THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.1886 OF 2004 DATED: 20-08-2010 Between P.Vandanam …Petitioner-A4 And State of A.P. rep. by Public Prosecutor, High Court of A.P. Hyderabad. …Respondent-Complainant THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.1886 OF 2004 ORDER: This revision under Sections 397 and 401 Cr.P.C. is directed against the judgment, dated 27-10-2004, in Crl.A.No.199 of 2001, on the file of the VI Additional Sessions Judge, Ongole. 2. Brief facts, that are necessary for disposal of the present revision may be stated as follows: There are two rival groups in P.Thakkapallapdu and one group led by Premala Kotaiah on behalf of TDP and another group led by Premala Peda Brahmaiah on behalf of Congress I party. There were disputes existing in between prosecution witnesses in connection with erection of Yesu Sila on the tank bund. While so, on 16-08-1998 A2 engaged his men and while erecting Yesu Sila on the tank bund, all the accused formed themselves into an unlawful assembly armed with deadly weapons and threatened Brahmaiah for removal of Yesu Sila on the tank bund and threatened him that if he did not remove the same, they will damage it. On the same day at 2 P.M., A1 and A3 damaged the said Yesu Sila with a tractor and when Brahmaiah and others questioned their behaviour, a scuffle took place. During that scuffle, Brahmaiah and four others received injuries from the hands of the accused. On a report given by Brahmaiah, police registered a case, investigated into it and after completion of investigation, filed charge sheet. 3. Charges under Sections 147 and 148 IPC against A1 to A7, 324 IPC against A1, A2 and A3, 326 IPC against A4 and 324 IPC against A1,A2,A6 and A7 were framed read over and explained to them in Telugu, for which they pleaded not guilty and claimed to be tried. 4. In order to bring home the guilt of the accused, the prosecution examined P.Ws.1 to 10 and got marked Exs.P-1 to P-11. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating circumstances appearing against them in the evidence of prosecution witnesses. They denied the same and reported no evidence. 6. The learned III Additional Munsif Magistrate, Ongole, after considering the oral and documentary evidence on record, vide judgment, dated 26-09-2001, in C.C.No.237 of 1998, convicted and sentenced A1 to A7 to pay a fine of Rs.300/- each, in default to undergo SI for one month each of the charge under Section 147 IPC, further convicted and sentenced A1 to A3 to undergo S.I. for six months each and to pay a fine of Rs.500/- each, in default to undergo SI for one month each of the charge under Section 324 IPC and further convicted and sentenced A4 to undergo SI for six months and to pay a fine of Rs.500/-, in default to undergo SI for one month of the charge under Section 326 IPC. On appeal, the appellate Court, while setting aside the convictions and sentences recorded against the other accused, found A4 guilty of the offence punishable under Section 325 IPC and confirmed the sentence imposed against him. Challenging the same, A4 preferred this revision. 7. Now the point for determination is whether the findings of the appellate Court are legal, proper and correct? 8. Learned counsel appearing for the petitioner-A4 contended that there is no evidence to show that P.W.8 sustained grievous injury within the meaning of Section 320 IPC, that simply because P.W.3 has stated that P.W.8 sustained grievous injury, that cannot be taken as a gospel truth, that in the absence of any X ray report and examination of Radiologist, it cannot be said that P.W.8 sustained fractures and hence, he prays to set aside the conviction and sentence recorded against the petitioner. 9. On the other hand, counsel representing the learned Public Prosecutor contended that the evidence of P.W.3 is based upon X ray report of the Radiologist, that the appellate Court rightly found A4 guilty of the offence punishable under Section 325 IPC, that none of the findings is shown to be perverse or contrary to law and hence, there are no grounds to interfere with the same. 10. Revisional jurisdiction of this Court under Sections 397 and 401 Cr.P.C. is truncated one. Unless the findings are improper, illegal or incorrect or admissible evidence was overlooked or inadmissible evidence was taken into consideration, ordinarily this Court would not interfere with the same. It is also equally well settled that this Court cannot sit as if in an appeal and re-appreciate the evidence. 11. The prosecution must establish the case beyond all reasonable doubt for the charge levelled against the petitioner. According to the prosecution, the present petitioner beat P.W.8 with a stick on the left hand, as a result, P.W.8 sustained fractures. There cannot be any dispute that any fracture in the body is a grievous hurt within the meaning of Cl.(7) of Section 320 IPC. No doubt, P.W.3 who examined P.W.8 issued Ex.P4 wound certificate stating that P.W.8 sustained fracture. The evidence of doctor has to be appreciated like that of the evidence of any other witness. Simply because the doctor stated that P.W.8 sustained fracture, it does not mean that it has to be accepted unless there is some supporting material because he is not the person who has taken the X rays. Opinion of P.W.3 is based upon the opinion of expert namely Radiologist, but the Radiologist was not examined. Similarly the X rays of P.W.8 were not brought on record. Similarly, the opinion of the Radiologist is not marked as an exhibit. So in the absence of evidence of expert with regard to P.W.8 sustaining fracture, the petitioner cannot be convicted for the offence punishable under Section 325 IPC. However, the evidence of P.Ws. 4 and 8 would go to show that the present petitioner beat P.W.8 with a stick. Therefore, A4 voluntarily caused hurt to P.W.8 with a dangerous weapon. Hence, the offence committed by A4 is punishable under Section 324 IPC because the prosecution failed to establish the fracture sustained by P.W.8. Therefore, conviction and sentence recorded against the petitioner-A4 of the offence punishable under Section 325 IPC are set aside. The petitioner is found guilty of the offence punishable under Section 324 IPC. 12. With regard to sentence, considering the facts that the incident had taken place a decade back and no untoward incident had happened, it is desirable at this stage to impose fine instead of sending the petitioner to jail. Therefore, the petitioner-A4 is sentenced to pay a fine of Rs.2,000/- (Rupees two thousand only), in default to undergo R.I. for one month. 13. With the above modification, the Criminal Revision Case is partly allowed. ------------------------------- JUSTICE K.C.BHANU DATED:20-08-2010 Hsd