* THE HON’BLE SRI JUSTICE K.G. SHANKAR + CRIMINAL REVISION CASE.Nos.890 of 2004 & 898 of 2004 % Dated 28.01.2011 Crl.R.C.No.890 of 2004: # Bandela Daveedu … Petitioner/A.5 v. $ State of A.P., Rep., by Public Prosecutor … Respondent Crl.R.C.No.898 of 2004: # Sattineedi Peddiraju. … Petitioner/A.2 v. $ State of A.P., Rep., by Public Prosecutor … Respondent ! Counsel for the Petitioners/A.5 & A.2 : Sri I.V.N.Raju ^ Counsel for Respondent : Public Prosecutor < GIST: > HEAD NOTE: ? Cases referred (1) 2002 (2) ALT (Crl.) 4 (A.P.) (2) 1998 Crl.L.J.3651 C/15 ORDER: The Revisions in Crl.R.C.No.890 of 2004 and Crl.R.C.No.898 of 2004 are disposed of through this common order. 2. P.W.1 lodged a police report. It was registered as F.I.R. P.W.5 gave another report in respect of the same incident. Curiously, the same Station House Officer who registered F.I.R. on the basis of the report of P.W.1 registered F.I.R. on the strength of the report of P.W.5 also. 3. In view of two F.I.Rs, two calendar cases arose in C.C.No.165 of 1999 and C.C.No.190 of 1999 on the file of Additional Judicial First Class Magistrate, Narsapur. However, the learned Additional Judicial First Class Magistrate, Narsapur more or less conducted a joint trial recording evidence commonly in both the cases. Conviction was recorded against various accused under various Sections. 4. A.1 in C.C.No.165 of 1999 was convicted for the offence under Sections 341 and 324 I.P.C. So far as the offence under Section 324 I.P.C. is concerned, A.1 was convicted on two counts. He was sentenced to rigorous imprisonment for a period of one year on each count under Section 324 I.P.C. A.3 and A.4 were also convicted for the offence under Section 324 I.P.C. on one count and were sentenced to rigorous imprisonment for a period of one year each. A.1 and A.3 to A.5 were found guilty for the offence under Section 341 I.P.C. Each of them was sentenced to pay fine of Rs.500/- each with appropriate default sentence. A.5 was further convicted under Section 324 read with 34 I.P.C. and was sentenced to rigorous imprisonment for a period of one year. 5. A.1 and A.3 to A.5 preferred Criminal Appeal No.28 of 2002 on the file of VI Additional Sessions Judge, Narsapur. In the appeal, A.3 was completely acquitted. He was found not guilty either for the offence under Section 341 I.P.C. or for the offence under Section 324 I.P.C. Convictions against A.1, A.4 and A.5 for the offences under Sections 341 and 324 I.P.C. were confirmed. The sentence of fine imposed by the trial Court for the offence under Section 341 I.P.C. was maintained in the appeal. The imprisonment of one year for the offence under Section 324 I.P.C. as recorded by the trial Court was modified to a fine of Rs.1000/- each by the appellate Court. 6. A.2, A.6 and A.7 preferred Criminal Appeal No.29 of 2002. In the appeal, A.6 and A.7 were found not guilty of any offence and were completely acquitted. The conviction recorded by the trial Court against A.2 for the offences under Sections 324 and 341 I.P.C. was confirmed by the appellate court. The fine of Rs.500/- imposed by the trial court against A.2 was maintained in the appeal. The sentence of one year’s rigorous imprisonment recorded by the trial court against A.2 for the offence under Section 324 I.P.C. was modified to a fine of Rs.1,000/- with appropriate default sentence. No revision was preferred by anyone either from the judgment in Criminal Appeal No.28 of 2002 or from the judgment in Criminal Appeal No.29 of 2002. The judgments in Criminal Appeals No.28 of 2002 and 29 of 2002, thus, became final. 7. A.2 in C.C.No.190 of 1999 was convicted for the offence under Section 325 read with 34 I.P.C. by the trial Court. He was sentenced to rigorous imprisonment for a period of two years and fine of Rs.1,000/- with appropriate default sentence. He preferred appeal in Criminal Appeal No.33 of 2002 before the learned VI Additional Sessions Judge, Narsapur. The appeal was dismissed. Aggrieved by the same, A.2 in C.C.No.190 of 1999 preferred Criminal Revision Case No.898 of 2004. 8. A.5 in C.C.No.190 of 1999 was found guilty for the offence under Section 326 read with 34 I.P.C. by the trial Court. A.5 was sentenced to rigorous imprisonment for a period of two years and fine of Rs.1,000/- with appropriate default sentence. A.5 preferred Criminal Appeal No.30 of 2002 and the same was dismissed. A.5, consequently, preferred Criminal Revision Case No.890 of 2004. Thus, Criminal Revision Case Nos.890 of 2004 and 898 of 2004 came up before me, which are preferred by A.5 and A.2 respectively in C.C.No.190 of 1999 on the file of Additional Judicial First Class Magistrate, Narsapur. 9. The prosecution has examined eleven witnesses and marked Exs.A.1 to A.14. So far as the accused in C.C.No.165 of 1999 are concerned, the trial court and appellate court found that they were guilty of causing simple injuries to the victims. So far as A.5 and A.2 in C.C.No.190 of 1999 are concerned, they were found to have caused grievous injuries to the victim. 10. Sri I.V.N. Raju, learned counsel for the accused, pointed out that the Radiologist was not examined and the X-ray showing the injury to the victim was not marked. It is his contention that when the Radiologist was not examined and the X- ray was not marked, the prosecution cannot claim that the victim sustained grievous injuries. The injuries alleged in the present case are fractures. 11. The learned counsel for the accused placed reliance upon ERLAPALLI PRAKASHAM v. STATE OF A.P.[1] It was a case under Section 338 I.P.C. apart from under Sections 304-A and 337 I.P.C. Where the X-ray reports were not filed and exhibited before the trial Court, even where the Radiologist was not examined, the High Court considered that the prosecution failed to make out a case under Section 338 I.P.C. and held that the offence should be considered to have been made out under Section 337 I.P.C. only. In P.JOHNSON AND OTHERS v. STATE OF KERALA[2], it was alleged that the accused caused grievous hurt to the victim. The discharge certificate and the X-ray report of the injured showed that the injured suffered from grievous hurt. The Doctor who took X-ray was not examined and X-ray report was not produced. The Kerala High Court held that the prosecution failed to establish the guilt of the accused either for the offence under Section 325 I.P.C. or under Section 326 I.P.C. 12. The Kerala High Court’s case cited above squarely applies to the present facts of the case where neither the Radiologist was examined nor the X-ray report was produced and marked. At the same time, it is admitted that the victim sustained injuries. Consequently, it shall be considered that A.5 and A.2 caused simple injuries to the victim and not grievous injuries. I agree with the contention of the learned counsel for the accused that A.2 is guilty for the offence under Section 323 read with 34 I.P.C. and A.5 is guilty for the offence under Section 324 read with 34 I.P.C. instead of for the offence under Section 325 read with 34 I.P.C. and under Section 326 read with 34 I.P.C. The convictions recorded by the trial Court and confirmed by the appellate Court, accordingly, are modified to conviction under Section 323 read with 34 I.P.C. so far as A.2 is concerned and to Section 324 read with 34 I.P.C. so far as A.5 is concerned. 13. I had already referred to various circumstances including the findings of the court in Criminal Appeals No. 28 of 2009 and 29 of 2002. The learned counsel for the accused referred to these judgments to show that when the accused were found guilty for the offence under Section 324 I.P.C., the appellate Court imposed the punishment of penalty of Rs.1,000/- as fine instead of jail term. I consider that A.2 and A.5 stand even on a better footing than the other accused since A.2 and A.5 are found guilty not for the offence under Sections 323 and 324 I.P.C., but for the offence under Sections 323 and 324 I.P.C. with the aid of 34 I.P.C. only. Consequently, their sentence of imprisonment deserves to be modified to fine of Rs.1,000/-. 14. Accordingly, these Criminal Revision Cases are allowed in part. The conviction against A.2 under Section 325 read with 34 I.P.C. and conviction against A.5 under Section 326 read with 34 I.P.C. as recorded by the trial Court in C.C.No.190 of 1999 are modified to conviction under Section 323 read with 34 I.P.C. and 324 read with 34 I.P.C. respectively. A.2 and A.5, who are the revision petitioners herein, are accordingly found guilty for the offence under Section 323 read with 34 I.P.C. and 324 read with 34 I.P.C. and are sentenced to fine of Rs.1,000/- each in default of payment of which to undergo simple imprisonment for a period of three months each. These criminal revision cases are ordered accordingly. __________________ K.G.SHANKAR, J 28th January 2011 KSP [1] 2002 (2) ALT (Crl.) 4 (A.P.) [2] 1998 Crl.L.J.3651