THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.286 of 2005 Date:25.3.2011 Between: Marella Sreerama Murthy ………..Petitioner/accused-A-2. And State of Andhra Pradesh, represented by its Public Prosecutor, High Court of Andhra Pradesh, Hyderabad. ……….Respondent. THE HON’BLE SRI JUSTICE B.N.RAO NALLA CRIMINAL REVISION CASE No.286 of 2005 JUDGMENT: A-1 and A-2 in C.C. No.342 of 2002 on the file of the learned II Additional Junior Civil Judge – cum – Judicial Magistrate of First Class, Bapatla were tried for the offence under Section 326 read with 34 IPC. However, the said Court by its judgment dated 11-05-2004 found A- 1 not guilty of the offence under Sections 324 and 326 read with 34 IPC and accordingly he was acquitted therefor. The trial Court found A-2 guilty of the offence under Section 326 IPC and accordingly he was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.1,000/- and in default of payment of fine to suffer simple imprisonment for one month for the said offence. 2. Aggrieved by the said judgment and order of conviction and sentence of the trail Court, A-2 preferred Criminal Appeal No.201 of 2004 on the file of the learned I Additional Sessions Judge, Guntur. However, the said first appellate Court, after hearing both sides and after considering the material on record, dismissed the appeal confirming the impugned judgment and order of conviction and sentence by its judgment dated 22-02-2005. It is against this judgment in dismissing his appeal, A-2 preferred this revision, inter alia, on the following grounds: a) that both the Courts below failed to appreciate the evidence and other material on record in proper perspective; b) that both the Courts below failed to extend the benefit of doubt to A-2 along with A-1; c) that both the Courts below failed to take note of the fact that there were clear discrepancies in the evidence of PWs.1, 2, 5 and 6, and as such, A-2 also ought to have been acquitted along with A-1; and d) that both the Courts below ought to have seen that the petitioner, A-2, had neither intention nor motive to attack and cause injuries to PW.1 and also as PW.1 did not attribute any motive to the accused; 3. the facts of the case, in brief, are as follows: PW.1 is the proprietor of a kirana shop (General Provisions Store) and was running the same at Pallepadu village and A-2 is also resident of the same village. Three years prior to the alleged incident, A-1 obtained provisions from PW.1 worth of Rs.1,600/- or raised a loan for the said amount, and did not pay that amount. However, he did not repay the same. A-1 also raised Rs.1,200/- from PW.1 by pledging a gold ring through PW.3. When A-1 directly went to PW.1 and demanded the ring by paying the loan amount of Rs.1,200/-, PW.1 expressed his intention to adjust the same towards the amount of Rs.1,600/- for the provisions obtained by him on credit and, in fact, adjusted as such. Thereafter, PW.3 was brought by A-1 and on that he returned the ring to PW.3 Keeping the same in mind, during the night of 26-02-2002, at about 11-30 PM, A-1 quarrelled with PW.1; and after some time, he again came along with A-2 and raised a quarrel with PW.1, during the course of which, A-2 hit PW.1 on his head with a stick causing bleeding injury, due to which PW.1 fell down and became unconscious and the accident has taken place in the presence of PWs.2, 6 and three others. LW.6 Kanaparthi Nageswar Rao took the injured to Government General Hospital, Guntur in his jeep. PW.4 C. Indira Devi, C.M.O., G.G.H. Hospital, Guntur treated PW.1 and on receiving intimation from the hospital, PW.7, Head Constable of G.G.H. P.S., recorded the statement of PW.1 as well as PW.2 and sent the same to Pedanandipadu Police Station and basing on the statement of PW.1, PW.8, the Station House Officer of the said Police Station, registered a case in Crime No.12 of 2002 against the accused under Section 324 read with 34 IPC. On 05-03-2002, both the accused were arrested and sent them for remand. On receiving wound certificate - Ex.P-3 issued by PW.4 on 10-05-2002, PW.8 altered the provision of law from Section 324 IPC to 326 read with 34 IPC. After completion of the investigation, PW.8 laid charge sheet into the trial Court. 4. On A-1 and A-2 pleading not guilty to the charge, they were tried for the offence under Section 326 read with 34 IPC. 5. The prosecution, in order to prove its case, has got examined PWs.1 to 10 and got marked Exs.P-1 to P- 12 apart from MO.1 on its behalf, whereas no witnesses were examined and no documents were marked on behalf of the accused. 6. The trial Court, on appreciation of the evidence of the prosecution witnesses and other material on record, came to a conclusion whereby it found A-1 not guilty of the offence under Section 326 read with 34 IPC, however found A-2 guilty of the offence under Section 326 IPC and convicted and sentenced him for the said offence as specified in paragraph No.1 supra. Aggrieved by the said judgment and conviction and sentence of the trial Court, A-2 preferred Criminal Appeal No.201 of 2004 on the file of the learned I Additional Sessions Judge, Guntur and the said first appellate Court by its judgment dated 22-02-2005 after hearing both sides and after re-appreciating the evidence on record dismissed the appeal confirming the conviction and sentence of A-2 passed by the trail Court. Assailing the same, A-2 preferred this revision. 7. The learned counsel for the petitioner-A-2 raised the selfsame grounds as he has raised in the grounds of revision and it is further contended that the evidence of PW.2, that on 26.2.2002, at about 2.00 a.m., A-1 and A-2 went to the house of PW.1 and started abusing him in filthy language and PW.1 woke up to the abuses. Then PW.1 went to the tobacco barrel of PW.5 near his house and enquired from him as to whom A-1 and A-2 were abusing, he replied that they were not abusing him (PW.1). That thereafter, he contacted his brother PW.2 on telephone and PW.2 reached his house and while PW.1 was explaining to PW.2 about the loan transaction of A-1, A-1 charged towards him and embarrassed him and A-2 beat him with babul stick on the right side of his head in the presence of P.Ws.2, 3, 4, 5 & 6 and L.W.3-Aruna Kumar & L.W.4-Movvala Venkateswarulu and caused bleeding injury. That due to the bleeding injury, PW.1 became unconscious and he regained consciousness in Government General Hospital, Guntur on the next day. He also stated in the evidence that his brother PW.2 informed him that he had preferred police complaint. However, the prosecution case, as per the charge sheet is that the incident as stated by PW.1 had occurred on 26.2.2002, at about 11.30 p.m., therefore, it is contended that the date and time of the alleged incident as spoken to PW.1 and as stated in the charge sheet are different and distinct. Therefore, both the Courts below have erred in considering the same as a minor discrepancy not affecting the veracity of the prosecution case. It is further to be found in the evidence of PW.1 that A-1 had purchased some provisions from him worth of Rs.1,600/- and failed to pay for them till seven months prior to the incident. However, as per the charge sheet, A-1 had raised Rs.1,600/- as loan from PW.1, as such there is variation as to the prosecution story and the version of PW.1 as to how A-1 was indebted to PW.1 for an amount of Rs.1,600/-. Therefore, it is contended that the variation in the evidence of PW.1 and the prosecution case as to the date and time of the occurrence of the alleged offence and as to the nature of the transaction by which, A-1 was indebted to PW.1 for an amount of Rs.1,600/- is fatal to the case of the prosecution and both the Courts below had failed to take note of the same. It is the further case of the revision petitioner-A-2 that if at all accused-A-1 & A- 2 had assaulted PW.1 during the dead of night, PW.1 should have approached Pedanandipadu Police, which is nearer to his residence and of course, the police would have referred him to a nearest Government Hospital, preferably at Chilakaluripet, which is nearer to the place of the police station as well as PW.1, but the police would not have preferred Government General Hospital, Guntur, a far off place. That PW.1 not attending the Pedanandipadu Police Station is indicative of the fact that A-1 and A-2 were falsely implicated in a pre-planned manner. It is the further case of the petitioner-A-2 that PW.1 has testified in his cross-examination that he was not having any money lending license and as such, it cannot be said that he was also carrying on the money lending business and as such the question of A-1 pledging his gold ring with him through PW.3 does not arise. That pledging of the gold ring by A-1 is a story created by the prosecution for the purpose of this case. Further, though PW.1 has stated in his cross-examination that he maintained day-book, wherein he had recorded the lending of Rs.1,600/- to A-1, he failed to produce the said book either before the police or before the Court, therefore, his version that A-1 was indebted Rs.1,600/- to him should not have been believed by both the Courts below. It is further the case of the revision petitioner-A-2 that as per the prosecution case, PW.1 had regained his consciousness at Government General Hospital, Guntur in the afternoon and it is also the case of the prosecution that PW.1 was examined by the police and his statement was recorded on 28.2.2002 at 10.00 a.m. Therefore, it is contended that when PW.1 is stated to have been unconscious till the afternoon of 28.2.2002, how could the police examined him and he had recorded his statement at 10.00 a.m., i.e morning hours of 28.2.2002? That even Ex.P3-wound certificate does not disclose that PW.1 was unconscious at the time of his admission into Government General Hospital, Guntur. Therefore, it is contended by the learned counsel for the revision petitioner-A-2 that accused-A-1 & A-2 were falsely implicated in this case, after due deliberations by PWs.1 and 2. It is further the case of the petitioner-A-2 that P.Ws.1 and 2 are blood brothers. A-1 and A-2 are alleged to have warned PW.5 about his family affairs, that P.W.6 is said to be a tenant of L.W.4-Movvala Venkateswarlu, who is his brother-in-law of PW.1 and as such it is contended that P.Ws.1, 2, 5 and 6 are interested witnesses and their evidence ought to have been appreciated cautiously by the Courts below and both the Courts below committed an error in not doing so. So far as the bleeding injury on the head of PW.1 is concerned, it is in the evidence of P.W.2 that while PW.1 was being taken to Government General Hospital, Gutnur, blood was oozing out from his mouth. However, it is not the case of the prosecution that PW.1 had suffered such an injury at the hands of the accused, which caused oozing of blood from his mouth as well. That it is also in the evidence of P.W.5 that he did not observe any blood stain on the shirt of PW.1. If, PW.1 had suffered a bleeding injury on his head, it would have fallen on his shirt and the absence of blood stain on his shirt goes to show that PW.1 did not suffer any injury, much less, a bleeding injury at the hands of the accused. It is also contended that since MO.1-babul stick was not seized from the accused, MO.1-babul stick loses its evidentiary value, as such, it cannot be said that the accused used MO.1 while committing the offence. It is contended on behalf of the petitioner-A-2 that the alleged MO.1-babul stick cannot said to be a dangerous weapon alleged to have been used by the accused. Moreover, since the accused did not carry MO.1 along with them for the alleged assault of PW.1, it cannot be said that the accused-A-1 & A-2 had intention or motive of assaulting PW.1. That the prosecution has failed to bring the material on record to prove the same and as such, it is contended that when the trial Court had come to a conclusion that when both the accused were charged under Section 326 read with Section 34 IPC, both of them are liable for the said offence even it only one of them has assaulted the complainant. In this case, PW.1 was alleged to have caught hold by A-1 by facilitating A-2 in assaulting him with MO.1-babul stick. The trial Court was not justified in acquitting A-1 and convicting A-2 on the same evidence. 7. In the above facts and circumstances, what emerges is that both the Courts below have committed an error and misdirected themselves in not considering the above facts and thereby came to a wrong conclusion in convicting A-2 for the offence under Section 326 IPC, while acquitting A-1 for the offence under Section 326 read with Section 34 of IPC. It is settled law that when more than one accused are tried for any offence with the aid of Section 34 IPC, all of them become liable for the offence charged with and they are also required to be punished accordingly. In this case, both the Courts below have not considered the settled law and as such this Court is of the view that in the above facts and circumstances as already been discussed herein above, the impugned judgment and order of conviction and sentence is liable to be set aside. 8. In the result, the Criminal Revision Case is allowed, setting aside the impugned judgments of both the Courts below in convicting the Accused-A-2 for the offence under Section 326 I.P.C., and, accordingly, he is acquitted of the said offence and he shall be set at liberty, forthwith, if not required in any other case. The fine amount, if any, paid by the revision petitoner-A-2 shall be refunded to him. The bail bonds, if any, shall stand cancelled. _____________________ JUSTICE B.N.RAO NALLA Date:25.3.2011 Mrb/pv