HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2230 of 2004 Date:28.01.2011 Between: Utkur Sanjay Kumar @ Sanjay ….Appellant And: The State of A.P., rep. by its PP., High Court of A.P., .…. Respondent. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2230 of 2004 JUDGMENT: This is an appeal arising out of the conviction and sentence passed against the accused by III Metropolitan Sessions Judge, Hyderabad in S.C.No.291 of 2003 on 16.9.2004. The III Metropolitan Sessions Judge found the accused guilty of the offence under Section 326 IPC and convicted and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.2,000/- in default to suffer simple imprisonment for one month. The case of the prosecution is that on 12.1.2003 at about 8.30 a.m or 9.00 a.m one Sarvaiah employed some persons for cleaning the drainage pipe, the labourers cleaned the drainage pipe and dumping the garbage in front of the house of A.K. Prabhakar P.W.1 at that time P.W.1 asked the labourers to place the garbage by the side of his wall or in open place by the side of his house, as it was giving bad smell and causing inconvenience for the movements of family members in front of P.W.1’s house for which Sarvaiah demanded Rs.50/- for shifting the garbage from the place in front of the house of P.W.1 to open plot and P.W.1 agreed to pay only give Rs.20/- and there was altercation between P.W.1 and Sarvaiah. At the same time accused came there and started quarrelling with P.W.1 and others, accused alleged to have beat the mother of P.W.1, P.W.1 and other family members. Thereafter accused went into his house and brought a knife and stabbed P.Ws.1 and 2. After receiving injury P.W.1 was shifted to Osmania Geneal Hospital, his brother A.K. Shanker P.W.2 fell unconscious, A.Kamalamma P.W.3 who is mother of P.Ws.1 and 2 tried to intervene at that time accused pushed her due to which she fell into the drainage canal. The charge sheet was filed against the accused for the offence under Section 307 IPC. The learned Sessions Judge has framed charge under Section 307 IPC and the accused pleaded not guilty for the said charge. The prosecution in order to establish the said charge examined P.Ws.1 to 3 and got marked Exs.P-1 to P-20 and M.Os.1 to 3. Taking into consideration of the said oral and documentary evidence, the learned Metropolitan Sessions Judge found the accused not guilty for the offence under Section 307 IPC and found him guilty for the offence under Section 326 IPC and convicted and sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.2000/- in default to suffer simple imprisonment for one month. Aggrieved by the said conviction and sentence, the present appeal is filed. Now the point for consideration is whether the prosecution could be able to establish the offence under Section 326 IPC against the accused beyond reasonable doubt. The contention of the learned counsel for the appellant is that the injured P.W.1 has not stated that the accused has not caused the injuries to him and P.W.2 who is brother of P.W.1 even though stated about causing of injuries to him and P.W.1 stated that he has become unconscious for 48 hours but whereas the statement was recorded by the police on the same day immediately after the incident and therefore his evidence cannot be relied upon and the mother of P.Ws.1 to 3 has given inconsistent version with regard to causing of injury to P.Ws.1 and 2 and apart from the above said evidence of P.Ws.1 to 3, the wife of P.W.1 as P.W.4 even though she has stated that the accused caused injuries to P.Ws.1 to 3 but in her cross-examination and admitted that she is deposing against the accused as police threatened them to give evidence against the accused. Therefore, in view of the admission made by her in her cross-examination, her evidence cannot be relied upon. Apart from the above evidence, there is no other evidence to speak about the causing of injuries by the accused to P.Ws.1 and 2 as the other independent eye witnesses for the alleged incident have turned hostile to the prosecution. The scene of offence Panchanama and seizure could not be established by the prosecution as the punch witnesses for the said Panchanamas turned hostile to the prosecution. The appellant’s counsel has further pleaded that P.Ws.1 to 4 are interested witnesses to the incident and their evidence are also inconsistent as such there is no reliable evidence even to establish the offence under Section 326 IPC against the accused. The learned Public Prosecutor on the other hand has pleaded that causing of injuries to P.Ws.1 and 2 was established by the evidence of P.Ws.11 and 12. The learned Public Prosecutor further pleaded with regard to the accused causing the injuries P.Ws.2 to 4 have specifically stated about the same and the prosecution could be able to establish the incident that has taken place at the scene of offence i.e., to cleaning of drainage pipe and placing of the garbage in front of the house of the P.W.1. The circumstances clearly established that the accused are responsible for causing injuries to P.Ws.1 and 2 and as such the learned Metropolitan Sessions Judge has rightly convicted the accused for the offence under Section 326 IPC. According to the prosecution on 12.1.2003, P.W.5 has engaged P.W.7 for cleaning the drainage pipe along with other labourers and they put the garbage in front of the house of P.W.1 for which P.W.1 was objecting and asked P.Ws.5 to shift the garbage in the open space which is by the side of his house and for which he demanded for payment of Rs.50/- and P.W.1 has agreed to pay Rs.20/- and upon which there was an altercation between P.W5 and P.W.1 at that time accused came to the spot and objected for shifting the garbage and when PWs. 1 to 3 insisted, the accused pushed P.Ws.3 and she fell on the drainage canal and when P.Ws.1 and 2 had altercation with the accused, the accused suddenly entered into his house and brought a knife and stabbed the P.W’s 1 on left side abdomen and P.W.2 on his chest. P.Ws.1 to 4 have categorically stated about the cleaning of the drainage pipe and placing the garbage in front of their house prior to the occurrence of the incident and P.W.1 also stated about P.W.5 demanding for additional amount of Rs.50/- and he agreed for payment of Rs.20/- and at that time altercation was taken place between him and P.W.5. But, P.W.5 D. Sarviah even though admitted about the cleaning of the drainage pipe and dumping the garbage in front of the house of the P.W.1 and P.W.1 demanding to put the garbage in the open site by the side of his house and due to which labourers left that place but stated that he did not witness P.Ws.1 and 2 receiving injuries. P.W.6 stated to be the another independent eye witness present at the time of incident has stated that on 12.1.2003, P.W.5 was getting drainage pipe cleaned, the incident said to have occurred and he was not present at that time and subsequent to the incident he reached that place and came to know that P.Ws.1 and 2 were shifted to hospital. He does not know who caused the injuries to P.Ws.1 and 2. P.W.7 M. Misaiah who is the labour engaged for getting the drainage cleaned admitted that he cleaned the manhole in front of the house of P.Ws.1 and 2 and placed the garbage by the side of manhole in front of the house of P.Ws.1 and 2. P.W.1 objected for the same and asked them to place the garbage in the open place which is by the side of their house and the accused objecting for placing garbage in the open side as it will cause inconvenience to him. But, he did not speak anything about the incident that took place between the accused and P.Ws.1 to 3. Therefore, except, the evidence of P.Ws. 1 and 4, the other independent witnesses have not supported the case of the prosecution. With regard to causing of injuries, the prosecution examined P.Ws.11 and 12. P.W.11 is the doctor who examined P.W.1 and found, a penetrating injury on left lower abdomen 3” in length 5 cm above the iliac crest; a laceration of 3rd and 4th fingers of right hand; multiple abrasions over neck and left upper arm. The wound certificate was issued by Dr. Devraj and he can identify the signature of Dr. Devaraj on Ex.P-13 and according to him, the injuries No.1 is grievous in nature and the injuries Nos.2 and 3 are simple in nature. P.W.12 Dr.G. Srinivas who examined P.W.2, has stated that he found the stab injury below the left nipple on P.W.2 and he opined that the said injury as grievous in nature and issued wound certificate under Ex.P-12. Therefore, the prosecution could be able to establish the sustaining of one grievous injury and one simple injury by P.W.1 and grievous injury by P.W.2. Now the prosecution has to establish that the accused has caused the said injuries to P.Ws.1 and 2. P.W.1 has specifically stated in his chief-examination itself that there was an altercation between himself and Sarvaiah at that time some body stabbed him with knife on the left side of his abdomen and also on his chest. According to him, the accused caused the injuries to P.W.2 and in the cross- examination he denied about his stating the name of the accused to the police in his statement and also mentioning the name of accused in his complaint Ex.P-1. Therefore, the evidence of P.W.1 has not supporting the case of the prosecution. P.W.2 who is the brother of P.W.1 has stated that the accused came to the place and started quarrelling with them and at that time the accused beat his mother and then himself and his other family members and P.W.1 intervened and questioned the accused, the accused went inside of his house and brought a knife and stabbed him on the left side of his chest. Accused also stabbed on the left side abdomen of the P.W.1 and after receiving the injuries, he fell down and became unconscious and while he was taking treatment in Gandhi hospital, he regained consciousness after 48 hours. The learned counsel for the appellant has pleaded that the statement given by P.W.2 with regard to his became unconsciousness for 48 hours is false as his statement was recorded by the Investigating Officer on the same day. The Investigating Officer P.W.13 has specifically stated that on 12.1.2003 at about 12.15 p.m the injured Prabhakar P.W.1 along with P.W.2 came to police station along with their mother and as P.Ws.1 and 2 having injuries, he sent P.Ws.1 and 2 to Osmania Hospital for examination and treatment as the injuries were profusely bleeding. Then he went to Osmania General Hospital, Hyderabad and recorded the complainant-statement of P.W.1 under Ex.P-14 and then he registered a case in Crime No.6 of 2003 under Section 307 IPC and issued F.I.R under Ex.P-15 and examined P.Ws. 1 to 3 and others and recorded their statements. P.W.2 in his chief- examination itself has stated that at about 11.30 a.m, Magistrate came to him and recorded his statement. Therefore, the factum of his become unconsciousness for 48 hours immediately after the incident is falsified by his own evidence and evidence of investigating officer P.W.13. P.W.3 who is the mother of the P.Ws.1 and 2 also stated about the accused stabbing on the left side of the abdomen and according to her after P.W.1 receiving injuries he started running towards temple side and she followed him. But, she did not state any thing about causing of injuries to P.W.2 by the accused. She has only seen that P.Ws.1 and 2 in hospital taking treatment in Emergency ward and police examined her and recorded her statement. Therefore, the evidence of P.W.2 with regard to his receiving injuries in the hands of accused was not supported by the evidence of P.W.3 who is his mother. The wife of P.W.1 was examined as P.W.4 and she even though supported the version of P.W.2 with regard to the accused caused injury on his left side chest and stated in his cross-examination that she went to the police station yesterday at 6.30 p.m and stayed there in the police station for half an hour and at that time police threatened them to give evidence against the accused as such she has deposed against the accused. Therefore, in view of her admission made in the cross-examination, the entire evidence with regard to the accused causing of injuries to P.Ws.1 and 2 was demolished. With regard to her going to the police station prior to the date of giving evidence was also admitted by P.W.2 in his cross-examination. More over, the evidence of P.W.2 was not corroborated by any other independent witnesses with regard to his receiving injury and P.W.1. With regard to the observation of the scene of offence, the investigating officer P.W.13 after recording statement of the witness proceeded to the scene of offence situated at Kishanbagh, Bahadurpura, in front of house of P.Ws.1 and 2 and recorded the statements of P.Ws.5, 6 and one Md. Ali Ahemd and then he secured the presence of mediators Maruthi (P.W.8) and Sriramulu and he observed the scene of offence and prepared the rough sketch of the scene of offence. P.W.8 M. Maruthi has not spoken about the police conducted the Panchanama at the scene of offence and according to her she has not affixed her signature on any Panchanama. In order to establish the recovery of M.Os.1 to 3, the Investigating Officer has stated that on 14.1.2003 on receipt of credible information he arrested the accused at Vidyabharathi School, Kishanbagh at 10.00 a.m and secured the presence of mediators, interrogated the accused and recorded his confessional statement before P.Ws.9 and P.10 and he has stated that he will produce the knife used by him in commission of offence and bloodstained clothes worn at the time of offence. According to him, M.Os.1 to 3 are seized at the instance of accused and then he brought the accused to police station and effected his arrest. But P.W.9 has stated on 14.1.2009 he was called to the Bahdurpura police station and the accused was in the custody of police and the police informing him that the accused confessing about the offence, but no articles were seized from the possession of accused at that time in his presence and he affixed his signatures on Exs.P-6 and P-7 in the police station. P.W.10 M. Narsimha also stated that on 14.1.2009 he was called to the police station and he signed in the Panchanama in the police station. On 14.1.2003 he did not see the accused in police station. No property was seized by the police at the instance of the accused in his presence on that day. Therefore, recovery of M.Os. 1 to 3 at the instance of accused was also not established by the prosecution. The lower court basing on the evidence of P.Ws.3 and 4 found the accused caused the grievous injuries and simple injuries to P.Ws.1 and 2. As discussed above, the evidence of P.Ws.3 and 4 cannot be relied upon as their evidence was not supported by any other independent witnesses. More over P.Ws. 2 to 4 are interested witnesses to the incident and even though independent witnesses were present at the time of alleged incident, but none of them have spoken about the same and as such it is not safe to rely upon the interested evidence P.Ws.2 to 4. Therefore, I hold the prosecution could not able to establish the offence under Section 326 IPC against the accused beyond reasonable doubt and the accused are entitled for benefit of doubt. In the result, the appeal is allowed and the conviction and sentence passed on 16.09.2004 by the learned III Additional Metropolitan Sessions Judge, Hyderabad in S.C.No.291 of 2003 is set aside. _____________________ P.DURGA PRASADJ. Date:28.01.2011 Gk. HON’BLE SRI JUSTICE P. DURGA PRASAD CRIMINAL APPEAL No.2230 of 2004 Date:28.01.2011 Gk.