*THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR +CRIMINAL REVISION CASE NO.74 OF 2007 % Dated 24-11-2009 Crl. R.C. No.74 of 2007 # 1. Paramata John, S/o. Venkata Rao, Aged 45 Years, R/o.Ambedkar Nagar, Saripalli. 2. Geddam Bala, S/o.Venkata Reddy, Aged 32 Years, Amaravathipuram, Saripalli. 3. Geddam Chitti, S/o.Abraham, Aged 22 Years, R/o.Amaravathipuram, Saripalli. ..... PETITIONERS VERSUS $ The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. ...RESPONDENT ! Counsel for Petitioner : Sri G. SIMHADRI ^ Counsel for Respondent. : Additional Public Prosecutor < GIST : > HEAD NOTE : ? Cases referred : --- 1) Bibi Singh v. State of U.P. 2) Balaka Singh V. State of Punjab. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE NO.74 OF 2007 Date: 24-11-2009 Between: Paramata John and two others. - - - Petitioners And The State of A.P., Rep. by its Public Prosecutor, High Court of A.P., Hyderabad. - - - Respondent. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL REVISION CASE NO.74 OF 2007 ORDER: This Criminal Revision is directed against the Judgment in Criminal Appeal No.19 of 2005, dated 11-01-2007 passed by the learned II Additional District and Sessions Judge, East Godavari district at Amalapuram, whereby and where under the first petitioner (A-1) has been sentenced to undergo Rigorous Imprisonment (Hereafter ‘R.I.’) for a period of two years and to pay a fine of Rs.100/- in default to suffer Simple Imprisonment (Hereafter ‘S.I.’) for four months for the offence punishable under Section 324 of Indian Penal Code (Hereafter ‘I.P.C.’) and the petitioners 2 and 3 i.e. A-3 and A-4 have been sentenced to undergo R.I. for a period of six months and to pay a fine of Rs.100/- in default to undergo S.I. for four months each. The petitioners herein will be referred as they are arrayed in the trial Court for the sake of convenience. The brief facts of the case are as follows : All the accused and material prosecution witnesses are residents of Saripalli village within the jurisdiction of Uppalaguptham police station. On 03-06-2003, at about 10-00 p.m. one Geddam Srinu who is handicapped was sleeping near Ambedkar statute by keeping his three wheeler rickshaw by his side, one Korukonda Jeevarathnam woke up G. Srinu and asked him to bring his three wheeler rickshaw. G. Srinu refused to accede to the request of K. Jeevarathnam, then K. Jeevarathnam is alleged to have pushed G. Srinu and taken away the rickshaw. On 04-06-2003 in retaliation to that K. Krupavaram and K. Jeevarathnam are alleged to have attacked one Geddam Nageswara Rao and others and beat them with sticks and caused injuries. As a result of this incident, Criminal cases in Crime No. 52 of 2003 and 53 of 2003 under Sections 324 read with 34 of I.P.C. have been registered in Uppalaguptham police station. As things stood thus, on 06-06-2003 at about 01-00 p.m. when Korukonda John (PW.1) and his son Korukonda Krupanandam (PW.2) were sitting near the mechanic shop of PW.1, A-1 to A-13 along with others armed with knives, axes and iron rods attacked PW.1 proclaiming that PW.1 should not be spared and he should be killed. A-1 beat PW.1 on his head with iron rod, A-2 is also alleged to have beat on the head of PW.1 with iron rod, A-3 beat PW.1 on his chest and stomach with a stick, A-4 beat PW.1 on his thighs with a stick, A-5 and A-6 beat him with sticks indiscriminately, A- 7 to A-11 also beat PW.1. The prosecution case is that PWs. 2 to 6 have witnessed the incident. Then PW.1 gave a written complaint to the police on the same day at 02-30 p.m. basing upon which a case in crime No.54 of 2003 under Sections 147, 148, 307, 324 read with 149 of I.P.C. was registered. Then, PW.1 was sent to Government Hospital, Amalapuram for better treatment. A-8, A-10, A-11 were arrested on 07-06-2003, A-1 to A-7, A-9, A-12 to A-14 were arrested on 09- 06-2003. After completion of investigation, the police filed charge sheet against the accused. The prosecution in support of its case, examined PWs 1 to 9 and got marked Exs.P-1 to P-17 and MOs. 1 to 3 material objects were marked. On behalf of the defence, none were examined and Ex.D-1 portion of 161 Cr.P.C. statement of PW.4 statement was marked. The learned Magistrate found A-7 to A-14 not guilty for the charges leveled against them i.e. under Section 307 read with 149 and 148 of I.P.C and accordingly acquitted them. The learned Magistrate however found A-1, A-3, A-4 guilty for the offence punishable under Section 324 I.P.C. and A-2, A-5 and A-6 were also found not guilty for the offence punishable under Section 307 I.P.C., A-1 to A-6 were found guilty for the offence punishable under Section 148 I.P.C. The learned Magistrate convicted A-1 to A-6 to undergo R.I. for a period of three years each and to pay a fine of Rs.100/- in default to suffer S.I. for four months each for the offence punishable under Section 148 I.P.C. A-1, A-3 and A-4 were sentenced to undergo R.I. for a period of three years and also to pay a fine of Rs.100/- in default to suffer S.I. for a period of four months each. Aggrieved by the same, the appellants preferred an appeal, the learned Sessions Judge, allowed the appeal in part and set aside the conviction of A-1 to A-6 for the offence punishable under Section 148 I.P.C. However, the conviction of A-1, A-3 and A-4 for the offence punishable under Section 324 I.P.C. was confirmed but, the sentence was modified to undergo R.I. for a period of two years and to pay a fine of Rs.100/- in default to undergo S.I. for a period of four months. A-3 and A-4 also sentenced to undergo R.I. for a period of six months and to pay a fine of Rs.100/- in default to suffer S.I. for four months. Aggrieved by the same, this Revision has been filed. The learned counsel for the petitioners/accused Sri G. Simhadri, submitted that the petitioners have been falsely implicated in this case, in view of the quarrels that occurred on 03-06-2003 and 04-06-2003. It is his submission that PW.1 is a drinker and that he fell down on a heap of stones and sustained injuries and that he was shifted to Hospital by a police constable of Amalapuram police station and taking advantage of the same, the petitioners and other accused have been falsely implicated in this case. It is also his submission that according to the prosecution case, the alleged incident took place at about 01-00 p.m. and that report was given at the police station at 02-45 p.m. and from there PW.1 was sent to Amalapuram, which is at a distance of about 20 kilometers from Uppalaguptham police station and in all probabilities, PW.1 could not have reached hospital before 04-00 p.m. It is his submission that surprisingly the police of Uppalaguptham had not taken PW.1 to the hospital but, a constable from Amalapuram police station had taken PW.1 to the hospital. It is his further submission that as per Ex.P5 Medical Certificate, PW.1 reached the hospital at 01-45 p.m. and that he informed the doctor that the incident occurred at 11-00 a.m. and four known persons beat him with sticks and iron rods. It is also his submission that as per in initial version, the incident took place at the mechanic shop of PW.1 but the evidence shows that the incident had taken place near the shop of one Devarapalli Tatha Rao and that scene of offence has been shifted. It is also his submission that all the alleged eye witnesses who are closely related to PW.1 did not come to the rescue of PW.1 and that their conduct is unnatural and in view of these inconsistencies and improbabilities, the prosecution version cannot be believed. It is also his submission that the Courts below have failed to read the evidence in proper perspective and that there is misreading of evidence and therefore the judgments of the Courts below have to be set aside otherwise, the same may result in lopsided injustice. The learned Additional Public Prosecutor submitted that PW.1 is injured witness and that evidence of PWs 2 to 6 and also the medical evidence corroborates the evidence of PW.1 and that much importance need not be given to the minor discrepancies. It is also submitted that both the Courts below on proper appreciation of the evidence found the accused/A-1, A-3 and A-4 guilty and no interference is required. Now the points that arise for consideration are : 1) Whether there is any misreading of evidence and if so whether Revisional powers have to be exercised in this case? 2) Whether the version of prosecution witnesses as far as A-1, A-3 and A-4 are concerned, can be accepted or whether the entire prosecution case has to be thrown out? It is settled legal position that Revisional power of the High Court should be exercised only when there is some glaring defect in the procedure or manifest error on a point of law resulting in miscarriage of justice. Normally, re-appreciation of the evidence is not permissible in revision. But, where in a case justice require interference for a correction of a manifest illegality or for the prevention of gross miscarriage of justice, the Revisional Court may re-appreciate the evidence. However, in a case of misreading or non-reading of evidence tentamounting to perversity such finding can be certainly interfered in Revision. Enmity between the accused and the victim is double-edged weapon, which may provide incentive for the crime and also provide reasons for falsely implicating the accused. It is also settled law that the evidence of witnesses who are inimical towards the accused should be scrutinized carefully. The important point to be considered is whether the accused has been falsely implicated in the case or not? The accused who committed the offence should not escape the punishment but at the same time, no innocent person should be convicted. The cardinal principle that “let nine guilty persons escape the punishment but, one innocent should not be punished” still holds good. Because, if one innocent is punished, the injury caused to that innocent person or to his family members can never be compensated. Holding trial against such innocent persons itself amount to harassment and convicting of an innocent person is not only illegal but inhuman. Therefore, the Judges must be very careful, they have to read the evidence carefully. The Courts have to examine whether the genesis of crime has been suppressed, whether an innocent person has been falsely implicated in a criminal case, whether there is any motive to implicate innocent persons in a criminal case, whether the prosecution version is natural, whether the evidence of witnesses is trustworthy, whether the Court can repose confidence in such witnesses and can safely convict the accused, whether the circumstances point out the guilt of the accused or the circumstances show that the prosecution version is improbable and unbelievable? It is also settled law that merely because a witness is an interested witness or inimical towards the accused, his evidence cannot be totally discarded. However, the same has to be appreciated carefully. It is also settled law that where it is possible to separate the chaff from grain, falsehood from truth, the evidence in part can be accepted but whereas it is not possible to separate chaff from grain and falsehood from truth, the entire case has to be thrown out. It is also settled law that where two views are possible, the view that is favourable to the accused shall be adopted. In a case between Bibi Singh Vs. State of Uttara Pradesh[1] it was held as follows : “If there are omissions, contradictions and exaggerations in the evidence of prosecution witnesses, such evidence cannot be held reliable and credible in the eye of Law. It is also settled law that minor contradictions in the statement of witnesses is not fatal for prosecution. Where there are interested witnesses, eye witnesses’ account would require a careful independent assessment and evaluation for their credibility. The conduct of the witnesses and whether their version is consistent or not and whether their version is probable or not and whether there is any ring of truth in the prosecution case or not have to be carefully considered.” It is most unfortunate that, the Courts below have not discussed some of the important aspects of this case. The material variation in the evidence of PW.1 and PW.8/the doctor who treated PW.1 was not taken into consideration. According to PW.1, on 06-06-2003 at about 01-00 p.m. while he was present at his son’s mechanic shop situated at Saripalli village, main road, all the accused armed with axes, sticks, iron rods, proclaiming that PW.1 should not live, attacked on him. His further case is that he ran towards the shop of D. Tatha Rao, where the accused had surrounded him. It is also his evidence that A-1 beat him with iron rod on his right side of his head saying “Lanja kodukuni brathakanivva kudadu, champeyandi.” Then, he received bleeding injury and fell on the ground. According to him, A-2 also beat with iron rod on right side of his head and caused injury by the side of the first injury. He further deposed that A-4 beat with a stick on his both thighs and right side of his ankle, A-3 beat him on his chest and stomach, A-5 and A-6 beat with sticks indiscriminately all over his body. He says PWs, 2, 3 and 4 came there and on seeing them all the accused ran away. According to him, PWs 2 to 4 shifted him to Uppalaguptham police station and he presented Ex.P1 report to the police, then, he was referred to Government Hospital, Amalapuram. PWs 2 to 4 have also deposed almost in the same lines in which PW.1 had deposed. Their evidence is almost parrot like. Now, it has to be seen, whether PWs 2 to 4 had in fact witnessed the incident and whether their version is natural and probable? PW.2 is no other than the son of PW.1. He says he was standing at a distance of 50 meters from the scene of offence where PW.1 was beaten. He admitted that he did not try to rescue PW.1 nor tried to secure anybody in the vicinity. He has also admitted none of the accused beat him. Coming to the evidence of PW.3, PW.1 is junior paternal uncle of PW.3. PW.3 also admitted that he lodged a complaint against culprits with regard to the incident that occurred on 04-06- 2003. Admittedly, PW.3 also did not intervene while PW.1 was being beaten. According to him, he was also not seen by the accused. PW.4 is the younger brother of PW.1, he too admitted that he did not try to rescue PW.1 from the hands of the accused of course, he stated that due to fear of the accused. However, it is a case of PWs 2 and 3 that on seeing them the accused ran away. According to PW.4, he did not state before police as in Ex.P4 to the effect that on seeing them, the accused ran away from the scene. A reading of evidence of PWs 2 to 4 gives an impression that their conduct is unnatural, if at all they were present when PW.1 was being attacked and they had seen the incident from the beginning to end in all probabilities, they would not have kept quiet and would have come to the rescue of PW.1. A careful reading of evidence of PWs 2 to 4 shows that their evidence is parrot like. The attribution of overt acts by each accused in sequence clearly shows that their evidence is parrot like. Their version that on seeing them the accused ran away also shows that there was no possibility for them to witness the entire incident. However each witness narrated the incident as if he had seen from beginning. Since, their version is parrot like and their conduct is unnatural their evidence which is partisan cannot be accepted. Then, there remains the evidence of PW.1 alone. Whether the evidence of PW.1 can be accepted? Whether there is any ring of truth in his evidence? Whether he is a trustworthy witness? No doubt, the medical evidence on record shows that PW.1 sustained injuries. Therefore, there cannot be any doubt to say that PW.1 sustained injuries on the date of incident. Though the doctor PW.8 stated that the injuries sustained by PW.1 are possible by fall from a cycle on a heap of stones but considering the place of injuries and nature of injuries, it appears there is nothing to disbelieve the version of PW-1 that he sustained injuries in an attack on him. As seen from the contents of F.I.R./Ex.P-6, Saripalli village is at a distance of 10 kilometers from Uppalaguptham police station. According to PW.1, the incident occurred at about 01-00 p.m. PW.1 went to police station and lodged a complaint at 02-30 p.m. It is the case of prosecution that then, PW.9 who was working as Sub Inspector of Police, Uppalaguptham police station registered the case and issued F.I.R. Ex.P-6. Then, he referred PW.1 to the Government Hospital, Amalapuram. PW.8 is the doctor who examined PW.1, according to PW.8, he examined PW.1 on 06-06-2003 at 01-45 p.m. It is not clear from the evidence what is the distance between Amalapuram to Uppalaguptham police station. However, when the case was registered at 02-30 p.m. and when PW.1 was referred to the Government Hospital after registration of the case, there is no possibility to examine PW.1 at 01-45 p.m. at Government Hospital, Amalapuram. According to PW.8, the doctor who examined PW.1, the injured informed him that he received injuries at 11- 00 a.m. on 06-06-2003 and that the injured further informed him that he was beaten by four known persons. The evidence of PW.8 is based upon the extracts of Accident Register i.e. Ex.P5. First of all, there is no need for the doctor to give false evidence, his evidence is based upon the entries made by him in the accident register. PW.8, the doctor being an independent witness, his evidence must be given due weightage. Thus, the evidence of PW.8 shows that the alleged incident occurred at 11-00 a.m. on 06-06-2003. According to PW.1, it took about one and half hours for him to go to hospital after the incident. Therefore, if the time of treating PW.1 is taken as 01-45 p.m., it is clear that the report was not given at 02-45 p.m. In all probabilities, the incident must have occurred at about 11-00 a.m. According to PW.1 he went to Uppalaguptham police station and lodged a complaint. But Ex.P5 shows that Amalapuram police constable brought PW-1. The said constable is not cited as a prosecution witness in charge sheet. It is also not mentioned in charge sheet that a constable of Amalapuram had taken PW.1 to the hospital. The explanation of Investigating Officer that since Amalapuram constable was readily available at police station, Uppalaguptham and therefore he was sent along with PW.1 appears to be an after thought since it is not based on any record. As seen from the contents of F.I.R. the incident occurred near the mechanic shop of PW.1 and PW.2 but, as seen from the evidence, the incident occurred at the shop of D. Tatha Rao. Unfortunately, both the Courts below have not even touched the evidence of PW.8/doctor who categorically deposed that PW.1 informed him that he received injuries at 11-00 a.m. on 06-06-2005 and that there were only four known assailants. Both the Courts have also not considered whether the evidence of PWs 2 to 4 is parrot like or not, whether the conduct of PWs 2 to 4 is natural or not? The Court may not accept a part of evidence of a witness and when such part of evidence goes to the root of the case, the Court cannot simply ignore the same. Thus, it appears to be a clear case of misreading of the evidence which resulted in gross injustice and which required to be corrected in Revision. From the above referred facts and circumstances, it is clear that the incident as stated by PW.1 did not occur as mentioned in F.I.R. Thus, the genesis of the case appears to have been suppressed. Therefore, the evidence of PW-1 cannot be accepted on its face value. Admittedly quarrels ensued between the accused party and the prosecution party on 03-06-2003 on 04-06-2003 and two Criminal cases were already registered and this is the third case which reported within two days after the registration of earlier two cases in Crime Nos.52 of 2003 and 53 of 2003 of Uppalaguptham police station. It is a case of PW.1 that A-1 and A-2 beat him with iron rods, A-3 to A-6 beat him with sticks and all other accused also beat him with sticks. In the F.I.R. he had mentioned 13 names however, the police filed charge sheet against 14 accused. According to PW.1, the accused had also armed with knives, axes and sticks. However, the injuries sustained by PW.1 according to PW.8 are only six as mentioned below: 1) A laceration of about 5 c.ms x 1 c.m. x 1 c.m. over the right frontal region red in colour. 2) A laceration of 1 ½ c.m. x ½ c.m. x ½ c.m. over the right leg red in colour. 3) Abrasion about 1 c.m. x ½ c.m. on the left cubital foes red in colour. 4) A contusion of about 3 c.m. x 3 c.m. over the left side of the chest reddish brown in colour. 5) A contusion of about 3 c.m. x 1 c.m. over the left thigh reddish brown in colour. 6) A contusion of about 1 c.m. x 1 c.m. on the right thigh brown in colour. The above injuries reveal that knives and axes were not used when PW-1 was attacked. Thus the evidence of PW.1 that the accused attacked him with knives and axes appears to be false and exaggerated version. As seen from the contents of Ex.P5 only four persons attacked PW.1. When 14 accused had beat PW.1 with iron rods and sticks and when it is alleged that A-5 and A-6 beat him indiscriminately in all probabilities PW.1 ought to have sustained much more number of injuries. According to PW.8, PW.1 sustained only one injury on his head. But, according to PW.1, A-1 dealt a blow with iron rod on his head, A-2 also beat him with iron rod on his right side of the head. Both the Courts have held that the injury sustained by PW.1 on his head is caused by A-1. When A-1 and A-2 both of them are alleged to have beat PW.1 with iron rods on his head and when doctor found only one injury how the injury sustained by PW.1 on his head cannot be attributed to A-1 alone. The injury sustained by PW.1 on his head can be reasonably attributed to both the Accused/A-1 and A-2. Thus it appears that attributing the injury on the head of PW.1 to A-1 alone and giving benefit of doubt to A-2 amounts to improper appreciation of evidence. The Appellate Court has given benefit of doubt to A-5 and A-6. They were found not guilty for the offence punishable under Section 148 of I.P.C. In view of the same, though in respect of A-3 and A-4 specific overt acts have been attributed with regard to the place of injury but in view of the evidence of PW.1 that A-5 and A-6 also beat him with sticks indiscriminately all over his body, attributing injuries only to A-3 and A-4 also appears to be not correct. If the prosecution case is believable and the evidence