THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.97 of 2006 Date: 04.03.2011 Between: Pilli Kumar …..Petitioner And The State of A.P., rep. by its Public Prosecutor, High Court of A.P., Hyderabad. …..Respondent THE COURT MADE THE FOLLOWING: THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.97 of 2006 ORDER: This is a curious case where A-2 was convicted by the Trial Court and the Appellate Court while A-1 was acquitted by the Trial Court. The offences levelled against the accused are under Sections 332, 431 I.P.C. as well as under Sections 232 and 506 I.P.C. read with Section 34 I.P.C. The Trial Court acquitted A-1 of all the allegations made against him. The Trial Court found A-2 guilty for the offences under Sections 332, 323 and 341 I.P.C. He was sentenced to a fine of Rs.200/- on each of the counts with appropriate default sentence. He was also sentenced to simple imprisonment for a period of three months for the offences under Sections 332 and 323 I.P.C. Learned trial Judge directed that the sentence of imprisonment recorded under two counts against A-2 should run concurrently. Aggrieved by the Judgment of conviction and sentence, A-2 preferred appeal. The appeal, however, was dismissed. The conviction and sentence recorded against A-2 by the trial Court was confirmed by the Appellate Court. Hence, this revision. The revision petitioner is A-2. The case of the prosecution is: a) On the intervening night of 29/30-8-2002, P.W.4 was on M.G.Road opposite to Old R.T.C. bus stand along with the police party. He was on the usual patrol duty. At about 12.45 a.m., A-1 and A-2 came on a scooter bearing registration No.A.P.28-T 5111. b) Suspecting that the accused were in a drunken stage, police party stopped the accused. The case of the prosecution is that the accused then restrained P.Ws.1 and 2, who were home guards on duty at that time and threatened that they would complain to P.W.4 that P.Ws.1 and 2 demanded Rs. 500/- as bribe. c) P.W.4 reached the place where A-1 and A-2 were and took A-1 to the traffic point. He directed P.Ws.1 and 2 to bring A-2 to the traffic point. At that juncture, A-2 abused P.Ws.1 and 2 and kicked out over the testicles of P.W.1 so much so, P.W.1 sustained simple injuries. P.W.4, thereafter, handed over both the accused to P.W.6 A.S.I. of police. A case was registered against the accused thereafter. d) This is the sum and substance of the prosecution. The prosecution examined as many as 7 witnesses. P.Ws.1 and 2 are Home Guards. P.W.4 is S.I. of police. P.W.6 is the A.S.I. of police, who more or less was the investigation officer. P.W.7 is the S.I. of police, who laid the charge sheet in this case. P.W.5 is the doctor, who examined P.W.1 and issued Ex.P.3 wound certificate. P.W.3 is an independent witness. Out of the 7 witnesses examined by the prosecution, P.W.3 is the only independent witness. P.W.3, however, did not support the case of the prosecution. He was considered to be hostile. The trial Court permitted the learned Additional Public Prosecutor to put leading questions to P.W.3. The fact remained that out of the prosecution witnesses, apart from the official witnesses, the only witness examined by the prosecution (P.W.3), did not support the prosecution’s story. Be that as it may, it is not as though the revision petitioner/A-2 would be entitled to acquittal merely because the only independent witness did not support the prosecution’s story. Sri Pappu Nageshwar Rao, learned Counsel for the revision petitioner contended that the evidence of P.Ws.1, 2 and 4 is not trustworthy as they are police officials. I am afraid that the evidence of P.Ws.1, 2 and 4 cannot be rejected merely on the ground that they are police officials. Their evidence deserves to be scrutinized to judge whether the prosecution established the guilt of the accused beyond reasonable doubt. One of the offences alleged against A-2 is under Section 341 I.P.C. The Section 332 I.P.C. defines wrongful restraining as voluntarily obstructing any person from proceeding in any direction. The offence allegedly occurred in a public place. P.Ws.1 and 2, who are Home Guards have apprehended the accused. P.W.4 claimed that he took P.W.1 along with him. It is the case of the prosecution that while P.Ws.1 and 2 were trying to take A-2 along with them to the place where P.W.4 was standing, A-2 committed wrongful restraint. I am afraid that where the offence occurred in a public place, it is not easy to commit the offence of wrongful restraint punishable under Section 341 I.P.C. However, P.Ws.1 and 2 insisted that A-2 more or less restrained them from proceeding towards P.W.4 The evidence of P.Ws.1 and 2 is not satisfactory regarding the offence under Section 341 I.P.C. I consider that the trial Court as well as Appellate Court was not justified in holding that A-2 was guilty of the offence under Section 341 I.P.C. The finding that A-2 was guilty for the offence under Section 341 I.P.C. by the trial Court and Appellate Court is erroneous and deserves to be interfered with. The other offences levelled against A-2 are under Section 332 and 323 I.P.C. The case of the prosecution is that A-2 kicked over the testicles of P.W.1 and that P.W.1 sustained a simple injury. P.W.5 is the medical officer, who treated P.W.1 and issued Ex.P-3-wound certificate. Exs.P-3 and P-5 support the story of P.W.1, which is corroborated by the evidence of P.Ws.1, 2 and 4. In view of the medical evidence of the prosecution, A-2 certainly is guilty for the offence under Section 323 I.P.C. There is no doubt that P.Ws.1, 2 and 4 were public servants. P.W.4 was an S.I. of police. P.Ws.1 and 2 were Home Guards and they were discharging the functions of the sovereign authority at the time of the commission of offence. I, therefore, consider that P.Ws.1, 2 and 4 were public servants at the time of the incident occurred. Once it is confirmed that P.W.1 is a public servant and that the accused is found guilt under Section 323 I.P.C. for causing simple hurt to P.W.1, he would equally be guilty for the offence under Section 323 I.P.C. for voluntarily causing hurt to a public servant to deter him from discharging his duties. The trial Court, therefore, is justified in finding A-2 guilty of the offences under Sections 323 and 332 I.P.C. At the same time, I hold that no case is made out against the accused for the offence under Section 341 I.P.C. Regarding the quantum of sentence to be imposed, the charge sheet described the 2nd accused as 24 years old. It would appear that he was married recently at about the time of the commission of offence. The injury caused to P.W.1 was a simple injury. The offence is nearly 9 years old. Taking all these factors into consideration, I consider it unjust to recommit the revision petitioner to prison to undergo sentence of imprisonment. It may be recalled that A-2 was sentenced to simple imprisonment for a period of 3 months for the offences under Sections 323 and 332 of I.P.C. by the trial Court and confirmed by the Appellate Court. It would appear that A-2 was jailed for about a week as part of the sentence. It is not as though the Court did not impose any other sentence upon A-2. A-2 was sentenced to fine of Rs.200/- for each of the offences under Sections 332 and 323 I.P.C. Where he was sentenced to fine for the offences under Sections 332 and 323 I.P.C., I consider it appropriate to confirm the fine for which he has found guilty and modify the sentence of imprisonment recorded by the trial Court and confirmed by the Appellate Court to sentence of imprisonment already undergone. Accordingly, this revision is allowed in part. The accused/revision petitioner is found not guilty for the offence under Section 341 I.P.C. and is acquitted of the same. The fine amount, if already paid by the accused, shall be repaid to him. The conviction recorded by the trial Court against the accused for the offences under Section 323 and 332 I.P.C. are confirmed. The imposition of fine of Rs.200/- for each of the two offences by the trial Court and confirmed by the Appellate Court is also confirmed. The sentence of imprisonment of 3 months recorded by the trial Court and confirmed by the Appellate Court is reduced to the sentence of imprisonment already undergone by the accused. _________________________ JUSTICE K.G.SHANKAR 04.03.2011 TJMR THE HONOURABLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No.97 of 2006 DATE: 04.03.2011