THE HON’BLE SRI JUSTICE P.DURGA PRASAD CRIMINAL APPEAL NO.1441 OF 2004 ORDER: This appeal at the instance of the State is directed against the sentence passed in Criminal Appeal No.121 of 1999 by the Additional Sessions Judge, Mahabubnagar on 28.03.2003. The respondents herein were prosecuted for the offences under Sections 341, 324 and 326 read with 34 IPC alleging that P.Ws.1 and 2 and accused Nos.1 to 4 are the residents of Peddamaroor village. On 06.01.1996 at about 9.30 A.M., when P.W.1 was proceeding from Peddamaroor village to Chinnamaroor village on a scooter along with his father, (P.W.2) and when they reached near distributory canal No.2, accused No.1 beat with iron rod on their scooter, resulting which both of them fell down. Then accused Nos.1 to 4 beat P.Ws.1 and 2 with iron rods on the head and all over the body indiscriminately, as a result which P.W.1 sustained simple injuries and P.W.2 received grievous and simple injuries including fractures. P.W.1 gave a report to the police, which was registered as a case in Crime No.2 of 1996 under Sections 341, 324 read with 34 IPC. After completion of the investigation, charge sheet was filed against the accused. The Magistrate, who has conducted the trial of the case, has framed the charges under Sections 341, 324 and 326 IPC against accused Nos.1 to 4. All the accused pleaded not guilty for the said charges. In order to establish the said charges, the prosecution examined P.Ws.1 to 6 and got marked Exs.P.1 to P.5. On behalf of the accused, no oral evidence was adduced, but Ex.D.1 was marked. The learned Magistrate by taking into consideration of the said oral and documentary evidence found the accused No.1 guilty for the offence under Section 324 IPC and convicted and sentenced to undergo rigorous imprisonment for 6 months and to pay fine of Rs.500/- in default simple imprisonment for one month, and accused Nos.1 to 4 were convicted for the offence under Section 326 IPC and sentenced to undergo rigorous imprisonment for a period of 2 years each and also to pay fine of Rs.500/- each in default simple imprisonment for 3 months each. Aggrieved by the said conviction and sentence, the accused therein have preferred the appeal before the Additional Sessions Judge, Mahabubnagar. The learned Sessions Judge while confirming the conviction, modified the sentence and directed the accused No.1 to pay compensation of Rs.3,000/- to P.W.1 under Section 5 (1) of Probation of offenders Act. Accused Nos.1 to 4 are directed to pay further compensation of Rs.3,000/- each to P.W.2 and ordered to be released under Section 4 of Probation of Offenders Act by keeping them under the supervision of Probation Officer for a period of 2 years, to keep peace and good behaviour, on their furnishing personal bond for Rs.10,000/- each with one surety each. Aggrieved by the said reduction of the sentence by the appellate Court, the present appeal is filed by the State under Section 377 of Cr.P.C. The respondents’ counsel has pleaded that he is entitled to plead for the acquittal of the accused under Section 377 (3) of Cr.P.C. As per Section 377 (3) Cr.P.C, when an appeal has been filed against the sentence on the ground of its inadequacy, (the Court of Session or, as the case may be, the High Court) shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence. Now, the point that arises for consideration is: Whether the appellant/State is entitled for the enhancement of the sentence or the respondents/accused are entitled for acquittal? P O I N T: According to the prosecution there was previous enmity between P.Ws.1 and 2 and the accused. On 06.01.1996 at about 9.30 A.M., when P.W.1 was taking his father, P.W.2 on his scooter to drop him near Netherland Distributory Canal No.2, where he was working as a teacher, the accused obstructed them and accused No.1 hit on the scooter with oil engine handle, as a result of which, P.Ws.1 and 2 fell down on the ground. Thereafter, the accused beat them with iron rods. P.W.2 has sustained grievous injuries and P.W.1 sustained simple injuries. To establish the same, the prosecution has examined P.Ws.1 to 6 and got marked Exs.P.1 to P.5. P.Ws.1 and 2 are the injured persons and P.W.3 is eyewitness to the said incident. P.W.1 has categorically stated in his evidence that on 06.01.1996 while he was proceeding from Peddamaroor village to Chinnamaroor village along with his father on his scooter, near Distributory Canal No.2, the accused No.1 beat him with iron rod on his scooter, as a result of which both of them fell down on the road. Then accused No.1 beat him with iron rod on his head, lips and on the left side of the head, resulting which he sustained bleeding injures. Subsequently accused Nos.2 to 4 beat him indiscriminately all over his body. Accused No.1 beat his father with iron rod on his head and accused Nos.2 to 4 beat him on his right hand with iron rods and also on his left leg and on his back indiscriminately, resulting which, he sustained bleeding injuries. P.W.3 came to the spot and rescued them. Thereafter, he has gone to the police station and lodged the complaint Ex.P.1. The evidence of P.W.1 was corroborated by the evidence of P.W.2, who is the father of P.W.1, who also sustained injuries in the said incident. P.W.3, who is the independent witness to the incident, has also stated that on 06.01.1996 at 9.30 A.M. while he was going on a bund of channel at Distributory canal No.2 at Peddamaroor village found the accused and P.Ws.1 and 2. He separated the accused and P.Ws. 1 and 2. P.Ws.1 and 2 sustained injuries. A suggestion was put to him that he is deposing falsehood due to enemical terms with the accused. Except putting a suggestion nothing was elicited with regard to the enemical terms between the accused and P.W.3. If really, there are enemical terms between the P.W.3 and accused, P.W.3 ought to have spoken about the details of the incident, but the way in which he has given evidence clearly shows that the said suggestion put to him is false. Therefore, P.W.3 has supported the version of P.Ws.1 and 2 with regard to their presence at distributory canal No.2 and sustaining injuries and he separated both of them. Therefore, the occurrence of the incident was supported by the evidence of P.W.3. Even though P.W.5 has cited as eyewitnesses, he has turned hostile to the prosecution. The evidence of P.Ws.1 and 2 with regard to their sustaining injuries was corroborated by the evidence of P.W.4, Doctor, who examined the P.Ws.1 and 2. It was suggested to P.Ws.1 and 2 in their cross-examination that due to political rivalry a false case was foisted against the accused. As admitted by P.Ws.1 and 2 they belong to Congress party and the accused belong to TDP party at the time of incident. Simply because they belong to two different parties, it cannot be said that a false case is foisted against the accused when it is established that P.Ws.1 and 2 sustained injuries in the hands of the accused. Moreover, all the pleas raised by the accused were taken into consideration by the Magistrate and found the accused No.1 guilty for the offence under Section 324 IPC and also found the accused Nos.1 to 4 guilty for the offence under Section 326 IPC. The said conviction was confirmed by the appellate Court. Thus, both the courts have given concurrent finding with regard to conviction of the accused for the above said charges. The respondents’ counsel has pleaded that the Doctor P.W.4 issued wound certificates Exs.P.2 and P.3 basing on the report of the Government General Hospital, Kurnool and by non-examination of said Doctor, who has issued the report, the prosecution could not establish the injuries sustained by P.Ws.1 and 2. Thus, the accused are entitled for acquittal. In support of his contention, he relied upon a decision rendered in “P.Johnson and others v. State of Kerala[1]”, wherein the Single Judge of Kerala High Court has held that the discharge certificate and X- ray report of injured showing that he suffered grievous hurt and non- examination of doctor, who took X-ray and non-production of X-ray report, the criminal liability under Sections 325 or 326 could be said to be not established. In the above said decision conviction was brought under Section 326 IPC and the Doctor, P.W.7, who examined P.W.12 in the medical college hospital, Calicut issued Ex.P.6 discharge certificate, which goes to show that P.W.12 sustained grievous hurt. P.W.7 in this context would depose that he gave Ex.P.6 certificate on the basis of X-ray report and that report was not produced and the doctor, who took X-ray was not examined. Non-production of the X-ray report and non examination of the doctor, who took the X-ray are sufficient to deduce that the criminal liability either under Section 325 or 326 IPC is not established. In the present case, P.W.4 the Civil Assistant Surgeon, in P.H.C., Serlingampally, has examined P.Ws.1 and 2 on the date of incident i.e. on 06.01.1996 and recorded the injuries found on P.Ws.1 and 2, but he stated that the case was referred to Government General Hospital, Kurnool and received report, basing on the report; he has issued the medical certificate. Therefore, from the above it is evident that P.W.4 initially examined P.Ws.1 and 2 and recorded the injuries found on their persons and subsequently only basing on the report from the Government General Hospital, Kurnool issued Exs.P.2 and P.3. Moreover, he has not referred the case sheets of Kurnool in Exs.P.2 and P.3. Therefore, the above said decision relied upon by the respondents’ counsel is not applicable to the present facts of the case. Thus, the evidence of P.Ws.1 and 2 is supported by the evidence of P.W.3 and the medical evidence available on record, clearly establishes the commission of offence by the accused. Therefore, there are no valid reasons to set aside the findings recorded by both the Courts with regard to conviction of the accused for the above said charges. With regard to the conviction, the appellate Court by taking into consideration that there is no criminal history against the accused found it appropriate to release them under Section 4 of Probation of Offenders Act by directing them to pay compensation under Section 5 (1) of P.O.Act. In view of the circumstances under which the offence was committed and the nature of offence committed by the accused, the learned Sessions Judge is justified in modifying the sentence imposed by the Magistrate and the said sentence imposed by the appellate Court does not warrant any interference by this Court in this appeal. In the result, the criminal appeal is dismissed. _______________________ P.DURGA PRASAD, J 18th November, 2011 Ksp [1] 1998 Crl.L.J. 3651