THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1259 of 2005 Date: 26.09.2011 Between: Chodisetti Srinu … Petitioner/ Accused AND State of A.P., rep.by its Public Prosecutor, High Court, Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1259 of 2005 ORDER: The sole accused preferred this revision. He was the accused before the learned Principal Assistant Sessions Judge, Eluru. He was charged for the offences under Sections 332, 307 and 506 (2) of the Indian Penal Code (for short ‘IPC’). The learned trial Judge found the accused guilty of all the three charges. The accused was sentenced to Rigorous Imprisonment (R.I.) for a period of two years for the offence u/s.332 IPC. He was sentenced to R.I. for a period of seven years and fine of ` 1,000/- for the offence u/s.307 IPC. Finally, he was sentenced to R.I. for a period of three years for the offence u/s.506 (2) IPC. The learned trial Judge directed that the sentences should run concurrently. 2. The sole accused preferred an appeal before the learned Principal Sessions Judge, Eluru. The learned Sessions Judge dismissed the appeal regarding the conviction. He also dismissed the appeal in respect of the sentences of imprisonment recorded by the trial Court for the offences under Sections 332 and 506 IPC. Regarding the sentence for the offence u/s.307 IPC, the learned Sessions Judge reduced the sentence from R.I. for a period of seven years to R.I. for a period of three years. Apart from directing that the sentences should run concurrently, the learned appellate Judge also granted set off u/s.428 Cr.P.C. Not satisfied with the reduction of sentence by the appellate Court, the sole accused preferred the present revision. 3. Sri S.M. Subhan, learned counsel for the accused contended that there was any amount of inconsistencies between the evidence of PWs.1 to 4 and that the case was not made out against the accused. He sought for a clear acquittal of the accused. 4. The accused was an under trial prisoner (UT prisoner) in a case before the II Additional Judicial Magistrate of First Class, Eluru. PWs.1 to 3 and one Jayaraju were deputed by police to carry UT prisoners from Sub-Jail, Eluru to the Court. PWs.1 to 3 and other escort constable took the accused and others to the Court. It is their case that they did not allow the accused to interact with the outsiders at the court premises and that the accused who grew wild abused PWs.1 to 3 and other police constable in an indecent language. 5. It is the further case of the prosecution that: a) The accused requested the escort party to take the accused to a coffee hotel to consume Tiffin. The escort party declined to take the accused as desired by him. The accused once again hurled abuses at the escort party. He also threatened them with dire consequences. Be that as it may, the escort party took the accused and others back to the Sub-Jail, Eluru. b) At the Sub-Jail, the accused suddenly pulled a loaded rifle from the hands of PW.1 with a view to kill PW.1 and tried to open fire proclaiming that he would kill PW.1. In the meanwhile, the escort party snatched away the rifle from the hands of the accused. c) The accused then ran into the kitchen of the jail, brought an iron instrument known as apaka (MO.1) and tried to stab PW.1. PW.1 escaped from the attack. However, the accused tore the uniform of PW.1 and fisted PW.1 in the stomach. He also pelted stones causing injuries to PWs.1 and 2. d) This is the sum and substance of the prosecution story. 6. Primarily, the learned counsel for the accused contended that the offence u/s.307 IPC is not made out. He pointed out the fallacy in the evidence of PW.1 and Ex.P.6. Ex.P.6 is the report lodged by the Superintendent of Sub-Jail, Eluru. It is pointed out by the learned counsel for the accused that Ex.P.6 is not in agreement with the evidence of PWs.1 and 2 and the prosecution case. 7. In Ex.P.6 it was not stated that the accused ran into the kitchen, brought an iron instrument and attempted to stab PW.1. As rightly submitted by the learned counsel for the accused, once a prisoner, whether a convict or a UT prisoner, is handed over to the jail authorities and the prisoner is received into the inside of the jail, it is not possible for such prisoner to have contact or interaction with non-prisoners, who are outside the jail compound. It may be recalled that the story of the prosecution is that when the rifle of PW.1 was snatched away from the hand of the accused, the accused ran into the kitchen, brought an iron rod and tried to stab PW.1 and that PW.1 somehow escaped from the same. The question of the accused trying to attack PW.1 with an iron rod brought from the kitchen would not arise. Once the accused went into the main jail compound, it is not possible for him to return to the outside premises to have contact with PW.1. The evidence of PW.1 in this context cannot be swallowed. 8. Added to it, the evidence of PW.1 and Ex.P.6 did not agree with each other. In Ex.P.6, PW.6 stated that the accused suddenly revolted against PWs.1 to 3 and another and had beaten PW.1 with a stone and also pulled away the rifle of PW.1 from PW.1. There was no reference that the accused ran into the kitchen, brought an iron rod and tried to stab PW.1. 9. PW.6 also did not speak about the accused to stab PW.1 with an iron instrument. The evidence is that after the rifle was snatched by the accused and PW.1 was withdrawn from the accused, the accused pelted stones at PWs.1 and 2. However, PW.6 did not whisper that the accused had the intention of murdering PW.1 or any of the escort party. Worse, in the cross-examination, PW.6 admitted that the exchange of UT prisoners took place near the main gate of the jail and that it was not visible from the office of PW.6. The evidence of PW.6, therefore, cannot be accepted regarding the offence proper. However, the learned counsel for the accused primarily contended that Ex.P.6 did not agree with the police story and that the accused deserves to be acquitted giving benefit of doubt to the accused. Where PW.6 himself admitted that there was no possibility for him to see what was transpiring at the main gate of the jail from his seat, the evidence of PW.6 as well as his report under Ex.P.6 become doubtful. I reject the evidence of PW.6 as well as Ex.P.6 regarding the commission of the offence proper as not reliable and is not in terms of the prosecution story. 10. PW.1 was one of the two victims after the attack by the accused. PW.1 deposed that the accused pulled the rifle from him and aimed the same at PW.1. He also deposed that the accused fisted on the chest of PW.1 and pelted stones as a result of which PW.1 sustained injury. 11. PWs.1 and 2, however, deposed that the accused went into the kitchen, brought MO.1-iron instrument and tried to attack PW.1. Curiously, PW.2 did not even state that the accused was attempting to kill PW.1. PW.3, who was also one of the escort police, also did not depose about the intention of the accused to murder PW.1. 12. PW.4 was the warden of the Sub-Jail, Eluru at the relevant time. He also did not speak about the intention of the accused to murder PW.1. Smt. Zareena Afsar, learned counsel representing the Additional Public Prosecutor inter alia contended that the very pulling away of the rifle from the hands of PW.1 is tantamount to admitting to murder PW.1. I am afraid that this contention cannot be countenanced where there is no whisper in the evidence of anyone that the accused attempted to kill PW.1 with the rifle. PW.1 merely stated that the accused snatched away the rifle and tried to aim it at PW.1 declaring that the accused would kill PW.1. His evidence in that context was not corroborated by any other evidence. What is established by PWs.1 to 4 and partly corroborated by PW.6 is that the accused snatched away the rifle from the hands of PW.1. Regarding the attempt of the accused to stab PW.1 with the iron instrument (MO.1), where it is not part of the evidence of PW.6 and Ex.P.6, I am not prepared to accept the same as true. 13. The learned Additional Public Prosecutor drew my attention to Ex.P.1 where the incident of the accused going into the kitchen and bringing MO.1 was, indeed, referred. However, for the reasons already stated that the accused, who entered the jail premises, cannot have any access with outside persons, I already disbelieved this part of the story. What remains is the claim of PWs.1 to 4 and 6 that the accused snatched away the rifle from the hands of PW.1 and that police later took away the rifle from the accused. Consequently, I agree with the contention of the learned counsel for the accused that the offence u/s.307 IPC is not made out. The trial Court as well as the appellate Court erred in appreciating the evidence of PWs.1 to 4 with reference to the evidence of PW.6 and Ex.P.6 regarding the claim of the prosecution that the accused attempted to murder PW.1. The finding of the learned trial Judge and the appellate Court that the accused attempted to murder PW.1 is erroneous and is liable to be set aside. The accused, consequently, is liable to be acquitted for the offence u/s.307 IPC. 14. Regarding the other offences under Sections 332 and 502 IPC are concerned, the evidence is not only cogent, but is also consistent. PWs.1 to 4 and 6 speak about the accused snatched way the rifle from the hands of the accused. The offence u/s.506 (2) IPC is, consequently, made out. The evidence of PWs.1 to 4 that the accused pelted stones, which caused injuries to PWs.1 and 2, was supported by PW.5 medical officer. He issued Exs.P.2 and 3 wound certificates. The evidence of PW.5 remained unshaken. The evidence of PW.5 and Exs.P.2 and 3 coupled with the evidence of PWs.1 to 4 and 6 established that the accused caused injuries to PWs.1 and 2 while he was in police custody. 15. Consequently, the offence u/s.332 IPC is made out. The prosecution thus failed to make out the offence u/s.307 IPC and established the offences u/s.332 and 506 (2) IPC. Accordingly, the accused is acquitted for the offence u/s.307 IPC. Regarding the sentence u/s.332 IPC, the accused caused simple injuries to PWs.1 and 2. I, therefore, deem it appropriate to modify the sentence of R.I. for a period of two years for the offence u/s.332 IPC to R.I. for a period of one year. Similarly, the criminal intimidation was caused by the accused when he snatched away the rifle from the hands of PW.1. I consider that imprisonment for a period of one year would meet the ends of justice for the offence u/s.506 (2) IPC in view of the nature of the offence committed by the accused. 16. Accordingly, the Criminal Revision Case is allowed in part. The revision petitioner-accused is found not guilty of the offence u/s.307 IPC and is acquitted of the same. His conviction for the offences under Sections 332 and 506 (2) IPC are found to be justified and are maintained. The sentence of imprisonment for the offences under Sections 332 and 506 (2) IPC at two years and three years respectively, as recorded by the trial Court, is modified to R.I. for a period of one year each. Both the sentences shall run concurrently. The accused, indeed, is entitled to benefits u/s.428 Cr.P.C. If the accused is on bail and has not completed his jail sentence, he shall surrender immediately before the trial Court to undergo the remaining part of the jail sentence. If the accused is on bail and has completed the jail sentence, as modified through this order, his bail bonds stand discharged. ________________ K.G. SHANKAR, J Date: 26.09.2011 Isn