THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl.R.C.No.1473 of 2005 Date: 29.09.2011 Between: Nagalla Sreedhar and another … Petitioners/ Accused AND The State of A.P., rep.by its Public Prosecutor, High Court of A.P., Hyderabad, through S.I. of Police, Mangalagiri … Respondent THE HON’BLE SRI JUSTICE K.G. SHANKAR Crl. R.C.No.1473 of 2005 ORDER: The revision petitioners are A.1 and A.2. They were charged for the offence under Section 324 of the Indian Penal Code (‘IPC’ for short) against A.1, u/s.506 IPC against A.1 and A.2 and u/s.324 read with Section 34 IPC against A.2. After recording the evidence of five witnesses, the learned Additional Judicial Magistrate of First Class, Mangalari, considered that the case was made out. The learned trial Judge, accordingly, convicted A.1 for the offence u/s.324 IPC and sentenced him to Simple Imprisonment (‘S.I.’ for short) for a period of six months and fine of ` 1,000/-. A.1 and A.2 were found guilty of the offence u/s.506 (1) IPC and were sentenced to S.I. for a period of three months each. Each of them was also sentenced to pay a fine of ` 500/-. Finally, A.2 was also convicted for the offence u/s.324 r/w Sec.34 IPC. He was sentenced to S.I. for a period of three months and to pay a fine of ` 500/-. The fines attracted appropriate default sentences. The learned trial Judge directed that the sentences should run concurrently. 2. The two accused preferred appeal before the Sessions Court, Guntur. The learned IV Additional Sessions Judge, Guntur dismissed the appeal and confirmed the conviction recorded and sentence awarded by the trial Court. Hence, the present revision. 3. The case of the prosecution is a) A.1 and A.2 started constructing a wall between the western side of the road and Sri Venkateshwara Rice Mill on the vacant site on 17.03.2001. PW.1, de facto complainant and brother of Smt. Sudulagunta Swarnalatha who owned the Rice Mill protested the activity of the accused in constructing a wall in the side of the Rice Mill. Both the accused declared that the site where the compound wall was being constructed belonged to them. b) They did not stop at that stage. Both the accused abused PW.1. Subsequently, A.2 caught hold of PW.1. A.1 hacked PW.1 on the backside of the right ear inflicting a bleeding injury. PW.1, thereafter, lodged a complaint with the police. c) This is the sum and substance of the prosecution case. 4. The prosecution examined five witnesses, as already noticed. Apart from examining the de facto complainant as PW.1, the prosecution examined the alleged friends of PW.1 as PWs.2 and 3. Out of them, PW.3 has been a good friend of PW.1. It is the case of Sri N. Vidya Prasad, learned counsel appearing on behalf of the learned counsel for the revision petitioners/A.1 & A.2 that there are inconsistencies, which are tantamount to contradictions between the evidence of PWs.1 to 3 and that the ocular evidence of PWs.1 to 3 did not agree with the medical evidence, so much so, the accused deserved to be acquitted. 5. Before going into the merits of the case, I may make an observation regarding the sentence of imprisonment recorded by the trial Judge and confirmed by the appellate Court. The learned counsel for the accused submitted that the sentence recorded was excessive. PW.1 sustained a simple injury. He sustained three injuries, as can be seen from Ex.P.2-Wound Certificate. Out of the three injuries, injury Nos.2 and 3 are mere contusions. Only injury No.1 was a bleeding injury, which was an incised wound. Assuming that ultimately the story of the prosecution is true, I am afraid that the sentence of A.1 for the offence u/s.324 IPC to S.I. for six months or sentencing A.1 and A.2 to S.I. for a period of 3 months either for the offence u/s.506 (1) IPC or for the offence u/s.324 r/w Sec.34 IPC are undoubtedly excessive. The accused had been in jail for about 10 days also. It would have been a fit case to modify the sentence to the period of imprisonment already undergone. However, the learned counsel for the accused argued the case on merits. I shall give a finding on the merits of the case. Consequently, whether the punishment recorded by the trial Court is excessive or otherwise is more redundant and irrelevant. 6. PW.1 is the victim in this case. PWs.2 and 3 are eyewitnesses in the incident. It is the case of PW.1 that on 17.03.2001 at about 11 a.m. the accused started constructing a wall preventing the passage to the site of PW.1 and that PW.1 then questioned the accused about their highhanded attitude. The incident occurred in Pedavadlapudi Village, Guntur District. 7. It is the further case of PW.1 that when PW.1 questioned the accused about their highhanded attitude, A.2 caught hold of PW.1 and A.1 hacked PW.1 with a ‘coconut knife’. PW.1 allegedly sustained bleeding injury on his right ear when he was attacked. PW.1 claimed that PW.3, who was passing by, noticed the bleeding injury on the right ear and shifted PW.1 to the Police Station and en route to the hospital. He did not refer to the presence of PW.2 either in the chief examination or in the cross- examination. 8. PW.3 also claimed that he heard a quarrel taking place between PW.1 on the one side and the accused on the other side at the Rice Mill of PW.1. He stated that in his presence while A.2 caught hold of PW.1, A.1 attempted to hack PW.1 with ‘a big sickle’ and that the blow landed on the right ear of PW.1. He then deposed that he took PW.1 to the police station. Curiously, PW.1 deposed that although he was injured, it is he who brought PW.3 to the Police Station on the motorcycle of PW.1. On the other hand, PW.3 deposed that he took PW.1 to the Police Station. I shall advert to the evidence of PWs.1 and 3 once again a little later. 9. PW.2 was a villager of Nutakki. He did not belong to Pedavadlapudi. He claimed that on 27.03.2001, the incident occurred when A.2 caught hold of PW.1 and A.1 went upon PW.1 with a knife causing a bleeding injury on the right ear of PW.1. Thus, according to PW.1, it was the coconut knife that was used in causing injury to him. PW.2 claimed the weapon to be a knife while PW.3 contended that a big sickle was used in attacking PW.1. 10. I have already pointed out that PW.1 did not speak about the presence of PW.2 at the scene of offence. It may also be noticed that PW.2 did not belong to Pedavadlapudi in which village the incident occurred. PW.2 belonged to Nutakki village, which is said to be at a distance of about 3 or 4 kilometres from Pedavadlapudi. The very presence of PW.2 at the scene of offence at the time of the commission of offence is only by chance. No explanation was offered by PW.2 why he was present at the scene of offence at the time of the commission of offence. 11. Added to it, PW.2 deposed that the incident occurred on 27.03.2001. The incident, in fact, allegedly occurred on 17.03.2001. The very First Information Report ((F.I.R.) under Ex.P.3 was issued on 17.03.2001. The evidence of PW.2 that the incident occurred on 27.03.2001 does not agree with the case of the prosecution that the attack on PW.1 was on 17.03.2001. To overcome this situation, the prosecution sought the permission of the trial Court to cross-examine PW.2 considering him as hostile. After obtaining permission, the prosecution put leading questions to PW.2 regarding the date of offence. PW.2 claimed in the cross-examination that he was not sure as to the date of the incident. At any rate, PW.2 did not state that the alleged incident occurred on 17.03.2001. 12. Another peculiarity of the evidence of PW.2 is with reference to the name of A.2. A.2 was one Nagalla Gopala Rao. However, PW.2 claimed that one Nagalla Nageshwar Rao caught hold of PW.1 so as to enable A.1 to administer a blow over PW.1. PW.2, indeed, pointed out A.2 as Nagalla Nageshwar Rao while he was Nagalla Gopala Rao. This is a curious fabrication on the part of PW.2. However, it does not alter the result of the case since PW.2 pointed out the finger at A.2. The question is whether A.2 committed the offence or otherwise and not as to what exactly the name of A.2 is. This incorrect statement regarding the name of A.2 by PW.2, therefore, deserves to be ignored. 13. Reverting to the evidence of PWs.1 and 3, PW.1 deposed that he and PW.3 went to the Police Station and that PW.1 lodged a complaint. PW.3, on the other hand, deposed that PWs.2 and 3 shifted PW.1 to the Police Station in an auto. PW.1 in his cross-examination deposed that he went to the Police Station by taking PW.3 along with him on a motorcycle. Thus, there are considerable inconsistencies and contradictions between the evidence of PWs.1 and 3 and PWs.1 to 3. 14. The learned counsel for the accused, however, contended that the injuries on the person of PW.1 cut the subtractum of the prosecution case. He pointed out that there were three injuries upon the person of PW.1, as can be seen from the evidence of PW.4, medical officer and Ex.P.2-Wound Certificate. Neither PW.1 nor PW.3 explained how injury Nos.2 and 3 were caused to PW.1. The injury No.1, which is an incised wound on the right ear, corresponds with the evidence of PWs.1 and 3. The other two injuries have not been spoken to by PWs.1 and 3. 15. It is the further contention of the learned counsel for the accused that when injuries are found upon the person of PW.1 and when the same were not entertained, it should be considered that the prosecution is suppressing the genesis of the case. The learned counsel for the accused drew my attention to the penultimate paragraph in the evidence of PW.5 in this case. PW.5 is the Investigating Officer, who registered Ex.P.3-FIR and conducted investigation. He admitted that on 17.03.2001 itself, the father of A.1 lodged a complaint against PWs.2 and 3, Smt.Sudulagunta Swarnalatha and 15 others and that the same was registered as FIR in Crime No.30 of 2001. It is the contention of the learned counsel for the accused that there have been disputes between the accused on the one side and PW.1 and the members of his family on the other side. Further, PW.1 foisted a case against the accused. PW.1, indeed, denied the suggestion that his sister laid a case against the father of A.1. The evidence of PW.5, however, is to the effect that A.1 lodged a complaint against PWs.2, 3 and others on the same day on which Ex.P.1 report was laid by PW.1 and that the report by A.1 was prior to the report under Ex.P.1, so much so, the report of Ex.A.1 was registered as Crime No.30 of 2011. There were rival claims by the accused and PW.1. This is patent from the facts of the case and counter between the accused and PWs.1 to 3. This quarrel indicates that there are differences between A.1 and the family of PW.1. If the evidence of PW.1 is judged in this background, where the evidence of PW.1 did not agree with the evidence of PWs.2 and 3, it would be appropriate to accord the benefit of doubt to the accused and hold that the prosecution failed to prove the case against A.1 and A.2. 16. The learned counsel for the accused also contended that the very offence u/s.506 (1) IPC has not been made out. He pointed out that there was no whisper in the evidence of PWs.1 to 3 that there was any criminal intimidation on the part of either A.1 or A.2 against PW.1 to constitute the offence u/s.506 (1) IPC. Neither in Ex.P.1- report nor in his evidence did PW.1 state that he was criminally intimidated by A.1 and A.2. The offence u/s.506 (1) IPC, in fact, is not even prima facie made out let alone made out beyond reasonable doubt. 17. It is also the contention of the learned counsel for the accused that the nature and seat of the injury dispel the case of the prosecution. It may be recalled that a coconut knife/knife/big sickle was used by A.1 in attacking PW.1 according to PW.1/PW.2/PW.3 respectively. I agree with the contention of the learned counsel for the accused that if a heavy sharp weapon was used in attacking PW.1, the injury upon the person of PW.1 would not have been such a minor injury. At any rate, the important circumstance of the case is that PWs.1 to 3 did not agree with each other regarding the offence proper. The added factor is the evidence of PW.5 who claimed that PW.1 alone went to the Police Station to lodge Ex.P.1 as against the evidence of PWs.2 and 3 that they were with PW.1 when PW.1 went to the Police Station to lodge a complaint. 18. Thus, there is any amount of inconsistency between the evidence of PWs.1 to 3 and 5. I am afraid that it would be dangerous to convict the accused on the basis of such testimony, which is prima facie found to be false. I deem it appropriate to acquit the accused in this background. 19. The trial Court and the appellate Court did not co-relate the evidence of PWs.1 to 3 properly and erred in appreciating the evidence of PWs.1 to 3. The judgment of conviction recorded by the trial Court and confirmed by the appellate Court, therefore, is liable to be set aside. A.1 and A.2, according, are found not guilty of the offence under Sections 324, 506 (1) and 324 read with Section 34 IPC and are acquitted of the offences for which they were convicted. Their bail bonds stand discharged. The fine amount, if already paid by the accused, shall be refunded to them. 20. The Criminal Revision Case is, accordingly, allowed. ________________ K.G. SHANKAR, J Date: 29.09.2011 Isn