Spl. J.F.C.M. for Proh. & Excise 1 C.C.No.54/2016
IN THE COURT OF SPECIAL JUDICIAL MAGISTRATE OF FIRST CLASS FOR
PROHIBITION AND EXCISE OFFENCES, KADAPA.
PRESENT: Pavan Kumar Aka,
Judl. Magistrate of I Class, Spl. Mobile Court, Kadapa
FAC Spl. Judl. Magistrate Court for Prohibition and Excise Cases,
Kadapa.
Wednesday, this the 12th day of April, 2017.
C.C.No.54/2016
Between:
The State rep. by its, Sub Inspector of Police,
C.K.Dinne Police Station. ...Complainant
And
1Bandi Tirumala Rao, S/o.Thirumalaiah, aged about 20 years 2Bandi Tirumalaiah, S/o.Subbarayudu, aged about 45 years 3Bandi Subbarayudu, S/o.Thirumalaiah, aged about 70 years All are residing at Balijapalli village, C.K.Dinne mandal.
…Accused A.1 to A.3
This case came before me for final hearing and disposal in the presence of Learned Asst. Public Prosecutor for the state and of Sri M.Nagi Reddy, Advocate for the accused A.1 to A.3, upon hearing on both sides, stood over for consideration, till this day, this court delivered the following:
J U D G M E N T
1. The Sub Inspector of Police, C.K.Dinne P.S. filed the charge sheet against the accused A.1 to A.3 U/s.326, 324 r/w 34 of IPC.
2. The prosecution case in nutshell is as follows:
P.W.1 is resident of Balijapalli village, C.K.Dinne mandal and there were disputes in connection with a house and also with regard to house sites between accused family and the family of P.W.1 and hence there are grudges between their both families and on 07.01.2013 morning when A.1 and his mother put a padlock to the house in dispute and on knowing the same, PW1 went there to the said house and asked them as to why they had put padlock to the house and 2 tried to remove the same and in that matter some rupture took place and bystanders have intervened and pacified the issue by then and keeping in view of the same, A1 armed with iron rod and A2 armed with a knife and A3 armed with a stone came over to Nagulakatta of their village and were abusing referring PW1, who was present at his house and upon that PW1 went over to them and admonished them as to why they are abusing him, for which A1 to A3 grew wild against PW1 and abused PW1 and A1 beat PW1 with iron rod on his left hand and then PW1 fell down and again A1 beat with rod on his right leg, right thigh and caused injuries and in the meantime, PW2, younger brother of PW1 witnessed the above attack and came to rescue and then A2 attacked PW2 with sickle on his left side of head and right shoulder and caused bleeding injury and later A1 beat with an iron rod on his waist and the same was witnessed by PWs 3, 4 and L.W.5 /
P.Raghu Ramaiah and some others came and rescued him and later PW1 went to
RIMS Hospital on his motor cycle, P.W.2 was while getting into auto, A3 again came and tried to beat with stone on P.W.2 and then others rescued him and then both
PWs.1 and 2 were got admitted at RIMS Hospital and upon the statement recorded from PW1, PW7 registered a case in Cr.No.03/2014 U/s.324 r/w 34 of IPC and thereafter, he examined witnesses, seized the bloodstained clothes of injured and observed the scene of offence. In this incident, A1 to A3 also sustained injuries and they also lodged a counter case in Cr.No.06/2014 and the same was registered and investigated by police officials and thereafter on completion of investigation, receipt of wound certificates, the section of law has been altered from Sec.324 r/w 34 of IPC to Sec.324,326 r/w 34 of IPC.
3.Cognizance was taken by the court for the offences punishable
U/sec.324 r/w 34 of IPC against A.1 to A.3 by the I Additional Judicial I class
Magistrate Court, Kadapa and summons were issued to the accused and thereafter
the case has been transferred to this Court on equal work distribution as per the orders of the Hon'ble District Court, Kadapa in Dis.No.9116, dt.17.12.2015.
4.On appearance of the accused A.1 to A.3 before the Court, copies of all documents on which the prosecution relied upon were furnished to the
Spl. J.F.C.M. for Proh. & Excise 3 C.C.No.54/2016 accused as per Sec. 207 Cr.P.C.
5. Upon considering the entire material on record charges U/s.326, 324 r/w 34 of IPC were framed against the accused A.1 to A.3, read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried.
6.The prosecution, in order to prove its case, though cited ten witnesses, examined eight witnesses i.e., P.Ws.1 to 8 and marked Exs.P.1 to P.11 and M.Os.1 to 4 and also got marked Exs.D.1 to D.3 on behalf of defence. Further one Dr.N.Kondaiah, CAS gave evidence on behalf of L.W.6 / Dr.Naramada, CAS and
L.W.8 / Dr. Sai Krishna, CAS and also one Dr.M.Penchalaiah, Radiologist gave evidence on behalf of L.W.7 / Dr.V.Rama Devi, Asst. Professor, Dept.of Radiology,
RIMS, Kadapa. Further, the evidence of L.W.5 / P.Raghuramaiah is closed on 13.10.2016.
7.On closure of prosecution evidence, the accused A.1 to A.3 were examined U/sec. 313 of Cr.P.C by explaining the available incriminating material on record for which the accused A.1 to A.3 denied the same and reported no defence evidence on their behalf.
8. Heard both sides.
9. The learned APP argued that though P.W.4 turned hostile, the evidences of P.Ws.1 to 3 was corroborated by the remaining evidence on the record and the same was corroborated by medical evidence also and though there existed some difference between ocular and medical evidence, ocular evidence is to be considered only and though there took some contradictions in the evidences of prosecution witnesses in some aspects, most of the case was supported and due to the passage of time, there is every possibility in reiterating the facts and those discrepancies does not wash away the entire case of the prosecution and as such the testimony of P.Ws.1 to 3, who are the injured in this case coupled with the evidences of P.Ws.5 and 6 and the Investigating Officers is sufficient to convict the accused and as such prayed the court to convict the accused. In support of the 4 contentions of the prosecution, the Learned Asst. Public Prosecutor relied upon the
Judgments of (1) 2003 0 AIR(SC) 2978 of Apex Court between Krishnan &
Anr. V. State Rep. By Inspector of Police ; (2) 2015 0 AIR(SC) 1495 of
Apex Court between Vijay Pal .v. State (GNCT) of Delhi ; and also on (3) 2011 0 AIR(SC) 3327 of Apex Court between Waman and Ors. .v. State of
Maharashtra.
10. Per contra, the learned defence counsel argued that the actual incident took place on 7.1.2014 and the alleged injuries said to be sustained by
P.Ws.1 and 2 are not tallied with the wound certificates and P.W.5 examined on 6.1.2014 contrary to the date of incident and there were corrections in Ex.P.3 also and as per the version of prosecution, P.W.2 sustained laceration injury as per
Ex.P4 and as per the evidence of P.W.2, he was beat with a sharp edged weapon and thereby sustained bleeding injury, but as per the medical evidence, such injury is possible through blunt object. Even considering the investigating agency, the aggressors for the alleged incident is because of Pws.1 to 3 only and Pws.1 to 3 are inter related and interested persons and they wantenly suppressed the injuries sustained by A3, herein this case and because of all these discrepancies, the accused are entitled for acquittal or even benefit of doubt may be given in favour of the accused. To prove their contentions, the learned Defence Counsel relied upon the Judgments of (1) 2013 (2) ALD (Cri) 280 of our Hon'ble High Court between Korrai Chilakaiah and Others .v. The State of Andhra Pradesh ; (2) 1995 (0) CrLJ 3195 of our Hon'ble High Court between Prahlad Apto .v.
State of A.P.
11.Now the point of determination is that:
i) Whether the accused voluntarily caused hurt to
P.W.1 by using dangerous weapons or means and
thereby, P.W.1 sustained injuries ?
ii) Whether the accused voluntarily caused grievous
hurt to P.W.1 by using dangerous weapons or
means and thereby, P.W.1 sustained injuries ?
Spl. J.F.C.M. for Proh. & Excise 5 C.C.No.54/2016
iii) Whether the prosecution could be able to bring
home the guilt of accused for the offences
U/sec.326, 324 r/w 34 of IPC charged against
them beyond all reasonable doubts?
12. To prove the motive for the alleged offence, the prosecution examined P.Ws. 1 to 8, wherein P.W.4 not supported the case of the prosecution, being the independent witness.
13. P.W.1 / M.Sivanagaiah deposed that P.W.2 is his younger brother,
P.W.3 is his relative, P.W.4 and L.W.5 / P.Raghuramaiah are his neighbours and A.1 to A.3 are his relatives and that, there were civil disputes in between his family and the family of accused with regard to house sites and that, accused filed civil suits against him in the year 2010 and the said suit was still pending and there was one old house, situated at Balijapalli. He further deposed that on 07.01.2014 at about 8:00 a.m., A.1 and his wife by name Muthyalamma came to the said house and tried to lock, and then when he resisted them, they quarreled with him and in the meantime, neighbours came and pacified the matter and then he left the said place. He further deposed that on the same day at about 8:00 p.m., he returned to his house at Nagalakatta, and then A.1 abused him in a filthy language and by then when P.W.1 questioned A.1 as to the reason of his abusing, A.1 beat him with an iron rod on his left hand, due to which, he sustained fracture injury and also A.3 beat him with a stone on his right leg, due to which, he sustained bleeding injury and in the meantime, A.1 came with 'Kathikodavali' and beat him, and when P.W.2 resisted A.2, A.2 beat his brother on his left side head, due to which, P.W.2 sustained bleeding injury and also A.2 beat P.W.2 on his right shoulder, resulting bleeding injury and that, P.W.2 fell down and lost his conscious. He further deposed that in the meantime, P.W.3 intervened and saved P.W.2 from the hands of A.2 and nearby persons shifted P.W.2 to RIMS hospital, Kadapa in an auto and then he too followed on a bike and there he was treated by the doctors Iron Rod / M.O.1;
Knife (machukathi)/M.O.2; and A.1 beat him with M.O.1 on his left hand and A.2 beat P.W.2 on his forehead and also on shoulder due to which P.W.2 also sustained 6 injuries and he was examined by police and his statement was recorded under
Ex.P.1.
During the cross examination P.W.1 admitted that there are land disputes in between him and the accused and the said property is originally belongs to Basavamma, who is sister of A.3 and one Ramalayam is situated near the house of A3 and the distance between the said Ramalayam and Nagalakatta is about 100 feet and the distance between his house and Nagalakatta is about 25 feet and that the house of one Nagaraju is not located in between Kadapa and to his house and it is situated near Ramalayam and he further admitted that A.3 filed a criminal case against him and P.Ws 2 and 3 stating that they beat A.3.
14. P.W. 2 / M.Mallikarjuna deposed that P.W.1 is his elder brother and
P.W.3 is his grand father and he knew P.W.4 and L.W.5 / P.Raghuramaiah and A.1 is the son of A.2 and A.3 is the grand father of A.1 and they all are his relatives and that, on 07.01.2014 at about 8:30 p.m., when he was present in his house along with his parents, P.W.1 came to him and at that time, A.1 and A.2 also came to his house and beat P.W.1 with an iron rod on his left hand, due to which, P.W.1 sustained fracture to his left hand and in the meanwhile, he intervened to rescue
P.W.1 from the clutches of A.1, and then, A.2 beat him with a billhook on his head, due to which, he sustained bleeding injury and also on his right shoulder, due to which, he sustained bleeding injury and then, he fell down on the ground. He further deposed that then P.W.4 and L.W.5 / P.Raghu Ramaiah saved him and shifted him to RIMS hospital, Kadapa in an auto and subsequently, P.W.1 was also shifted to RIMS, Kadapa and there doctors provided treatment to him and he had handed over blood stained clothes to the police and he further deposed that, the dispute arose with regard to the house site. While deposing before this Court, he identified MO3/Green Colour Sweater which was worn by him at the time of incident and M.O.4/While Colour full bunion with blood stains and that he was examined by police on the date of incident.
During cross examination, he admitted that he do not know whether his brother sustained injuries prior to the incident and he further admitted that A3
Spl. J.F.C.M. for Proh. & Excise 7 C.C.No.54/2016 lodged complaint against him and that A3 also sustained injuries and he was also admitted in hospital and that there were land disputes in between himself and the accused. He further admitted that he had not stated before the police that A1 and
A2 came to his house and beat PW1 with iron rod.
15. P.W.3 / M.Nagamunaiah deposed that P.Ws.1 and 2 are his brothers, P.W.4 and L.W.5 / P.Raghu Ramaiah and all the accused are residents of
Balijapalli and on 01.07.2014 at about 8:30 p.m., while he was present at his house, he heard hue and cries and then he immediately went to Nagulakatta, there he noticed A.2 beat P.W.2 with 'Kathikodavali' on his head and also on his right shoulder, due to which, P.W.2 sustained bleeding injuries and fell on the ground. He further deposed that he along with P.W.4 and LW.5 shifted P.W.2 to RIMS hospital,
Kadapa in an auto and P.W.1 also came to RIMS hospital and there, the duty doctors treated P.Ws.1 and 2 and on the same day, he was examined by RIMS police.
During cross examination, he admitted that, he did not sustained any injuries and that there are land disputes between himself and accused and he do not know whether PW1 sustained injuries in the said incident or else prior to the incident and the weapon used by the accused is hunting knife having sharp edge.
16. P.W.4 / P.Rambabu deposed that he know P.Ws.1 to 3, L.W.5 /
P.Raghu Ramaiah and also A.1 to A.3 and he does not know anything about the case and he was not examined by police and his statement was not recorded under
Ex.P2.
17. P.W.5 / Dr. N.Kondaiah, Deputy Civil Surgeon, RIMS, Kadapa deposed that as per orders of Superintendent, RIMS, Kadapa he was deputed to give opinion with regard to signatures of Dr.Narmadha, CAS and Dr.Sai Krishna,
CAS, who issued Wound certificates in Cr.No.03/2014 for the offences U/s.324 r/w 34 of IPC and he can identify the said signatures in wound certificates of P.W.1 and
P.W.2 and deposed that, on 06.01.2014 at 9:45 p.m., L.W.6 / Dr.Narmadha, CAS examined P.W.1 and on M.L.C.No.19. X -ray No.530, she found one fracture on left fore arm at elbow, which is a grievous injury and the duration of the said injury is 8 less than 6 hours prior to her examination under Ex.P3 and that on 07.01.2014 at about 8:30 p.m., L.W.8 / Dr.Sai Krishna, CAS examined P.W.2 and the patient was referred to x-ray vide M.L.C.No.20. X -ray No.531 and found no fracture and L.W.8 / Dr.Sai Krishna opined that the injury is simple in nature and less than one hour old prior to his examination and to that effect wound certificate of P.W.2 was issued under Ex.P.4.
During cross examination, he admitted that the colour of Injury No.1 in
Ex.P3 was not mentioned and there was a correction with regard to injury No.2, wherein it was mentioned first as right and later altered as left and injury No.1 is not possible with sharp object. He further admitted that as per Ex.P4, the colour and depth of injury No.1 and 2 were not mentioned and that the said injuries 1 and 2 are not possible with sharp object like 'kathikodavali' and that the pain and tenders are not injury and were noticed by the said doctor at the representation of the injured.
18. P.W.6 / Dr. M.Penchalaiah, Radiologist, RIMS, Kadapa deposed that he was appointed to identify the signature of L.W.7 / Dr.V.Rama Devi, Asst.
Professor, Dept. of Radiology, RIMS, Kadapa, who examined P.Ws.1 and 2. He deposed that on 07.01.2014, P.Ws.1 & 2 were referred to Dept.of Radiology for X- ray of left forearm with elbow to P.W.1 under Ex.P5 and that, the x-ray reveals fracture of midshop of Ulla and found no fracture for PW2 under Ex.P6.
During his cross examination, he admitted that police had not asked him to furnish the X-ray and that Ex.P5 contains a correction with regard to injury.
19. P.W.7 / P.Narasimha Reddy, S.I. deposed that on 10.01.2014, he received hospital intimation from RIMS, Kadapa under Ex.P.7 and at 10:40 p.m., and thereupon he rushed to RIMS, Kadapa and there he examined P.W.1, and then, returned to P.S. and on the strength of the statement of P.W.1/Ex.P1, he registered a case in Cr.No.03/2014 U/s.324 r/w 34 of IPC under Ex.P.8 and examined and recorded the statements of P.Ws.1 & 2, collected blood stained clothes of P.W.2 under M.Os.3 and 4 under cover of police proceedings / Ex.P.9 and on the same day, he visited scene of offence, which is at Balijapalli village and prepared rough
Spl. J.F.C.M. for Proh. & Excise 9 C.C.No.54/2016 sketch/Ex.P10. He further deposed that on 16.01.2014, he visited Balijapalli along with A.1 to A.3 and at that time, A.1 produced one iron rod i.e., M.O.1 and
A.2 produced one billhook i.e., M.O.2 and that thereupon he seized the said M.Os.1 & 2 under the cover of police proceedings/Ex.P11 and the further investigation was done by P.W.10.
During cross examination, he admitted that, on surrender of A1 to A3
before him, he had not recorded any confession statement from them and he
further admitted that Balijapalli is a major Panchayat and it consists a number of residential houses. He further admitted that one Probation Dy. Superintendent of
Police registered a case in Cr.No.6/2014, U/s.324 IPC against P.Ws. 1 to 3 basing on the Complaint given by A3 under Ex.D1 and she prepared one rough sketch for the scene of offence under Ex.D2 and that as per Ex.D1, A3 is also one of the injured.
20. P.W.8 / P.Bande Saheb, the then S.I.of police, C.K.Dinne P.S.
deposed that he took up investigation from P.W.7 on 10.02.2014, verified the investigation and on the same day, he received the wound certificates of P.Ws.1 and 2 under Exs.P.3 and P.4,and after completion of investigation, he laid charge sheet in this case.
During cross examination, he admitted that he is the officer who filed charge sheet in Crime No.06/2014 which was pending in CC No.276/2015 on the file of this Court and that as per his investigation in this case, A3 of this case was injured in that crime number and the wound certificate of A3/Ex.D3 was also received by him relating to that crime and that the scene of offence is situated in between the houses of accused and PW1 and that his investigation reveals that
P.Ws.1 to 3 and some others went on accused with deadly weapons and caused injuries to the accused and the investigation does not reveal that A1 and A2 never beat PWs 1 to 3 and in the assault caused by P.Ws.1 to 3, they themselves sustained injuries.
21. On scrutinizing the evidence, the evidences of P.Ws.1 to 3 and
P.Ws.5 to 8, M.Os.1 to 4 and Ex.D1 to D3 and the material on record, it is made clear that, there existed property disputes between the families of P.Ws. 1 to 3 and 10 the families of accused and it is evident from the record that there occurred one incident wherein both the groups scuffled with each other with weapons and during which both the parties sustained injuries and though no independent witness supported the case of the prosecution and the one and only independent witness though turned hostile, the evidence of P.Ws.1 to 3 and P.Ws.7 and 8 along with the evidence of P.Ws. 6 and 7 coupled with the documentary evidence of wound certificates and X-rays is to be considered and dealt in detail with regard to the commission of offence by the accused herein this case. During the cross examination by the learned defence counsel to the prosecution witnesses more particularly to Investigating Officer, the suggestion put by the Learned Defence as to the reason for sustaining of injuries by A.3 is only because of assault allegedly taken place among them and thereby, the prosecution as well as the Learned
Defence brought on record that there happened one incident, where injuries were sustained by both the parties and nowhere it was brought on record as to the probabilities of sustaining injuries by prosecution witnesses for other than the reason, stated by prosecution.
22. As per the version of P.W.1 the incident took place on 7.1.2014 at about 8.00 p.m., and the same was corroborated through Ex.P.8 / FIR and on that material point of time, A.1 beat him with iron rod due to which he sustained fracture injury and A.3 beat him with a stone on his right leg resulting in sustaining of bleeding injury. During that time, when A.1 came with 'Kathikodavali' and beat him, P.W.2 resisted A2 and then A.2 beat P.W.2 on his left side of head resulting of bleeding injury and also on his right shoulder and thereby P.W.2 fell down and lost conscious and then P.W.3 pushed A.2 to save P.W.2 and thereafter P.W.2 was shifted in auto to RIMS Hospital and he too went to RIMS Hospital on bike. As per Ex.P.3 wound certificate of PW1, he was examined by doctor on 6.1.2014 at about 10.00 p.m., and P.W.1 sustained fracture injury, which is a grievous injury in nature.
P.W.5 in his cross examination admitted that the Injury No.1 is not possible with sharp object. As per the evidence of P.W.1, A.3 beat him on his right leg, which cannot be treated as a sharp object. Thereby the injuries said to be sustained are
Spl. J.F.C.M. for Proh. & Excise 11 C.C.No.54/2016 tallied with the injuries mentioned in Ex.P3 with regard to A.1. As per the evidence of PW1, specific overt acts were spoken against A1 to A3.
23. As per the version of P.W.2, the incident took place on 7.1.2014 at about 8.30 p.m., being corroborated with Ex.P.8 and by that time A.1 and A.2 came and beat PW1 with iron rod and thereby PW1 sustained fracture to his left hand and by that time, he was beat by A2 with billhook on his head and also beat on his right shoulder and fell on the ground and later he was shifted in auto to
RIMS Hospital and later PW1 was also shifted to RIMS. As per Ex.P4, he was examined on 07.01.2014 at 9.20 p.m. and the injuries sustained were simple in nature. As per the evidence of PW5, it was made clear that the injuries of P.W.2 as mentioned in Ex.P4 are not possible with sharp object like 'kathikodavali' and as such the alleged weapon is doubted for causing of such injuries as per medical evidence. As per the evidence of PW2, specific overt acts were spoken against A1 and A2 only.
24. As per the evidence of PW3, he noticed A2 while beating PW2 with kathikodavali on his head and also on his right shoulder and thereby PW2 sustained bleeding injuries and the date of incident was on 07.01.2014 at about 8.30 p.m., being corroborated with the Ex.P8 and he is not the injured. As per the evidence of
PW3, specific overt acts were spoken against A.2 only.
25. On thorough perusal of the entire evidence, A1 to A3 all participated in the assault and thereby P.Ws.1 and 2 sustained injuries in their hands and at the same time, the medical evidence is not completely supporting the case of the prosecution and there appears a variance of medical evidence with ocular evidence. When a question arises as to which evidence is to be taken into consideration, it was a decided fact that ocular evidence, when it was corroborated less weight be given to medical evidence.
26. And it is the right time to go through the Judgments on which the prosecution relied also supports the same and the Apex Court opined that when medical evidence at variance with ocular evidence, it would be erroneous to accord undue primacy to hypothetical answers of medical witnesses to exclude 12 eyewitnesses account which had to be tested independently and not treated as the “variable” keeping the medical evidence as the constant and that where the eye- witnesses account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive.
27. Before coming to a conclusion, the Judgments relied upon by the
Learned Defence Counsel are also to be discussed and it was opined by our Hon'ble
High Court that where it was found that there was a free fight between two groups, it is not safe to place implicit reliance on evidence of all witnesses, who, admittedly belong to one group, as their evidence cannot be put into category of wholly reliable, it requires corroboration and it is not safe to place implicit reliance on evidence of prosecution witnesses to base conviction as was discussed in 2013(2)
ALD (Cri) 280 and in the same Judgment while discussing the case, the Apex
Court referred another case that was also decided by it in SCC pp.401-02, para 12 of Lakshmi Singh .v. State of Bihar, wherein it was opined that “...... where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probablise the plea taken by the appellants in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences”;
i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; ii) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; iii) that in case there is a defence version which explains the injuries on the person of the accused, it is rendered possible, so as to throw doubt on the prosecution case.
The same was opined by our Hon'ble High Court in 1995 (0) CrLJ 3195 also considering that when Prosecution witnesses did not state anything
Spl. J.F.C.M. for Proh. & Excise 13 C.C.No.54/2016 about the injuries sustained by the accused and it was incumbent upon them to speak truth revealing all the facts stating that not only that they have received injuries at the hands of the accused, but also to explain as to how and why the accused party also received injuries and in fact the prosecution witnesses, in fact, suppressed the real genesis of the case of the prosecution in active collusion.
Otherwise, there was no reason for them not to state the true facts. The prosecution has deliberately suppressed the very genesis of the incident and has not explained the injuries on the accused, in case of this nature, it is necessary to decide as to who was the aggressor when both the parties had received injuries. If the prosecution fails to do so, then as an inevitable corollary, the benefit of doubt has got to be given to the accused entitling their acquittal.
28. Basing on the entire observations and discussions and also the condition precedents, though the prosecution is able to prove their case with regard to sustaining of injuries by P.Ws.1 and 2 in the hands of A.1 to A.3, to lead for their conviction, P.W.1 denied the suggestion of Learned Defence as to sustaining of injuries by A3 in this incident, but the said fact of sustaining injuries by Accused
No.3 in this incident was admitted by PW2 and as such, the material prosecution witnesses who are the injured in this case had not completely suppressed the fact of sustaining the injuries by the accused in this incident. Hence, it cannot be construed that the prosecution had suppressed the fact to prove their case as a genuine one. But as was admitted by PW8, who investigated the case that the scene of offence is situated in between the houses of accused and PW1 and as per the investigation, PW.1 himself came to accused and questioned with regard to property disputes and P.Ws. 1 to 3 and some others went on accused with deadly weapons and caused injuries to the accused, reflects that there took a free fight between P.Ws.1 and 2 and the accused and keeping in view of the observations of our Hon'ble High Court of Andhra Pradesh opined in 2013 (2) ALD (Cri) 280 as was discussed supra, it is not safe to place implicit reliance on evidence of prosecution witnesses so as to base conviction.
14
29. Apart from all that when neither the prosecution nor the defence version is complete, then it is obvious that both the parties are withholding some information from the court. The burden of proving the charge to the hilt lies upon the prosecution and it has failed to discharge its burden. Thus, the benefit has to go to the accused. Apart from that, it is difficult to separate falsehood from the truth, where some material aspects of the occurrence seem to have been deliberately withheld. It is a well- established principle of criminal jurisprudence that when two possible and plausible explanations co-exist, the explanation favourable to the accused should be adopted. As the same was also observed by the Hon'ble Apex
Court in Bhagwan Singh & Others v. State of M.P . (2002) 4 SCC 85, the
Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court observed as under:- "7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is avoided."
30.Thus IN THE RESULT, the accused A.1 to A.3 are found not guilty of the offences punishable U/sec. 326, 324 r/w 34 of IPC and they are acquitted U/sec. 248 (1) Cr.P.C. The bail bonds of the accused shall be inforce for a period of six months. The accused shall execute a bond
U/sec. 437(A) Cr.P.C and that they shall appear before the Appellate Court in the event of their receiving any summons from any Appellate Authority within six months from today. Further, M.Os.1 to 4 shall be destroyed after expiry of appeal time.
Spl. J.F.C.M. for Proh. & Excise 15 C.C.No.54/2016
Directly Typed to my dictation, corrected and pronounced by me in the open court dated this the 12 th day of April, 2017.
Sd/- A.Pavan Kumar Aka
JFCM, Special Mobile Court, Kadapa, FAC Spl. Judicial Magistrate of I Class for Prohibition and Excise offences, Kadapa.
APPENDIX OF EVIDENCE
WITNESSES EXAMINED ON BEHALF OF
PROSECUTION: DEFENCE:
P.W.1: Madam Siva Nagaiah
P.W.2: Madam Mallikarjuna -None- P.W.3: Madam Naga Munaiah
P.W.4: Pagidala Rambabu
P.W.5: Dr.N.Kondaiah, Depty Civil Surgeon, RIMS, Kadapa
P.W.6: Dr.M.Penchalaiah, Radiologist, Tutor Dept., RIMS
P.W.7: P.Narasimha Reddy, the then S.I., C.K.Dinne P.S.
P.W.8: P.Bande Saheb, S.I., C.K.Dinne P.S.
DOCUMENTS MARKED FOR PROSECUTION
Ex.P.1: Statement of P.W.1 Ex.P.2: 161 Cr.P.C. statement of P.W.4 Ex.P.3: Wound certificate of P.W.1 Ex.P.4: Wound certificate of P.W.2 Ex.P.5: x-ray report dt.07.01.2014 of P.W.1 Ex.P.6: x-ray report dt.07.01.2014 of P.W.2 Ex.P.7: Hospital Intimation dt.07.01.2014 Ex.P.8: FIR in Cr.No.03/2014 Ex.P.9: Police proceedings dt.08.01.2014 at 10:00 a.m. Ex.P.10: Rough sketch Ex.P.11: Police proceedings dt.16.01.2014 at 5:00 p.m.
DOCUMENTS MARKED FOR DEFENCE
Ex.D.1: C.C.of F.I.R. In Cr.No.06/2014 of C.K.Dinne P.S. Ex.D.2: C.C.of Rough sketch in Cr.No.06/2014 of C.K.Dinne P.S. Ex.D.3: C.C.of Wound certificate of A.3.
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MATERIAL OBJECTS
M.O.1:- An Iron Rod M.O.2:- Iron Billhook (Machukathi) M.O.3:- Green Colour Sweater M.O.4:- One white Milk Full Baniyan
Intld/-A.P.K. FAC Spl. JFCM, for P & E, KDP
CALENDAR AND JUDGMENT
District : KADAPA Calendar and Judgment tried by Sri A.Pavan Kumar, JFCM, Special Mobile Court, FAC Spl. Judicial First Class
Magistrate for Prohibition and Excise offences, Kadapa
Date of Apprehension Release on Commence-Close of OffenceReportJudgment of accusedbailment of trialtrial 07-01-'1407-01-'14--Police bail16-05-'1627-01-'1712-04-'17
Calendar and Judgment in C.C. No.54 of 2016 on the file of Special Judl.
Magistrate of First Class for Prohibition and Excise offences, Kadapa.
Complainant : S.H.O., Kadapa C.K.Dinne P.S. Cr. No.03/2014
Name of the accused with father’s AgeCallingReligionResident name (1) (2) (3) (4) -5 1.Bandi Tirumala Rao, 20 S/o.Thirumalaiah --Hindu yrs
2. Bandi Tirumalaiah, All are residing at 45 S/o.Subbarayudu --“ Balijapalli village, yrs C.K.Dinne mandal.
3. Bandi Subbarayudu, S/o.Thirumalaiah70 --“ yrs
Offence: U/s. 326, 324 r/w 34 of IPC Finding : The Accused A.1 to A.3 found not guilty. Sentence : The accused A.1 to A.3 are found not guilty of the offences punishable U/sec.326, 324 r/w 34 of IPC and they are acquitted U/sec. 248 (1) Cr.P.C. The bail bonds of the accused shall be inforce for a period of six months. The accused shall execute a bond U/sec. 437(A) Cr.P.C and that they shall appear before the Appellate Court in the event of their receiving any summons from any Appellate Authority within six months from today. Further, M.Os.1 to 4 shall be destroyed after expiry of appeal time.
Remarks : NIL
Explanation for the delay : This case is taken on file on 14.02.2014 against A.1 to A.3 by the I ADM, Kadapa in C.C.No.43/2014 and posted to 11.03.2014. Thereafter, accused A.1 to A.3 present, copies furnished to them and examined U/s.239 of Cr.P.C. and Charges U/s.326, 324 r/w 34 of IPC framed against A.1 to A.7 on 29.12.2014, posted for trial. Later case has been transferred to this Court as per the orders of the Hon'ble District Court, Kadapa in Dis.No.9116, dt.17.12.2015 and renumbered as C.C.No.54/2016 on 28.01.2016. The prosecution side evidence is commenced from 16.05.2016 and closed on 27.01.2017. On 09.02.2017, Accused were examined U/s.313 Cr.P.C. Heard both sides. On 12.04.2017, the Accused No.1 to 3 are present. Judgment is pronounced. Hence, the delay.
Sd/- A.Pavan Kumar Aka
JFCM, Special Mobile Court, Kadapa, FAC Spl. Judicial Magistrate of I Class for Prohibition and Excise offences, Kadapa
From The Special Judicial Magistrate of I Class Court, Kadapa
Copy submitted to The Hon'ble 1st Additional District & Sessions Judge, Kadapa. Dis. No.