IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN PRESENT THE HON’BLE SRI JUSTICE K.G.SHANKAR CRIMINAL REVISION CASE No. 89 OF 2006 BETWEEN: Bathala Surendra …PETITIONER AND The State of Andhra Pradesh, Represented by its Public Prosecutor. …RESPONDENT The Court made the following: THE HON’BLE SRI JUSTICE K.G. SHANKAR CRIMINAL REVISION CASE No. 89 OF 2006 ORDER: Three accused faced trial before the learned II Additional Judicial Magistrate of I Class, Proddatur. The learned Judicial Magistrate of I Class charged A-1 to A-3 for the offence under Section 326 R/w. 34 of the Indian Penal Code (for short “IPC”). As many as nine witnesses were examined by the prosecution. Holding that no case was made out against A-2 and A-3, the learned trial Judge acquitted A-2 and A- 3. He however, considered that the case was made out against A-1 for the offence under Section 326 IPC. He recorded a conviction against A-1 and sentenced A-1 to Rigorous Imprisonment for a period of two years and fine of Rs.2,000/- with appropriate default sentence. 2. The learned II Additional Sessions Judge, Kadapa at Proddatur before whom appeal was preferred, confirmed the conviction against A-1 and maintained the sentence recorded by the trial Court. Aggrieved by the same, the 1st accused preferred the present revision. 3. The point for consideration is whether the prosecution brought home the guilt of A-1 beyond reasonable doubt? 4. The case of the prosecution is that on 26-12-2000, when disputes arose between PW-1 on the one side and the accused on the other side regarding drawal of water to their respective fields, A-1 attacked PW-1 and caused a grievous injury upon the head of PW-1. It is the further case of the prosecution that A-2 and A-3 facilitated A-1 by holding PW-1 tight so that A-1 could attack PW-1, so much so, not only A-1 but A-2 and A-3 were also liable for the grievous injury upon the person of PW-1, albeit with the aid of Section of 34 IPC. 5. PW-1 is the injured. PW-2 is the wife and PW-3 is the father of PW-1. A-2 is the younger brother of PW-3. A-1 & A-3 are the sons of A-2. Thus, the case is a dispute between close relatives. The dispute is in respect of drawing of water to their respective fields by PW-1 on the one side and A-1 to A-3 on the other side. 6. Smt P.Rajini Reddy, inter alia contended that PW-1 himself shifted the scene of offence in the chief examination and in the cross- examination and that where there is change of the scene of offence itself, benefit of doubt should arise and should accrue in favour of the 1st accused. In the chief examination, PW-1 contended that the occurrence took place at about 10-00 A.M., at the bore-well. In the cross-examination, PW-1 stated that the incident occurred in the land of Bathula China Subba Rayudu near the bore-well on the cart track at a distance of 25 feet from the bore-well. I agree with the contention of the learned counsel for the revision petitioner that PW-1 himself is not consistent regarding the exact place where the incident occurred. Be that as it may, there is no contradiction between the evidence of PW-1 on the one side and the evidence of PWs. 2 and 3 on the other side regarding the place of the scene of offence. It also would not appear to be a ground urged on behalf of A-1 either before the trial Court or before the appellate Court that the very scene of offence was shifted by PW-1 from the chief examination to the cross-examination and that A-1 should be given the benefit of doubt on account of such a shift of the scene of offence. I, therefore, ignore the inconsistency in the evidence of PW-1 himself regarding the exact scene of offence. 7. PW-1 at one stage stated that he was alone at the bore-well at the time of the incident proper. On the other hand, PW-2 vividly described the occurrence and contended as if she was present at the scene of offence. PW-3, father of PWs. 1 and 2, deposed that he found PW-1 and the accused were altercating physically with each other and that A-1 administered a blow over the head of PW-1 with a stone. The evidence of PW-3 is inconsistent with the evidence of PWs. 1 and 2. PW-1 is very clear in pointing out that PW-3 was not present at the scene of offence by the time the incident occurred. His evidence is that on receipt of blow in the hands of A-1, PW-1 became unconscious, that he was unconscious for a period of about 45 minutes and when he regained consciousness, he found his father PW-3 by his side. The evidence of PW-3 that he witnessed the incident proper thus, does not agree with the evidence of PW-1. PW-2 also deposed that PW-3 reached the scene of offence after the incident only and that PWs. 2 and 3 went to the place, where PW-1 was lying. The evidence of PW- 3 thus runs contrary to the evidence of PWs. 1 and 2 and deserves to be totally ignored. 8. PW-2 deposed that she was at a distance of about 10 baras (perhaps ‘yards’) from the bore-well at the time of the occurrence of the crime. On the other hand, PW-1 stated that no one was near the bore- well when the incident took place. This is indeed an inconsistency between the evidence of PWs.1 and 2 regarding the presence of PW-2 at the scene of offence. 9. Apart from the presence of PW-2 at the scene of offence, the manner in which the incident occurred has been spoken to by both PWs. 1 and 2 which did not agree. It is the evidence of PW-1 that power supply was restored at about 10-30 A.M., on 26-12-2000, which was about half an hour before the normal hour of power restoration and that by the time he went to switch on the motor to draw water to his lands, the accused had already switched on the motor so as to draw water towards their fields. He further deposed that a quarrel ensued thereafter, resulting in PW-1 questioning the accused about their proprietary in drawing water while it was the turn of PW-1 to draw water for his lands. It is the case of the PW-1 that the incident occurred thereafter, viz., A-2 and A-3 held PW-1 and A-1 beat with a stone on the head of PW-1. 10. As already pointed out, PW-2 gave a vivid picture of the incident proper, just as PW-1 deposed about the circumstances of the incident. PW-1 was the victim. There is no surprise for PW-1 to state how the incident occurred. But, where PW-1 claimed that no one was in the vicinity of the scene of incident, how did the PW-2 know about the incident in vivid details, is for PWs. 1 and 2 and for the prosecution to explain. The evidence of PW-2 becomes inherently suspicious in view of the evidence of PW-1 that there was no one nearby at the time of the commission of the offence. 11. The evidence of PW-2 as to the manner in which the incident occurred may be narrated at this stage. It is the case of PW-2 that the accused tried to switch on the motor, whereupon PW-1 objected declaring that it was the turn of PW-1 to draw water. It is the further case of PW-2 that PW-1 thereafter switched off the motor started by the accused and that when the accused insisted high-handedly to draw water to their fields, PW-1 took exception to the demand of the accused. 12. It is the further case of PW-2 that A-1 then removed the electric wires from the motor and that when PW-1 took strong objection to the conduct of the accused, A-1 to A-3 surrounded PW-1. Thereafter, the story of PW-1 coincides with the evidence of PW-1 as to how the blow was administered upon PW-1. 13. The story of PW-2 that the accused went to the motor and tried to switch on the motor, that PW-1 switched off the motor started by the accused and that the accused disconnected the electric wires from the motor are not spoken of by PW-1. If PW-1 had spoken about these aspects, even if PW-2 did not speak about the same, there was the possibility to conclude that PW-2 was at some distance from the scene of offence and did not notice what exactly transpired. On the other hand, it is PW-2, who speaks about the incident so vividly which PW-1, very victim of the incident failed to speak about. I am afraid that such evidence of PW-2 is a quantum improvement of the case of the prosecution from the evidence of PW-1. This is not a case where the evidence of PWs. 1 and 2 did not agree on material aspects and the inconsistencies are in the magnitude of contradictions. 14. Smt Rajini Reddy, Counsel for the petitioner, drew my attention to the evidence of the witnesses and pointed out that the only independent witness in PW-4 did not support the prosecution story. PW-4 is a neighbouring farmer. He claimed that he did not know anything about the incident. He thus did not support the prosecution case. Indeed, the learned Assistant Public Prosecutor considered PW-4 hostile and posed leading questions to him with the permission of the Court. Be that as it may, PW-4, who is the only independent witness, did not support the story of PWs. 1 to 3. PW-3, as already pointed out, is not a trustworthy witness as PWs. 1 and 2 did not speak about the presence of PW-3 at the time of the commission of the offence. PWs. 1 and 2 did not agree inter se regarding the exact mode and manner of the incident. All in all, the evidence of PWs. 1 to 3 is doubtful. It would not be appropriate to record a conviction on the strength of such doubtful evidence. Therefore, I agree with the contention of the learned counsel for the 1st accused/ revision petitioner that this is a case where the prosecution failed to prove the guilt of the accused beyond reasonable doubt. 15. The medical evidence is to the effect that PW-1 suffered grievous injury. Had it been established that A-1 caused the grievous injury, A-1 certainly would have been guilty of the offence under Section 326 IPC. Where the evidence of PWs. 1 to 3 is not sufficient to hold that the accused No.1 caused the grievous injury, A-1 certainly is entitled to benefit of doubt of the inconsistencies and contradictions in the evidence of PWs. 1 to 3. I am not able to appreciate the reasoning of the learned trial Judge and the Appellate Court in accepting the evidence of PWs. 1 and 2 to hold that A-1 is guilty of the offence under Section 326 IPC. The trial Court and the Appellate Court erroneously accepted the evidence of PWs. 1 to 3 to record the conviction against A-1. The conviction against A-1 is liable to be set aside as the prosecution failed to establish the guilt of A-1 beyond reasonable doubt. 16. Consequently, this revision is allowed. A-1 is found not guilty of the offence under Section 326 IPC and is acquitted. His bail bonds stand discharged. The fine amount, if paid by the accused No.1/revision petitioner shall be refunded to him. Date: 18-02-2011. _______________ K.G. SHANKAR, J INL