THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.2518 of 2004 BETWEEEN: 1. Krishna, S/o.Hanmaiah & another. … Appellant AND State of A.P. … Respondent THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2518 of 2004 JUDGMENT: The accused Nos.2 and 3/A2 and A3 are the appellants. By the impugned judgment dated 04.10.2004 in S.C.No.645 of 1993, the II Additional Metropolitan Sessions Judge, Hyderabad, convicted A2 and A3 under Sections 324, 452 and 457 I.P.C. and sentenced each of them to pay fine of Rs.5,000/-, Rs.2000/- and Rs.2,000/- respectively. Questioning the same, A2 and A3 filed this appeal. 2. The lower Court tried A1 to A7 for offences under Sections 148, 452, 427, 307/149 I.P.C. A1 died when the proceedings were pending in the lower Court and so the case against A1 stood abated. Since overt acts attributed to A1 with iron rod on head of PW4 are on vital part of the body and since overt acts attributed to A2 and A3 were not on vital parts of the injured, the lower Court found all the accused not guilty of the charge under Section 307 I.P.C. 3. For finding A2 and A3 guilty, the lower Court placed reliance on evidence of PWs 1, 2 and 4. Out of them, PWs 2 and 4 are the injured. It is contended by the appellants’ counsel that admittedly the scene of offence is located in the midst of residential locality on both the sides and also on the other side of the road and that the prosecution did not examine any independent witnesses from the neighborhood of the scene. The offence took place on 14.09.1992 at mid night, at about 12:30A.M. by breaking open doors of the house. In that dead of night, one cannot expect gathering of large public at the venue of offence. When the injured, PWs 2 and 4 as well as PW1 speak to the incident, which evidence is corroborated by medical evidence as well as material evidence and pictorial evidence, it cannot be said that the lower Court went wrong in finding the appellants guilty. 4. It is contended by the appellants’ counsel that there were series of prior civil litigation as well as criminal cases between the two families and that all the previous criminal cases ended in acquittal. Motive for this case also is the property dispute between the parties. But, there is no dispute about possession of that portion of the house with the injured by the date of offence. It is alleged that A1 to A7 forcibly occupied western portion of the disputed house previously, in respect of which there was civil litigation pending and that on the date of offence, the accused attempted to trespass into the portion in occupation of family of the injured. History of previous civil and criminal litigation between the parties may not be relevant in deciding truth or falsity of the present case, which depends upon reliability of the prosecution witnesses. 5. To prove mischief punishable under Section 427 I.P.C., apart from oral evidence of PWs 1, 2 and 4, the prosecution filed Exs.P2 to P8- photographs along with Exs.P9 to P15- negatives and also produced Mos.5 and 6- two pieces of the broken door of their portion. With regard to overt acts of A2 and A3, it is evidence of PW1 that A2 beat PW4 with stick on legs and back and that A3 beat PW4 with iron rod. PW2 states that A2 beat PW4 with iron rod on legs and A3 beat PW4 on back with iron rod-MO.3. It is evidence of PW4 that A2 beat him with MO.1 stick on his legs and back and that A3 beat him on his fingers. PWs 10 and 11 are the Doctors who treated PWs 2 and 4 and gave Exs. P23 and P22- wound certificates respectively. As per their evidence, injuries sustained by the said injured are simple in nature, other than head injuries. Head injuries were attributed to A1, who is no more. No head injury was attributed either to A2 or to A3. In that view of the matter, though the lower Court found A2 and A3 not guilty under Section 307 I.P.C., found them guilty under Section 324 I.P.C., which is a lesser offence. The lower Court also relied upon evidence of PWs 1, 2 and 4 for finding A2 and A3 guilty of house trespass, punishable under Section 452 I.P.C. 6. It is contended by the appellants’ counsel that A2 produced Ex.D1 certificate and examined DW1 to prove that on the date of offence, he was on duty at Bellampally, working as Traction Driver (Electrical Train Engine Driver). DW1 is the Loco foremen who issued Ex.D1 certificate. According to DW1, all the Traction drivers work under him and he assigns duties to them. He says that on 14.09.1992, the accused was Engine driver of a goods train going down to Kazipet. He says that after attending to duty, the driver will be provided with rest for 16 hours. DW1 could not say at what time A2 left with the goods train by driving the engine and from what time to what time A2 had rest for 16 hours. Oral evidence of DW1 is not supported by any documents. DW1 admits that he has not produced attendance register relating to 14.09.1992, for A2. The said attendance register is the primary evidence and without production of the same, it is difficult to place reliance on oral evidence of DW1 and Ex.D1 certificate issued by him. Insofar as A3 is concerned, he did not take up any defence, except denying his participation in the offence. I find that A2 could not prove his alibi. The evidence of PWs 1, 2 and 4 was rightly relied upon by the lower Court to find A2 and A3 guilty of the above offences. There are no grounds in this appeal to interfere with the convictions and sentences passed by the lower Court against A2 and A3. 7. In the result, the Criminal Appeal is dismissed. ______________________________ JUSTICE SAMUDRALA GOVINDARAJULU Dt:06.09.2011 ysk THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.2518 of 2004 Dt:06.09.2011 ysk