IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIFTEENTH DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL NO.404 OF 2004 Between: J. Bhagwandas .... APPELLANT AND The State of A.P. ....RESPONDENT The Court delivered the following: THE HON'BLE SRI JUSTICE G.V.SEETHAPATHY CRIMINAL APPEAL NO.404 OF 2004 JUDGMENT: This appeal is directed against the Judgment, dated 29.01.2004, passed in S.C.No.318 of 2003 on the file of Additional Metropolitan Sessions Judge for trial of Communal Offence Cases – cum – VII Additional Metropolitan Sessions Judge at Red Hills, Nampally, Hyderabad, wherein the appellant herein/accused was convicted for the offence under Section 324 I.P.C. and sentenced to undergo simple imprisonment for six months and to pay fine of Rs.500/-, in default, to undergo simple imprisonment for one month. 2. Heard the learned counsel for the appellant/accused and the learned Additional Public Prosecutor for the respondent – State. Perused the record. 3. The case of the prosecution in brief is as follows: PW.1, the de-facto complainant-injured, was running a general store in the first floor of Balakirshna Buggareddy Bhavan under the name and style of “Meenakshi General Stores” and was also running an STD Booth and Cool Drink shop. The accused was running a readymade cloth shop, opposite to the General Store of PW.1, with a lane intervening between the two shops made for passage of public. PW.1 reside in the second floor of the building along with his family. The accused used to harass PW.1 by tuning the tape-recorder in a loud voice, on account of which, the customers of PW.1 were feeling inconvenience while talking over telephone. PW.1 requested the accused several times to reduce the volume of the tape-recorder, but the accused did not heed to the same. On 24.10.1999 at 04:15 PM, PW.1 heard loud voice of the tape-recorder from the shop of the accused and went there and requested the accused to switch off the tape-recorder or to reduce the volume. The accused became angry and came to the shop of PW.1 and questioned him as to why he was giving false complaint against him to the police and why he was abusing his wife. The accused then took out a big empty Thumsup bottle from the shop of PW.1, broke it and with the upper portion of the broken empty Thumsup bottle hit on the stomach of PW.1 with an intention to kill him and PW.1 moved backward to save himself and in that process, received bleeding injuries on the forehead, chin and left hand palm. After causing the said injuries, the accused went back to his shop. PW.1 shouted for help and fell down and became unconscious. On hearing his cries, his wife, Smt. E. Meenakshi Devi- PW.3, rushed there and found PW.1 lying with bleeding injuries and telephoned to the police. PW.6, the then Sub-Inspector of Police, came there and shifted the injured-PW.1, to the Osmania General Hospital for treatment. PW.6 also found the accused in his shop with an injury on his right palm and shifted him also to the Osmania General Hospital for treatment. PW.6 recorded the statement of PW.1 on 24.10.1999 at 05:30 PM at Osmania General Hospital under Ex.P-1 and returned to the Police Station and registered Ex.P-4-F.I.R. in Cr.No.86 of 1999 for the offence punishable under Section 307 I.P.C. and took up investigation. PW.6 observed the scene of offence and prepared a scene of panchanama in the presence of PW.4 and one Sri M.A. Aziz and seized the broken pieces of Thumsup bottle-MO.1, and a pair of chappal belonging to PW.1 under the cover of panchanama, Ex.P-2. PW.6 also seized MOs.2 to 5, blood stained clothes and pair of chappal from PW.1 under the seizure report-Ex. P-3, in the presence of panchas-PW.5 and one K. Prasad. PW.6 gave a requisition-Ex.P-5 to the VIII Metropolitan Magistrate, Hyderabad, for recording dying declaration of PW.1. Dr. Bhavani Kumar, CMO and PW.7-Dr. V. Sivarama Reddy, Plastic Surgeon in Osmania General Hospital, examined PW.1 and found that the injuries sustained by PW.1 are simple in nature and issued Ex.P-8 Wound Certificate and Ex.P-7- Final opinion. On 24.10.1999 at 08:00 PM the accused was arrested and was remanded to judicial custody. On completion of the investigation, police filed charge sheet against the accused for the offence punishable under Section 307 I.P.C. 4. The appellant/accused appeared before the Sessions Court and denied the offence and pleaded not guilty to the charge framed against him for the offence punishable under Section 307 I.P.C. 5. In support of their case, the prosecution examined PWs.1 to 8 and marked Exs.P-1 to P-8 and MOs.1 to 5. 6. The accused was examined under Section 313 Cr.P.C., explaining the incriminating circumstances appearing against him in the evidence. 7. The learned Sessions Judge on consideration of the evidence available on record held that the offence under Section 307 I.P.C. is not made out against the accused and accordingly, acquitted him of the same. However, the learned Sessions Judge, found the accused guilty of the offence under Section 324 I.P.C. and convicted him for the said offence and imposed sentence of simple imprisonment for six months and to pay fine of Rs.500/-. Aggrieved by the said conviction and sentence, the present appeal is filed. 8. The learned counsel for the appellant/accused would contend that the learned Sessions Judge having held that the offence under Section 307 I.P.C. is not made out, erred in convicting the accused for lesser offence under Section 324 I.P.C. and convicted him for the same, though in fact no separate charge was framed against the accused for the said offence under Section 324 I.P.C. He further contended that the injuries sustained by the accused was not properly explained by the prosecution and the learned Sessions Judge erred in convicting the accused, in the absence of any explanation by the prosecution as to the circumstances under which the accused sustained the injury. The learned counsel would further contend that the medical evidence on record does not support the prosecution case that the injuries sustained by PW.1 were possible with an object like MO.1 and therefore, the conviction even under Section 324 I.P.C. is unsustainable. The learned counsel further would contend that the testimony of PWs.1 and 2 is vitiated by the material contradictions and omissions and the trial Court erred in relying upon such evidence. He would further contend that the trial Court failed to appreciate the motive behind the alleged quarrel. 9. The learned Additional Public Prosecutor appearing for the respondent–State, however, contend that the trial Court on proper appreciation of the evidence, direct and circumstantial material available on record, rightly held the accused guilty of the offence under Section 324 I.P.C., after observing that the ingredients of the offence under Section 307 I.P.C. are not made out. 10. The appellant/accused and PW.1-defacto complainant are not strangers to each other. PW.1 is running general store in the name of “Meenakshi General Stores” and is also simultaneously running an STD Booth and Cool Drink shop in the same premises. Whereas the accused is running readymade cloth shop opposite to the general store of PW.1 with only a small passage in between. According to the prosecution, the accused has been tuning the tape recorder in his shop at high pitch volume and the noise pollution emitted thereby is causing inconvenience and disturbance to the customers of PW.1, particularly those who are availing the STD telephone booth facility and so, PW.1 was repeatedly requesting the accused to reduce the volume of the tape recorder, but the accused was not hearing the same. On 24.10.1999 at about 04:15 PM, the accused was again playing the tape recorder in a loud voice and PW.1 went to his shop and requested him to reduce the volume and returned to his shop. There upon, the accused angrily came upon the shop of PW.1 and questioned him and took out empty Thumsup bottle from PW.1’s shop and broke it and tried to hit PW.1 on the stomach with the upper portion of the broken bottle and in the process of averting the said attack, PW.1 sustained injuries on the fore head, chin and left hand palm, which were opined to be simple injuries. 11. It is in the evidence of PW.3, the wife of PW.1, who is residing in the second floor of the same building, that on hearing the cries of her husband, she came out and found PW.1 lying on the ground with bleeding injuries and immediately she informed to the police and within 10 minutes the police came there and took PW.1 to the hospital and PW.3 also accompanied PW.1. 12. PW.6-the then Sub-Inspector of Police, Madannapet PS, testified that on 24.10.1999 at 04:20 PM, a telephonic message from PW.3 was received and immediately he rushed to the scene of offence and found PW.1 lying unconscious with bleeding injuries and shifted him to Osmania General Hospital, Hyderabad. It is also in his evidence that the accused was also found in his shop with bleeding injuries and he sent him also on the same day to the Osmania General Hospital. PW.6 further testified that he recorded the statement of PW.1 under Ex.P-1 in the hospital and returned to the police station and registered the First Information Report -Ex.P-4. It can be seen that the incident took place at 04:15 PM and within 10 minutes thereof the police arrived at the scene, which is only one kilometer from the police station, and within a couple of hours after the incident, the statement Ex.P-1 was recorded from PW.1. 13. The learned counsel for the appellant/accused would point out that though the F.I.R. was registered at 06:30 PM on 24.10.1999, the same was received by the Magistrate on 25.10.1999 at 12:10 PM, as seen from the endorsement on the F.I.R., and the said delay in the dispatch of F.I.R. has not been duly explained by the prosecution. It has to be noted that the F.I.R. was registered promptly and almost immediately after the occurrence. The fact that it reached the concerned Magistrate on the next day afternoon does not in any way impinge upon the value or way that can be attached to the F.I.R., especially in the absence of any thing to show that there was any possibility of false implication. It is not a case where there is any faction feud between PW.1 and the accused. For that the identity must not be known to each other. It is a case where both of them know each other since quite some time, as they were doing business in shops situated opposite on either side of the passage and there has been previous altercation between them owing to the persistent refusal of the accused to reduce the volume of tape recorder in his shop, in spite of repeated requests by PW.1. The fact that the complainant statement-Ex.P-1, was recorded almost immediately after the occurrence and the F.I.R. was also registered promptly in order to save the genuineness of the contents thereof, and rules out any false implication. In Ex.P-1, PW.1 has categorically narrated as to how the incident took place. The specific overt tact attributed to the accused and how the accused attacked him with the broken bottle and how PW.1 sustained injuries in the process of averting the attack, have all been narrated. In the evidence PW.1 reiterated the same and his testimony is duly corroborated by the contents of Ex.P-1 given at the earliest point of time. The availability of the weapon i.e., the Thumsup bottle at PW.1’s shop is also borrowed by the circumstance that PW.1 is a vendor of cool drinks as well besides running the telephone booth and general store. In the cross-examination, PW.1, no doubt, admitted that he does not know how the accused sustained injuries. As PW.1 sustained bleeding injuries and fell down unconscious, it is quite possible that he may not have witnessed as to how the accused sustained injuries. It is in the evidence of PW.6, that he found the accused also having a bleeding injury and sent him to Osmania General Hospital. Ex.P-6 is the O.P. sheet in respect of the accused issued by Osmania General Hospital. Ex.P-6 shows that a laceration injury of size 4 x 2 x 1 cms was found on the right palm with retained glass pieces. In Ex.P-6 it is no doubt stated that the accused was alleged to have been beaten by a known person with a glass bottle at 04:00 PM. In Ex.P-8, the injury certificate, pertaining to PW.1, it is clearly stated that PW.1 is alleged to have been beat by known person named Bhagwan i.e., accused at 04:00 PM at Saidabad. Thus, the name of the accused as the attacker and the nature of the weapon used, namely, the broken bottle has been specifically mentioned even at the earliest point of time i.e., when PW.1 was medically examined at 05:00 PM on 24.10.1999, almost immediately after the incident. In Ex.P-6, however, the name of the person who is said to have caused the injury on the accused is not referred to. In view of the evidence available on record it is quite possible that the accused while breaking the empty Thumsup glass bottle and attacking PW.1 with the broken bottle sustained injury on the right palm with glass pieces retained therein. Ex.P-6 also supports the prosecution case regarding the time of occurrence and the nature of the weapon used. The testimony of PW.1 regarding the occurrence has not been discredited in any manner and the same is duly corroborated by the medical evidence on record, besides other circumstantial evidence. 14. PW.2 is running a canteen in the cellar of the same complex where the shops of PW.1 and the accused are situated. According to him, on 24.10.1999 evening he heard some commotion from the shop of PW.1 and rushed there and found that the accused has taken out the empty Thumsup bottle from the shop of PW.1, broken the same and went upon PW.1 and there was harsh exchange of words between the accused and PW.1 and the accused stabbed PW.1 with the broken bottle and PW.1 sustained injury on the fore head. It is also in his evidence that when the accused tried to stab PW.1 again, PW.1 resisted the same by raising his hands by which the bottle got scattered in the hand of the accused and fallen on the ground. PW.2 who is doing business in the same complex is known to both PW.1 and the accused and is a natural witness to the occurrence. PW.2, no doubt, admitted that usually the shops will be closed on Sundays. The incident is said to have taken place on Sunday. In view of the direct evidence available on record to the effect that the shop of PW.1 and the accused were open on that day and the incident took place at 04:15 PM, the fact that the admission of PW.2 that usually the shops will be closed on Sundays is of no consequence. It is also in his evidence that the other shops in the complex are lying vacant. PW.2, who is a direct witness to the incident, supported the prosecution case regarding the attack on PW.1 by the accused and no material contradictions or omissions are elicited in his cross-examination, which only shows that he is mean consistent in his version both during investigation and also during trial. 15. PW.3-the wife of PW.1 is admittedly not a direct witness to the occurrence, in the sense that she was not present in the shop when the incident took place, but rushed there on hearing the cries of her husband and found him lying with bleeding injuries and she informed the police by telephone. The testimony of PW.1 would go to show that immediately after the occurrence, she arrived at the spot from the second floor, where she was residing, and found PW.1 with bleeding injuries and immediately informed the police. Thus, the direct evidence of PW.2 and the circumstantial evidence of PW.3 corroborate the testimony of PW.1 and support the prosecution case. 16. It is in the evidence of PW.6 that he observed the scene of offence in the presence of PW.4 and another and seized MO.1- broken glass piece of the Thumsup bottle and found a pair of chappal under panchanama, Ex.P-2. 17. PW.4 is an independent witness and he corroborated the testimony of PW.6 regarding the observation of the scene of offence and also the seizure of MOs. 1 and 5 there from and his evidence has not been discredited in any manner. 18. It is also in the evidence of PW.6 that he seized the blood stained clothes MOs.2 to 4 of PW.1 under a panchanama, Ex.P-3 in the presence of PW.5 and another. 19. PW.5 is also an independent witness and he fully corroborates the testimony of PW.6 regarding seizure of MOs.2 to 4, blood stained clothes from PW.1. Thus, the seizure of the weapon used from the scene of offence and the seizure of blood stained clothes from PW.1 in the hospital were also crucial factors, which support the prosecution case. 20. Coming to the medical evidence, PW.7-Professor of Plastic Surgery, who examined PW.1 at 06:15 PM, testified that he found the following injuries: “1.Irregular lacerated injury over the left for head temporal region with 8 x 4 x 1 cm. 2. Lacerated injury on right side of chin 4 ½ x ½ cm. 3. Avulsion skin on left temporal region.” According to PW.7, the injuries are simple in nature and he issued the final opinion-Ex.P-7. It is also in the evidence of PW.7 that one Dr. Ganga Kishore operated PW.1 as per record and PW.1 was discharged on 28.10.1999. In the cross-examination, PW.7 stated that if the injury is inflicted with a weapon similar to MO.1, incised wound will be caused. From this statement of PW.7, the learned counsel for the accused would contend that the injuries found on the person of PW.1 are not possible with weapon like MO.1. It is to be noted that PW.7 further stated that if the injury is inflicted with the material object like MO.1, it will cause laceration as well as incised wound. The evidence of PW.7, therefore, supports the case of the prosecution to the effect that lacerated wounds are also possible with a weapon similar to MO.1, which is broken glass bottle. In Ex.P-8 also it is stated that the injuries were possible with broken glass bottle. The medical evidence on record, therefore, supports the case of the prosecution that the injuries sustained by PW.1 are possible with a weapon like MO.1 and the seizure of broken glass pieces from the scene of offence corroborates the version of the prosecution that the weapon used in the offence was MO.1 itself. Further, the fact that the accused also sustained an injury on the right palm and it contained glass pieces is in view of the fact that the accused handled the said weapon MO.1 during the course of attack on PW.1. Thus, the evidence on record, both direct and circumstantial besides medical evidence, has fully established the ingredients of the offence under Section 324 I.P.C. 21. In A.M. Kunhikoya alias Koya v. State of Kerala[1], the Apex Court held that ‘the testimony of eye witnesses found to be reliable and trust-worthy, then accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused has not been explained by the prosecution’. In the present case, the direct evidence of PWs.1 and 2 clearly brought out the fact that the accused attacked PW.1 with broken glass bottle, MO.1 and the medical evidence on record and other circumstantial evidence corroborate the same. In fact, Ex.P-6, which is relating to the accused, also shows that accused handled a broken glass bottle and broken glass pieces were found in the injury on the right palm of the accused. Under those circumstances, the fact that the prosecution has not adduced sufficient evidence to establish the injury found on the person of the accused is not of much consequence and the overt tacts attributed to him are duly established by the evidence on record. 22. The contention of the learned counsel for the accused that no sufficient motive is shown to exist on behalf of the attack is also untenable. The testimony of PW.1 coupled with the contents of Ex.P-1 show that PW.1 has been repeatedly requesting the accused to reduce the volume of tape recorder in his shop as the same was causing inconvenience and disturbance to PW.1’s customers, particularly those making use of telephone facility and the accused was not heeding to the said request. The evidence on record further shows that even on the date of incident and just prior to the occurrence, PW.1 made a similar request to the accused and it again went unheeded by the accused and on the other hand, the accused came upon PW.1 and attacked him. According to the accused in 313 Cr.P.C. examination, the owner of the shop demanded him to vacate, but he refused to vacate and the owner of the shop gave report to the police against the accused and the accused was called to the police station and was threatened that a rowdy sheet would be opened against him, if he does not vacate and then he reported the matter to Assistant Commissioner of Police, Hyderabad. He would further allege that as he did not vacate the premises this false case is filed against him by PW.1 at the instance of the owner of his shop. There is nothing on record to show that there was any such dispute between the accused and his landlord and even, if any, such dispute was there, there is absolutely no reason to as why PW.1 should support the landlord of the accused and oblige him to the extent of giving a false complaint against the accused. The fact that PW.1 sustained bleeding injuries in the attack and the medical evidence on record support the version of the prosecution as to how and in whose hands and in what manner PW.1 sustained injuries would tend to falsify the version of the accused. Whether or not the defence plea is true, on reappraisal of the entire prosecution evidence it is found that the prosecution was able to establish the ingredients of the offence under Section 324 I.P.C. for which the accused was convicted. The trial Court has rightly found the accused not guilty of the offence under Section 307 I.P.C. as the ingredients of the said offence are not been established and there being the evidence on record, is however sufficient to warrant a conviction for the offence under Section 324 I.P.C. It is well settled that when the accused is found not guilty of the offence with which he was charged and when the evidence on record establishes lesser offence than the one with which he was charged, the accused can be justifiably convicted for the said lesser offence, even though no specific and separate charge is framed with regard to the lesser offence, in view of the Section 222 Cr.P.C. 23. In the circumstances, it is held that the conviction of the accused for the offence under Section 324 I.P.C. and the sentence of simple imprisonment for six months and to pay fine of Rs.500/- and in default to suffer simple imprisonment for one month as imposed by the trial Court against the accused in the impugned Judgment do not call for any interference by this Court. The trial Court shall issue a warrant against the accused for serving the remaining part of the sentence. 24. In the result, the Criminal Appeal is dismissed. ___________________ G.V.SEETHAPATHY, J 15.04.2010 MD [1] 1993 (SCC) (Crl.) 1078