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2004 DIGILAW 172 (AP)

S. Venkat Reddy v. State Of A. P.

2004-02-13

B.SUBHASHAN REDDY

body2004
B. SUBHASHAN REDDY, J. ( 1 ) THIS Criminal Revision case is directed against the judgment dated 21-1-2002 passed in Crl. A. No. 124 of 1998 on the file of IV Additional Sessions Judge (FTC), Anantapur, whereby the learned additional Sessions Judge modified the conviction of Appellants 1 to 5/a1 to A5 (A. I-S. Venkata Reddy, A2-S. Papi Reddy, a3-S. Romana Reddy, A4-S. Venkatanarayana reddy and A5-S. Krishna Reddy) from sections 307 to 326 IPC read with 149 IPC and sentenced each of them to suffer rigorous imprisonment for two years and pay a fine of Rs. 1,000. 00 in default to suffer simple imprisonment for six months while confirming their conviction and sentence for the offence under Section 148 ipc passed in S. C. No. 220 of 1997 on the file of Additional Assistant Sessions Judge, anantapur. ( 2 ) THE prosecution case in brief is : the accused are residents of alankarayunipeta Village in Singanamala mandal. Al is father of A2 to A5. The de- facto complainant i. e. , P. W. I Ramasiva reddy also belongs to the same village and he is close relative of the accused. P. W. I, p. W. 3 and P. W. 4 are brothers, and P. W. 2 and P. Ws. 5 and 6 are their maternal uncle and parents respectively. Besides their relationship inter se, they are neighbours to each other. There was a dispute between p. W. I, P. Ws. 3 to 6 on one side and the accused on the other side with regard to flow of drain water and there used to be quarrels on that score. On 31. 5. 1995 at about 6 p. m. , the accused formed themselves into an unlawful assembly armed with sticks and sickles with a common object of attacking P. W. I and his men. It is alleged that A5 beat P. W. 1 with a stick on his head and caused bleeding injury to him. When p. W. 2 came in rescue of P. W. 1, Al and A5 beat him with sickles and caused injuries to him and thereby he too sustained injury. When P. W. 3 intervened, A3 and A4 beat him. It is alleged that A5 beat P. W. 1 with a stick on his head and caused bleeding injury to him. When p. W. 2 came in rescue of P. W. 1, Al and A5 beat him with sickles and caused injuries to him and thereby he too sustained injury. When P. W. 3 intervened, A3 and A4 beat him. It is also alleged that A2 hacked p. W. 4 with a sickle on his head and whereas A3 beat P. W. 5 with a sickle on his shoulders and A2 beat P. W. 6 with a sickle on the right hand. P. W. 8 Mala Rushinagappa and one Mala Adinarayana witnessed the occurrence. On a report presented by p. W. I, a case in Cr. No. 19 of 1995 under sections 147, 324 read with 149 IPC has been registered by the Station House officer, Singanamala Police Station. Ex. P. 8 is the FIR sent by the Station House Officer to Court. The Station House Officer (P. W. 9) inspected the scene of offence, examined the witnesses, recorded their statements and prepared Ex. P. 9 rough sketch of the scene of offence. P. W. 7 Dr. B. V. N. Chowdary medically examined P. Ws. l to 6 and issued exs. P. 2 to P. 7 wound certificates. After usual investigation, a charge-sheet came to be submitted before the Additional Judicial first Class Magistrate, Anantapur. The learned Magistrate took the charge-sheet on file as P. R. C. No. 49 of 1996 and committed the case to the Court of Session. Learned sessions Judge took the case on file as s. C. No. 220 of 1997 and made over the case to Additional Assistant Sessions Judge, anantapur for disposal according to law. On hearing the prosecution and the accused, the learned Additional Assistant Sessions judge framed charges under Sections 148 and 307 IPC against the accused, read over and explained the same to them. The accused pleaded not guilty and claimed to be tried. To bring home the guilt of the accused for the offences with which they stood charged, the prosecution examined P. Ws. l to 9 and marked Exs. P. l to P. 9. On behalf of the accused, they marked contradictions in section 161 Cr. P. C statements of P. Ws. l to 5 as Exs. Dl to D5. To bring home the guilt of the accused for the offences with which they stood charged, the prosecution examined P. Ws. l to 9 and marked Exs. P. l to P. 9. On behalf of the accused, they marked contradictions in section 161 Cr. P. C statements of P. Ws. l to 5 as Exs. Dl to D5. It is the defence of the accused that P. Ws. l to 5 attacked Al and A2 and caused injuries to them and thereupon Al presented a report which formed the basis for registering a case in cr. No. 20/95 in Singanamala Police Station against P. W. I and others. The learned additional Assistant Sessions Judge, on appreciation of the evidence brought on record, found Al to A5 guilty for the offences under Sections 148 and 307 IPC and sentenced each of them to suffer simple imprisonment for one year for the offence under Section 148 IPC and rigorous imprisonment for five years and fine of rs. 1,000/- in default to suffer simple imprisonment for six months for the offence under Section 307 IPC. Assailing the judgment of conviction and sentence, the accused filed Criminal Appeal No. 124 of 1998 on the file of IVth Additional sessions Judge, Anantapur. On re- appreciation of the evidence the learned iv Additional Sessions Judge, Anantapur modified the conviction of the appellants from Section 307 IPC to 326 read with 149 ipc while confirming their conviction for the offence under Section 148 IPC. Hence, the present Criminal Revision Case is filed by the accused. ( 3 ) IT is settled law that when a conviction is recorded by the Trial Judge and upheld by the first Appellate Court, re- appreciation of the evidence cannot be done unless there is miscarriage of justice. It is held in State of Kerala v. Puttumana illath Jathavedan Namboodiri, 1999 Crl. LJ 1443, that"the High Court in its revisional jurisdiction, can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order. In other words, the jurisdiction is one of supervisory Jurisdiction exercised by the high Court for correcting miscarriage of justice. LJ 1443, that"the High Court in its revisional jurisdiction, can call for and examine the record of any proceedings for the purpose of satisfying itself as to the correctness, legality or propriety of any finding sentence or order. In other words, the jurisdiction is one of supervisory Jurisdiction exercised by the high Court for correcting miscarriage of justice. Therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the high Court which would otherwise tantamount to gross miscarriage of justice. " ( 4 ) P. WS. L to 6 are the injured. The fact that they sustained injuries in the incident has been established by the medical evidence. P. W. 7 is the Doctor who medically examined p. Ws. 1 to 6 and issued Exs. P. 2 to P7 wound certificates. He classified the injuries sustained by PWs. l and 2 as grievous in nature. The learned Trial Judge recorded a finding that the accused are the aggressors. The said finding is apparently based on number of persons injured on the side of the prosecution. For better appreciation I may refer the relevant portion of the judgment of the Trial Court and it reads as follows:". . . The Doctor P. W. 7 has categorically stated that the injuries sustained by P. Ws. l and 2 are grievous in nature. Further, he has stated to" the effect that the injuries sustained by p. Ws. l to 6 were caused by blunt and sharp objects. Admittedly a quarrel took place on the alleged date of the incident between the complainant s family and the accused in which as per the attack on P. Ws. 1 to 6, it is evident that the accused are the aggressors because they have inflicted injuries to as many as six persons i. e. , P. Ws. l to 6 with lethal weapons i. e. , sticks and sickles. Further, the said statements of P. Ws. 1 to 6, it is evident that the accused are the aggressors because they have inflicted injuries to as many as six persons i. e. , P. Ws. l to 6 with lethal weapons i. e. , sticks and sickles. Further, the said statements of P. Ws. l to 6 with regard to the alleged attack on them by A. 1 to A. 5 with sticks and sickles on the alleged date and time of the incident are not only consistent in corroboration to each other, but also unshaken in the cross-examination. Moreover the said evidence of P. Ws. l to 6 is also supported by an independent witness P. W. 8. Therefore, I do not see any reason to disbelieve their evidence. "the learned appellate Judge on re- appreciation of the evidence brought on record recorded a finding that there was a clash between two rival groups each consisting of five or six persons. The finding recorded by the first Appellate Court reads as follows:"14. When the clash in the present case is proved to have taken place between the two rival groups, each consisting of 5 to 6 persons, it is but natural that some minor discrepancies do occur in the evidence of the witnesses as in the present case with regard to the incident proper, more so, when they are to speak of an occurrence of more than three years old. Whatever be the shortcomings of their evidence in some minor particulars, the veracity of the testimony of the prosecution witnesses on broad features in this case cannot be doubted at all. "on a plain reading of the evidence brought on record, the conclusion of the Appellate court appears to be justified. When it is a bilateral clash it is not a correct approach in judging as to which party is the aggressor. This question as to which party is the aggressor cannot be decided on the basis of the injuries found on the side of the complainant or the accused. When once there is a mutual fight between two groups, each one is responsible for his individual acts. This question as to which party is the aggressor cannot be decided on the basis of the injuries found on the side of the complainant or the accused. When once there is a mutual fight between two groups, each one is responsible for his individual acts. In which case conviction under Section 147 or 148 IPC cannot be maintained and then it is for the prosecution to prove the individual assaults vide decision of Supreme Court in Ishwar Singh Ham singh v. State of Uttar Pradesh, AIR 1976 sc 2423 and Lalji v. State of U. P. , AIR 1973 SC 2505 . ( 5 ) P. WS. L and 2 sustained grievous injuries whereas P. Ws. 3 to 6 sustained simple injuries. It is the evidence of P. W. I that Al dealt a blow with a stick on parietal region which resulted in a grievous injury. P. W. 2 testifies that A5 dealt a blow with a stick on the right elbow which resulted a grievous injury. Therefore, Al and A5 are liable for punishment under section 326 IPC and whereas the other accused are liable for punishment under section 324 IPC. ( 6 ) IN the result, this Criminal Revision case is partly allowed setting aside the conviction of appellants/accused for the offence under Section 148 IPC and the conviction of Appellants 2 to 4 (A2 to A4) for the offence under Section 326 IPC and they are acquitted of the same. However, appellants 2 to 4/ A2 to A4 are convicted for the offence under Section 324 IPC and they are sentenced to suffer simple imprisonment for six months and fine of rs. 1,000/- each. The conviction and sentences of appellants 1 and 5 (Al and A5) for the offence under Section 326 IPC is confirmed. The fine amount paid by appellants 2 to 4 (A2 to A4) for the offence under Section 326 IPC read with 149 IPC stands adjusted to the fine amount imposed by this Court.