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2023 DIGILAW 401 (AP)

Balli Pothu Raju v. State Of A. P. , rep by PP.

2023-02-16

V.R.K.KRUPA SAGAR

body2023
ORDER: 1. Questioning the correctness of his conviction, the sole accused preferred this criminal revision case under Sections 397 and 401 Cr.P.C. seeking to set aside the judgments of the Courts below. The sole respondent herein is the State. 2. The revision petitioner was prosecuted on the report filed by the police for a charge under Section 324 I.P.C. on the allegation that using an iron rod he inflicted injuries on the body of his wife/PW.2 and his brother-in-law/PW.1. The said case was tried as C.C.No.361 of 2006 by the learned VI Additional Munsif Magistrate, Guntur and the accused was found guilty for the offence under Section 324 I.P.C. and by a judgment dated 09.09.2008 he was convicted and sentenced to undergo simple imprisonment for a period of one year on two counts for inflicting injuries on two individuals. Both the sentences were ordered to run concurrently. 3. Aggrieved by it, the accused preferred Criminal Appeal No.300 of 2008. Learned Special Sessions Judge-cum-IV Additional Sessions Judge, Guntur duly heard the appeal and by a judgment dated 27.04.2009 it agreed with the finding of guilt recorded by the trial Court but on facts it reduced the sentence from one year to four months. With that modification, the said appeal was disposed of. 4. Aggrieved of it, the accused preferred this revision stating that the Courts below committed error in appreciating the evidence and law and reached to incorrect conclusions. In the grounds of revision, it is stated that the investigating agency did not seize the weapon of offence and did not exhibit the same and there was no independent witness to support the case of prosecution and the evidence available on record was that of the interested witnesses and even that evidence is inconsistent and there was omission of examination of a crucial witness by prosecution and therefore, the guilt of the accused was not established beyond reasonable doubt, but the Courts below wrongly held otherwise. It is further contended that the sentence of imprisonment is excessive. It is for these reasons, the revision petitioner seeks to upset the judgments of the Courts below and acquit him of the charge. 5. It is further contended that the sentence of imprisonment is excessive. It is for these reasons, the revision petitioner seeks to upset the judgments of the Courts below and acquit him of the charge. 5. When this matter was coming up for hearing on 28.10.2022, 01.12.2022, 27.12.2022 and 25.01.2023 learned counsel appearing for the revision petitioner sought for time to argue the revision and on all those occasions time was granted and the matter stood posted finally on 07.02.2023. On that day none appeared for revision petitioner to argue the case. Thus, despite availing all the opportunities to submit arguments, the revision petitioner failed to have any argument submitted on his behalf. On 07.02.2023 learned Special Assistant Public Prosecutor appearing for respondent-State submitted his arguments wherein he supported the judgments of the Courts below and stated that there are no merits in this revision as the evidence was properly appreciated by the Courts below and they reached to appropriate conclusions and the sentence inflicted was on lower side and sought for dismissal of the revision. 6. Revisional jurisdiction is to preserve the power of the Court to do justice in accordance with the principles of criminal jurisprudence. If there are findings or decisions of the Courts below which are perverse or untenable in law or grossly erroneous or glaringly unreasonable or where the decision was based on no material or where the material facts are wholly ignored or where the judicial discretion is exercised arbitrarily or capriciously, this Court sitting in revision can interfere with the judgments of the Courts below vide Sanjaysinh Ramarao Chavan v. Dattatray Gulabrao Phalke, 2015 (3) SCC Online SC 123. 7. Considering the scope of a criminal revision and considering the contentions raised by the revision petitioner, the point that falls for consideration is: Whether the judgments of the Courts below failed to notice the fundamental principles of criminal law and perversely recorded their findings requiring interference? 8. Point: The material on record discloses the following facts: The alleged crime incident occurred on 29.08.2006 at 8:00 P.M. Written information was lodged and F.I.R. was registered by 10:00 P.M. on 29.08.2006 itself. There are two injured in this case. They were subjected to medical examination by a Civil Assistant Surgeon, District Hospital, Tenali in the very same night at 12:15 A.M. on 30.08.2006 (intervening night between 29.08.2006 and 30.08.2006). There are two injured in this case. They were subjected to medical examination by a Civil Assistant Surgeon, District Hospital, Tenali in the very same night at 12:15 A.M. on 30.08.2006 (intervening night between 29.08.2006 and 30.08.2006). Soon thereafter witnesses were examined by the investigating officer and a rough sketch of the scene of offence was prepared. On 23.09.2006 the accused was arrested. Thereafter, as investigation concluded, the Station House Officer, Chebrole Police Station filed the police report/charge sheet in Crime No.140 of 2006 before learned VI Additional Munsif Magistrate, Guntur. The learned Magistrate took cognizance for the offence under Section 324 I.P.C. Procured the presence of the accused by summons and furnished him with copies of documents in terms of Section 207 Cr.P.C. After hearing both sides and on scrutiny of the material, it found prima facie material and charged the accused under Section 324 I.P.C. for causing hurt to two individuals with dangerous weapon/iron rod and the charge was read out to accused. The accused denied the factual allegations and did not plead any specific line of defence and he pleaded not guilty. To sustain its case, prosecution examined six witnesses and got marked Exs.P.1 to P.6. When confronted with the incriminating material available on record, during the phase of Section 313 Cr.P.C., the response of the accused was that the evidence was false and he did not choose to offer any particular explanation to any of the pieces of the evidence. Defence did not choose to adduce any oral, documentary or material evidence. That evidence was examined by the trial Court and the learned trial Court considered the arguments led by both sides and recorded its findings to the following effect: It stated that it was a love marriage between the accused and his wife/PW.2 and they were blessed with two children and for six years prior to registration of crime certain differences arose between spouses and they fell apart and they were living separately and both the children were initially with the wife. Two months prior to the registration of crime one of her sons was lured by the accused and therefore, he left the company of his mother. It was in the above factual backdrop, the crime alleged occurred. With reference to the actual incident, learned trial Court stated that the crime incident occurred near Vinayaka Idol in Yadlapati Nagar at 8:00 P.M. on 29.08.2006. It was in the above factual backdrop, the crime alleged occurred. With reference to the actual incident, learned trial Court stated that the crime incident occurred near Vinayaka Idol in Yadlapati Nagar at 8:00 P.M. on 29.08.2006. At that time the wife of accused, who is PW.2, and her brother/PW.1 were going along the road and they found the son of PW.2 on the road and on noticing that at such odd hour a child of that age was not expected to be on the road, PW.1 chastised the boy. On noticing it, the accused arrived and he abused his brother-in-law/PW.1 and his wife PW.2 stating that it was not within their realm to chastise the boy and he went further and as he was holding an iron rod he hit on the legs of PW.1 and caused injuries and when his wife intervened he did not relent and using the same iron road he inflicted injuries on her body parts also. When others gathered there the accused along with his son left the place. Grieved by this, the victims went to police station and PW.1 lodged written information which is Ex.P.1. Based on it Ex.P.5-F.I.R. was registered. Police forwarded the victims to hospital where PW.4-doctor examined both the victims and issued Exs.P.2 and P.3-wound certificates, mentioning that the injuries are aged anywhere between 4 to 6 hours and could have been caused by blunt object and the injuries suffered by both the victims are simple in nature. On PW.1 this doctor noticed four injuries and on PW.2 he noticed three injuries. They are mentioned in the wound certificates and they were deposed by the witnesses also. Learned trial Court observed that the oral evidence of PWs.1 and 2 found full support from the medical evidence of PW.4. It was on that premise it found the accused guilty for the offence under Section 324 I.P.C. and convicted him and sentenced him as indicated earlier. 9. Challenge of the accused before the first appellate Court wherein the trial Court’s judgment was questioned found no positive response from the learned first appellate Court and the learned Additional Sessions Judge stated that on all the material aspects the evidence led by the prosecution was strong and beyond suspicion. 9. Challenge of the accused before the first appellate Court wherein the trial Court’s judgment was questioned found no positive response from the learned first appellate Court and the learned Additional Sessions Judge stated that on all the material aspects the evidence led by the prosecution was strong and beyond suspicion. It stated that with reference to the custody of the child and with whom the child was there by the time of this offence there were some discrepancies in the evidence of prosecution witnesses, but in its view such discrepancies are with reference to motive for the alleged offence and since the case is based on direct evidence of the crime and since the evidence was found to be consistent and beyond reasonable doubt, the failure to prove motive in appropriate legal terms had no bearing and with such observations it concluded against the accused and approved the trial Court’s judgment. 10. It is against such findings concurrently held by both the Courts below, this revision came up for hearing. 11. First point of attack by the revision petitioner is about non-recovery of crime weapon. This contention was raised before both the Courts below and was negatived by both the Courts. In this case the weapon allegedly used by the accused is an iron rod. That an iron rod is a dangerous weapon remained undisputed althroughout. This Court has gone through the evidence of PWs.1 and 2 and the other witnesses. PWs.1 and 2, who are the victims in this case and are also direct witnesses to the crime incident, stated on oath that the accused beat them with iron rod. The doctor/PW.4 stated that there were injuries on the bodies of PWs.1 and 2 and they could have been inflicted using a blunt object. An iron rod is a blunt object is undisputed before this Court as well as before the Courts below. When these three witnesses were available for cross-examination, they were cross-examined by the counsel appearing for the accused, any theory for defence that an iron rod could not have caused such injuries or that the accused did not use an iron rod was not suggested. In such circumstances, it was well within the exercise of jurisdiction of the Courts below that they concluded saying that accused used the iron rod and inflicted the injuries on the bodies of PWs.1 and 2. In such circumstances, it was well within the exercise of jurisdiction of the Courts below that they concluded saying that accused used the iron rod and inflicted the injuries on the bodies of PWs.1 and 2. Their conclusions were based on oral and documentary evidence. It is undisputed that the iron rod used by the accused was not recovered and was not exhibited as a piece of material evidence. The question is whether absence of crime weapon should lead to a conclusion that there was no crime committed at all. As long as the actual facts constituting the crime were spoken to by witnesses and if that evidence was found reliable there was no need for law, to have the material object/crime weapon exhibited. Production of a crime weapon would only furnish corroboration to what was stated on oath by the witnesses. If crime weapon is produced and witnesses do not depose about use of such crime weapon by the accused, that could go against the prosecution. Conversely when the witnesses spoke about the incident and when the investigating agency failed to recover the crime weapon, with or without any explanation, that by itself cannot negate the effect of sworn evidence of witnesses. Thus, as an abstract principle of law production of a crime weapon is never a sine qua non to establish the case of prosecution and failure to produce crime weapon cannot result in disbelief of other reliable evidence vide State v. Laly @ Manikandan, 2022 SCC online SC 1424. Thus, for this reason this Court finds that there is no legal merit in the contention of the revision petitioner with reference to non-recovery of crime weapon. 12. Both the Courts below observed that according to prosecution PW.5 is an eye witness to the incident, but he expressed ignorance of the case facts and thus, his evidence was of no use. Courts below put faith on the oral evidence of PWs.1 and 2 and also the evidence of PW.3, who is father of PW.2 and recorded that there was enough proof about the facts alleged in the charge. 13. The contention of the revision petitioner is that PWs.1 to 3 are interested witnesses and therefore, their evidence ought not to have been believed. There is no merit in this contention for the following reasons: The case is about accused beating PWs.1 and 2. 13. The contention of the revision petitioner is that PWs.1 to 3 are interested witnesses and therefore, their evidence ought not to have been believed. There is no merit in this contention for the following reasons: The case is about accused beating PWs.1 and 2. Thus, PWs.1 and 2 are the victims. In a case where the victims who are direct witnesses are not examined though they were available for evidence the consequence would be, normally against the prosecution. The reason is that they are the prime witnesses for the case. Therefore, victims being prime witnesses for the case cannot be termed as interested witnesses. An interested witness is a witness who for vengeful reasons intend to see an innocent gets convicted. What was the grievance for a wife and her brother to have the accused placed in prison. Total material on record does not indicate any particular grievance between spouses which could have spurred PWs.1 and 2 to have a case falsely foisted. Spouses have been living separately for more than six years by the time of this incident. There was no particular occasion or reason for PWs.1 and 2 to conceive a plan and have this accused arrested, prosecuted and punished. The whole incident occurred when they found child on the road at 8:00 P.M. in the night and feeling responsible they questioned him and that enraged the accused to pounce upon them. Thus, it was a crime that occurred out of loss of emotions which was neither premeditated on part of accused nor conspired on part of victims. When there was enough evidence from the victims, fully supported by legal evidence, it was up to the prosecution to have some more evidence adduced or not. It is in these circumstances, this Court finds that the approach of the Courts below is right when they said that no further independent witness and his evidence was required to decide the charge. 14. One of the contentions is about inconsistency in the evidence of prosecution witnesses. This Court has gone through the entire material on record and the judgments of both the Courts below. On the material facts for which the charge was framed, there is absolutely no inconsistency in the evidence of prosecution witnesses. No contradiction was marked and no omission was recorded at the behest of defence. Thus, the evidence was consistent. This Court has gone through the entire material on record and the judgments of both the Courts below. On the material facts for which the charge was framed, there is absolutely no inconsistency in the evidence of prosecution witnesses. No contradiction was marked and no omission was recorded at the behest of defence. Thus, the evidence was consistent. Whatever inconsistency was there was, only with reference to child of the spouses and his custody at the material point of time. Both the Courts below rightly held that child and his custody form part of the motive and not part of the crime incident and therefore, any failure in establishing motive has no bearing when the evidence about the charged facts are consistent and fool proof. Both the Courts have rightly held it and this Court finds no reason to state anything contrary. 15. Revision petitioner contends that there was omission to examine the crucial witness. According to it, the son of the spouses being a person available at the scene of offence should have been examined by the prosecution to prove the case. As could be seen from the record the child was with the accused. If that be the case, it was well within the capacity of the accused to have his son examined as a witness which he did not do and for his omission he offered no reason. It is in these circumstances, his contention is negatived. 16. Another contention raised in this revision is about disproportionate sentence. Punishment prescribed under Section 324 I.P.C. includes sentence of imprisonment which may extend to three years or with fine or with both. Learned trial Court inflicted one year simple imprisonment for each of the counts for hurting each of the two victims with a direction to run the sentences concurrently. Learned first appellate Court reduced it to four months and kept the remaining conditions intact. Looking at the length of the sentence that is prescribed and the period of sentence inflicted, this Court finds that the Courts below maintained the proportionality of sentence. In other words it can never be said that the sentence inflicted is disproportionate on higher side. Therefore, this contention of revision petitioner is negatived. Looking at the length of the sentence that is prescribed and the period of sentence inflicted, this Court finds that the Courts below maintained the proportionality of sentence. In other words it can never be said that the sentence inflicted is disproportionate on higher side. Therefore, this contention of revision petitioner is negatived. For the reasons mentioned above, this Court finds no merit in this revision and the judgments of the Courts below on facts and law are in accordance with law, requiring no interference. Point is answered against the revision petitioner. 17. In the result, this Criminal Revision Case is dismissed confirming the judgment dated 27.04.2009 of learned Special Sessions Judge-cum-IV Additional Sessions Judge, Guntur in Criminal Appeal No.300 of 2008. Revision petitioner/accused-Balli Pothu Raju shall surrender before the trial Court and submit himself on or before 24.02.2023, failing which the learned VI Additional Junior Civil Judge, Guntur, shall take coercive process against him and see that the sentence inflicted is enforced. 18. Registry is directed to dispatch a copy of this judgment along with the lower Court record, if any, to the Court below on or before 20.02.2023. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry. As a sequel, miscellaneous applications pending, if any, shall stand closed.