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2025 DIGILAW 72 (TS)

Burugupally Sai Kumar v. State Of Telangana

2025-02-25

E.V.VENUGOPAL

body2025
JUDGMENT : E.V. VENUGOPAL, J. 1. Challenging the conviction and sentence awarded to the accused as per judgment dated 04.01.2018 in SC No.266 of 2015 on the file of the learned Special Judge for trial of offences under SCs & STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, accused No.4 preferred criminal appeal No.323 of 2018 and accused Nos.1 and 3 preferred criminal appeal No.327 of 2018 under Section 374(2) of Cr.P.C. 2. Heard Sri H.Prahalada Reddy, learned counsel for the appellants in Crl.A.No.327 of 2018, Sri VVS Satyanarayana Reddy, learned senior counsel for the appellant in Crl.A.No.323 of 2018 and Mrs.S.Madhavi, learned Assistant Public Prosecutor, representing the 2 nd respondent/State in both the matters. 3. Since both these criminal appeals are germinated from the same sessions case i.e. SC No.266 of 2015, this Court disposes these two matters by way of this common judgment. 4. The facts that lead to the present litigation, concisely, are that basing on the complaint dated 23.05.2014 lodged by the de-facto complainant/PW1 the police of Gandhi Nagar registered crime in FIR No.208 of 2014, for the offence under Section 307 read with Section 34 IPC and investigated into the matter. After completion of investigation, the police laid charge-sheet against the accused alleging that in view of a quarrel on a petty issue occurred on 22.05.2014 at 08.30 P.M., at Naivedhyam Hotel, Chilakalaguda, Hyderabad among Martin Davit/friend of de-facto complainant, his friends and brother of accused No.1 viz. Clinton and A3, all the accused persons hatched a plan to beat anyone from the team of said Martin David and in furtherance of the same, on the same day at 10.30 P.M., while the de-facto complainant alone was going to take his sister’s daughter from his aunt’s house on his Scooty bike bearing No.AP 10 AV 2652, the accused followed him on the Karizma bike of accused No.4 and when he reached near Bhoiguda petrol bunk the accused Nos.1 to 4 stopped him, pulled him from his bike and beat him with hands and legs in a drunken condition, tried to kill him and broke one beer bottle on his head and forehead due to which, he sustained head contusion injuries on forehead and right cheek and fled away from the spot. 5. Upon taking cognizance of the offences charged against the accused, the said charge-sheet was numbered as SC No.266 of 2015. 5. Upon taking cognizance of the offences charged against the accused, the said charge-sheet was numbered as SC No.266 of 2015. In order to substantiate his case, the de-facto complainant apart from examining himself as PW1 also examined PWs.2 to 9 and relied upon the documents marked under Exs.P1 to P16 and material object i.e. broken beer bottle. The accused denied the allegations mainly contending that they were implicated in the case in view of previous enmity and that since PW1 drove the bike in intoxicated condition and caused accident due to which, the neighbours assaulted him and caused injuries. No oral or documentary evidence is adduced on behalf of the accused. 6. Upon hearing both sides and evaluating the entire evidence available on record, the trial Court found the accused Nos.1, 3 and 4 guilty for the offence punishable under Section 326 read with Section 34 of IPC instead of Section 307 read with Section 34 IPC, convicted and sentenced them to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- each and in default, to suffer simple imprisonment for one month each for the offence under Section 326 read with Section 34 of IPC and ordered to pay the fine amount to PW1/injured towards compensation. The trial Court acquitted accused No.2 holding that though PWs.1 and 3 referred his name, the recitals of either Ex.P12 FIR or Ex.P1 statement of PW1 do not reflect his presence at the spot, which raises a suspicion regarding participation of accused No.2 in the scene. 7. Aggrieved by the findings of the trial Court, the accused Nos.1 and 3 preferred Crl.A.No.327 of 2018 and accused No.4 preferred Crl.A.No.323 of 2018 mainly contending that the findings of trial Court are contrary to law, weight of evidence and probabilities of case, the trial Court, though no motive or overt acts are proved against the accused and in-spite of many inconsistencies in the evidence of prosecution witnesses, has erroneously convicted the accused. Further, in-spite of non-co-operation of PWs.5 and 7, panchas for confession of accused, the learned Judge of the trial Court convicted the appellants by heavily placing reliance on the evidence of PWs.1 and 3. Further, in-spite of non-co-operation of PWs.5 and 7, panchas for confession of accused, the learned Judge of the trial Court convicted the appellants by heavily placing reliance on the evidence of PWs.1 and 3. Evidence of PW5, who alleged to be witnessed seizure of material objects/pieces of broken beer bottle proves that PW9/the IO had examined only the friends and relatives of de-facto complainant and he failed to examine the persons, who were present at the scene of offence. The trial Court failed to take into consideration the admission of PW4 that the doctor who treated PW1/injured left their organization and went to abroad and hence, he was authorized to depose in the matter and that if a person fallen from the moving two wheeler in a drunken condition, he might have sustained the same type of injuries and hence, the defence of the accused that PW1 fallen from the bike while he was coming in a rash manner in an intoxicated condition cannot be rejected. The appellants submitted that the appellants cannot be convicted in terms of Section 326 read with Section 34 IPC. To substantiate their contentions, learned counsel for the appellants relied upon the decisions rendered in State of Orissa Vs. Kanhu Mohapatra and another , 2005 Crl. L.J. 3361 and Baul and another Vs. State of Uttar Pradesh , AIR 1968 SC 728 . 8. On the other hand, learned Assistant Public Prosecutor, representing the State/respondent vehemently opposed the present criminal appeals mainly contending that after meticulously scrutinizing the entire material available on record, the trial Court had rightly found the appellants guilty while acquitting A2 and hence, the said findings cannot be stated to be perverse and in that view of the matter, the same cannot warrant interference of this Court. 9. Upon hearing both sides and upon perusing the entire material available on record including the impugned judgment, this Court sits to evaluate the same on the basis of grounds urged through these criminal appeals. 10. Challenge in these appeals is to the impugned judgment, holding the appellants guilty of offence punishable under Section 326 read with Section 34 of IPC. 11. 10. Challenge in these appeals is to the impugned judgment, holding the appellants guilty of offence punishable under Section 326 read with Section 34 of IPC. 11. Evidence of PW1 is nothing but reiteration of averments of his complaint lodged to the police alleging that he was beaten by the accused on the fateful day at the scene of offence with an intention to kill him keeping in view the previous quarrel among two groups. He also deposed that due to the said incident he sustained injuries and hence, the passers took him to Gandhi Hospital and upon obtaining the phone number of his sister PW2, somebody called PW2 to the hospital, who shifted him to Apollo Hospital, Secunderabad for better treatment. He also deposed that subsequently police came and recorded his statement. During the course of cross-examination, PW1 denied the suggestion put by learned counsel for the accused that due to his intoxicated condition the accident occurred resulting in injuries. 12. PW2, sister of PW1, deposed that on 22.05.2014 she received a phone call from some unknown person informing that PW1 sustained injuries due to assault of the accused and he was admitted in Gandhi Hospital, Secunderabad accordingly, she went there and shifted her brother to Apollo Hospital, Secunderabad for better treatment. 13. PW3 is an independent witness and deposed that at the time of incident he along with his friend Akshay were at a pan shop near Navdyam Hotel, at about 08.00 p.m., they had a quarrel with A3 and A4 and with one Clinton and after the said quarrel they dispersed. Subsequently at about 08.30 p.m., he saw near the petrol bunk at Bhoiguda accused Nos.1 to 4 beating de-facto complainant/PW1 with hands and legs and also with beer bottle due to which PW1 fell unconscious and was shifted to Gandhi Hospital. He further deposed that in view of earlier quarrel, PW1 was attacked by the accused. 14. PW4 Dr.Avinash, basing on Ex.P3 injury certificate, deposed that one Dr.Jahanavi Panchal treated PW1 and subsequently she went to abroad and hence, by virtue of Ex.P2 authorization he is deposing and that PW1 sustained mild closed head injury, multiple facial injuries and right black eye injury and opined that the same injuries can be caused to a person who droves the vehicle in intoxicated condition and falls down from the vehicle. During cross-examination he admitted that he did not give treatment to PW1. 15. PW5 is the panch witness for scene of offence panchanama/Ex.P4 for collecting the broken beer bottle/MO1 from the scene of offence. PWs.6 and 7 are also the panch witnesses for confession of the accused. However, they turned hostile. But they admitted their signatures Exs.P6 to P11 on the confessional statements of A1 to A3. PW8 is the constable and recorded the statement of PW1 in Gandhi Hospital under Ex.P1. PW9 is the investigating officer and registered FIR/Ex.P12. 16. While evaluating the above oral evidence of prosecution witnesses, especially PWs.1 to 3 it is clearly established that on the fateful date of incident at the scene of offence, accused have assaulted PW1 and beat him due to which, PW1 became unconscious and was shifted to Gandhi Hospital, Secunderabad from there PW2/sister of PW1 shifted him to Apollo Hospital, Secunderabad where he was given treatment for his head and other injuries by Dr. Jahanavi Panchal. However, PW1 did not mention any thing with regard to the previous quarrel. Subsequently, the investigating officer with the help of PWs.5 to 7 could collect the material objects and record confessional statements of accused. 17. Admittedly, hitting PW1 with beer bottle causing severe head injury cannot be an ingredient to attract the offence under Section 307 IPC since to attract the said Section the act done by the accused must be capable of causing death and there must be an intention to cause death of a person. When the evidence on record is scrupulously scrutinized, the edifice laid down by the prosecution to gain support to their allegations against the accused with regard to Section 307 IPC is very week and without having any substantial support. The contention raised by the learned counsel for the appellants is that it is a case of sudden fight with no intention of the appellants to cause any injury to PW1. The injuries are also not serious which could cause death. There is no metal weapon as such used. The allegation is only broken beer bottle was used and found. In such scenario, the trial Court has rightly found the accused not guilty for the said offence and instead it found Accused Nos.1, 3 and 4 guilty for the offence under Section 326 read with Section 34 of IPC. There is no metal weapon as such used. The allegation is only broken beer bottle was used and found. In such scenario, the trial Court has rightly found the accused not guilty for the said offence and instead it found Accused Nos.1, 3 and 4 guilty for the offence under Section 326 read with Section 34 of IPC. Section 326 IPC deals with offence of voluntarily causing hurt by dangerous weapons or means. 18. Further, with the aforesaid evidence on record and the kind of weapon used, in our view, the offence will not fall within Section 307 I.P.C. from the reasons for fight, as are emerging on record, it doesn’t seem to be pre-planned act. It, at the most, can fall within the four corners of Section 326 IPC as a beer bottle was used as a weapon. The injuries were not caused with an intention to cause death and were not sufficient to cause death. Hence, in our view the conviction of the appellant with respect Section 307 IPC cannot be sustained however the offence under Section 326 IPC is made out. 19. The learned counsel for the appellants tried to whittle down the prosecution case relying upon the discrepancies/inconsistencies in the prosecution evidence with regard to the silence of PW1 regarding the quarrel/incident occurred on the earlier day to the present scene, non-availability/examination of the doctor, who treated PW1, different times deposed by PWs.1 and 3 with regard to the incident, place of incident, admission of PW4 doctor that the same set of injuries can be caused if a person fall from two wheel while he was riding the same in a rash and negligent manner and in an intoxicated condition and also the non-co-operation of PWs.5 to 7 to the case of prosecution. However, in view of the fact that PWs.5 to 7 did not deny their signatures on Exs.P4 to P11 and on material object/MO-1, the distance between the discrepant places deposed by prosecution witnesses is very short, non-examination of any witness to establish the contention of learned counsel for the appellants that the accident occurred due to the rash and negligent driving of PW1 and identification of signature of the doctor who treated PW1 by PW4 and corroboration gained to his evidence from the contents of Ex.P3/injury certificate the said contentions of learned counsel for the appellants cannot be countenanced and they cannot come to rescue the appellants from their liability. In that view of the matter, it can be safely held that the findings of the trial Court finding the appellants guilty, as stated supra, cannot be found fault with and the prosecution could able to bring home their guilt and on the other hand, the accused/appellants failed to rebut the same. Accordingly, this Court sees no reason to interfere with the said findings. 20. As per the submissions made by learned counsel for the appellants while adjudicating IA No.1 of 2018 in both these criminal appeals, it came to light that the appellants were on bail throughout the trial before the trial Court and upon pronouncement of the impugned judgment, they were enlarged on bail under Section 389(3) Cr.P.C. and as per orders of this Court dated 02.02.2018 in IA No.1 of 2018 in both these appeals, the operation of impugned judgment was suspended and the appellants were enlarged on bail. 21. So far as the sentence is concerned, the offence took place on 22.05.2014, and since then almost 10 years have passed. During this period, the accused/appellants might have faced mental agony in roaming around the Courts and also suffered physical incarceration and hence, this Court deems it appropriate to take a lenient view in their favour by reducing the period of imprisonment awarded by the trial Court. Accordingly, the sentence of imprisonment imposed against the appellants for the offence punishable under Section 326 read with Section 34 of IPC i.e. rigorous imprisonment for a period of two years is reduced to that of the period which they have already undergone while upholding the fine amount. 22. Except the above modification in respect of the period of imprisonment, the present criminal appeals are dismissed on all other aspects. 22. Except the above modification in respect of the period of imprisonment, the present criminal appeals are dismissed on all other aspects. 23. As a sequel, the miscellaneous applications if any pending shall also stand dismissed.