HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2470 OF 2004 Dated 23-03-2011 Between: Boya Manyamkonda ……..Appellant And: State of A.P., rep. by its PP, High Court of A.P., Hyderabad. ………Respondent HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2470 OF 2004 JUDGMENT: This appeal arises out of the conviction and sentence passed by the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge-cum-XX Additional Chief Judge, Hyderabad at Secunderabad in S.C.No.223 of 2004 dated 20.09.2004. The appellant herein is the A.1 and he was prosecuted with another Accused A.2 by name Mohd Khaleel Ahmed for the offences under Sections 332, 333, 447, 427 and 506(ii) read with 34 IPC. The brief case of the prosecution is that on 31.12.2003, at about 21.20 hours while the gateman Lakhsmaiah closed the gate at LC 76, Kaukuntla for Bangalore express, the accused who were going by a scooter picked up quarrel with him for not opening the said railway gate and questioned as to why he did not open the gate when they came. They went underneath the gate with their scooter. Laxmaiah replied that he will open the gate after passing of Bangalore train. But both the accused deterred Laxmiah from discharging his duties, A.1 caught-hold the collar of complainant and gave first glow on his mouth, resulting one tooth dislocated from his mouth and sustained bleeding injuries. He threatened him and forcibly placed on the railway track. Meanwhile the villagers intervened and rescued them. After passing Bangalore train gate man opened the gate and he went into his room. Again A-1 came to him and beat him. They broke two Hand Signal lamps, and torchlight. Thereafter both the accused left on scooter. The matter was informed to the Station Master who was on duty at Deverkadra. P.W.1 lodged a complaint and the same was registered in Crime No.1 of 2004 under Sections 353, 332, 427 read with 34 IPC by P.W.6 and P.W.6 visited the scene of offence and drafted the scene of panchanama and seized the broken items under the cover of panchanama Ex.P.2 and also drafted Ex.P.3 sketch. The Doctor who examined the P.W.1 gave the certificate that the P.W.1 sustaining grievous injuries and simple injuries. After completion of the investigation, P.W.5 has field the charge sheet. The learned Special Judge has framed the charges against the accused under Sections 333 r/w 34, 332 r/w 34, 443 r/w 34, 442 r/w 34 and 506 Part-II r/w 34 IPC against both the accused and both of the accused have not pleaded guilty for the said charges. The prosecution in order to establish the said charges examined the complainant as P.W.1 and P.W.2 and the eye witness as P.W.3, the Doctor who examined the injured as P.W.4, the S.I of Police who investigated in to the case as P.W.6 and the S.I of Police who filed the charge sheet as P.W.5. No oral evidence was adduced on behalf of the accused and Ex.D.1 was marked on behalf of the accused. The learned Special Judge after taking into consideration of both oral and documentary evidence, found the A.1 guilty for the offences under Sections 325, 323, 447 and 506(ii) of IPC and he is convicted and sentenced to undergo for rigorous imprisonment for one year and to pay fine of Rs.100/- in default to suffer simple imprisonment for a period of 15 days for an offence under Section 325 IPC, and to suffer simple imprisonment for one month for the offence under Section 323 IPC, simple imprisonment for one moth under Section 447 IPC and Rigorous imprisonment for 6 months under Section 506(ii) IPC and the A.2 found not guilty for the said offences and he is acquitted. Aggrieved by the said conviction the appellant/A.1 has filed the present appeal. Now the point that arises for consideration is whether the prosecution could able to establish the offence under Sections 325, 323, 447, 506(ii) of IPC against the appellant/A.1 beyond reasonable doubt? The learned counsel for the appellant has pleaded that the doctor who has given the opinion was not examined before the Court and as such the finding of the learned Sessions Judge that the P.W.1 sustained grievous injuries cannot be accepted and he pleaded that the evidence of P.Ws.1 and 2 is contrary to each other and both the P.Ws.1 and 2 are not aware of the accused prior to the incident. More over, no test identification parade is conducted for identifying the accused. Therefore, the appellant is entitled to be acquitted. On behalf of the learned Public Prosecutor, it is argued that from the evidence of P.Ws.1 and 2, it is established that the accused committed the above said offence and even though the Dental Surgeon has given his opinion that the P.W.1 suffered grievous injury and the Doctor P.W.4 who treated him also gave the same opinion. From the above evidence, the prosecution could able to establish the guilty of the accused and the learned Sessions Judge has rightly convicted and sentenced the accused and the same does not warrant any interference by this court. The case of the prosecution is that on 31.12.2003, at about 21.20 hours while the gateman Lakhsmaiah closed the gat at LC 76, Kaukuntla for Bangalore express, the accused who were going by a scooter picked up quarrel with him for not opening the said railway gate and questioned as to why he did not open the gate when they came and that they crossed the track underneath the gate with their scooter and that Laxmaiah replied that he will open the gate after passing of Bangalore train. But both the accused deterred Laxmiah from discharging his duties, A.1 caught-hold the collar of complainant and gave first glow on his mouth, resulting one tooth dislocated from his mouth and sustained bleeding injuries. He threatened him and forcibly placed on the railway track and in the meanwhile the villagers intervened and rescued them. After passing Bangalore train gate man opened the room and he went in it and that again A-1 came to him and beat him. They broke two Hand Signal lamps, and torchlight and thereafter both the accused fled away from the scene of offence. The complainant as P.W.1 and the injured has stated that on 31.12.2003, he was patrolling duty from 141 kilo meter to 144/7 k.m., he reported to duty at 9.00 p.m and he started checking the track on his duty from Gate No.76 which is situated between K.M.No.142/2 to 142/3. He reached the said gate by about 9.20 p.m., and by the time of he reaching to the said gate, the gate keeper Lakhsmaiah already closed the said gate. By the time of he reaching to the said gate, both the accused were present there. By the time of he reaching both the accused were quarreling with the gateman Lakshmaiah. In fact, by that time, they already crossed the railway gate by coming under the gate with their scooter and stopped the scooter towards Dokur village by the side of gate and started quarreling with the gateman Lakshmaiah. When he questioned the accused, the accused stated that previously also, Lakshmiah did not open the gate and that on that day also, Lakshmaiah did not open the gate when they came there and A.1 caught his shirt collar and hit him on his left cheek. Blood oozed from his mouth and one of his teeth was dislocated. A-1 abused him in Telugu as ‘Bastered’ and threatened him to kill and made him to fell on the railway track. Lakshmaiah stood there. The people gathered there intervened. The labour who were spreading the gravel stones along with the railway track and some other villagers gathered there. In fact, by the time, he was made to fall on the railway track by A.1, a train was coming along the track. The people gathered there pulled him aside from the track and averted his death by run over by the said running train. Then he proceeded to the room situated by the side of the said gate and wiping of the blood. Then, A.1 again came there, beat him again, caught hold of his throat and lifted him up. The people gathered there pushed him into the room to avert further assault from A.1. A.1 also broke his torch light and the glasses of two railway lamp belonging to him. The accused left the place by their scooter. Lakshmiah sent message over phone to the Devarkadra Railway station and on the next day morning, he presented a written report to the Railway Protection Force, Mahaboobnagar. Ex.P.1 is the said report. In the cross-examination, he has stated that he did not see the accused prior to the date of occurrence. He came to know the names of the accused only after he was assaulted. Police examined him and recorded his statement when he presented Ex.P.1. Except P.W.2 gateman, there was no other person along with him at the time of incidents made by the accused. The nearby village is at the distance of ¼ k.m., to the scene of occurrence. Those villagers did not come to the scene of offence. The police did not conduct any test identification parade with the accused for their identification. P.W.2 is the gateman has only stated that on the date of incident he was present at the Gate No.76 and he received message from Devarakadra Railway station Master regarding approach of train known as ‘Bangalor down’. Therefore, he closed the said Gate No.76. After closing the gate, he was noting down the train arriving time. Then, P.W.1 came there with Railway Lamps. In the meanwhile, A.1 and A.2 came there by a scooter. They crossed the gate by moving underneath the closed gate. In fact accused picked up quarrel with him by demanding him to open the railway gate. P.W.1 questioned them as to why they were quarreling with him and then A.1 beat P.W.1. Blood oozed from the mouth of P.W.1 and teeth was dislocated. A.1 caught the throat of P.W.1. The train crossed the gate. Then he opened the gate. When there was altercation between A.1 and P.W.1, the torch lights and the railway lamps in the hands of P.W.1 fell on the gravel and broken. Himself and other public gathered intervened and separated them. In the cross-examination, he has stated that the police never examined him and never recorded his statement. He did not see the accused prior to the date of incident. He was unaware of their names by the time of the incident. Police enquired the names of the accused in the village. He did not state the names of the accused to the police or to P.W.1. Police did not conduct any identification parade for identifying the accused. Therefore, according to P.W.1, when the quarrel was taken place between the P.W.2 and the accused with regard to closing of the railway gate and when he questioned the accused about the quarrel, the accused stated that previously also P.W.2 did not open the gate open gate when they came there and then A.1 caught hold his shift collar and hit him on his left cheek and thereby he sustained bleeding injury. As admitted by P.Ws.1 and 2 by the time, the incident both the accused crossed the railway gate on their scooter underneath the closed railway gate. Therefore, after crossing the railway gate, there is no need for them to quarrel with P.Ws.1 and 2 with regarding to closing of the gate. More over both the P.Ws.1 and 2 have not seen the accused prior to the incident and they are not aware of their names and according to the P.W.2, he did not state the names of the accused either to the police or to P.W.1. P.W.1 also admitted that he came to know about the names of the accused only after the assault but he did not state any thing as to how he came to know about the names of the accused. On the next day, he gave Ex.P.1 report to the police and in the said report, he has mentioned the names of the accused. According to the averments made in Ex.P.1 report, he has stated to the accused that the gate would be opened only after crossing the Bangalore Express train and then asked them to go away and then the accused attacked on him but the said fact was not spoken by him in his evidence. More over both the P.Ws.1 and 2 are not aware of the names of the accused and no test identification parade was conducted by the police as admitted by them to identify the accused as they are the strangers to P.Ws.1 and 2. More over according to P.W.1, the A.1 made him to fall on the railway track when a train was coming on that track, but P.W.2 present at the time of incident did not speak any thing about the same. According to him, the people gathered have pulled and separated them from the incident. But in the cross-examination, he has stated that except himself and P.W.2 non others were present at that time. But P.W.2 has stated that the villagers were present at the gate and they intervened the quarrel between the accused and P.W.1 and the persons who are present at the railway gate also present at the time of incident. But none of them were examined by the prosecution. P.W.6 is the Investigating Officer who was said to have recorded the statement of P.W.1 after lodging the complaint of Ex.P.1 and he has admitted in the cross-examination that the statement recorded was not in his hand writing and the same was scribed by one constable Ravi and he has not got mentioned in the said statement that it was scribed by the said constable. More over according to him, he questioned both P.Ws.1 and 2 in Urdu and they gave answers and he got the answers recorded in Telugu by the constable and admittedly he is not aware of the Telugu language. Therefore, the examination of P.Ws.1 and 2 after receiving the Ex.P.1 by the P.W.6 is also doubtful. The appellant’s counsel pleaded that doctor who has issued his opinion with regard to injuries sustained by the P.W.1 cannot be accepted as he was not examined before the Court. The doctor who has examined him immediately after the incident was examined as P.W.4 and he found 1) contusion reddish blue on the left side of nose 1x1 inch and 2) there was avulsion of seventh left upper tooth and opined that the first injury is simple in nature, whereas avulsion of teeth is grievous in nature and in the cross-examination, he admitted that regarding loss of teeth and he referred P.W.1 to dental surgeon and he opined that there was loss of seventh tooth of upper left jaw and he did not state his opinion regarding dental injury basing on the opinion of dental surgeon. Basing on the said admission made by P.W.4 in the cross examination, the appellant’s counsel has pleaded that the prosecution has failed to establish the grievous nature of injury. P.W.4 specifically stated about the avulsion of upper tooth of P.W.1 in the chief-examination itself and the avulsion of tooth itself is a grievous nature as per Section 320 of IPC. Therefore, the prosecution could able to establish with regard to the injuries sustained by P.W.1 but they could not establish that the accused are the persons who are responsible for causing of the said injury. With regard to the damage of two lamps and torch lights, P.W.1 has stated that when he has gone into the room of the gateman and wiping of the blood, A-1 again came there and also broke his torch light and the glasses of two railway lamp belonging to him. But P.W.2 said to be present has only stated that when there was altercation between A.1 and P.W.1, the torch light and the railway lamps which are in the hands of P.W.1 fell on the gravel and broken. Therefore, the accused have not broken the said laps and the torch light. More over as per the evidence of P.W.6, P.W.2 did not spoke to him about the accused caught hold of his shirt and lifting him up in the gate’s man room and P.W.1 also did not deny the suggestion put to him and he did not state any thing about the same before the police stating that he did not remember about the same. Therefore, the prosecution also could not able to establish the damage caused to two lights as alleged by the prosecution. Therefore, I hold that the prosecution has failed to establish the charges under Sections 332, 333, 447, 427 and 506(ii) read with 34 IPC against the accused beyond reasonable bout. In the result, the appeal is allowed and the conviction and sentence passed by the Special Judge for Trial of Offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act-cum-VI Additional Metropolitan Sessions Judge-cum-XX Additional Chief Judge, Hyderabad at Secunderabad in S.C.No.223 of 2004 dated 20.09.2004 is hereby set aside and the appellant/A.1 is acquitted. ______________________ P.DURGA PRASAD,J. Date:23.03.2011. Gk. HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL NO.2470 OF 2004 Dated 23-03-2011 Gk.