THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE NO.70 OF 2003 ORDER: This Criminal Revision Case is directed against the judgment dated 27.10.2001 made in Criminal Appeal No.72 of 1999 on the file of the Special Sessions Judge-cum-IV Additional Sessions Judge, Tirupati, whereunder and whereby the conviction of the revision petitioner/accused No.3 imposed in judgment dated 26.02.1999 in C.C.No.48 of 1993, on the file of the Judicial Magistrate of First Class, Piler, for the offence under Section 326 IPC was modified to that of conviction under Section 325 IPC while confirming the sentence of rigorous imprisonment for two years and fine of Rs.2,000/- 2. The brief facts, that are necessary for disposal of the revision as depicted by the prosecution witnesses, may be stated as follows: There were property disputes between the accused and Ramachandra Naidu (P.W.2) and they are all close relatives. On 11.03.1993, accused No.2 is said to have taken away a stone grinder from the premises of P.W.2 during the absence of P.Ws. 2 and 3 and thereafter P.W.2 is said to have gone to the residence of the accused and objected for taking away the stone grinder. On the same day at about 9.00 p.m, accused Nos.1 to 4 armed with wooden pestles and stones went to the house of P.W.2, attacked him and caused injuries. Accused No.3 beat P.W.2 with pestle on his right shoulder and on the left forearm and caused fracture injury. Accused No.2 beat P.W.2 with pestle on his right forearm and accused No.1 beat P.W.2 with a stone on his left shoulder. When Anjamma (P.W.3), wife of P.W.2, went to the rescue of P.W.2, accused Nos.1 and 2 beat her with hands on her head and back. On witnessing the incident, P.Ws.4, 5 and 7 went and rescued P.Ws.2 and 3 from the hands of the accused and the accused left the scene of offence. The injured were taken to Hospital and after treatment, they were taken to the police station. P.W.3 lodged a report (Ex.P2). The police received the same and registered a case. P.W.8 took up investigation, examined the witnesses and referred P.W.2 to the Government Hospital, Piler and on the next day, he visited the scene of offence, observed the scene of occurrence; seized the pestle from the scene of offence and prepared a rough sketch. P.W.9 took up further investigation, arrested the accused on 16.03.1993 and after receipt of wound certificate and after completion of investigation, he filed the charge sheet. 3. When the charges under Sections 326 and 324 read with 109 IPC were framed against the accused, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws.1 to 10 and got marked Exs.P1 to P14. 5. The trial Court, after considering the evidence on record, found accused Nos.1 and 3 guilty of the offence under Sections 324 IPC and released them under Section 360 Cr.P.C. Further, it found accused Nos. 2 and 3 guilty of the offence under Section 326 IPC and they were convicted and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs.2,000/- in default to undergo simple imprisonment for nine months. On appeal preferred by accused Nos.2 and 3, the learned Additional Sessions Judge modified the conviction from Section 326 IPC to Section 325 IPC, however, confirmed the same sentence. Hence, this revision is filed by accused No.3. 6. Now the point for determination is: “Whether the judgments of the Courts below are correct, legal and proper insofar as conviction and sentence passed against the revision petitioner is concerned?” 7. Heard learned counsel for the revision petitioner and learned counsel representing the learned Public Prosecutor for the respondent. 8. The learned counsel for the revision petitioner contended that accused No.2 was given benefit of doubt by this Court in Criminal Revision Case No. 1420 of 2001 and therefore, accused No.3 should also be extended the same benefit of doubt in view of the fact that evidence of P.Ws.2 and 3 is inconsistent and their evidence is not corroborated by any other evidence. 9. On the other hand, the learned counsel representing the learned Public Prosecutor contended that both the Courts below gave a concurrent finding with regard to the overt acts attributed to the revision petitioner with regard to his presence and participation in the commission of the offence and the finding of the Courts below is neither illegal nor incorrect. Hence, prays for dismissal of the revision. 10. There cannot be any dispute that the revisional powers under Sections 397 and 401 Cr.P.C are truncated. No doubt, the revisional powers can be exercised when there is a perverse finding given by the Court below or that the findings are not based upon any admissible evidence or that inadmissible evidence is taken into consideration in convicting the accused. 11. The case rests upon the evidence of P.Ws.2 and 3, who are the husband and wife. This Court in Criminal Revision Case No.1420 of 2001 has not placed any reliance on the evidence of P.Ws. 2 and 3 in view of the fact that there are serious contradictions in their evidence and accordingly gave benefit of doubt to accused No.2 and set aside the conviction and sentence. It is also observed in the judgment in Criminal Revision Case No.1420 of 2001 that the presence of P.W.3 has not been spoken to by P.W.2 at all, whereas he had spoken about the presence of the other eye witnesses. The other witnesses P.Ws. 1, 5 and 7, who were present at the time of the incident, did not support the case of the prosecution. They have given a complete goby to their earlier version. Except marking Exs.P6 to P8, their statements recorded by the police during the course of investigation under Section 161 (3) Cr.P.C, nothing was elicited from them to connect the revision petitioner with regard to the beating of P.Ws. 2 and 3. There cannot be any dispute that the statements recorded by the police during the course of investigation cannot be used for any other purpose except for contradicting the witnesses in the manner as provided under Section 145 of the Indian Evidence Act, 1872. Therefore, the case rests upon the evidence of P.Ws. 2 and 3. Though it is alleged that P.W.3 has also sustained injuries in the hands of the present petitioner, but there is no medical evidence to show that she sustained injuries in the hands of the accused in the same incident. When the presence of P.W.3 has not been spoken to by P.W.2 and she has not sustained any injuries, her evidence has to be viewed with suspicion. P.W.3 stated that accused No.2 dealt with a blow on P.W.2 with a pestle on his right hand. That aspect has not been spoken to by P.W.2. She also stated that accused No.3 beat P.W.2 with a pestle on his left elbow and accused No.2 beat with a stick on the left shoulder of P.W.2. The trial Court gave a finding that P.W.2 differed with P.W.3 with regard to the overt acts and also on the place where the blows were dealt with on the body of P.W.2. The alleged attack by accused Nos.2 and 3 is one and the same during the course of the same incident. When this Court in Criminal Revision Case No.1420 of 2001 has not placed any reliance on the evidence of P.Ws. 2 and 3 insofar as accused No.2 is concerned, the same benefit of doubt should be extended to accused No.3 also because the evidence of P.Ws. 2 and 3 with regard to causing of injuries to P.Ws. 2 and 3 is one and the same during the course of the same incident. Hence, the revision is liable to be allowed. Accordingly, the Criminal Revision Case is allowed setting aside the judgment in Criminal Appeal No. 72 of 1999 on the file of the Special Sessions Judge-cum-IV Additional Sessions Judge, Tirupati. The revision petitioner/accused No.3 is found not guilty of the offence punishable under Section 325 IPC and he is acquitted of the same. The bail bond of the revision petitioner shall stand cancelled and the fine amount, if any, paid by him shall be refunded to him. ______________ K.C.BHANU, J Dated 5th November, 2009 vrn