IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE TWENTY SECOND DAY OF DECEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1897 OF 2003 Between: Aluru Venkateswarlu ..... Petitioner/Accused (Appellant) AND The Sate of Andhra Pradesh, Rep. through Public Prosecutor High Court of A.P., Hyderabad. ..... Respondent/Complainant The Court made the following: THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL REVISION CASE No.1897 OF 2003 ORDER: The Criminal Revision Case, under Sections 397 & 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), is directed against the judgment, dated 06.11.2003, in Crl.A.No.10 of 1999, on the file of the learned III Additional District and Sessions Judge, Fast Track Court, Nellore. 2. Brief facts, that are necessary for disposal of the present Criminal Revision Case, may be stated as follows: On 13.03.1995 at about 7.00 a.m., P.W.1 was cutting the Japan Babul tree branches on the backside of his house. At that time, the accused went to him and objected P.W.1 for cutting the babul tree. In that connection, an altercation took place between the accused and P.W.1. Then, the accused pushed P.W.1 and bit him on his left ear and caused grievous injury. Then, the accused beat P.W.1 with hands indiscriminately and bit his right hand little finger and caused incised wound and P.W.1 also received abrasion on his left loin lumbar region and left upper arm. Then, P.W.1 went and informed about the same to P.W.3, who took the injured P.W.1 to the Government Hospital, Nellore, where his statement was recorded by police. P.W.4, who is the Medical Officer, treated P.W.1 and issued Wound Certificate. After completion of investigation, the police filed the charge sheet. 3. The case was taken on file as C.C. NO.12 of 1995 on the file of the Judicial Magistrate of First Class, Special Mobile Court, Nellore. The accused was examined under Section 239 Cr.P.C. and charges under Sections 324 and 326 I.P.C. were framed against the accused, and when the same were read over and explained to him in Telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined P.Ws.1 to 7 and got marked Exs.P1 to P3. 5. After closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. with reference to the incriminating circumstances found against him in the evidence of prosecution witnesses. He denied the same. On behalf of the accused, no evidence either oral or documentary was adduced. 6. The trial Court, upon considering the evidence on record, found the accused guilty of the offence punishable under Section 326 I.P.C. and accordingly, convicted and sentenced him to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.1,000/- in default to suffer simple imprisonment for three months. On Appeal, the appellate Court, by the impugned judgment, modified the conviction to that of the offence punishable under Section 325 I.P.C. and sentenced the accused to undergo Rigorous Imprisonment for one year, while maintaining the fine. Challenging the same, the present Criminal Revision Case is filed. 7. Now the point for determination is whether the judgments of both Courts below are correct, legal and proper? 8. The learned counsel appearing for the petitioner herein contended that there is no evidence to show that the accused caused grievous injury to P.W.1; that the incident had taken place about a decade back and so, a lenient view may be taken with regard to sentence, and hence, he prays to set aside the impugned judgments. 9. On the other hand, the learned counsel appearing for the learned Public Prosecutor contended that the concurrent findings of the two Courts below need not be interfered with, in view of the fact that there is no illegal or incorrect finding; that the evidence of P.W.1 is very clear that he sustained injuries in the hands of the accused, and further, his evidence is fully in corroboration with the medical evidence; that there are no grounds to interfere with the same, and hence, she prays to dismiss the Criminal Revision Case. 10. There cannot be any dispute that the revisional powers of this Court under Sections 397 and 401 Cr.P.C. are truncated. Unless the findings are shown to be incorrect, illegal, or improper, ordinarily this Court will not interfere with the concurrent findings of the trial Court or to reappreciate the evidence sitting as if in an Appeal. A finding can be said to be perverse if it is not based upon proper appreciation of the evidence on record. 11. In view of the fact that the accused was found guilty of the offence punishable under Section 325 I.P.C., the prosecution has to establish that P.W.1 sustained grievous injury. ‘Grievous injury’ is defined under Section 320 I.P.C., which reads as follows: “Grievous hurt: The following kinds of hurt only are designated as “grievous”:- First - Emasculation. Secondly - Permanent privation of the sight of either eye. Thirdly - Permanent privation of the hearing of either ear Fourthly - Privation of any member or joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the head or face. Seventhly - Fracture or dislocation of a bone or tooth. Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.” 12. The evidence of P.W.1 shows that the right hand little finger of P.W.1 was bitten by the accused. No X-ray report was marked to show that P.W.1 sustained a fracture to the right hand little finger. Further, the case of the prosecution is that the accused bit P.W.1 on his left ear and caused grievous injury. Clause (6) of Section 320 I.P.C. says that disfiguration of the head or face is said to be a grievous injury. 13. There must be evidence to show that because of biting on the left ear lobe, the head or face of P.W.1 was disfigured. P.W.4, the doctor who examined P.W.1, is the competent person to speak about disfiguration of head or face because of biting. The evidence of P.W.4 is silent on that aspect. Similarly, the trial Court has not observed when P.W.1 was examined, as to whether the biting of ear lobe caused any disfigurement of the head or face. There is absolutely no evidence to show that P.W.1 sustained grievous injury within the meaning of Section 320 I.P.C. Hence, Appellate Court committed a grave illegality in arriving at a conclusion that the accused committed an offence punishable under Section 325 I.P.C. and that the accused caused a grievous hurt to P.W.1. At best, the act alleged against the accused amounts to causing hurt voluntarily to P.W.1. Therefore, the Courts below ought to have convicted the accused of the offence punishable under Section 324 I.P.C. and the conviction recorded by the courts below is liable to be modified accordingly. 14. With regard to sentence, the incident is alleged to have taken place about 15 years back. The petitioner herein was aged about 42 years at the time of the incident. The petitioner herein was in jail for about 45 days. Therefore, the sentence of imprisonment already undergone by the accused would be the sufficient. 15. Hence, the conviction and sentence recorded by the appellate court against the petitioner/accused of the offence punishable under Section 325 I.P.C. are set aside. The petitioner/accused is found guilty of the offence punishable under Section 324 I.P.C., accordingly convicted and sentenced to undergo the period of imprisonment already undergone by him during investigation, trial and after conviction, while confirming the fine with default clause. 16. With the above modification, the Criminal Revision Case is partly allowed. _______________ (K.C. BHANU, J) Date: 22nd December, 2009 KL