HON'BLE SRI JUSTICE B.N. RAO NALLA CRIMINAL REVISION CASE No.216 OF 2007 ORDER: The revision petitioners - A2 to A5 stands convicted by the learned Judicial Magistrate of First Class for Special Mobile Court, Nellore in C.C.No.82/2000, vide judgment dated 01.07.2003 as under: i) A2 was convicted and sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Sec.148 of IPC; and he was also convicted and sentence to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.500/-, in default, to suffer rigorous imprisonment for a period of one month for the offence punishable under Sec.326 of IPC; ii) A3 to A5 were convicted and sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under Sec.147 of IPC; A3 to A5 were also convicted and sentenced to suffer rigorous imprisonment for a period of three years and to pay a fine of Rs.500/-, in default, to suffer rigorous imprisonment for a period of one month each for the offence punishable under Sec.326 r/w.149 of IPC; A3 to A5 were also further convicted and sentenced to suffer rigorous imprisonment for a period of six months for the offence punishable under Sec.342 of IPC; and iii) A2 to A5 were convicted and sentenced to undergo rigorous imprisonment for a period of three months for the offence punishable under Sec.323 of IPC; All the sentences were directed to be run concurrently. 2. On appeal by the revision petitioners - A2 to A5 in Crl.A.No.128 of 2003, the learned IV Additional Sessions Judge, Nellore, vide judgment dated 31.01.2007, while maintaining the conviction of the accused as recorded by the learned Magistrate, modified the default sentence of rigorous imprisonment into simple imprisonment passed under Section 326 of IPC against A2, and under Section 326 r/w.149 of IPC against A3 to A5. The appellate Court also ordered that the period of detention undergone by the appellants - A2 to A5 during the course of investigation, trial and pending appeal to be set off under Sec.428 of Cr.P.C against the period of imprisonment imposed against them. Aggrieved by the judgment of the appellate Court, the revision petitioners – A-2 to A-5 come up before this Court by virtue of the present Criminal Revision Case under Sections 397 and 401 of Cr.P.C. assailing the conviction and sentence imposed upon them by the Courts below. 3. The facts, in brief, are that A1 to A5 are residents of Nellore of different localities, whereas PWs 1 and 2 are residents of Guduru. 3 (a). PW 5 is alleged to be the concubine of A1; that about three years prior to 30.10.1996 A1 and PW 5 went to PW 1 and informed that the daughter of PW 5 was suffering from illness and requested for a hand loan of Rs.6,000/- in order to take her to Madras for treatment; that PW 1 had advanced the said loan amount of Rs.6,000/- to them and that when PW 1 demanded for repayment of loan amount, A1 and PW 5 refused to repay the same. 3(b). On 29.10.1996 PWs 1 and 2 were consuming toddy under a mango tree in the outskirts of Jagadevupeta, A-1 happened to go there and consume toddy; that on finding A-1 present there, PW 1 demanded for repayment of loan amount and that A-1 bluntly refused to repay the amount and revealed his intention not to repay the same; 3(c). On 30.10.1996, PWs 1 and 2 went into the outskirts of Jagadevupeta village and after consuming toddy, they were proceeding towards the mango tree; that at about 1 p.m. A1 to A5 with a common intention to beat PWs 1 and 2, assaulted them and forcibly taken PWs 1 and 2 to Nellore; that PW 3 w/o. PW 1 on coming to know of the incident went there; that when they reached to Mypadu gate, they sent away PW 3; that then A1 to A5 took PWs 1 and 2 to a dilapidated house, situated on the eastern side of Balajinagar; that A1 to A5 tied the legs of PWs 1 and 2; that A1 and A3 to A5 caught hold of PW 2; that A2 hacked both the right and left index fingers of PW 2 with a knife; that in the same way A3 to A5 caught hold of PW 1, and A2 hacked the right thumb of PW 1 with a knife; that thereafter, A1 to A5 took away PW 2 from there and confined him in the house of A2 at Cheepurukatta Sangam, Nellore; that however, PW 2 escaped from there during the night and reached PW 1; that both of them went to VI Town P.S. Nellore, where PW 1 preferred Ex.P1- complaint; that basing on which a case in Cr.No.93/96 was registered and that after completion of investigation, the police laid charge sheet against A1 to A5 for the offences punishable under Sections 323, 326, 342 r/w.34 of IPC. 4. Initially, the learned II Additional Judicial Magistrate of First Class, Nellore has taken the charge sheet on file for the offences punishable under Sections 323, 326 and 342 r/w.34 of IPC against all the accused in C.C. No.827 of 1996. On appearance of the accused, the accused were examined under Sec.239 of Cr.P.C. and charges under Section 323 of IPC against A1 to A5, under Section 326 of IPC against A2, and under Section 342 r/w.34 of IPC against A1, A3 to A5 were framed. Subsequently, the case was transferred to the trial Court, as per the orders of the District Court, Nellore, and the same was numbered as C.C. No.82 of 2000. A1 was shown as absconding and the case against A1 was separated in C.C. No.14 of 2001. 5. After closure of prosecution evidence, on a memo was filed by the APP under Sec.216 Cr.P.C seeking alteration and framing of additional charges and the same was allowed, and accordingly additional charges viz., under Section 148 of IPC against A2 to A5, under Section 326 of IPC against A2 and under Section 326 r/w. Section 149 of IPC against A3 to A5 were framed. 6. To bring home the guilt of the accused, the prosecution examined PWs 1 to 9 and got marked Exs.P1 to P12 on its behalf, whereas on behalf of the defence DWs 1 and 2 were examined and relevant portions of the statement of PW 1 recorded under Sec.161 Cr.P.C were marked as Exs.D1 and D2. 7. On appreciation of the oral and documentary evidence placed on record and taking into consideration of the evidence of prosecution witnesses and also considering the material on record, the trial Court found the petitioners - A2 to A5 guilty of the charges levelled against them and accordingly convicted and sentenced them therefor, as stated in paragraph No.1 supra. 8. Against the said judgment of the trial Court, the revision petitioners - A2 to A5 have preferred Crl.A.No.128 of 2003 before the learned IV Additional Sessions Judge, Nellore. The lower appellate Court on re-appreciation of oral and documentary evidence available on record, and after hearing both sides, confirmed the conviction of the accused, as awarded by the trial Court, however, modified the default sentence of rigorous imprisonment into simple imprisonment passed under Section 326 of IPC against A2, and under Section 326 r/w.149 of IPC against A3 to A5, as stated in paragraph No.2 supra. 9. Aggrieved by the impugned judgment of the lower appellate court, the petitioners - A2 to A5 preferred this Criminal Revision Case, inter alia, contending that both the Courts below have failed to appreciate the evidence and other material on record in proper perspective; that both Courts have also failed to see that the ingredients of the offences alleged to have been committed by the petitioners - A2 to A5 were not made out; that both Courts below also erred in placing reliance on the evidence of interested witnesses PWs 1 and 2 and also failed to see that no independent witness was examined, much less the driver and conductor of the bus and that both the Courts below ought to have seen that the evidence of PWs 6 and 8 is at variance with that of PWs 1 and 2. 10. The learned senior counsel for the petitioners - A2 to A5 vehemently contended that the conviction of A3 to A5 for the offence under Section 326 r/w. Section 149 of IPC is bad in law, since the common object stated to be their intention only to assault and not to cause grievous hurt, more over, they did not possess any arms, as can be seen from Ex.P1 - complaint as well as the prosecution evidence, and at the most, they can be convicted under Section 323 r/w. Section 149 of IPC. The learned counsel did not dispute about the conviction of A2 for the offence under Section 326 of IPC, since PWs 1 and 2 clearly stated that A2 alone hacked both index fingers of PW 2 and right thumb of PW 1. 11. On the other hand, the learned Additional Public Prosecutor supported the impugned orders of both the Courts below. 12. Heard both sides and perused the record available on record. 13. PW.1 – de facto complainant and PW.2 are the injured. The case of the prosecution is that accused Nos. 1 to 5 in pursuance of their common intention to cause hurt to PW.1 and PW.2, have tied the legs of both PW.1 and PW.2 and then accused Nos.1, 3 to 5 caught hold PW.2, and A-2 kept the right hand of PW.2 on the wooden piece and hacked his right index finger with knife, similarly, A-2 kept the left hand of PW.2 on the wooden piece and hacked his left index finger with knife. Thus the index fingers of both the hands of PW.2 were severed from his body. Thereafter, A-1, A-3 to A-5 caught hold PW.1 and kept his right hand on the wooden piece, and A-2 hacked the right thumb of PW.1 with knife and severed the same from his body. In support of its case, PWs 1 to 9 were examined. The evidence of PW.1 is that all the accused tied the legs of himself and PW.2 and then A-2 cut the right index finger and left index finger of PW.2 and severed them from his body with knife by putting the palms on the wooden log. Thereafter, A-2 also cut the right thumb of him with knife and severed the same from his body. The evidence of PW.2 is that the accused tied the legs of himself and PW.1. Then A-2 cut and severed his right index finger and left index finger with knife when the other accused caught hold him firmly. Thereafter, A-2 cut and severed the right thumb of PW.1 with knife when the other accused caught hold him firmly. PW.3 - wife of PW.1 corroborates the evidence of PWs 1 and 2. The evidence of PWs 6 and 8 supported the case of the prosecution with regard to injuries suffered by PWs 1 and 2. Further, DW.1 admitted that A-2 is his neighbour since 20 years, and A-2 is working as a car driver along with him. DW.2, who is said to be the wife of PW.2, admitted that she was not having good relationship with PW.2 by the date of his death. Therefore, the evidence of DWs 1 and 2 cannot be believed. 14. In the circumstances, this Court is of the view that the accused with a common intention caused hurt to PWs 1 and 2 and as such, judgment dated 31.01.2007 in Criminal Appeal No.128 of 2003 on the file of the Court of IV Additional Sessions Judge, Nellore does not suffer from any infirmity warranting interference from this revisional Court and the Criminal Revision Case is liable to be dismissed. 15. In the result, the Criminal Revision Case is dismissed confirming the judgment under revision. ________________ B.N. RAO NALLA, J Date:_____________ DSR/Stp