ORDER:

This Criminal Revision Case came to be filed, under Sections 397 and 401 of the Code of Criminal Procedure, 1973 (for short, ‘the Cr.P.C’), by the petitioner herein, who was the first accused (A-1) in Calendar Case No.5 of 2004 on the file of the Court of II Additional Munsif Magistrate, Tenali (for short, ‘the learned Magistrate’) and first appellant in Criminal Appeal No.396 of 2006 on the file of the Court of XI Additional District and Sessions Judge (Fast Track Court) Guntur at Tenali (for short, ‘the learned Additional Sessions Judge’), challenging the judgment, dated 25.07.2008, in the said Criminal Appeal, where under the learned Additional Sessions Judge, allowed the same insofar as the second appellant therein was concerned but dismissed the Appeal confirming the conviction of the first appellant, under Section 326 of the Indian Penal Code, 1860 (for short, ‘the IPC’) imposed in C.C. No.396 of 2006.

2. The parties to this Criminal Revision Case will hereinafter be referred to as arrayed before the trial Court, for the sake of convenience.

3. The petitioner along with accused No.2 (A-2) faced charge before the Court below under Section 326 R/w.34 IPC and the petitioner herein along with A-2 were convicted under Section 248(2) Cr.P.C. for the charge under Section 326 R/w.34 IPC and sentenced to suffer Simple Imprisonment for two years and to pay a fine of Rs.3,000/- in default to suffer Simple Imprisonment for three months each. When the present petitioner along with A-2 filed Criminal Appeal No.396 of 2006, it was disposed of as above. Challenging the same, the unsuccessful first appellant therein approached this Court by way of this Criminal Revision Case.

4. The case of the prosecution, in brief, before the Court below, according to the substance of the charge sheet in C.C. No.5 of 2004 is that A-2 purchased a thatched house belonging to one Dukkula Udaya Bhaskara Rao and started residing in the said house situated in Donepudi village since 7 or 8 years prior to the date of incident. Since 2 years prior to the date of incident, the defacto complainant started residing in a house for rent, which is located between the south east corner of the house of the accused. On 06.11.2003 at about 06:30 a.m. the de-facto complainant climbed coconut tree to cut the coconuts. At that time, the wife of A-1 was taking bath in her bathroom and on seeing the de-facto complainant, she ran away into her house. After some time, he was sitting in front of his house on a pial. A-1 went there with a knife and attacked him and tried to hack him across his head. The de-facto complainant put his hand to avert the blow and the knife fell on the left lower arm, which resulted into bleeding injury. Then, he fell down. Then, A-1 again attacked him by hacking with the same knife below knee and caused bleeding injury. At that time, A-2 was also along with A-1 holding an axe. The persons present there witnessed the incident and shifted the injured to Kollur village and from there to hospital for treatment. The statement of the de-facto complainant was recorded in Crime No.70 of 2003 originally under Section 307 R/w.34 IPC and investigated into. On 12.11.2003, both the accused were arrested and sent for remand. LW.13 issued wound certificate opining that the injury No.1 is grievous in nature. Hence, the charge sheet.

5. The Court below took cognizance of the case under Section 326 R/w.34 IPC and on appearance of the accused and after completing the formalities under Section 207 Cr.P.C, examined both the accused under Section 239 Cr.P.C, for which they denied the offence. Then a charge under Section 326 R/w.34 IPC was framed and explained to them in Telugu for which they pleaded not guilty and claimed to be tried.

6. During the course of trial, on behalf of the prosecution PWs.1 to 11 were examined and Exs.P-1 to P-15 and further MOs.1 to 4 were marked.

7. After closure of the evidence of the prosecution, both the accused were examined under Section 31