Nunna Sankara Rao and 3 Others, Vs the State of a.P., Rep by Pp.

The Criminal Revision Case has been preferred under Section 397 and 401 of Code of Criminal Procedure, 1973 (for brevity ‘the Cr.P.C.,’) against the judgment dated 26.05.2009 in Crl.A.No.123 of 2006 passed by the learned I Additional District and Sessions Judge, Krishna at Machilipatnam, confirming the conviction of Accused Nos.2 and 8 for the offences under Section 326 of ‘the I.P.C.,’ while reducing the sentence from two years of rigorous imprisonment to one year rigorous imprisonment by confirming the sentence of fine. The conviction recorded by the learned Trial Court against the Accused Nos.3 and 5 is altered from Section 326 of ‘the I.P.C.,’ to Section 324 of ‘the I.P.C.,’ and sentence was reduced to three months rigorous imprisonment.

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I have heard the arguments of the learned counsel for the revisionists and the learned Assistant Public Prosecutor.

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Sri Challa Ajay Kumar, the learned counsel for the petitioners, while reiterating the grounds of the revision, submitted that the learned Judge committed a grave error in placing undue reliance on the highly interested and inconsistent testimony of P.W.1, failing to recognize that the essential ingredients required to establish the alleged offences were not sufficiently proved by the prosecution; by disbelieving the foundational aspects of the

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prosecution’s case and acquitting Accused No.1 and Accused No.4, the learned Judge erroneously proceeded to convict the petitioners; the medical evidence did not corroborate the prosecution’s version of events, and P.W.1, the injured one, failed to specify the overt act of Accused No.1 in the F.I.R, which had previously resulted in giving benefit of doubt to Accused No.1; inclusion of Accused No.8/Nunna Kali Prasad during trial under Section 319 of ‘the Cr.P.C.,’ raises concerns regarding procedural fairness; substantial doubt persists regarding the location, timing, and manner of the alleged attack by the Accused; counter-case in S.C.No.146/2003 culminated in acquittal, with an appeal currently pending before this Hon’ble Court; reasoning adopted by the learned Sessions Judge is legally unsustainable; and that in the given overall facts and circumstances, the sentence imposed was unduly harsh and disproportionate.

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Alternatively, it is submitted that the revisionists at the time of the alleged offence were aged about 46, 37, 34 and 41 years respectively; nearly 23 years have passed by; they have been suffering a lot of mental agony; petitioner No.1 has been suffering from severe aliments due to post Covid-19 complications; they were in incarceration for more than 65 days; it is requested to consider the case of the revisionists sympathetically to impose sentence which they had already undergone, while volunteering that the sentence of payment of fine of Rs.1,000/- may be enhanced to Rs.5,000/- as a measure of penance and urged to dispose of the revision.

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Per contra , Ms. P. Akila Naidu, learned Assistant Public Prosecutor vehemently argued that the learned Appellate Court having gone through the evidence of the prosecution witnesses and the judgment of the learned Trial Court rightly passed the judgment confirming the conviction for the offence charged and urged to dismiss the revision case as there are no material irregularities, miscarriage of justice and misreading of the evidence.

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Thoughtful consideration is bestowed on the arguments advanced by

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the learned Counsel for both sides. I have perused the entire record.

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Now the point for consideration is:

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“ Whether the judgment in Crl.A.No.123 of 2006 dated 26.05.2009, passed by the learned I Additional District and Sessions Judge: Krishna, Machilipatnam, is correct, legal, and proper with respect to its finding, sentence, or judgment, and there are any material irregularities? And to what relief?”

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It is apposite to refer the Hon’ble Apex Court in Bindeshwari Prasad

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Singh v State of Bihar¹ wherein at Paragraph No.13 it is held as under:

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“13. ... In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not re-appreciate the evidence to reach a finding different from the trial Court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.”

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The prosecution examined P.Ws.1 to 11, got marked Ex.P1 to P13 and

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M.Os.1 to 4. P.W.1 is the de-facto complainant and injured. P.W.2 is wife of the P.W.1. P.W.2 also sustained injuries. P.W.3 is the elder brother of P.W.1, who

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1(2002) 6 SCC 650

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happened to witness the occurrence along with P.W.5. Their evidence is crystal clear that the Petitioners attacked and beat P.Ws.1 and 2 with sticks, knifes and spear. There was a dispute in between the Petitioners’ group and the injured group regarding land and its survey. There was a dispute about irrigation bode also. As the evidence of witness of the prosecution inspired confidence that there were speaking voluntarily with truthfulness, the learned Trial Court convicted the Petitioners under various offences. Further the learned Appellate Court modified the convictions as indicated supra . The evidence of the witness of the prosecution cannot be appreciated at this juncture sitting like second appellate court while exercising jurisdiction under Sections 397 and 401 of ‘the I.P.C.’ Indeed, no radiologist was examined to prove that Accused No.2 and Accused No.8 caused grievous hurt to the injured. No radiologist report was marked. No X-rays were also marked.

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In this regard, it is pertinent to refer the decision of the High Court of Karnataka in Sathya Deva v. State of Karnataka² , wherein at Paragraph Nos.15 to 17 it is held as under:

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“15. The doctor who has examined the injured persons was duty bound to classify the injuries as grievous injuries or not keeping in mind the definition of the grievous injury as contemplated under Section 320 of IPC. In order to substantiate the opinion of the doctor to classify the injury as a grievous injury, it is necessary that X-ray certificate and radiological certificate must be placed by the prosecution to term it as the said injuries are grievous injuries, especially when there is a fracture.

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16. In this regard, this Court gainfully places reliance on the Judgment of the Division Bench of this Court in the case of State v.

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2 Crl.RP.Nos.1148 & 1185 of 2012

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Sheenappa Gowda reported in 2011(4) KCCR 2759, the relevant paragraph is culled out hereunder:

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"11. Therefore, the question for determination is limited to find out whether the said injury No. 2 is proved to be a grievous injury sustained by PW. 4. It is well settled that in criminal cases, the burden of proving the guilt of the accused is always on the prosecution and that burden would not shift unless there is a presumption or defence as enumerated in the Penal Code, 1860 is taken by the accused. In this case, the defence taken by the accused is one of denial. It is clear from the evidence of PW. 1 that he has given description of injury on physical examination of PW. 4 and has come to the conclusion that there was fracture of the middle phalanx. It is well settled that when the prosecution alleges that grievous injury has been caused, it is necessary for the prosecution to prove the same beyond resonable doubt. The evidence of PW.1. would only show that there was injury as described in the wound certificate - Ex.P2. When PW. 1 suspected such fracture, he ought to have referred the injured - PW. 4 for taking X-ray to confirm his finding that there is fracture of middle phalanx. It is now well settled hat unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically it cannot be said that the accused have caused grievous injury of fracture. It is true that in the cross-examination of PW. 1, the learned Counsel appearing for the accused has not disputed the nature of injuries spoken to by PW.1. However, he same would not dispense with the production the X-ray by the prosecution to prove beyond reasonable doubt that the injured had sustained fracture of middle phalanx, which is an opinion given by PW. 1 Doctor only on clinical examination of PW. 4, the injured. Therefore, it is clear that the finding of the learned Sessions Judge holding that the prosecution has failed to prove that the accused Nos. 1 to 3 and 5 have committed the offence punishable under Section 326 of I.P.C. and the offence committed by them falls within the ambit of Section 324 of I.P.C. is justified".

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17. Applying the legal principles enunciated in the aforesaid case to the case to the case on hand and in the absence of prosecution failing to place X-ray certificate and radiological certificate, injuries mentioned in the wound certificate cannot be termed as grievous injuries. Further, as rightly submitted by the learned counsel for the petitioners no explanation is forthcoming by the prosecution as to the injury sustained by the petitioners in each of the cases. Under such circumstances, finding recorded by the Trial Magistrate that the petitioners-accused are guilty of the offence punishable under Section 326 of IPC cannot be sustained in the eye of law and

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therefore, the same needs to be scaled down to 324 of IPC. Unfortunately, the learned Judge in the First Appellate Court need not bestowed its attention to the said aspect of the matter while confirming the order passed by the Trial Magistrate.”

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In Bholu @ Hanuman v. State of Rajasthan³ the High Court of

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Rajasthan at Paragraph No.17 held that to decide whether the injuries are grievous in nature to attract section 326 of ‘the I.P.C.,’ X-rays of the injured and opinion given by the radiologist are important and radiologist is also to be examined, and in the absence of any such evidence, the inevitable conclusion is that the prosecution failed to prove its case for an offence under Section 326 of ‘the I.P.C.’

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In Ragho Mahara v. State of Jharkhand⁴ the High Court of Jharkhand at Paragraph No.17 held that conviction under section 325 of ‘the I.P.C.,’ was not sustainable because the opinion of the Doctor that injury No.1 was grievous was not supported by X-ray plate.

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In Surendra Rai v. State of Jharkhand⁵ , the High Court of Jharkhand held at Paragraph No.9 that in the light of direct evidence on the point of injury, non-production of x-ray report was not fatal for proof of case under section 326 of ‘the I.P.C.’

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In Swarn Singh v. Delhi Administration⁶ it is held at Paragraph No.11

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that nevertheless to ascertain that the injury was grievous or simple reliance

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3 2009 (1) ALT (Crl) 23 (NRC)

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4 2018 SCC Online Jhar 2373

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5 2016 SCC Online Jhar 2372

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6 1991 Cri. Law Journal 1867 (Del.)

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can be placed on the statement of the doctor giving reasons for arriving at the conclusion or by considering the evidence of injured.

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In State of Punjab v. Naseeb Singh⁷ the High Court of Punjab and Haryana held at Paragraph No.24 that it was not possible to hold that absence of X-ray film during the trial or where X-ray of the injured is not even done in all cases would result in acquittal of the accused under section 326 of ‘the I.P.C.,’ and it will depend on the facts and circumstances of each case, where eye witness version is duly supported by medical evidence, particularly by an expert medical evidence which clearly shows that bone had fractured and it was visible from naked eye, the court would not be justified in granting acquittal to the accused for the offence under section 326 of ‘the I.P.C.’

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This Court in Chilaka Baburao v. State of Andhra Pradesh⁸ , held that to prove the nature of injuries, examination of radiologist and marking of radiologist report and X-rays are necessary.

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A learned Single Judge of this Court, in Nallabothula Ramachandra v. State of Andhra Pradesh⁹ at Paragraph Nos.16 and 17 held as under:

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“16. Besides, there is a judgment of High Court of Andhra Pradesh relied upon by the learned counsel for the petitioners reported between Erlapalli Prakasham v. State of Andhra Pradesh, 2002 (1) ALD (Crl.) 621 (AP), in which there was an observation by the Coordinate Bench of this Court that 'the Radiologist has not produced the X-ray films and in the absence of the same, it cannot be said that there are grievous injuries and it must be taken that the injured have sustained simple injuries.

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7 2003 SCC Online P & H 224

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8 Crl.R.C.No.365 of 2010

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9 2024 1 ALD (Cri) 728

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17. It is also relevant to refer the judgment of High Court of Madras between Muniammal v. Superintendent of Police, 2008 SCC Online Mad 1251, wherein the High Court has relied upon its earlier judgment between Maddan Gopal Kakkad v. Naval Dubey, (1992) 3 SCC 204 and held in the said judgment at paragraph No.34 as follows:

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A medical witness called in as an expert to assist the Court is not a witness of fact and the evidence given by the medical officer is really of an advisory character given on the basis of symptoms found on examination. The expert witness is expected to put before the Court all materials inclusive of the data which induced him to come to the conclusion and enlighten the Court on the technical aspect of the case by explaining the terms of science so that the Court, although not an expert, may form its own judgment on those materials after giving due regard to the experts opinion because once the experts opinion is accepted, it is not the opinion of the medical officer but of the Court.”

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In view of the above judgments, and as no radiologist was examined to speak that witnesses sustained grievous injuries and no X-rays and report of radiologist were marked, the conviction under Section 326 of ‘the I.P.C.,’ imposed against the Petitioner No.1/Accused No.2 and Petitioner No.4/Accused No.8 is liable to be converted into conviction under Section 324 of ‘the I.P.C.’

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Of course, there was no misreading of the evidence in finding the revisionists guilty by the Trial Court and the Appellate Court about attacking the injured. There are no perverse findings. The learned Trial Court and the Appellate Court had rightly appreciated the evidence and found the revisionists guilty of the offences charged. There are no grounds to interfere with the conviction under section 324 of ‘the I.P.C.’

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20. The Hon’ble Apex Court in Hussainara Khatoon (IV) v. Home

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Secretary State of Bihar¹⁰ , it is held that right to speedy trial which includes hearing of the Appeal and Revision is part of a fundamental right under Article 21 of the Constitution. In addition to the appeals the right to a speedy trial also includes criminal revisions as per the decision of the Hon’ble Apex Court in Rajdeo Sharma v. State of Bihar¹¹ . The right of speedy trial of the revisionist is being violated because of delay in disposal of the revision within a reasonable time.

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As stated supra, the occurrence took place about 23 years ago. The revisionists had been facing mental agony and trauma of the protracted prosecution and suffered mental harassment for a long period of 23 years. There were no previous adverse antecedents against the petitioners as per the impugned judgments. The petitioners were in incarceration for more than 65 days. Therefore, the delay is also one of the grounds to modify the impugned order. Therefore, it is appropriate and proportionate that the sentence is required to be reduced to the period of sentence of imprisonment already undergone by the revisionist.

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The learned Trial Court imposed Rs.1,000/- which was confirmed by the learned Appellate Court. The learned Counsel for the revisionists volunteered that the revisionists would pay Rs.5000/- excluding the Rs1,000/- paid by the

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revisionists, while preferring the appeal before Appellate Court, as a measure

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10 AIR 1979 SC 1360

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11 (1999) 7 SCC 604

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of penance. Section 324 of ‘the I.P.C.,’ gives discretion to this Court either to impose three years imprisonment as punishment or fine or both. If an amount of Rs.10,000/- is imposed towards fine on Petitioner No.1/Accused No.2 and Petitioner No.4/Accused No.8 it would meet the ends of justice. Similarly, if a fine amount of Rs.5,000/- is imposed on Petitioner No.2/Accused No.3 and Petitioner No.3/Accused No.5, it would also meet the ends of justice. If these fine amounts are disbursed to the injured witnesses, or their legal heirs, if the injured are not alive, equally by the learned Trial Court as per Section 357 of ‘the Cr.P.C.,’ it would further meet the ends of justice.

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In view of the obtaining peculiar facts and circumstances of the case, the revision is disposed of, altering the conviction for the offence punishable under section 326 of ‘the I.P.C.,’ to section 324 of ‘the I.P.C.,’ and reducing the sentence which the revisionists had already undergone, and further imposing fine of Rs.10,000/- on Petitioner No.1/Accused No.2 and Petitioner No.4/Accused No.8, further, Petitioner Nos.2 and 3/Accused Nos.3 and 5 are directed to pay an amount of Rs.5,000/- towards fine. The fine amounts imposed in this order shall be paid before the learned Trial Court within a period of two months from the date of receipt of copy of this order, failing which the Petitioner No.1/Accused Nos.2 and Petitioner No.4/Accused No.8 shall undergo four months of rigorous imprisonment and Petitioner No.2/Accused No.3, and Petitioner No.3/Accused No.5 shall undergo two months of rigorous imprisonment, respectively. The additional fine amounts

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imposed herein shall be disbursed by the learned Trial Court to the injured witnesses equally, if they are alive or else the fine amounts shall be disbursed to their legal representatives equally, under section 357 of ‘the Cr.P.C.’

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There shall be no order as to costs. As a sequel, interlocutory applications, if any pending, shall stand closed.

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________________________ Dr. Y. LAKSHMANA RAO, J

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Dt:16.06.2025 Note: LR copy to be marked. B/o VTS

Nunna Sankara Rao and 3 Others, v. the State of a.P., Rep by Pp.

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Nunna Sankara Rao and 3 Others, v. the State of a.P., Rep by Pp.

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