deposed that the injury is simple in nature and wound certificate of PW1 is marked as Ex.P5.
PW8 deposed that on 1512008 at 500 p.m, he received information from S.V.R.R.G.G Hospital, Tirupati. He deposed that went to
S.V.R.R.G.G Hospital, Tirupati and recorded the statement of PW1. He deposed that he registered Ex.P1 statement of PW1 as a case in Crime
No.8/2008 U/S. 324 r/w 34 IPC. He deposed that he seized blood stained cloths of PW1 under a cover of mahazar. He deposed that he examined
Pws1 to 5 and recorded their statements. He deposed that he visited scene of offence and prepared Ex.P8 rough sketch. He deposed that he arrested
A1 to A3 on 1612008 and forwarded them to court for the purpose of remand. He deposed that he seized M.O5 stick from the possession of
A1. He deposed that M.Os1 to 4 are blood stained cloths of PW1. He 7 deposed that S.I of Police verified the investigation done by him and filed charge sheet.
PW9 deposed that police obtained his signature on some un written paper. The signature of witness is marked as Ex.P9.
This witness was treated as hostile by prosecution with the permission of court.
PW10 deposed that he received wound certificate of PW1 and filed charge sheet in this case. He deposed that he verified the investigation done by PW8.
PW11 another son of PW1 and brother of PW2 deposed that on 1512008 at about 430 p.m, when PW1 and 2 went to their agriculture field, found the cattle of A3 grazing in their field. He deposed that when PW2 questioned A3, A3 beat PW2 with a stick on his back.
He deposed that A1 came in support of A3 and beat PW1 with a stick on his head. He deposed that A2 also came in support of A1 and A3 and beat PW1 with a stick on his right eye. He deposed that on hearing the cries of Pws1 and 2, he rushed to the spot and found Pws1 and 2 with injuries. He deposed that himself and Pw3 shifted Pws1 and 2 to hospital.
7.After closure of prosecution evidence, Appellants/A1 to A3 were examined U/Sec.313 Cr P C by learned Magistrate about the incriminating materiel found against them in the evidence of prosecution witnesses. They denied the evidence. Appellants/A1 to A3 were called upon to enter into defence evidence. But no defence evidence was adduced by Appellants/A1 to A3.
8 8 Learned III Judicial Magistrate of First Class, Tirupati after considering evidence available on record, found 1st appellant/A1 guilty for the offence punishable Under Sec. 324 IPC and appellants 2 and 3/A2 and
A3 guilty for the charges U/s. 324 r/w 34 IPC, convicted and sentenced them as stated supra.
9.Aggrieved by the said Judgment, conviction and sentence, appellants/A1 to A3 preferred this appeal.
10.The main ground urged in this appeal is that Pws1, 2 and 11 are interested witnesses. Therefore, their evidence can not be relied upon.
Learned counsel appearing for appellants/A1 to A3 contended that independent witnesses did not support the case of prosecution. It is further contended that PW1 did not state the name of assailants before PW7, though the appellants/A1 to A3 are his relatives. Learned counsel appearing for appellants/A1 to A3 further contended that PW1 and PW7 did not say in their evidence that M.O5 can cause injury on PW1. He further contended that conviction of appellants 2 and 3/A2 and A3 for the offence U/S. 324 r/w 34 IPC is not sustainable.
11.On the other hand, learned Additional Public Prosecutor appearing for State contended that the evidence of Pws1 and 2 coupled with medical evidence PW7 clearly show that PW1 sustained injury with stick and the said injury was caused by 1st Appellant/A1. He further contended that the evidence of Pws1 and 2 clearly show that 3rd appellant/A3 caused injury to PW2 with a stick.
12. Point for consideration in this case is:
Whether the conviction and sentence passed against 1st Appellant/A1 for the offence punishable U/s. 324 IPC and against Appellants 2 and 3/A2 and A3 for the 9 offence punishable U/s. 324 r/w 34 IPC is sustainable under law?
13.POINT :
In this case according to prosecution Pws1 and 2 are injured witnesses. Pws1 and 2 consistently deposed that 1st appellant/A1 caused injury with a stick on the head of PW12. No doubt Pws3 and 4, who are independent witnesses did not support the case of prosecution. PW11 is the another son of PW1 and brother of PW2 also deposed that 1st appellant/A1 caused injury on the head of PW1 with a stick. Medical evidence of PW7 coupled with Ex.P5 wound certificate also clearly show that injury sustained by PW1 is a lacerated injury on his head and it is possible with a stick.
14Argument of Learned counsel appearing for appellants/A1 to
A3 that Pw7 did not refer to M.O5 in his evidence, in causing injury noted in Ex.P5 is not such a material aspect, which would not brush aside the ocular testimony of Pws1, 1 and 11. Stick is seized by PW8 investigating officer during investigation. Stick is exhibited before court.
Therefore, even in the absence of evidence of PW5 whether M.O5 can cause injury noted in Ex.P5, it can be concluded that injury noted in
Ex.P5 and spoken to by PW7 is possible with blunt object. Ocular evidence of Pws1, 2 and 11 clearly show that stick was used by 1st appellant/A1 in causing injury on head of PW1.
15Another argument of Learned counsel appearing for appellants/A1 to A3 is that Pws1, 2 and 11 are interested witnesses and therefore, their evidence has to be brushed aside in the absence of corroboration.
10 16It is settled law that the evidence of interested witnesses shall not be discorded only on the ground of interestedness. But as a rule of caution testimony of interested witness shall be carefully scrutinised. In the case on hand Pws3 and 4 are eye witnesses according to prosecution.
PW3 deposed that he found PW1 with injuries. PW4 deposed that PW1 was lying on the road with injuries. Therefore, the evidence of Pws3 and 4 also show that PW1 sustained injuries.
17Regarding the attack on PW1, Pws3 and 4 did not depose.
Simply because independent witnesses did not support the version of
Pws1, 2, and 11, it can not be said that Pws.1, 2 and 11 are not speaking truth. The evidence of Pws1,2 and 1 is corroborated by medical evidence
Pw7. The evidence of Pws1, 2 and 11 is consistent in respect of overtacts attributed to 1st appellant/A1 i.e., A1 beat PW1 with a stick on his head.
Injury sustained by Pw1 is bleeding injury. The weapon used by 1st appellant/A1 is stick. Therefore, it can safely be held that 1st appellant/A1 intentionally caused bleeding injury to PW1 with a stick.
Therefore, conviction of 1st appellant/A1 for the offence punishable U/S.
324 IPC is sustainable under law.
18Coming to 2ndappellant/A2, charge framed against 2nd appellant/A2 is U/S. 323 IPC for causing hurt to PW1 by pushing him down and caused bleeding injury on his right eye brow. PW1 clearly deposed that 2nd appellant/A2 pushed him down, due to which he fell down and sustained bleeding injury on his right eye brow. PW2 also corroborated the evidence of PW1. PW11 deposed that 2nd appellant/A2 beat PW1 with a stick on his right hand. This version of PW11 is inconsistent with the version of Pws1 and 2. Still there is consistent version 11 of Pws1 and 2, which goes to show that 2nd appellant/A2 pushed PW1 and as a result PW1 fell down and sustained injury. But there is no injuries on the person of PW1 as can be seen from the evidence of PW7 and the contents of Ex.P5. Therefore, 2nd appellant/A2 is entitled for benefit of doubt for the offence U/S. 323 IPC.
19Learned Magistrate found 2nd appellant/A2 guilty of the offence punishable U/S. 324 r/w 34 IPC, in fact there is no such charge against 2nd appellant/A2. Therefore, the conviction of 2nd appellant/A2 for the offence punishable U/s. 324 r/w 34 IPC is not sustainable under law in the absence of specific charge U/S. 324 r/w 34 IPC, although the presence of 2nd appellant/A2 is proved by the evidence of Pws1, 2 and 11.
20Coming to 3rd appellant/A3, it is the version of Pws1, 2 and 11 that 3rd appellant/A3 beat PW2 with a stick on his back. In fact in the charge U/S. 324 IPC, overtacts attributed to appellants 1 and 3/A1 and
A3 were mentioned. It is highly irregular to frame combined charge against appellants 1 and 3/A1 and A3 that 1st appellant/A1 beat PW1 and 3rd appellant/A3 beat PW2. But irregularity in framing charge can not be resulted any benefit to accused, unless prejudice has been caused to accused in defending themselves in this case. A reading of charge U/S. 324
IPC framed against appellants 1 and 3/A1 and A3, clearly indicates the overtacts attributed against appellants 1 and 3/A1 and A3 separately.
Therefore, irregularity in framing charge U/S. 324 IPC did not come in the way of finding A1 or A3 guilt of charge 324 IPC. But there must be consistent and acceptable evidence as against 3rd appellant/A3 to prove the charge U/S. 323 IPC. No doubt Pws1, 2 and 11 deposed that 3rd appellant/A3 beat PW2 with a stick on his back and caused blunt 12 injury. But there is no such injury on the person of PW2. PW2 did not even take treatment from a Doctor. There is no medical certificate of PW2.
In the absence of any evidence of injury to PW2, which is possible with a stick, basing on the oral evidence of PWs1,2 and 11, it is not possible to conclude that 3rd appellant/A3 is guilty of the offence punishable U/S. 324
IPC. Therefore 3rd appellant/A3 is also entitled for benefit of doubt for the offence U/S. 324 IPC.
21.In fact learned magistrate found 3rd appellant/A3 guilty for the charge U/S. 324 r/w 34 IPC. According to prosecution 3rd appellant/
A3 played main role in the attack and it is not proved by taking into consideration of presence of A3, he can not be convicted for the offence punishable U/S. 324 r/w 34 IPC, especially when there is no charge.
22.In view of the above discussion Appellants 2 and 3/A2 and
A3 are entitled for acquittal for the offence punishable U/S. 324, 323 and 324 r/w 34 IPC. However, the prosecution is able to prove the guilt of 1st appellant/A1 beyond all reasonable doubt for the offence punishable
U/S. 324 IPC.
23 In the result, Criminal Appeal is partly allowed setting aside the conviction and sentence, dated 15122011 passed against appellants 2 and 3/A2 and A3 by III Additional Judicial Magistrate of 1st Class,
Tirupati in C.C.No.173/2008. Appellants/A2 and A3 are found not guilty for the offence punishable Under Sec. 324 r/w 34 IPC and they are acquitted of the same U/S. 386(b)(i) Cr.P.C. Bail bonds of appellants 2 and 3/A2 and A3 and their sureties shall stand canceled.
13
Appeal is partly dismissed confirming the conviction and sentence, dated 15122011 passed against the 1st appellant/A1 by
III Additional Judicial Magistrate of 1st Class, Tirupati in C.C.No.173/2008.
Fine amount, if any, paid by the appellants 2 and 3/A2 and
A3 before trial court shall be refunded to them, after expiry of appeal time.
The fine amount paid by A1 shall be paid to PW1 as compensation.
Dictated to the Personal Assistant, transcribed by him, corrected and
pronounced by me in open court, this the 8th day of January, 2014,
III Additional District and Sessions Judge, FAC., X Additional District and Sessions Judge Tirupati. To The III Additional Judicial Magistrate of First Class, Tirupati.
Read by: Fair Judgment in Criminal Appeal No.16/2012, dt.08012014 Compared by:
14