IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) TUESDAY, THE SEVENTEENTH DAY OF NOVEMBER TWO THOUSAND AND NINE PRESENT HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL No.174 OF 2002 Between: The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant AND Boya Kyruppal Thimmappa & 4 others ..... Accused/Respondents AND CRIMINAL APPEAL No.175 OF 2002 Between: The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. ..... Appellant AND Boya Kyruppal Thimmappa & 4 others ..... Accused/Respondents The Court made the following: COMMON JUDGMENT: These two Criminal Appeals, filed by the State of A.P., represented by the learned Public Prosecutor, High Court of Andhra Pradesh, Hyderabad, under Section 378 (3) & (1) of the Code of Criminal Procedure, 1973 (for short, “Cr.P.C.”), are directed against the judgment, dated 10.04.2001, in Crl.A.No.1 of 2000, on the file of the learned IV Additional Sessions Judge, Krunool, whereunder and whereby the accused were found guilty of the offences punishable under Sections 324 read with 34 of the Indian Penal Code, 1860 (for short, “I.P.C.”), but they were ordered to be released under the provisions of Section 4 (1) of the Probation of Offenders Act (for short, "the Act") and placed under the supervision of the Probation Officer on probation for a period of one year. The trial Court, by its judgment, dated 20.12.1999, in C.C.No.138 of 1998, found Accused Nos.3 and 4 guilty of the offence punishable under Section 326 I.P.C. and Accused Nos.1, 2 and 5 were found guilty of the offence punishable under Section 326 read with 34 I.P.C. and each of them is sentenced to under Rigorous Imprisonment for a period of one year and to pay a fine of Rs.1,000/- each, in default to undergo Rigorous Imprisonment for a period of two months. 2. The Crl.A.No.174 of 2002 is filed against the order of acquittal of the accused for the offences punishable under Sections 324 and 326 read with 34 of I.P.C. and Crl.A.No.175 of 2002 is filed to enhance the sentence recorded by the trial Court. 3. The brief facts, that are necessary for disposal of the prosecution case, may be stated as follows: The accused as well as P.Ws.1 to 5 are residents of Yedavalli village in Maddikera Mandal and they live by cultivation having adjoining lands. Besides the lands owned by P.Ws.1 to 5, they got a wet land locally known as Thukaram field, which adjoins the land of the accused, which is higher in level than the said Tukaram field. Whenever there was heavy rain, the water was let off into the land belonging to P.Ws.1 to 5 called Tukaram field whereby the crops were being destroyed. On 03.10.1998 at about 8.30 a.m., the water from the land of the accused began to flow into the land of P.Ws.1 to 5 whereby the paddy and sajja crops were damaged. At that time, P.W.5-the mother of P.W.1 tried to put earth to stop the flow of water. On seeing the same, all the accused came there and threatened P.W.5. When P.W.2, who is the father of P.W.1, intervened, the accused beat them and caused injuries to them. During the course of attack, Accused No.3 pelted a stone which hit on the fore arm of P.W.1 causing fracture of ulna. Thereafter, P.W.1 lodged report, basing on which the police registered a case. The police examined the scene of occurrence and prepared a rough sketch of the scene of occurrence. The police sent the injured to the Government hospital, Pattikonda, where the Medical Officer treated the injured and referred them to Government General Hospital, Kurnool, for examination and report. The Wound Certificate of P.W.1 shows that P.W.1 sustained fracture injury on the left elbow including forearm, whereas P.W.2 sustained simple injuries. The x-rays were taken. P.W.7-Radiologist opined that P.W.1 sustained fracture of ulna as per the X-rays taken by him. After completion of investigation, the police filed the charge sheet. 4. When the charges under Sections 324 and 326 read with 34 I.P.C. were framed against the accused, read over and explained to them in Telugu, they pleaded not guilty and claimed to be tried. 5. To substantiate the charges, the prosecution examined P.Ws.1 to 9 and got marked Exs.P1 to P17. 6. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. On behalf of the accused, no oral evidence was adduced except marking Exs.D1 to D3. 7. The trial Court, after considering the evidence on record, found the accused guilty of the offences punishable under Sections 324 and 326 read with 34 I.P.C. and accordingly convicted and sentenced them as stated above. Challenging the same, an Appeal is filed before the learned IV Additional Sessions Judge, Kurnool. The learned IV Additional Sessions Judge, Kurnool, came to the conclusion that the offence punishable under Section 324 I.P.C. against Accused Nos.3 and 4 and Section 324 read with 34 I.P.C. against Accused Nos.1, 2 and 5 are proved and accordingly, accused were convicted. Considering the facts and circumstances in this case, the accused were directed to be released on probation of good conduct for a period of one year after calling for the report from the District Probation Officer as required under Section 4 (1) of the Probation of Offenders Act. 8. Now the point for determination is whether the prosecution proved its case beyond all reasonable doubt against the accused for the offences punishable under Sections 324 and 326 read with 34 I.P.C. and whether the judgment of the trial Court is correct, legal and proper? 9. The learned counsel representing the learned Public Prosecutor contended that the evidence of P.W.1 coupled with the evidence of P.W.7 shows that P.W.1 sustained fracture of ulna and it cannot be said that the incident was caused accidentally, that therefore, setting aside the conviction for the offences punishable under Section 326 against Accused Nos.3 and 4 and Section 326 read with 34 I.P.C. against Accused Nos.1, 2 and 5 is unsustainable and hence, she prays to set aside the impugned judgment and punish the accused accordingly. 10. On the other hand, the learned counsel appearing for the respondents contended that the incident has taken place about a decade back; that there were no ill-feelings between the prosecution witnesses and the accused prior to the incident in question; that as P.W.5, the mother of P.W.1, was putting in earth to stop the water to flow into the lands of prosecution witnesses; that in a spur of moment, the incident took place and there was no intention on the part of Accused No.3 to cause grievous injury to P.W.1; that Accused No.3 simply throw a stone which hit on the forearm of P.W.1 causing fracture of ulna; that the Appellate Court, after considering the evidence on record, rightly released the accused under Section 4 (1) of the Probation of Offenders Act after calling for the report, and therefore, he prays to dismiss the Criminal Appeals. 11. The dispute is between the neighbourers. There were no prior incidents where they fought with each other with regard to the flowing of water from the land of the accused to the lands of P.Ws.1 to 5. As there were heavy rains, the water was flowing from the lands of the accused to the lands of P.Ws.1 to 5, thereby causing damage to the crop. At that point of time, P.w.5, the mother of P.W.1, tried to stop the flowing of water by placing earth. At that time, the incident is alleged to have taken place. P.W.1 sustained grievous injury. P.W.6-doctor who examined P.W.1 categorically stated that he sustained one grievous injury besides six simple injuries. Similarly, P.W.7-Radiologist has categorically stated that as per Exs.P4 and P5-X-ray Reports, P.W.1 sustained fracture of ulna. The opinions on X-ray were given under Exs.P13 to P15. Therefore, it is clear that the Appellate Court was under the wrong impression that P.W.1 sustained fracture of ulna accidentally when Accused No.3 threw a stone. Because of the sudden quarrel, Accused No.3 pelted a stone which caused fracture of ulna to P.W.1. Therefore, the case squarely comes under Section 326 I.P.C. because the throwing of stone by itself may not likely to cause the grave injury to P.W.1. Therefore, at best, the offence falls under Section 325 I.P.C. because Accused No.3 voluntarily caused grievous hurt to P.W.1. 12. There cannot be any dispute that causing a fracture of bone is a grievous hurt within the meaning of Clause-7 of Section 320 I.P.C. Since both the Courts below found the accused guilty for the charges levelled against them, there is no need to interfere with the said conviction and sentence recorded by the trial Court. But the Appellate Court acquitted Accused No.3 for the offence punishable under Section 326 I.P.C. but instead of 326 I.P.C., Accused No.3 can be found guilty of the offence punishable under Section 325 I.P.C. The incident has taken place about a decade back after the incident, no untoward incident took place between the parties. There are no ill-feelings or bitter enmity in between the prosecution witnesses and the accused. In a spur of moment, the incident is alleged to have taken place. Therefore, the Appellate Court rightly called for the report of the learned District Probation Officer, Adoni. After placing reliance on the report as well as taking into consideration the facts and circumstances of the case, the Appellate Court rightly put the accused on probation to keep peace and be of good behaviour for a period of one year. That period is also over. Hence, there are absolutely no grounds to interfere with the impugned judgment. Hence, the Criminal Appeals are devoid of merit and are liable to be dismissed. 13. Accordingly, both the Criminal Appeals are dismissed confirming the judgment, dated 10.04.2001, in Crl.A.No.1 of 2000, on the file of the learned IV Additional Sessions Judge, Krunool. ______________ (K.C.BHANU, J) Dated: 17th November, 2009. KL