K.Sarvesu & 2 Others Vs the State of A.P. Rep., by Its Pp

Revision filed under Sections 397 & 401 of Cr.P.C., praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to present^{thisMemorandum} of Criminal Revision Case being aggrieved by the Judgment of the Principal Sessions Judge, Kurnool passed in CrI.Appeal No.92 of 2011 dated

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04.06.2012, in confirming the Judgment of the Judicial Magistrate of First Class, Kurnool passed in CC.No.759 of 2009 dated 06.06.2011.

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Counsel for the Petitioners: SRI O MANOHER REDDY

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Counsel for the Respondent: PUBLIC PROSECUTOR (AP)

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\ 5^e Court made the following ORDER-:

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THE HON'BLE SRI JUSTICE V.SRINIVAS

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CRIMINAL REVISION CASE No.819 of 2012

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JUDGMENT:

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Assailing the judgment dated 04.06.2012 in Crl.A.No.92 of 2011 on the file of the Court of learned Principal^Sessions Judge at Kurnool, confirming the conviction and sentence passed against the accused by the judgment dated 06.06.2011 in C.C.No.759 of 2009 on the file of the Court of learned Judicial Magistrate of First Class at Kurnool, for^theoffences under Section 324 and 324 r/w.34 of Indian Penal Code (hereinafter referred to as “IPC”), the petitioners/accused^Nos.l to 3 filed the present criminal revision case under^Section397 r/w.401 of the Criminal Procedure Code, 1973.

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The revision case was admitted on 07.06.2012 and the sentence imposed against the petitioner was suspended, vide orders in Crl.R.C.M.P.No. 1278 of 2012.

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The shorn of necessaiy facts are that:

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i). P.W.l and accused are residents of Budavarpeta^of Kurnool town. In view of the quarrels between them,^on 18/19.06.2009 at about 12.30 a.m., while P.W.l was sleeping along with family, accused and one more

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juvenile went to the house of P.W.l and knocked the door with hands and legs. When they opened the door, accused and said juvenile picked up quarrel on the pretext of falling of their motorcycle and abused them in filthy language. They beat P.Ws.l and 2, L.W.2 G.Galenna and L.W.7 G.Suneetha with hands and legs by ignoring the fact that L.W.7 is pregnant. When P.W.3 intervened to rescue them, accused No.2 caused injuiy to him. In the meanwhile, when P.Ws.4 and 5 returned to home after watching second show, accused No.3 beat P.W.4 with a pestle on the back side of his head and accused have beat P.W.5 also. On hearing cries, P.w.6 and others came to spot and then accused left the place, ii). Basing on the Ex.P. 1 report of P.W.l, P.W.8-Head Constable, 111 Town Police Station, Kurnool, registered^a case in Cr.No.219 of 2009 under Section 324 r/w.34 of IPC and investigated into.

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After completion of investigation, P.W.9 laid charge^sheet and the same was numbered as C.C.No.759 of 2009 on the file of the Court of learned Judicial Magistrate of First Class at Kurnool, after full-fledged trial, found the accused Nos.l and 3 are guilty of the offence under Section 324 of IPC as well found

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the accused No.2 is guilty of the offence under Section 324 r/w.34 of IPC, aide judgment dated 06.06.2011, sentenced^them to undergo simple imprisonment of three (3) months^eachand to pay fine of Rs.5,000/each, in default to suffer simple imprisonment of two (2) months each. However, they^foundthe accused not guilty of the offence under Section 323^ofIPC.

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Aggrieved by the same, the petitioners/accused Nos.l^to3 preferred an appeal, vide Crl.A.No.92 of 2011, before^theCourt of learned Principal Sessions Judge at Kurnool and^thesame was dismissed, aide judgment dated 04.06.2012, by confirming the conviction and sentence passed by the trial Court against the accused.

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Against the said judgment of the first Appellate Court,^the present criminal revision case was preferred by the petitioners/accused Nos.l to 3.

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Heard Sri G.Sravan Kumar, learned counsel for the petitioners/accused Nos.l to 3 and Miss P.Akhila Naidu, learned counsel appearing for the respondent-State.

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Now the point that arises for determination in this revision is “whether there is any manifest error of law or flagrant miscarriage of justice in the findings recorded by^{theTrialCourt} as well first Appellate Court?'

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Sri G.Sravan Kumar, learned counsel for the petitioners/accused Nos. 1 to 3 submits that the testimony of P.Ws.l to 6 is interested in nature, thereby, eannot be believed; that no independent wi Witness was examined to corroborate their testimony; that the Trial Court as well Sessions Court failed to appreciate the material on record in a proper perspective, erroneously convicted the petitioners for the said offence and the same is liable to be set aside. 10. Per contra. Miss P .Akhila Naidu, learned counsel appearing for the respondent-State submits that the testimony of P.Ws. 1 to 5 established that accused caused bleeding injuries P.Ws.3 and 4 as well caused Injuries to P.W.5 by using deadly weapons; that the testimony of P.Ws. 1 to 5 corroborated to the testimony of P.W.6 eye witness to incident as well P.W.7 medical evidence; that the Courts below ri rightly appreciated the evidence of on record and convicted the petitioners for the said offence; that the prosecution proved the guilt of the accused beyond all reasonable doubt by examining P.Ws.l to 9 and producing Exs.P.l to P.6, thereby, the present revision has no merits, 11. In view of the above rival contentions, this Court perused the material available on record. It is the specific case of the prosecution that accused Nos.l to 3 along with one juvenile

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with common intention to attack on P.W.4 went to the^houseof P.W.l, accused No.l caused injury to P.W.3 on his neck^and hand with knife. Accused No.3 attacked on P.W.4 with a pestle and beat him on the back side of his neck and caused injury. They also attacked on P.W.5 and caused injuries to^him. 12. The testimony of P.Ws.l to 5 categorically shows that accused No.l to 3 along with juvenile with common intention made an attack in the midnight of 18/19.07.2009 with^knife and pestle and caused injuries to P.Ws.3 to 5 and that^P.Ws.3 and 4 received injuries in the hands of accused Nos.l^and3.It is settled law that where a witness to the occurrence^has himself been injured in the incident, the testimony^ofsuch witnesses is generally considered to be very reliable. Furthermore, the testimony of P.W.6, who said to be eyewitness to the incident, also made it clear that on one day during midnight, while P.W.4 was parking his motorcycle, accused^No.3 made an attack from the back side of a tree and beat P.W.4 with a pestle and caused bleeding injury. P.W.5 also sustained^injury on his left eye. The accused also slapped P.W.3. Nothing incriminating was elicited during cross examination to disbelieve their testimonies.

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Moreover, the testimony of P.W.7 doctor ISi that on the same day i.e., on 19.06.2009 at about 2.5 a.m., she treated P.Ws.3 and 5 and issued Exs.P.2 to P.4 wound certificates and the injuries sustained by them are simple in nature. The testimony of P.Ws.l to 7 coupled with Exs.P.l to P.6 categorically proved the offence committed by the accused against P.Ws.3 to 5 beyond all doubt. 14. It is settled law as observed by the HonlDle Supreme Court in State of Maharashtra V. Jagmohan Singh Kuldip Sing AnandK that “in exercise of revisional powers, this Court need not undertaken in-depth and minutest reexamination of entire evidence, when there i IS no error in the findings arrived by the Trial Court as well first Appellate Court”.

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By taking into consideration of testimonies of P.Ws. 1 to 9 coupled with Exs.P.l to P.6, the trial Court came to conclusion that prosecution proved the guilt of the accused for the offence under Section 324 and 324 r/w.34 of IPC, which was affirmed by the first Appellate Court after elaborate consideration of the matter.

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It is settled law that in view of the concurrent findings on facts by the Courts below, this Court being Revisional Court ISi

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M2Q04) 7 see 659

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not expected to set aside the same without any material of perversity or manifest error in the findings arrived by^the Courts below. There is no material before this Court to discard the trustworthiness of prosecution witnesses and there is no material to disbelieve the contents of Exs.P. 1 to^P.6. 17. All these facts go to show that both the Courts below rightly came to conclusion that the accused attacked^onP.Ws.3 to 5 and caused injuries to them and that there is^noapparent failure on the part of the Courts below in appreciating the evidence on record or to arrive at a conclusion that prosecution proved the guilt of the accused for the said offence. In these circumstances, this Court is of the considered opinion that there is no perversity or flaw in the findings recorded by both the Courts below in convicting the accused for the^offenceunder Section 324 and 324 r/w.34 of IPC. 18. However, while arguing the matter, learned counsel for the petitioner/accused submits that the incident was^occurred on 19.06.2009 and there are mitigating circumstances^toreduce the sentence imposed against the petitioner by the Courts below. He brought to the notice of this Court a judgment^ofthe Honlile Supreme Court in Nand Ballabh Pant v. State (Union

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Territory of Delhip, wherein the APEX Court considered the facts and reduced the period of sentence of imprisonment imposed on the appellate from two (2) months to one (1) month rigorous imprisonment.

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He also brought to the notice of this Court another judgment of Hon’ble Supreme Court in Jagdish Chander v. State of DelhP, wherein also the APEX Court considered the relevant circumstances and reduced the sentence of imprisonment to that of already undergone, but increased the sentence of fine from Rs.500/- to Rs.700/-.

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As well in Mohinder Singh v. State of Haryana^*, the HonT^le Supreme Court held at paragraph No.2 that “they are not inclined to interfere on the merits of the case and at the same time, they cannot lose sight of fact that the occurrence took place more than a quarter of centuiy back and to send the accused in prison after 25 years, would be travesty of justice.”

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No doubt, in the present case also the incident was said to be happened on 19.06.2009 and by this time thirteen (13) years have already been lapsed and the injuries sustained by P.Ws.3 to 5 are simple in nature.

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2 AIR 1977 SC 892

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2 AIR 1973 SC 2127

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‘*2019(3) Crimes 89

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Having regard to the above discussion and in view of the above pronouncements of the Hon’ble Supreme Court, this Court is of the considered opinion that the conviction is upheld, however, to meet the ends of justice, the sentence of imprisonment is modified to that of fine imposed by^theTrial Court for the offence under Section 324 of IPC against^accused Nol and 3 and Section 324 r/w.34 of IPC against accused^No.2 as well awarded compensation of Rs. 15,000/- each to^P.Ws.3to 5 payable by the petitioners/accused Nos.l to 3 under Section 357 of Cr.P.C. 23. In the result, the Criminal Revision Case is allowed in part, modifying the sentence of imprisonment imposed against the petitioner/accused to that of fine already imposed by the Trial Court for the offence under Section 324 and 324 r/w.34 of IPC. The rest of the judgment dated 04.06.2012 in Crl.A.No.92 of 2011 on the file of the Court of learned Principal^Sessions Judge at Kurnool, shall stand confirmed. In addition, the accused Nos. 1 to 3 are directed to pay an amount of Rs. 15,000/- each to the P.Ws.3 to 5/injured forthwith^towards compensation under Section 357 Cr.P.C., in default they shall undergo simple imprisonment of three (3) months. Copy^ofthis

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order shall be marked to the Court of learned Judicial

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Magistrate of First Class at Kurnool, for compliance.

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Interim orders granted earlier if any, stand vacated.

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As a sequel, miscellaneous applications pending, if any.

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shall stand closed.