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2023 DIGILAW 424 (TS)

M. Somaiah v. State of Telangana

2023-06-11

K.SURENDER

body2023
JUDGMENT K.SURENDER, J. - This revision is filed by the petitioners/accused Nos.1 and 2, challenging the Judgment of the II Additional Sessions Judge, Nalgonda at Suryapet, dtd. 6/4/2018 in Crl.A.No.136 of 2016, confirming the Judgment passed by the Assistant Sessions Judge, Suryapet, in S.C.No.57 of 2015, dtd. 31/8/2016, for the offence under Sec. 307 r/w.34 of the Indian Penal Code. 2. Heard both sides. 3. The case of the prosecution is that the revision petitioners/A1 and A2 allegedly assaulted PW1. A1 is the agnate of PW1. A2 is the brother-in-law of A1. PWs.2, 3 and 6 are wife, son and mother of PW1, respectively. PW1 and A1 had disputes in respect of a passage at their agricultural lands. On 20/8/2014 at about 6.30 p.m., while PW1 was returning from his agricultural fields along with PW3, the accused came in Indica Car and assaulted on his both legs with rods resulting in fractures. PW1 was shifted to Area Hospital, Suryapet and thereafter to NIMS Hospital, Hyderabad. 4. According to PW13 information was given on 21/8/2014 at 2.00 p.m. PW13 then visited NIMS and recorded the statement of PW1 at 6.00 p.m. and registered the same at 11.00 p.m. vide Crime No.102 of 2014. Scene of offence Panchanama was conducted and the accused were arrested on 23/8/2014. The Police filed charge sheet for the offence under Sec. 307 r/w.34 of the Indian Penal Code against the accused. Having considered the evidence of the witnesses and the documents filed by the prosecution, the learned Assistant Sessions Judge found the accused guilty and the same was confirmed in appeal by the learned Sessions Judge. 5. Learned Counsel appearing for the petitioners/accused would submit that there are several discrepancies in the prosecution case which go to the root of the case and creates any amount of doubt regarding the prosecution case being correct. PWs.1 and 2 admitted that they filed a report on 23/8/2014 making allegations against elder brother of PW1 and one Vykuntachary. The name of the elder brother of PW1 and the name of 1st accused is same i.e. M.Somaiah. The wife of PW1 filed WP.No.26651/2014 in the High Court alleging that the elder brother of PW1 and Vykuntachary were responsible for assault. However, these accused were falsely implicated subsequently. Learned counsel further submits that the medical record creates any amount of doubt. Ex.P6 is the medical record produced by the doctor PW12. The wife of PW1 filed WP.No.26651/2014 in the High Court alleging that the elder brother of PW1 and Vykuntachary were responsible for assault. However, these accused were falsely implicated subsequently. Learned counsel further submits that the medical record creates any amount of doubt. Ex.P6 is the medical record produced by the doctor PW12. Ex.P6 reflects that PW1 was admitted at NIMS, Hyderabad, only on 25/8/2014. The treating doctor Dr. Srinivas was not examined. However, PW12-K.C.Srikanth, Medical Officer, was examined who deposed on the basis of record. 6. Further, PWs.1, 3 and 4 did not mention about PW2 coming to the scene. PW1 did not mention about PW3 being present at the time of incident. PWs.1 and 2 did not speak about presence of PW6. The evidence of PW4, about the presence of PW6 is omission in the earlier statement under Sec. 161 of Cr.P.C. PW2 did not state about presence of PW.5 and the statement of PW4 about PW5 is again an omission in the statement recorded under Sec. 161 of Cr.P.C, and admitted by the Investigating Officer. PW1 stated that the assault took place in the open place i.e. outside the house of PW4, however, PW3 stated that the alleged assault had taken place inside the house of PW4. 7. According to the counsel, the said discrepancies were not considered by the Courts below and mechanically recorded conviction on the basis of evidence of PW1 and other witnesses ignoring the material variations. 8. On the other hand learned Assistant Public Prosecutor would submit that there are concurrent findings which cannot be held to be unreasonable. On the basis of eye-witness account, conviction was recorded. There is no necessity for PW1 to speak false against the accused, if at all his elder brother has assaulted. For the said reason, the revision deserves to be dismissed. 9. Two aspects are glaring which remain unexplained by the prosecution; i) Firstly, PW2 who is the wife of PW1 files a writ petition before this Court vide WP.No.26651/2014 alleging that the elder brother of PW1 and another person who were responsible for attacking and injuring her husband/PW1 were not investigated by the Police. ii) Secondly, though FIR was registered, according to PW13- Investigating Officer, on 21/8/2014, the said FIR reached the Court on 27/8/2014 with a delay of seven days. The said delay is not explained by the prosecution. 10. ii) Secondly, though FIR was registered, according to PW13- Investigating Officer, on 21/8/2014, the said FIR reached the Court on 27/8/2014 with a delay of seven days. The said delay is not explained by the prosecution. 10. Further, both the Courts below have neither discussed the reasons as to why PW2 has filed writ petition against the elder brother of PW1 and the inordinate delay in sending the complaint to the Court. Though it is admitted that the accused were arrested on 23/8/2014 on which date writ petition was filed in the Court, there is no explanation regarding the inordinate delay of six days in the FIR reaching the Court. 11. Further, it is also not clear from the record as to how the remand was taken if the FIR had not reached the Court. On all the pages of the FIR, the learned magistrate signed and the date written as 27/8. 12. In the background of the admitted differences between family members regarding property, the discrepancies in the evidence of witnesses when considered, gains importance and cannot be brushed aside as minor discrepancies. 13. PWs.1, 2, 3, 6 are relatives. As already stated, PW1 is the agnate of A1. The false implication of the accused cannot be ruled out in the background of a) differences regarding property, b) writ petition being filed by PW2 alleging that PW1's brother was responsible for the assault c) FIR reaching the Court with a delay of six days. 14. This Court under revision can interfere with the concurrent findings on facts when the Courts below have not considered the evidence placed before the Court in its totality. Both the Courts below failed to discuss and ignored the factum of filing of writ petition and the delay in reaching the FIR, which are crucial. There is any amount of doubt that is created in the version of PW1 and other witnesses as discussed above. 15. In view of the aforesaid reasons, the Criminal Revision Case is allowed setting aside the conviction confirmed by the learned Additional Sessions Judge, Nalgonda at Suryapet, in Crl.A.No.136 of 2016 dtd. 6/4/2018. The revision petitioners/A1 & A2 are acquitted. Since the revision petitioners are on bail, their bail bonds shall stand cancelled. Miscellaneous applications pending, if any, shall stand closed.