CHIKATLA HARI PRASAD v. The State of A P

Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the sentence in Crl.A.No. 313/2007, passed by the II Addl. District and Sessions Judge, East Godavari at Amalapuram, by enlarging the petitioner on bail pending disposal of the Crl. Revision Case Counsel for the Petitioner:

#1. G RAMA GOPAL Counsel for the Respondent:

#1. PUBLIC PROSECUTOR The Court made the following: O R D E R

#1. The Criminal Revision Case, under Section 397 and 401 of the Code of Criminal Procedure, 1973 (for short, „Cr.P.C.‟) is filed on behalf of the petitioner/accused assailing the Judgment dated 20.03.2009 passed in Crl.A.No.313 of 2007 on the file of the learned II Additional District and Sessions Judge, East Godavari, at Amalapuram (for short, „1st Appellate Court‟), whereby the 1st Appellate Court partly allowed the appeal by modifying the Judgment and conviction and sentence imposed against the petitioner/accused for the offence under Section 324 of Indian Penal Code,1860 (for short, „IPC‟) instead of Section 326 of IPC vide Judgment dated 31.10.2007 passed in C.C.No.87 of 2005 on the file of the learned Additional Judicial First Class Magistrate, Kothapeta (for short, „the Trial Court‟).

#2. The parties will hereinafter be referred to as arrayed in C.C.No.87 of

#3. The brief facts of the case of the prosecution are that: 3 On 28.05.2004 at about 6.00 A.M., the accused, armed with a stick, pounced upon P.W.1, Ch. Syamalavathi was at her house situated in Utchilivaripeta, beaten indiscriminately and also threatened with dire consequences, and she sustained grievous injuries. Immediately, P.W.1 went to P. Gannavaram and presented a report to the Sub Inspector of Police. On the strength of the said report, he registered a case in Crime No.46 of 2004 under Section 325 and 506 of the IPC. During the course of the investigation, the Sub Inspector of Police arrested the accused on

30.05.2004 and sent him to judicial custody.

#4. The learned Additional Judicial Magistrate of First Class, Kothapeta, took cognizance against the accused under Sections 325 and 506 I.P.C. On the appearance of the accused, copies of documents were furnished to him as required under Section 207 Cr.P.C.

#5. The accused was examined under Section 239 Cr.P.C., and he denied the commission of the offence. A charge under Section 326 of IPC against the accused was framed, read over and explained to him in Telugu, to which he pleaded not guilty and claimed to be tried.

#6. During the course of the trial, on behalf of the prosecution, P.Ws.1 to 9 were examined and Exs.P1 to P9 and M.Os.1 to 3 were marked. After the closure of the evidence of prosecution, the accused was examined under Section 313 of Cr.P.C. concerning the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the same, and he stated that he had no defence witnesses on his behalf.

#7. The trial Court on hearing both sides and on considering the oral as well as documentary evidence, found the accused guilty for the offence under Section 326 of IPC and he was convicted and sentenced to suffer Rigorous Imprisonment for two years and also sentence to pay fine of Rs.1000/-, in default to suffer Simple Imprisonment for one month for the offence under Section 326 of IPC vide its Judgment, dated 31.10.2007 in C.C.No.87 of 2005. 4 Felt aggrieved of

#8. unsuccessful accused filed Criminal Appeal No.313 of 2007 before the 1st Appellate Court and the 1st Appellate Court partly allowed the Appeal by the aforesaid conviction and sentence, modifying the conviction and sentence imposed against the accused for the offence under Section 326 of IPC to Section 324 of IPC and he was sentenced to suffer Rigorous Imprisonment for six months and directed to pay a fine of Rs.5000/-, out of it, a sum of Rs.4000/- shall be paid to P.W.1. In default of fine, the accused shall undergo Simple Imprisonment for two months for the offence under Section 324 of IPC. Felt aggrieved by the same, the unsuccessful appellant/accused filed the present Criminal Revision Case, challenging the judgment of the learned Sessions Judge in Criminal Appeal No.313 of 2007.

#9. Now, the point that arises for consideration is: (I) Whether the conviction recorded against the accused for the offence punishable under Section 324 IPC instead of Section 326 of IPC by the 1st Appellate Court by modifying the Judgment of the trial Court is sustainable in law? (II) Whether the sentence passed by the 1st Appellate Court warrant any interference? POINTS Nos.I AND II:

#10. Learned counsel for the petitioner/accused submits that the Courts below erred in not extending the benefit of doubt to the accused and instead relied heavily on the inconsistent and unreliable testimony of prosecution witnesses. The conviction under Section 324 IPC by the 1st appellate court is unwarranted and contrary to the evidence on record. The prosecution's case is riddled with discrepancies, contradictions, and improbabilities. The trial court's findings are based more on conjecture and surmise than on legal evidence, and the 1st appellate court has merely echoed the same. The prosecution failed to establish the scene of the offence with clarity. While PW.1 claimed the incident did not occur at the accused‟s vacant site, the 5 mediator‟s report and the rough sketch are inconsistent with her version. Further, PW.1‟s testimony regarding the weapon used is contradictory, where she stated in the court that the injuries were caused by a stout stick, but the wound certificate (Ex. P.3) reflects that she told the doctor (PW.4) it was a wooden log (dunga), despite admitting she knows the difference. Additionally, there is no corroboration between the testimony of PW.1 and that of PW.9, and the prosecution witnesses appear to be interested parties, further weakening the case. The absence of independent corroboration warrants acquittal. Moreover, the delay in the Magistrate's receipt of the report, despite it being sent earlier, remains unexplained. He further contends that the fine amounts were paid Rs.1,000/- vide Receipt No.5941 dated 31.10.2007, and Rs.4,000/- vide Receipt No. 8136 dated 20.03.2009.

#11. It is settled law as observed by the Hon‟ble Supreme Court in State of Maharashtra V. Jagmohan Singh Kuldip Sing Anand1, that “in exercise of revisional powers, this Court need not undertaken in-depth and minutest reexamination of entire evidence, when there is no error in the findings arrived by the Trial Court as well 1st Appellate Court”.

#12. The Apex Court in Manju Ram Kalita V. State of Assam2, held that: “ 9. ....if the courts below have recorded the finding of fact, the question of re- appreciation of evidence by the third court does not arise unless it is found to be totally perverse. The higher court does not sit as a regular court of appeal. Its function is to ensure that law is being properly administered. Such a court cannot embark upon fruitless task of determining the issues by reappreciating the evidence.

#10. This Court would not ordinarily interfere with the concurrent findings on pure questions of fact and review the evidence again unless there are exceptional circumstances justifying the departure from the normal practice.

#8. ….The position may undoubtedly be different if interference is one of law from [the] facts admitted and proved or where the finding of fact is materially affected by violation of any rule of law or procedure.”