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2011 DIGILAW 68 (AP)

Bandela Daveedu v. State of Andhra Pradesh

2011-01-28

K.G.SHANKAR

body2011
JUDGMENT (1) The revisions in Crl. RC No.890 of 2004 and Crl. RC No.898 of 2004 are disposed of through this common order. (2) PW1 lodged a police report. It was registered as F.I.R. PW5 gave another report in respect of the same incident. Curiously, the same Station House Officer who registered F.I.R. on the basis of the report of PW1 registered F.I.R. on the strength of the report of PW5 also. In view of two F.I.Rs, two calendar cases arose in CC No.165 of 1999 and CC No.190 of 1999 on the file of Additional Judicial First Class Magistrate, Narsapur. However, the learned Additional Judicial First Class Magistrate, Narsapur more or less conducted a joint trial recording evidence commonly in both the cases. Conviction was recorded against various accused under various sections. (3) AL in CC No.165 of 1999 was convicted for the offence under Sections 341 and 324 IPC. So far as the offence under Section 324 IPC, is concerned, A1 was convicted on two counts. He was sentenced to rigorous imprisonment for a period of one year on each count under Section 324 IPC. A3 and A4 were also convicted for the offence under Section 324 IPC on one count and were sentenced to rigorous imprisonment for a period of one year each. A1 and A3 to A5 were found guilty for the offence under Section 341 IPC. Each of them was sentenced to pay fine of Rs.500/- each with appropriate default sentence. A5 was further convicted under Section 324 read with 34 IPC and was sentenced to rigorous imprisonment for a period of one year. (4) A1 and A3 to A5 preferred Criminal Appeal No.28 of 2002 on the file of VI Additional Sessions Judge, Narsapur. In the appeal, A3 was completely acquitted. He was found not guilty either for the offence under Section 341 IPC or for the offence under Section 324 IPC. Convictions against Al, A4 and A5 for the offences under Sections 341 and 324 IPC were confirmed. The sentence of fine imposed by the trial Court for the offence under Section 341 IPC was maintained in the appeal. The imprisonment of one year for the offence under Section 324 IPC as recorded by the trial Court was modified to a fine of Rs.1,000/- each by the appellate Court. A2, A6 and A7 preferred Criminal Appeal No.29 of 2002. The imprisonment of one year for the offence under Section 324 IPC as recorded by the trial Court was modified to a fine of Rs.1,000/- each by the appellate Court. A2, A6 and A7 preferred Criminal Appeal No.29 of 2002. In the appeal, A6 and A7 were found not guilty of any offence and were completely acquitted. The conviction recorded by the trial Court against A2 for the offences under Sections 324 and 341 IPC. was confirmed by the appellate Court. The fine of Rs.500/- imposed by the trial Court against A2 was maintained in the appeal. The sentence of one year's rigorous imprisonment recorded by the trial Court against A2 for the offence under Section 324 IPC was modified to a fine of Rs. 1,000/- with appropriate default sentence. No revision was preferred by anyone either from the judgment in Criminal Appeal No.28 of 2002 or from the judgment in Criminal Appeal No.29 of 2002. The judgments in Criminal Appeal Nos.28 of 2002 and 29 of 2002, thus, became final. (5) A2 in CC No. 190 of 1999 was convicted for the offence under Section 325 read with 34 IPC by the trial Court. He was sentenced to rigorous imprisonment for a period of two years and fine of Rs.1,000/- with appropriate default sentence. He preferred appeal in Criminal Appeal No.33 of 2002 before the learned VI Additional Sessions Judge, Narsapur. The appeal was dismissed. Aggrieved by the same, A2 in CC No.190 of 1999 preferred Criminal Revision Case No.898 of 2004. (6) A5 in CC No.190 of 1999 was found guilty for the offence under Section 326 read with 34 IPC by the trial Court. A5 was sentenced to rigorous imprisonment for a period of two years and fine of Rs.1,000/- with appropriate default sentence. A5 preferred Criminal Appeal No.30 of 2002 and the same was dismissed. A5, consequently, preferred Criminal Revision Case No.890 of 2004. Thus, Criminal Revision Case Nos.890 of 2004 and 898 of 2004 came up before me, which are preferred by A5 and A2 respectively in CC No.190 of 1999 on the file of Additional Judicial First Class Magistrate, Narsapur. The prosecution has examined eleven witnesses and marked Exs.A1 to A14. So far as the accused in CC No.165 of 1999 are concerned, the trial Court and appellate Court found that they were guilty of causing simple injuries to the victims. The prosecution has examined eleven witnesses and marked Exs.A1 to A14. So far as the accused in CC No.165 of 1999 are concerned, the trial Court and appellate Court found that they were guilty of causing simple injuries to the victims. So far as A5 and A2 in CC No.190 of 1999 are concerned, they were found to have caused grievous injuries to the victim. (7) Sri I.V.N. Raju, learned Counsel for the accused, pointed out that the Radiologist was not examined and the X-ray showing the injury to the victim was not marked. It is his contention that when the Radiologist was not examined and the X-ray was not marked, the prosecution cannot claim that the victim sustained grievous injuries. The injuries alleged in the present case are fractures. (8) The learned Counsel for the accused placed reliance upon Erlapalli Prakasham v. State of A.P., 2002 (1) ALD (Crl.) 621 (AP) - 2002 (2) ALT (Crl.) 4 (AP). It was a case under Section 338 IPC apart from under Sections 304-A and 337 IPC. Where the X-ray reports were not filed and exhibited before the trial Court, even where the Radiologist was not examined, the High Court considered that the prosecution failed to make out a case under Section 338 IPC and held that the offence should be considered to have been made out under Section 337 IPC only. In P. Johnson and others v. State of Kerala, 1998 Crl. LJ 3651, it was alleged that the accused caused grievous hurt to the victim. The discharge certificate and the X-ray report of the injured showed that the injured suffered from grievous hurt. The Doctor who took X-ray was not examined and X-ray report was not produced. The Kerala High Court held that the prosecution failed to establish the guilt of the accused either for the offence under Section 325 IPC or under Section 326 IPC. The Kerala High Court's case cited above squarely applies to the present facts of the case where neither the Radiologist was examined nor the X-ray report was produced and marked. At the same time, it is admitted that the victim sustained injuries. Consequently, it shall be considered that A5 and A2 caused simple injuries to the victim and not grievous injuries. At the same time, it is admitted that the victim sustained injuries. Consequently, it shall be considered that A5 and A2 caused simple injuries to the victim and not grievous injuries. I agree with the contention of the learned Counsel for the accused that A2 is guilty for the offence under Section 323 read with 34 IPC and A5 is guilty for the offence under Section 324 read with 34 IPC instead of for the offence under Section 325 read with 34 IPC and under Section 326 read with 34 IPC. The convictions recorded by the trial Court and confirmed by the appellate Court, accordingly, are modified to conviction under Section 323 read with 34 IPC so far as A2 is concerned and to Section 324 read with 34 IPC so far as A5 is concerned. (9) I had already referred to various circumstances including the findings of the court in Criminal Appeal Nos.28 of 2009 and 29 of 2002. The learned Counsel for the accused referred to these judgments to show that when the accused were found guilty for the offence under Section 324 IPC, the appellate Court imposed the punishment of penalty of Rs.1,000/- as fine instead of jail term. I consider that A2 and A5 stand even on a better footing than the other accused since A2 and A5 are found guilty not for the offence under Sections 323 and 324 IPC, but for the offence under Sections 323 and 324 IPC with the aid of 34 IPC only. Consequently, their sentence of imprisonment deserves to be modified to fine of Rs.1,000/-. (10) Accordingly, these criminal revision cases are allowed in part. The conviction against A2 under Section 325 read with 34 IPC and conviction against A5 under Section 326 read with 34 IPC as recorded by the trial Court in CC No.190 of 1999 are modified to conviction under Section 323 read with 34 IPC and 324 read with 34 IPC respectively. A2 and A5, who are the revision petitioners herein, are accordingly found guilty for the offence under Section 323 read with 34 IPC and 324 read with 34 IPC and are sentenced to fine of Rs.1,000/- each in default of payment of which to undergo simple imprisonment for a period of three months each. These criminal revision cases are ordered accordingly.