THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1251 of 2005 Date: 23.08.2011 Between: Sompalli Mogilaiah … Petitioner AND State of A.P., Through PS Alipiri, Tirupathi, rep.by Public Prosecutor, High Court of A.P., Hyderabad. … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C. No.1251 of 2005 ORDER: The sole accused was charged for the offence under Section 326 of the Indian Penal Code (IPC) for causing grievous injuries to PW.1. After examining as many as seven witnesses, the learned III Additional Judicial First Class Magistrate, Tirupati held that the offence u/s.326 IPC was made out. He consequently convicted the accused for the offence u/s.326 IPC and sentenced him to undergo Rigorous Imprisonment (R.I.) for a period of six months and also to pay a fine of Rs.1,000/- with appropriate default sentence. The sole accused assailed the judgment of the learned III Additional Judicial First Class Magistrate, Tirupati before the VI Additional Sessions Court, Tirupati. Through the judgment dated 27.07.2005, the learned VI Additional Sessions Judge, Tirupati found no merits in the appeal. He accordingly dismissed the appeal both with reference to the conviction and with reference to the sentence. The sole accused impugned the same, through the present revision. 2. The case of the prosecution is a) The accused and PW.1 are close relatives. They are immediate neighbours as well. b) On 04.02.1999 drainage water was flowing in front of the house of PW.1. PW.3, who is the mother-in- law of PW.1, was cleaning the sullage water, which was flowing outside the drain. At about 7.30 a.m. the son of the accused came to the drainage canal and urinated. c) PW.3 questioned the conduct of the son of the accused. At that juncture, the accused went to the scene of offence and picked up a quarrel with PWs.1 to 3. d) PW.1 decided to report the matter to the police. Along with his wife, PW.2 and his mother-in-law PW.3, PW.1 started towards the Police Station. The accused then got annoyed and beat PW.1 over his head and left fore arm with a stick. This was witnessed by PW.4 and others. The hit on the left forearm resulted in a fracture. Consequently, the accused was charge sheeted for the offence u/s.326 IPC. e) This is the case of the prosecution. 3. The point for consideration is whether the prosecution has brought home the guilt of the accused beyond reasonable doubt and whether the trial Court and the appellate Court committed any error in appreciating the evidence of the witnesses. 4. Smt. M. Madhavi Priya, learned counsel representing the revision petitioner contended that the non-examination of the son of the accused was fatal to the prosecution. Her contention is that the origin of the dispute was the physical misconduct and indecent behaviour of the son of the accused and that the prosecution ought to have examined the son of the accused to prove its case. First, the son of the accused obviously was a person interested in the accused. It is not that the prosecution suppressed the evidence of the son of the accused. It would appear that he was not even cited as a witness. I consider that the non-examination of the son of the accused would not affect the case in any manner and would not prejudice the cause of the accused. 5. Secondly, the son of the accused cannot be considered by the origin of the dispute. Indeed, when PW.3 questioned the conduct of the son of the accused, the accused raised a dispute. Be that as it may, I am afraid that it cannot be contended that the son of the accused was responsible for the whole episode. 6. At any rate, assuming that the son of the accused was responsible for the behaviour of the accused, it cannot be expected for the son of the accused to speak against his father. I, therefore, reject the contention of the learned counsel for the accused that non-examination of the son of the accused is fatal to the prosecution case. 7. PW.4 was one of the alleged eyewitnesses for the incident. He did not support the prosecution story. He was considered hostile. The prosecution was permitted to put leading questions to him. I am afraid that neither the trial court nor the appellate Court erred in ignoring the evidence of PW.4. PW.4 certainly is not a dependable witness. He did not support the prosecution story and deposed that he did not know anything about this case. The trial Court and the appellate Court, therefore, were justified in ignoring the evidence of PW.4. So far as the evidence of PWs.1 and 3 are concerned, they are consistent regarding the circumstances in which the incident occurred. PW.2 corroborated the evidence of PWs.1 and 3. I am constrained to conclude that the evidence of PWs.1 to 3 is sufficient to hold that there was an incident and that the accused attacked PW.1, as alleged by the prosecution. 8. The learned counsel for the accused also contended that the non-seizure of the weapon should be fatal to the prosecution case. I am afraid that the weapon used is an ordinary stick, which is available anywhere. The non-seizure of the weapon certainly cannot be considered fatal. The trial Court and the appellate Court were justified in not considering the non-seizure of the weapon as fatal. 9. PWs.5 and 6 are the medical witnesses. They have deposed that PW.1 sustained one grievous injury and two simple injuries. Ex.P.3 is the wound certificate. Exs.P.4 and P.5 are X-ray films. The evidence of PWs.5 and 6 coupled with Ex.P.3 wound certificate shows that PW.1 sustained a grievous injury. Consequently, the conviction of the accused for the offence u/s.326 IPC by the trial Court and confirmation of the same by the appellate Court is justified and does not need any interference. This appeal, therefore, is liable to be dismissed, so far as the conviction of the accused for the offence u/s.326 IPC is concerned. 10. Regarding the quantum of sentence, it may be recalled that the incident occurred more than 12 years ago. The incident was on 04.02.1999. The sole accused was described to be 56 years old at that point of time. He is not only a senior citizen, he must be over 68 years old as on today. The accused was said to be in judicial remand for more than three months. Taking these factors into consideration, I hold that it would be just and proper to reduce the sentence of imprisonment to the imprisonment already undergone, maintaining the fine imposed by the trial Court and confirmed by the appellate Court. The learned counsel for the accused submitted that the fine was already paid. 11. Accordingly, the Criminal Revision Case is dismissed, so far as the conviction of the accused is concerned. The revision is ordered in respect of the sentence by modifying the sentence of imprisonment of R.I. for a period of six months, as imposed by the trial Court and confirmed by the appellate Court to the sentence of imprisonment already undergone. The fine amount, as recorded by the trial Court and confirmed by the appellate Court, is maintained. ________________ K.G. SHANKAR, J Date: 23.08.2011 Isn