THE HONOURABLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1345 OF 2004 JUDGMENT: This appeal is directed against the conviction of the accused passed by the III Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No.320 of 2001 on 05-07-2004. The appellants herein who are A-1 to A-5 were prosecuted for the offence under Section 307 r/w.34 of the IPC and Section 25 (1)(b) of Arms Act alleging that on 03-02-2001 at about 8.00 p.m. A-1 approached PW-2 and another and picked up a quarrel and fought with him. Police intervened in the matter and booked a petty case against both of them. A-1 developed grudge against PW-2 and tried to liquidate him with the help of A-2 to A-5. Accordingly on 04-02-2001 at about 16.15 hours A-1 to A-5 obstructed PW-2 and his brother while returning home after prayers in the Mosque. A-1 was armed with Jambia and A-4 was armed with sword. A-1 caused bleeding injury on the head of PW-2. A-4 and others were planning to attack with sword over the vital parts of the body and PW-2 shouted for help. Thereafter the locality people gathered there and on seeing them the accused ran away from the spot. PW-1 father of the injured and injured PW-2 gone to the Police Station and PW-1 lodged a complaint and the same was registered as a case in Crime No.4 of 2001 under Section 307 r/w.34 of the IPC and investigation was taken up by PW-7 and after completion of investigation filed charge sheet against the accused. Learned Sessions Judge has framed the charges under Sections 147 and 307 of the IPC against A-1 to A-5, under Sections 147, 148 and 307 of the IPC and Section 25 (i)(b) of the Arms Act against A-1 and under Sections 147 and 307 of the IPC and Section 25 (i)(b) of the Arms Act against A-4 and all the accused pleaded not guilty for the said charges. The prosecution in order to establish the charges examined PWs.1 to 8 and got marked Exs.P-1 and P-12 and M.Os.1 to 3. Taking into consideration of the said oral and documentary evidence the lower Court found A-1 and A-2 guilty for the offence under Section 148 of the IPC and convicted and sentenced to undergo rigorous imprisonment for three years each and to pay fine of Rs.100/- each and also convicted A-1 and A-2 for the offence under Section 25 (i)(b) of Arms Act and sentenced to undergo rigorous imprisonment for a period of three years each and to pay fine of Rs.100/- each. Further A-1 and A-2 were convicted for the offence under Section 324 of the IPC and sentenced to undergo rigorous imprisonment for six months each and to pay fine of Rs.100/- each. Further A-3 to A-5 were convicted for the offence under Section 324 r/w.34 of the IPC and sentenced to undergo rigorous imprisonment for three months each and to pay fine of Rs.100/- each. Further A-3 to A-5 were convicted for the offence under Section 147 of the IPC and sentenced to undergo rigorous imprisonment for a period of three months each and to pay fine of Rs.100/- each. Aggrieved by the said conviction and sentence the present appeal is filed. Now the point that arises for consideration in this appeal is whether the prosecution could able to establish the charges under Sections 148 and 324 of the IPC and Section 25 (i)(b) of the Arms Act against A-1 and A-2 and under Sections 147 and 324 of the IPC against A-3 to A-5 beyond reasonable doubt. POINT: According to the prosecution a quarrel took place between PW-2 and A-1 on 03-02-2001 at about 8.00 p.m. and the police intervened in the matter and booked up a petty case against both of them. Subsequently, on the next day i.e., on 04-02-2001 at about 16.15 hours A-1 to A-5 obstructed PW-1 while returning home after prayers in the Mosque. A-1 was armed with Jambia and A-4 was armed with sword. A-1 caused bleeding injury on the head of PW-2. When A-4 and others were trying to attack PW-2 with sword over the vital parts of the body he raised hue and cry. Thereafter PW-1 and others came to the spot and rescued him. PW-1 who is the father of the injured (PW-2) and the complainant has stated that on 04-02-2001 while they were returning from Namaz at about 4.00 or 4.30 p.m., when they reached near his house A-1 to A-5 attacked on his son (PW-2) with weapons. According to him, A-1 armed with a dragger, A-4 armed with a sword and A-2, A-3 and A-5 armed with other weapons. He further stated that all the accused surrounded him and his son, A-1 beat his son causing bleeding injury, A-4 brandishing his weapon preventing others from interfering and other accused tried to attack them. Then they raised hue and cry and at that time the locality people gathered there and separated them from the accused and thereafter he went to Police Station along with his son and lodged a complaint with police. PW-2 is injured. He has also stated about their returning home on 04-02-2001 from Namaz at about 4.00 or 4.30 p.m., and when they reached near their house A-1 to A-5 attacked on him with weapons. According to him, A-1 armed with a dragger, A-4 armed with a sword and A-1 beat him causing bleeding injury on his head with the dragger and when A-4 attacked him with sword he bend down to avoid blow. He further stated that other accused also armed with weapons and surrounded him. According to him, on the previous day of incident there was a quarrel between him and the accused and police registered a petty case against both of them. According to him, after attack and causing injuries to him the accused ran away from the place as the locality people and Faheemuddin intervened. Therefore, according to both PWs.1 and 2 on the attack made by accused, PW-1 raised hue and cry and the locality people including Faheemuddin came to the spot and rescued them and on seeing them the accused ran away. The said Faheemuddin was examined as PW-3 and other locality people were examined as PWs.4 and 5. But all of them were turned hostile to the prosecution and not supported the case of the prosecution and they also stated that they do not know who attacked PW-2 and how he has received injuries. Therefore, independent witnesses PWs.3 to 5 have not supported the version of PWs.1 and 2. As admitted by PWs.1 and 2 a quarrel took place between accused and PW-2 prior to the date of incident and the police have booked a petty case against both of them. Therefore, prior to the incident there was a quarrel between PW-2 and the accused. With regard to causing of injuries according to PW-1 A-1 caused bleeding injury on the head of PW-2 with Jambia. A-1 was armed with dragger and A-4 armed with sword. According to PW- 2, A-1 was armed with dragger and A-4 was armed with sword and other accused were also armed with weapons and they did not specify the weapons held by A-2, A-3 and A-5. With regard to the injury caused to PW-2 the prosecution examined the Doctor as PW-8 and according to him he examined PW-2 on 04-02-2001 at about 4.50 p.m., and found laceration of 5 x 1 cm on the scalp i.e., on the parietal region in the mid-line and the injury is simple in nature and might have been caused with a blunt object and the injury is possible with weapon like M.O.1. In order to establish the said injury the Investigating Officer PW-7 has stated that after receiving a complaint from PW-1, he registered a case in Crime No.4 of 2001 and issued F.I.R. and sent PW-2 to Osmania General Hospital for treatment. Thereafter they proceeded to Osmania General Hospital, seized the blood stained banian under the cover of Ex.P-5 panchanama in the presence of mediators i.e., PW-6 and another and M.O.3 is the banian seized from the possession of PW-2. Whereas the mediator PW-6 has not stated anything about the seizure of the banian from PW-2 in his chief-examination and after declaring him hostile and permitted the Public Prosecutor to cross-examine him he has stated that police have seized the blood stained banian from PW-2 in the hospital on 04-02-2001. But in the cross-examination by the defence counsel he admitted that at the time of seizure the injured was also having a shirt, which was also blood stained and he do not remember whether police have seized blood stained shirt of injured on the said date. Therefore, when the injured PW-2 was also having blood stained shirt with him at the time of seizure of banian no explanation was given by PW-7 why the said shirt was not seized from him. As observed above, as PW-6 has not spoken anything about the seizure of banian in his chief-examination and it is doubtful with regard to seizure of M.O.3 banian from the possession of PW-2 as alleged by the prosecution. More over, according to PW-8 the Doctor, the injury sustained by PW-2 is only a laceration of 5 x 1 cm on the scalp and PW-2 who is the injured did not speak about his sustaining bleeding injury. With regard to seizure of weapons from the possession of the accused, the Investigating Officer PW-7 has stated that he arrested the accused A-1, A-2, A-4 and A-5 and recorded their confessional statements in the presence of PW-6 and another and as per the confessional statements he recovered M.O.1 at the instance of A-1 from his house and M.O.2 at the intance of A-5 from the Safi Library. PW-6 who is the mediator for the said recovery has stated in his chief-examination that on 04-02-2001 police of Shalibanda Police Station has called him to Police Station. At that time police seized one sword and one knife from the house of A-5 and at that time police also seized one more sword but he do not remember now from whom the police seized the said sword. Again he stated that from the possession of A-1 police seized one dragger which A-1 produced from his house. M.O.1 is the dragger and M.O.2 is the sword seized by the police in his presence. Thus, according to him the said seizure was done on 04-02-2001. But after declaring him hostile in the cross-examination by the Public Prosecutor he has admitted that on 10-02-2001 when he was called to Police Station A-1, A-2, A-4 and A-5 were in the custody of police and the police recorded their confessional statements and at the instance of A-1 police seized M.O.1 from his house and at the instance of A-5 police seized M.O.2 from City Grandhalaya Samstha. In the cross- examination by the defence counsel he has stated that the police were seized the blood stained banian from the possession of PW-2 on 04-02-2001 under the cover of panchanama and while he was going away Police Constable informed him that his presence will be required on 10-02-2001 and he will be called again. On 10-02-2001 in the morning time he again went to Shalibanda Police Station. Therefore, PW-6 was already informed that his presence will be required on 10-02-2001 when the panchanama was conducted on 04-02-2001. There is no explanation from PW-7 why PW-6 was chosen as a mediator for the seizure of the weapons from the possession of A-1 and A-5. More over, according to prosecution A-1 was holding a dragger and A-4 was holding a sword but nothing was seized from the possession of A-4 and the dragger was seized at the instance of A-5 from City Grandhalaya Samstha. PW-6 also does not speak from where A-1 was brought the dragger and according to him A-1 entered into his house and brought the dragger and he do not know whether any persons were present in the house at that time. With regard to seizure of M.O.2 at the instance of A-5 PW-6 has admitted that the place where A-5 has brought the sword is a public place. Therefore, in the above circumstances it is not safe to rely upon the evidence of PW-6 with regard to the seizure of M.Os.1 and 2 at the instance of A-1 and A-5. With regard to causing of injury to PW-2, by the accused as already discussed above, except the interested evidence of PWs.1 and 2 other independent witnesses were turned hostile to the prosecution and in view of the quarrel that took place on the previous day of the incident, it is not safe to rely upon the interested evidence of PWs.1 and 2 to come to the conclusion that accused caused bleeding injury against PW-2. Thus, the prosecution has failed to establish the charges for which they were convicted by the lower Court beyond reasonable doubt. In the result, the appeal is allowed and the conviction and sentence passed by the III Additional Metropolitan Sessions Judge, Hyderabad, in S.C.No.320 of 2001 on 05-07-2004 is hereby set aside. _______________________ P. DURGA PRASAD, J October 14, 2011 PN THE HON'BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.1345 OF 2004 October 14, 2011 PN