HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.R.C.No.62 of 2009 Date: 11th November, 2011 Between: Yenumula Sivaiah, S/o Subba Rao, 46 years, R/o Padamatipalam, Pudivada village, Nagaram Mandal, Guntur District. ..Petitioner-appellant-accused And State of Andhra Pradesh, represented by its Public Prosecutor, High Court of A.P., Hyderabad. ..Respondent-Complainant-Respondent HONOURABLE SRI JUSTICE N.R.L.NAGESWARA RAO CRL.R.C.No.62 of 2009 ORDER: This criminal revision case is directed against the judgment of the learned I-Additional District & Sessions Judge, Guntur, in Crl.A.No.2 of 2008 dated 19.01.2009 by which the sentence of rigorous imprisonment for a period of five years and a fine of Rs.1,000/-, in default, simple imprisonment for three months imposed against the revision petitioner- accused for the offence under Section 326 of I.P.C. in S.C.No.401 of 2007 dated 02.01.2008 by the learned Additional Assistant Sessions Judge, Tenali, was reduced to two years, while confirming the sentence of fine. It is the case of the prosecution that the accused is the paternal uncle of P.W.1, who is the injured. P.W.2 is the wife of P.W.1. P.W.3 is the grandfather of P.W.1. There are disputes between the accused and the family of P.W.1 in connection with the family property. On 06.07.2007 at about 9.00 P.M. when P.W.1 was requesting P.W.3 for a share of his father, the accused picked up a quarrel and attacked P.W.1 with a stick. Thereafter, the accused hacked P.W.1 with a toddy-tapping knife indiscriminately and caused injuries. On a complaint given by P.W.1 to police, a case in Crime No.49 of 2007 was registered and investigated into and the accused was charged for the offences under Sections 324, 307 and 352 of I.P.C. During trial, on behalf of prosecution, P.Ws.1 to 9 were examined and marked Exs.P1 to P7 and M.Os.1 to 3. After considering the evidence on record, the trial Court, while acquitting the accused for the offences under Sections 324, 307 and 352 of I.P.C., convicted the accused for the offence under Section 326 of I.P.C. and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,000/-, in default, simple imprisonment for a period of three months. Aggrieved by the said conviction and sentence, the accused preferred Crl.A.No.2 of 2008 and the learned I-Additional District and Sessions Judge, Guntur, reduced the sentence of imprisonment to two years for the offence under Section 326 I.P.C. imposed by the trial Court. Questioning the said judgment dated 19.01.2009 passed in Crl.A.No.2 of 2008, the present revision is filed by the accused. The points that arise for consideration are whether the prosecution could bring home the guilt of the accused for the offence under Section 326 of I.P.C. and the conviction and sentence imposed against the accused is legal and sustainable? POINT:: In support of the prosecution case, P.W.1 deposed that when he made a request to his paternal grandfather-P.W.3, the accused came there and beat him with a stick on his head and caused bleeding injury and when P.W.3 intervened, the accused pushed him aside. Thereafter, when P.Ws.1 and 2 were going on the road, the accused came behind them and hacked P.W.1 with a knife on his left shoulder and when P.W.1 turned back, the accused attacked him on the left side of his stomach and when he raised his hands to prevent that blow, he sustained an injury on his left hand. P.Ws.2 and 3, who were said to be present at the scene of offence, also supported the prosecution case. P.W.4 did not support the case of the prosecution and he was declared as hostile. The evidence of P.W.5 is about his presence at the time of seizure of bloodstained clothes of P.W.1 at the hospital. The evidence of P.W.6-Doctor is about examining P.W.1 on 07.07.2007 and finding five lacerated injuries, out of which the lacerated wound on left supra clavicle fossa is said to be grievous in nature. The evidence of P.W.7 is about noticing P.W.1 on the road with injuries. The evidence of P.W.8 is about the receipt of hospital intimation and recording the statement of P.W.1 and registering it as a case under Ex.P6. The evidence of P.W.9 is about the investigation done by him in the case. The revision petitioner-accused contended before the trial Court as well as the appellate Court that except the interested testimony of P.Ws.1 to 3, there is no other independent evidence and there is no proof with regard to the shifting of scene of offence and also when the independent witness P.W.4 has turned hostile to the prosecution case, the evidence of P.Ws.1 to 3 should not have been relied upon. The fact remains that the accused and P.Ws.1 to 3 are all related with each other. P.W.3 is aged and elderly person of the family and there is absolutely no reason whatsoever for him to implicate the accused in the crime. It is not the case of shifting of scene of incident and it is a case where P.W.1 is said to have been beaten when he was talking with P.W.3 and thereafter when he was going on the road, the accused is said to have followed him and beat him with a knife. It is a continuous transaction and therefore, both the Courts below rightly negatived the contention raised by the revision petitioner. Therefore, from the evidence of P.Ws.1 to 3 it is quite clear that the accused has attacked P.W.1 and caused injuries as alleged by the prosecution. Further the question that has to be considered is as to whether the offence under Section 326 of I.P.C. has been made out by the prosecution or not. The evidence of P.W.6-Doctor shows that the injury to the left supra clavicle fossa is grievous in nature. Evidently, in order to attract the offence under Section 326 of I.P.C., the prosecution has to prove that the injury was a grievous injury and that it should have been caused by a dangerous weapon, which is likely to cause death by use of such instrument. Grievous hurt has been defined under Section 320 of I.P.C. There is no material on record to show as to how long P.W.1 was in hospital after the incident. There is also no opinion from P.W.6-Doctor that the injury said to have been caused to P.W.1 is capable of causing death. In order to prove that the injury being grievous one, the prosecution has to produce the X-ray report and also the report of the Radiologist. In this case, no such document is filed and the evidence of the doctor is also not clear as to on what basis he opined that the said injury is grievous in nature. Though it is stated that P.W.1 sustained an injury to his stomach, the opinion of the doctor does not show that it is a grievous injury. Ex.P5- wound certificate does not refer to taking of any X-ray report or Radiologist report. In the absence of any such evidence, the opinion of P.W.6-Doctor that injury No.2 is grievous in nature cannot be accepted. There is no opinion from P.W.6-Doctor that M.O.1-knife is capable of causing death. Under the aforesaid circumstances, the conviction of the accused for the offence under Section 326 of I.P.C. is not sustainable. Consequently, the conviction and sentence of rigorous imprisonment for a period of two years only imposed against the revision petitioner-accused by the appellate Court for the offence under Section 326 of I.P.C. is set aside, instead the revision petitioner-accused is convicted for the offence under Section 324 of I.P.C. Learned Counsel for the revision petitioner submits that the revision petitioner-accused was in jail for a period of 60 days and therefore, a lenient view may be taken. Taking into consideration the relationship between the parties and also to maintain future cordial relationship between them, I feel ends of justice would meet if the period of imprisonment already undergone by the revision petitioner-accused is treated as the period of sentence for the offence under Section 324 of I.P.C., while confirming the sentence of fine imposed by the Courts below. Accordingly, the Criminal Revision case is partly allowed. __________________________________ JUSTICE N.R.L.NAGESWARA RAO 11-11-2011 Gsn.