THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Criminal Revision Case No. 1795 of 2004 Judgment: This revision is directed against the judgment dated 08.10.2004 passed in Criminal Appeal No. 118 of 2002 by the I Additional District and Sessions Judge, Srikakulam, confirming the judgment dated 24.06.2002 passed in C.C. No.117 of 1998 by the Judicial Magistrate of First Class, Amadalavalasa, convicting the petitioner herein for the offence punishable under Section 325 IPC and sentencing him to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2000/-, in default to suffer Simple Imprisonment for three months. The petitioner herein will be referred to as the accused for the sake of convenience. The brief facts of the case are as follows. The accused is the son of the elder brother of PW.1. They are residents of Guttavilli village. The specific case of the prosecution is that on 02.05.1998 at about 8.00 AM while PW.1 was sitting on a culvert near the thope at High School in his village, the accused came there and kicked him, as a result of which PW.1 fell down in the channel and when he woke up and questioned the accused, the accused beat him with a stout stick on his right fore leg resulting in bleeding injury to PW.1. The persons gathered there witnessed the incident. PW.1 went to the police station Burja and lodged a complaint in Ex.P1. PW.5 M. Satyanarayana, who was working as S.I of Police, Burja Police Station, having received the complaint from PW.1, registered a case in Crime No.29 of 1998 under Sections 323 and 324 IPC. Then he examined PW.1 and referred him to Government Hospital, Srikakulam, for examination. Then he visited the scene of offence, prepared rough sketch of the scene of offence in the presence of mediators, examined the witnesses PWs.2 and 3 and others. PW.4 Dr. C. Srihari Rao examined the x-ray of the right knee of PW.1 and submitted his opinion Ex.P4 and opined that the x-ray showed fracture of distal and of both bones. PW.4 also opined that the fracture is possible due to fall from a considerable height. After receiving the wound certificate, the accused was arrested and charge sheet was filed against him alleging that he has committed an offence punishable under Section 326 IPC. Since the accused denied the charge, the prosecution, in order to prove its case, has examined PWs.1 to 7 and got marked Exs.P1 to P7. None were examined on behalf of the accused and no documents were marked. The learned Judicial Magistrate of First Class, Amadalavalasa, having appreciated the oral and documentary evidence, found the accused guilty for the offence punishable under Section 325 IPC and convicted and sentenced him as stated supra. Challenging the same, the accused filed Criminal Appeal No.118 of 2002, and the learned Sessions Judge, confirmed the conviction and sentence imposed against the accused. Therefore, the present revision is filed. The main submission of the learned counsel for the accused is that there is no satisfactory evidence to show that the accused beat PW.1 with a stick. The evidence let in by the prosecution is not consistent and some witnesses say that first the accused beat PW.1 with a stick and then PW.1 fell down in the channel and some others say that the accused kicked PW.1, then PW.1 fell down and then the accused beat him with a stick. It is also his submission that there is inordinate delay in giving report to the police and admittedly there was previous enmity between the parties. It is also his submission that PW.3 does not speak about the presence of PW.2 and similarly PW.2 does not speak about the presence of PW.3 and admittedly the stick which is said to have been used in the commission of offence is not seized by the police and that PW.3 is not an eye witness to the occurrence. It is also his submission that though the independent witnesses were available, none were examined by the prosecution and that the prosecution story is not convincing. Therefore, the accused may be acquitted. It is also his submission that where there is no proper appreciation of evidence resulting in miscarriage of justice the revision is maintainable. Learned Additional Public Prosecutor has supported the judgments of the Courts below. The point that arises for consideration is whether there is no proper appreciation of evidence resulting in miscarriage of justice which warrants interference by this Court. PW.1 is the injured witness. He is aged about 65 years. According to him, the accused committed theft of coconuts from their tree and that he informed the same to Bhaskara Rao and Venkatarao and requested them to inform the same to the brother of the accused to give suitable directions to the accused not to do such acts in future. His further case is that on the next day when he was sitting on a culvert near the High School of his village, the accused came there and kicked him on his chest and he fell down. His further case is that when he woke up, the accused beat him with a stout stick on his right fore leg. He further deposed that PW.2 and one Appalasuri, Parvathamma and some others came there from the bus stop and witnessed the occurrence. His further case is that when intimation was given at his house Appalasuri and one Chiranjeevulu took him to the police station in an auto rickshaw and that he presented Ex.P1 report. It was suggested to PW.1 that he fell down in the culvert in a drunken state and consequently he sustained injuries. He further deposed that he was in the culvert for about two hours and that PW.2 did not come to his rescue. According to PW.2, on the date of incident, he along with Sampathirao Appalasuri, who is not examined, was near High School of their village. He further deposed that they heard a big sound and cry and then they noticed the accused beating PW.1 with a stout stick on his right leg and as a result of which PW.1 fell down and his leg was broken. He also deposed that they immediately went there and questioned the accused and provided water to PW.1. His further case is that Parvathamma and Chiranjeevulu came there. During cross- examination PW.2 stated that PW.1 fell down in the channel when the accused kicked him and at that time PW.1 sitting on the culvert. According to PW.3, he heard a cry when he was standing at the bus stop and found PW.1 fell in a ditch from culvert. According to PW.3 when PW.1 got up the accused again beat him with a stick on his right leg and PW.1 fell down. During cross-examination PW.3 deposed that initially PW.1 fell down in the channel and then he came out and when he came out the accused beat him with a stick. The Investigating Officer PW.5 deposed that the scene of offence is a culvert, the width of which is about 4 feet and the height is about 4 to 5 feet. According to him, his investigation revealed that the accused beat the injured while he was sitting on the culvert and there is no possibility to beat the injured while he was in the canal. According to him, the stick, said to have been used in the commission of offence, was not available at the scene of offence and therefore he could not seize any stick in this case. According to PW.1, the accused kicked him on his chest and then he fell down and subsequently he woke up and again the accused beat him with a stick on his right fore leg. According to PW.1, at the first instance PW.2 and one Appalasuri and Parvathamma came there and later Appalasuri and Chiranjeevulu took him to Burja Police Station. Even according to PW.2, PW.3 and Parvathamma also came there. Therefore, it appears that PW.3 came to the scene of offence after the incident. Moreover, the version of PW.3 is not consistent. His initial version is that the accused beat PW.1 with a stick on his right leg and then PW.1 fell in the culvert, but his subsequent version is that initially PW.1 fell into ditch from the culvert and then came out, then the accused beat him with a stick. According to PW.1, when the accused kicked him he fell down and when he questioned the accused, the accused beat him with a stout stick on his right fore leg. Therefore, it appears that it is not safe to rely on the evidence of PW.3 who is giving inconsistent versions and whose presence is doubtful at the time of actual incident. Coming to the evidence of PW.2, his version is that he heard a big sound and noticed the accused beating PW.1 with a stout stick on his right leg and as a result of which PW.1 fell down. But, PW.2 also deposed in the cross-examination that PW.1 fell in the culvert when the accused kicked him. So, his version is also not consistent as to when PW.1 fell down in the culvert whether after he was beaten by the accused with a stick or after the accused kicked him on his chest. The other circumstance is that no stick was recovered from the scene of offence, and the evidence of the Investigating Officer that it is not possible to beat PW.1 in the canal and these circumstances create doubt with regard to the allegation of the accused beating PW.1 with a stick. In view of these inconsistencies as to when the accused beat PW.1 with a stick either before PW.1 fell into the culvert or after he fell into the culvert, it appears that it may be just and reasonable to give a benefit of doubt to the accused on this aspect. The possibility of PW.1 falling in the Canal when he was kicked by the accused and sustained fracture cannot be ruled out. In such a situation intention to cause grievous injury cannot be attributed to the accused. However, the evidence of PW.1 that the accused came to the culvert and kicked him and as a result of which he fell down in the culvert appears to be natural and inspiring confidence. In view of the above, I hold that the prosecution failed to prove the offence punishable under Section 325 IPC against the accused. However, the prosecution has established the guilt of the accused for the offence punishable under Section 323 IPC. In the result, the Criminal Revision Case is partly allowed setting aside the conviction and sentence passed against the accused for the offence punishable under Section 325 IPC. But the accused is found guilty for the offence punishable under Section 323 IPC. Since it is represented that the accused had already paid fine amount and he was in jail for about eight (8) days, the accused is sentenced to undergo Simple Imprisonment for the period already undergone by him in this case and to pay a fine of Rs.2,000/- (Rupees Two Thousand only), in default to suffer Simple Imprisonment for a period of two (2) months for the offence punishable under Section 323 IPC. ______________________ B. CHANDRA KUMAR, J. Date: 08.07.2010 Nsr