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2021 Supreme(AP) 56
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
JOYMALYA BAGCHI, J.
Kuruva Venkataramappa (A-1), S/o.K.Mallappa – Appellant
Versus
State of A.P. – Respondent
Criminal Appeal No.842 OF 2009
Decided on : 17-02-2021
Advocate Appeared: :
For the Appellants : Smt. D.Sangeetha Reddy/ Sri C.Sharan Reddy
For the Respondent: Additional Public Prosecutor
Headnote:
Code of Criminal Procedure, 1973 – Sections 357, 428, 437 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act) – Section 3 – Penal Code, 1860 – Section 109, 326 – Abuse – Order of Conviction – Appeal is directed against the judgment and order in Sessions Case by the learned Special Sessions Judge for trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), Anantapur convicting the 1st appellant for commission of offence punishable under Section 326 of IPC and 2nd appellant under 1st Section 326 R/w.109 of IPC, sentencing the appellant to suffer Rigorous Imprisonment for three (3) years and to pay a fine of Rs.5,000/-, in default to suffer Simple Imprisonment for six (6) months and 2nd appellant to suffer Rigorous Imprisonment for three (3) years and to pay a fine of Rs.2,000/-, in default to suffer Simple Imprisonment for six (6) months with a further direction that a sum of Rs.3,000/-, on realization of the fine amount of Rs.7,000/-, be paid to PW.1 as compensation under Section 357 of Cr.P.C.
Finding of court: Court find that the evidence with regard to instigation is an afterthought and not reflected in the First Information Report lodged by PW.1. – There is enmity between the parties and therefore possibility of false implication of 2nd appellant on such score cannot be ruled out. – Court is inclined to extend the benefit of the doubt to 2nd appellant and acquit him of the charge levelled against him. – Under such circumstances, conviction of 1st appellant under Section 326 IPC is upheld. Conviction of 2nd appellant under Section 326 R/w.109 of IPC is set-aside. – Court note that the incident occurred in 1st the course of a quarrel. appellant had been acquitted of the charge under Section 3(1)(x) of the Act of 1989. – He does not have criminal antecedents. – Thus, balancing the aggravating and extenuating circumstances, court is inclined to modify the sentence imposed on the 1st appellant. – Accordingly, he is sentenced to suffer Rigorous Imprisonment for a period of two (2) years and to pay a fine of Rs.5,000/-, in default to suffer Simple Imprisonment for six (6) months more. – Court note that the incident occurred in 1st the course of a quarrel. appellant had been acquitted of the charge under Section 3(1)(x) of the Act of 1989. – He does not have criminal antecedents. – Thus, balancing the aggravating and extenuating circumstances, Court is inclined to modify the sentence imposed on the 1st appellant. – Accordingly, he is sentenced to suffer Rigorous Imprisonment for a period of two (2) years and to pay a fine of Rs.5,000/-, in default to suffer Simple Imprisonment for six (6) months more. – Period of detention suffered by the 1st appellant during investigation, enquiry and trial shall be set off against the substantive sentence imposed upon him in terms of Section 428 of Cr.P.C.
Result: Criminal Appeal Allowed
JUDGMENT :
1. The Appeal is directed against the judgment and order dated 27.07.2009 in Sessions Case No.633 of 2008 by the learned Special Sessions Judge for trial of cases under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act), Anantapur (for short, ‘the learned Special Sessions Judge’) convicting the 1st appellant for commission of offence punishable under Section 326 of IPC and 2nd appellant under 1st Section 326 R/w.109 of IPC, sentencing the appellant to suffer Rigorous Imprisonment for three (3) years and to pay a fine of Rs.5,000/-, in default to suffer Simple Imprisonment for six (6) months and 2nd appellant to suffer Rigorous Imprisonment for three (3) years and to pay a fine of Rs.2,000/-, in default to suffer Simple Imprisonment for six (6) months with a further direction that a sum of Rs.3,000/-, on realization of the fine amount of Rs.7,000/-, be paid to PW.1 as compensation under Section 357 of Cr.P.C.
2. The prosecution case, as alleged against the appellants, is to the effect that on 22.01.2008 at 12:30 PM, 1st appellant went to S.C. Colony at Sanaganapalli village; seeing him, PW.2 – H.Yettemma (mother of the injured -informant, PW.1 -H.A.Venkatesh), complained that residents of S.C. Colony were not getting drinking water and requested him to provide a tap. Hearing this, 1st appellant become angry and abused Yettamma by calling her ‘Madiga Lanja’, and also intimidated her. She informed the said incident to her son i.e., PW.1. On the next day around 07:30 PM, PW.1 found the appellants near the beedi bunk (kiosk) of the village. When PW.1 enquired from the 1st appellant why he had abused his mother, 2nd appellant intervened and instigated the 1st appellant to hit him. Thereupon, the 1st appellant abused him by uttering ‘EE MADIGA NAA KODUKUTHO EMAVUTHUNDI’, and picked up a big stone and hit PW.1 on the right thigh and right hand. This resulted in fracture of the thigh bone. PW.1 was treated in Government Hospital at Hindupur by PW.11. PW.1 lodged written complaint resulting in registration of the instant case.
3. In conclusion of the investigation, charge sheet was filed against the appellants under Section 326 R/w.109 of IPC and also under Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, ‘the act of 1989’). Charges were framed against the appellants under Section 3(1)(x) of the Act of 1989 and also under Section 326 of IPC against 1st appellant and under Section 326 R/w.109 of IPC against the 2nd appellant, to which the appellants pleaded not guilty and claimed to be tried.
4. In the course of trial, prosecution examined 14 witnesses and exhibited number of documents including the wound certificate, Ex.P-10, and x-ray films of the injured i.e., Exs.P-11 and 12. Defence of the appellants was one of innocence and false implication.
5. In conclusion of trial, the learned Special Sessions Judge, while acquitting the appellants of the charge under Section 3(1)(x) of the Act of 1989, convicted and sentenced the appellants as stated hereinabove.
6. Sri C.Sharan Reddy, learned counsel appearing for the appellants, argues the genesis of the prosecution case has not been proved beyond doubt. There is wide variance in the versions narrated by PWs.1 and 2 in Court when compared with First Information Report or in their earlier statements. It is further contended that the ocular version of the injured witness, PW.1, is not corroborated by medical evidence. He accordingly prayed for acquittal of the appellants.
7. On the other hand, learned Additional Public Prosecutor argues the evidence of the injured witness -PW.1 is corroborated not only by her mother, PW.2, but also with other independent witnesses i.e., PWs.3, 4 and 5. There is no dichotomy between the ocular versions of the witnesses when compared with the medical evidence. Hence, the Appeal may be dismissed.
8. I have analysed the evidence on record. PW.1 is the injured and most vital witness.
