IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE EIGHT DAY OF JULY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1258 OF 2004 Between: Undekoti Thirumalaiah ..... PETITIONER AND State of Andhra Pradesh, represented by Public Prosecutor ....RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1258 OF 2004 ORDER: This Criminal Revision Case, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C”), is filed by the petitioner/A3 against the judgment, dated 23.07.2004, in Crl.A.No.44 of 1998, on the file of IV Additional Sessions Judge (Fast Track Court), Mahabubnagar. 2. The brief facts that are necessary for disposal of the present revision case may be stated as follows: There is a Fisherman Co-operative Society in Rajanagaram Village. PW.1/de facto complainant and others were members of the Society. The accused, de facto complainant and others were disputing for fishing rights of the said tank. In view of the disputes, the de facto complainant and others, who are the members of the Society, were watching the tank during night time by shift system to protect the fish in the tank. On 11.03.1997, when the de facto complainant and others were guarding the tank, at about 02:00 A.M., the seven accused and others armed with sticks and iron rods beat PWs.1 to 6 and caused bleeding injuries to them. The accused attacked PWs.1 to 6 with an intention to kill them. Immediately, PW.1 and others went into the village and informed about the same to the Village Development Officer. The injured one U. Ramulu – PW.2 was referred to the Government Hospital, Wanaparthy. Thereafter, PW.1 lodged a complaint on 12.03.1997 at 07:30 A.M. Police registered a case. During the course of investigation, the investigating Officer visited the scene of occurrence, observed the same and seized the sticks used for the commission of offence. On 13.03.1997, all the accused were arrested. In pursuance of the confession statement of A1 to A3 and on being lead by A3, iron rod used by him in the commission of offence was seized and thereafter, police filed the charge sheet. 3. When the charges under Sections 147 and 148 I.P.C. against A1 to A7, under Section 307 I.P.C. against A3, under Section 307 read with 149 I.P.C. against A1, A2, A4 to A7, under Section 324 I.P.C. against A1 and A2, under Section 324 read with 149 I.P.C. against A3 to A7, under Section 324 I.P.C. against A5 to A7, under Section 324 read with 149 I.P.C. against A1 to A4, another charge under Section 324 I.P.C. against A5 to A7 and under Section 324 read with 149 I.P.C. against A1 to A4, were framed against the accused, read over and explained to them, they pleaded not guilty and claimed to be tried. 4. To substantiate its case, the prosecution examined PWs.1 to 12 and got marked Exs.P-1 to P-8, besides case properties MOs.1 to 8. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating evidence appearing against them in the evidence of prosecution witnesses. They denied the same and reported no oral and documentary evidence. 6. The trial Court upon considering the evidence of PWs.1 to 3, vide judgment, dated 07.04.1998, in S.C.No.380 of 1997, on the file of the Assistant Sessions Judge, Wanaparthy, found A3 guilty of the offence punishable under Section 325 I.P.C. and accordingly, convicted and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.500/-, in default to undergo simple imprisonment for two months; and further found A1, A2 and A6 guilty of the offence punishable under Section 324 I.P.C. and accordingly convicted and sentenced them to undergo rigorous imprisonment for six months each. On appeal, the appellate Court confirmed the convictions of A1, A2, A3 and A6, but reduced the sentence of A3 from rigorous imprisonment for one year to rigorous imprisonment for six months and to pay fine of Rs.1,000/-, in default to under simple imprisonment for one month for the offence punishable under Section 325 I.P.C.; and the sentence imposed against A1, A2 and A6 for the offence punishable under Section 324 I.P.C. is modified to pay fine of Rs.2,000/- each, in default to undergo simple imprisonment for three months. Challenging the same, the present revision case is filed by A3. 7. Now the point for determination is whether the judgments of both the Courts below are correct, legal and proper? 8. Learned counsel for the petitioner contended that there are discrepancies in the evidence of PWs.1 to 6; that in view of bitter rivalry between the two parties, it is not safe to place a reliance on their evidence; that as it was a dark night, it is not possible for PWs.1 to 6 to identify the assailants and hence, he prays to set aside the impugned judgments. 9. On the other hand, learned counsel representing the learned Public Prosecutor contended that the concurrent findings of both the Courts below need no interference, in view of the fact that they are based upon proper appreciation of evidence on record; that it is not impossible to identify the known assailants in the dark night; that there are no grounds to interfere with the impugned judgments and hence, he prays to dismiss the 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 perverse, or contrary to law, or illegal or improper, ordinarily this Court will not interfere with the concurrent findings of the Courts below. A finding can be said to be perverse, if it is not based upon proper appreciation of the evidence on record. 11. No doubt, the incident had taken place at the tank while PW.1 and others were guarding the tank. There were disputes between PWs.1 to 6 on one hand, and the accused on the other. The scene of occurrence is not seriously disputed. Similarly, PWs.2, 3 and 4 sustained injuries in the attack. Their wound certificates were marked as Exs.P-7, P-6 and P-5 respectively. The doctor, PW.11, who examined them found the injuries. It is not the case of the accused that PWs.2 to 4 sustained those injuries at some other place in some other manner at the hands of some other persons. Insofar as the present petitioner/A3 is concerned, the evidence of PW.1 would clearly go to show that he assaulted PW.2 either with a stick or stone on the left eye, whereas the evidence of PW.2 would go to show that the petitioner beat him with iron rod on the fore head and on the eye and that he received bleeding injuries on the back, stomach and left eye and further, PW.6 stated that the petitioner beat PW.2 with an iron rod on the left eye. PW.11 - the doctor categorically stated about the injuries sustained by PW.2. Therefore, the medical evidence is completely in corroboration with the ocular evidence. 12. With regard to the identity of the assailants, there is evidence on record which would clearly go to show that the incident had taken place in a dark night. It may be a fact that it may not be possible for a person to identity the assailants in the dark night, but at the same time, when the assailants are known to PWs.1 to 6 and well acquainted with each other, then there would not be any difficult for the witnesses to identity the assailants. As the villagers are accustomed to darkness, they can identify the known persons in darkness. That is the reason why the trial Court and the appellate Court has not given much importance with regard to the identity of the accused in the darkness, as it is quite possible for the witnesses to identify the known persons. Both the Courts below rightly accepted the evidence of PWs.1,2 and 6 and thus their evidence would leave no room to doubt that it is the petitioner who caused injuries to PW.2. 13. However, there are discrepancies with regard to the weapon used in causing injuries to PW.2. by the petitioner. As it was a dark night, it may not be possible for PWs.1, 2 and 6 to identify the weapon of offence. The evidence of doctor would go to show that PW.2 sustained grievous injuries. In pursuance of the confessional statement made by the petitioner, the weapon of offence, MO.8, was seized. Therefore, the appellate Court rightly found him guilty under Section 325 I.P.C. There are absolutely no grounds to interfere with the conviction recorded by the trial Court and as confirmed by the appellate Court against the petitioner. 14. With regard to the sentence, the incident had taken place about 15 years back. The petitioner/A3 is aged about 40 years at the time when the incident had taken place. Therefore, a lenient view can be taken with regard to the sentence. Therefore, the sentence of imprisonment imposed by the appellate Court is reduced to the sentence of imprisonment already undergone by the petitioner, while enhancing the fine amount from Rs.1,000/- to Rs.5,000/-, in default to undergo simple imprisonment for two months. 15. With the above modifications, the Criminal Revision Case is dismissed. _______________ K.C. BHANU, J July 08, 2010 MD THE HON'BLE SRI JUSTICE K.C. BHANU CRIMINAL REVISION CASE No.1258 OF 2004 July 08, 2010