THE HON'BLE SRI JUSTICE N. RAVISHANKAR CRIMINAL REVISION CASE No.275 of 2005 ORDER: The two petitioners herein are A-1 and A-2 in C.C.No.327/1999 on the file of the Court of Judicial First Class Magistrate, Miryalaguda (trial court). Both were tried on a charge under Section 326 IPC read with Section 34 IPC i.e. causing grievous hurt by means of a dangerous weapon. 2. The trial court after considering the matter by its judgment dated 29.07.2004 convicted both the petitioners of the said charge and sentenced each of them to undergo rigorous imprisonment (RI) for six months and a fine of Rs.100/-. It did not impose any default clause prison sentence as the fines were already paid by them when the case was disposed of previously by the trial court by its earlier judgment dated 18.06.2002. This earlier judgment of the trial court was set aside in a previous criminal appeal preferred by petitioners and the matter was remanded and the judgment dated 29.07.2004 came to be passed after the remand. This aspect will be mentioned a little later as this is also made a point by the petitioners’ counsel regarding validity of the second petitioner’s conviction under Section 326 IPC r/w S.34 IPC. 3. Thereafter petitioners filed Crl.A.No.122/2004 assailing the judgment dated 29.07.2004 of the trial court. That appeal was dismissed by the court of V Additional District Judge, Nalgonda at Miryalaguda, confirming the convictions and sentences recorded by the trial court. Questioning the said appellate court judgment the petitioners have filed this revision case. 4. Admittedly P.W.1 P.Sreeramulu (de facto complainant) and P.W.2 P.Dharmaiah are brothers and P.W.3 Santhamma is their mother. Both the petitioners, hereinafterwards for convenience referred to as A-1 and A-2, are also brothers and they are agnates of P.Ws.1 to 3. All of them are residents of a village called Agamothkur within the local limits of Vemulapally Police Station in Nalgonda District. Both sides have agricultural lands in the said village. The prosecution case is that on 03.06.2009 in the morning the son of A-1 drove their cattle through the land of P.Ws.1 and 2 which resulted in some damage to the crop there and this was objected to by P.W.3 who was present at the land. The further version of the prosecution is that thereupon a quarrel broke out at the land among P.Ws.1 to 3 on one side and A-1 and A-2 on the other as all of them gathered there and in that quarrel both A-1 and A-2 armed with sticks attacked and beat P.Ws.1 and 2. It is alleged that in that quarrel A-1 tried to beat P.W.1 with a stick and when P.W.1 raised his left arm to ward off the blow it fell on his left arm resulting in fracture of the same and further A-2 also beat him with a stick on his head. It is also stated that when P.W.2 intervened A-2 also beat him with a stick on his back resulting in injury to him. 5. It is seen from the record that after the above incident was over a complaint was given to the concerned police by P.W.1 and they referred him to the Government doctor i.e. P.W.8 Dr Madhusudhan Reddy of Miryalaguda and the said doctor examined P.W.1 and found him with one simple injury on his scalp and one grievous injury i.e. fracture of the 1/3rd of ulna in the left fore-arm. The concerned Sub-Inspector i.e. P.W.7 Turabul-haque after completion of investigation filed charge sheet against both A-1 and A-2 alleging against them offences under Sections 324 and 326 r/w 34 IPC. However the trial court charged both the accused for the offence under Section 326 r/w 34 IPC and the case was dealt with as such even by the appellate court. 6. Sri N.Ramachandra Rao, the learned counsel appearing for both A-1 and A-2, disputed the occurrence of the very incident itself and argued that going by the evidence of P.Ws.1 to 3 and the other witnesses the prosecution version regarding the very occurrence of the incident cannot be believed. It may however be noted that the trial court and as well the appellate court discussed the evidence thoroughly and concluded that the incident pleaded by the prosecution occurred and that both A-1 and A-2 assaulted the P.Ws.1 and 2 and further concluded that P.W.1 suffered grievous hurt on his left fore-arm and also simple hurt at the hands of A-1 and A-2. A perusal of the judgments of both the courts below would show that they gave sufficient reasons to accept the evidence of P.Ws.1 to 3 and upheld the prosecution case on merits and concluded as above. So far as this aspect is concerned there is no compelling reason to disagree with the conclusions of both the courts below. Usually this is sufficient to dismissing this revision. However Sri Ramachandra Rao the learned counsel for petitioners raised certain other contentions relating to the applicability of Section 326 IPC to the case and also about the validity of conviction of the second accused for the offence under Section 326 IPC in view of the earlier remand of the case to the trial court and these contentions raise legal questions. Hence I now proceed to consider the said contentions. 7. Sri Ramachandra Rao firstly contended that the evidence on record is however not sufficient to sustain the charge under Section 326 IPC or any event causing grievous hurt. His contention is that the prosecution did not file the X-ray report pertaining to P.W.1 showing the fracture and also the radiologist report and that the mere evidence of P.W.9 the doctor on that aspect is not sufficient to sustain the said charge. In support of this contention he also placed reliance upon a decision of this court in Erlapalli Prakasham v. State of A.P.[1]. 8. In the above decision this court was dealing with a revision arising out of a case pertaining to Sections 304-A, 338 and 337 IPC which allegedly involved causing of death by rash or negligent driving of a motor vehicle by the accused therein. The prosecution did not examine the doctor who conducted post-mortem examination over the body of the deceased and the x-ray films were also not filed with regard to the grievous hurt caused to one of the victims. However the postmortem report was marked by consent and the radiologist also produced his report but the x-ray films were not filed. So far as postmortem report was concerned it was held that it cannot be held to have been proved as per law since the doctor was not examined and marking the postmortem report with consent was against law and in that view of the matter this court recorded an acquittal for the offence under Section 304- A IPC holding that death was not proved. Then coming to the offence under Section 338 IPC i.e. grievous hurt it was held that the radiologist report is not sufficient to sustain the said charge without x-ray films of the injured and holding so conviction for the said charge was also said aside. It is not clear whether doctor who opined about grievous hurt there was examined or not. The court then proceeded to confirm the conviction of the accused therein only for the offence under Section 337 IPC. The learned Additional Public Prosecutor canvassed about the correctness of the said decision. It is however not necessary to go into that aspect as it is easily distinguishable on facts from those in the present case. 9. In the present case it may be noted that the prosecution has examined P.W.9 Dr Madhusudhan Reddy the then Civil Assistant Surgeon of the concerned hospital and he was the doctor who treated P.W.1 soon after the incident and he also gave Ex.P.5 wound certificate pertaining to P.W.1. He clearly stated that his examination revealed that P.W.1 suffered fracture of the 1/3rd ulna and that could be caused by the stick blow. This P.W.9 was cross-examined by the defence counsel. The cross-examination reveals that not even a single suggestion was put to P.W.9 that P.W.1 did not suffer any fracture in his left arm and that he was speaking to accommodate the prosecution. The only suggestion put to P.W.9 was that injury No.2 i.e. the fracture is possible even by a sudden fall of a person on the ground or hard surface. This may be possible, but what should be noted is that the ocular evidence of P.Ws.1 to 3 would show that P.W.1 suffered the above fracture because of the beating given by A-1 with a stick and nothing was elicited from P.W.9 that it was impossible. 10. It may then be noted that P.W.9 was an in service Civil Assistant Surgeon of a Government hospital and he had sufficient experience and his experience was also not doubted by the defence to speak about the nature of the injury. Above all as mentioned, no suggestion was put to P.W.9 that injury no.2 of P.W.1 was not a grievous one. In such state of evidence i.e. in the face of the evidence of medical officer who spoke about the fracture and which has not been disputed in his cross- examination, the mere non-filing of the x-ray film or the report of the radiologist cannot be a ground to hold that P.W.1 did not suffer a grievous injury as spoken to by P.W.9 coupled with the evidence of P.W.1 himself. Thus this contention of Sri Ramachandra Rao is also rejected and it is held that the conviction of A-1 who caused that fracture can be sustained on evidence. 11. The next contention of Sri Ramachandra Rao pertains to the validity of the conviction of A-2 also under Section 326 IPC read with Section 34 IPC. His argument is that A-2 cannot be said to have intended to cause fracture to P.W.1 or he cannot be held to have had a common intention along with A-1 to cause the said grievous injury to P.W.1 and therefore A-2 cannot be held responsible along with A-1 for the grievous hurt suffered by P.W.1 at the hands of A-1. 12. In support of the above contention he placed reliance upon a decision of this court given in Amjad Bin Mohammed vs. State of A.P[2]. This case related to a charge of murder read with Section 34 IPC. The evidence in that case disclosed that initially the assault on the deceased was commenced by A-2 and A-3 and after the deceased fell down from his cycle because of the act of A-2 in kicking the cycle both A-2 and A-3 therein started dragging the deceased by holding his legs. This was seen by A-1 and thereafter A-1 went into his house and brought a knife and gave a stab on the left side of the chest of the deceased. Having regard to that method and manner of occurrence and the overt acts of A-1, it was on those facts held in the said decision that A-1 alone had the intention to kill the deceased by stabbing him and that A-2 and A-3 cannot be said to have a common intention as contemplated under Section 34 IPC along with A-1 to kill the deceased. This decision is also easily distinguishable on facts from those in the present case. 13. It may be noted that in the present case the quarrel or the incident started after A-1’s son drove the cattle into the fields of P.Ws.1 and 2 and in that quarrel both A-1 and A-2 attacked P.W.1 simultaneously. In that attack by A-1 and A-2, P.W.1 suffered grievous hurt at the hands of A-1. In such a situation it can be said that both A-1 and A-2 together committed a criminal act against P.W.1 in furtherance of their common intention to attack P.W.1 and hurt him and that being the position it can be safely concluded on the principle enacted in Section 34 IPC that A- 2 also becomes liable for the act of A-1 which resulted in grievous hurt to P.W.1. Thus this contention of Sri Ramachandra Rao cannot also be accepted. 14. Another aspect argued by Sri Ramachandra Rao under the above contention is that earlier the trial court by its judgment dated 18.06.2002 convicted A-2 for the offence under Section 324 IPC but not under Section 326 IPC and thereafter the matter was remanded by the appellate court in the earlier appeal of accused and consequently the trial court was not competent to convict A-2 under Section 326 IPC. There is no force in this contention. It is brought to my notice that the appellate court had earlier set aside the convictions in the earlier appeal and remanded the whole case back to the trial court with certain directions. After complying with the same the trial court again disposed of the matter by its judgment dated 29.07.2004 recording the convictions and sentences as aforesaid. What should be noted is when the earlier appeal was allowed and the matter was remanded it can be said that the whole matter was at large before the trial court again and therefore it cannot be said that the trial court is fettered by its earlier judgment and it was competent for it to again dispose of the matter afresh and therefore it cannot be said that it was incompetent to record the conviction of A-2 also under Section 326 IPC read with Section 34 IPC. It is already seen that the conviction of A-2 for that offence is justified on evidence. Accordingly this argument of the petitioners’ counsel is also rejected. 15. The last contention of Sri Ramachandra Rao is about M.Os.1 and 2 sticks said to have been used by A-1 and A-2 in his transaction and his contention is that they cannot be termed as dangerous weapons of offence as contemplated under Section 326 IPC. Here it should be noted that the prosecution evidence can be said to be silent or not clear about the dimensions of the sticks used. To attract Section 326 IPC the prosecution must show that in causing the grievous hurt the accused has used any instrument meant for shooting, stabbing or cutting or any instrument which when used as a weapon of offence is likely to cause death when the said charge is based on user of an instrument. 16. In the present case it is clear that M.Os.1 and 2 sticks which were used for commission of offence cannot be used as instruments for shooting, stabbing or cutting and nothing is clear that when the said sticks used as weapons of offence are likely to cause death. To repeat evidence does not show the stoutness of the sticks or their length or as to how their edges are to draw an inference that they are likely to cause death when used as weapons of offence. In such a situation it is difficult to accept the prosecution version that M.Os.1 and 2 sticks which are said to have been used can be termed as dangerous weapons of offence as contemplated under Section 326 IPC. The fact however remains from the evidence that P.W.1 suffered grievous hurt because of the act of A-1 and A-2 is also responsible for the same and this is already mentioned. 17. The next question now is what is the section of the IPC that is attracted to the case. It may be noted Section 325 IPC speaks of voluntarily causing grievous hurt without using dangerous weapons of offence. This offence under Section 325 IPC is a less graver cognate offence to Section 326 IPC and therefore no charge is required for the same as charge under Section 326 IPC r/w S.34 IPC is already framed against A-1 and A-2. In view of this and for the aforesaid reasons, the conviction of A-1 and A-2 is altered into Section 325 IPC which is a less graver cognate offence to Section 326 IPC. Thus A-1 and A-2 are now convicted under Section 325 IPC r/w S.34 IPC for causing grievous hurt to P.W.1. Both the courts did not deal with the offence of Section 324 IPC mentioned in the charge sheet or other lesser offences and no charge was framed for the same. The prosecution did not file any appeal or revision regarding the omission committed by the trial court and the appellate court in not dealing with Section 324 IPC or other lesser offences. However since A-1 and A-2 are now convicted for the above offence under Section 325 IPC it can be said that that would meet the ends of justice. Accordingly, accepting this last contention of Sri Ramachandra Rao, the convictions of A-1 and A-2 are altered as aforesaid. 18. Now turning to sentences the trial court sentenced each of A-1 and A-2 to RI for six months and also to pay a fine of Rs.100/- for the conviction under Section 326 IPC r/w S.34 IPC. It may be noted that even the offence under Section 325 IPC of which A-1 and A-2 are now found guilty, is also punishable with imprisonment of either description for a term which may extend to 7 years and also fine. Thus imprisonment is mandatory even for the offence under Section 325 IPC. It is seen that the sentence of six months RI plus fine imposed by the trial court can be said to be reasonable for this offence also having regard to the fracture suffered by P.W.1. 19. Accordingly with the above modification regarding altering of conviction of A-1 and A-2 into Section 325 r/w S.34 IPC, this revision case is dismissed confirming the sentences imposed by the trial court and confirmed by the appellate court and also in other respects. The trial court shall take steps to commit both A-1 and A-2 to prison for serving out the sentences subject of-course to the rule of set off of their previous under trial custody if any. ________________________ N. RAVISHANKAR, J 18th January, 2012 Cvrk [1] 2002(1) ALD (Crl.) 621 (AP) [2] 2003 (2) ALT (Cri.) 345