THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.151 of 2007 Date:24.04.2014 Between:
Palivela Mavulla . Petitioner.
AND The State of Andhra Pradesh, rep by its Public Prosecutor, High Court of A.P., Hyderabad.
. Respondent.
The Court made the following :
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CRIMINAL REVISION CASE No.151 of 2007 ORDER:
This revision is preferred against judgment dated 25-01-2007 in Crl.A.No.216/2005 on the file I Additional District & Sessions Judge, East Godavari at Rajahmundry whereunder judgment dated 13-12-2005 in S.C.No.75/2004 on the file of Assistant Sessions Judge, Ramachandrapuram was modified.
2. Brief facts leading to filing of this revision are as follows:-
On 31-05-2001, P.W.1 along with one T. Mangamma (L.W.4) went to answer calls of nature and sat by the side of the road near water tank in Maredupaka Village, in the meanwhile, accused went there and asked P.W.1 as to why she is feeling shyness on seeing him on that P.W.1 replied as there are no terms between them, why he is talking to her on that the accused caught hold of her tuft, bent her neck and took knife from his waist and hacked on her back side of the head and also on her elbow. He also hacked on right upper arm and on her left forearm indiscriminately with an intention to kill her, due to which, she sustained bleeding injuries. P.W.1 and Mangamma raised cries and on hearing the cries, P.W.2-P.Nagabushnam and nearby persons came there and rescued P.W.1 and thereafter accused escaped from the place. On the report of P.W.1, police registered Crime No.93/2001 and investigation revealed that the accused committed offence under Sections 307 IPC. On these allegations, learned Assistant Sessions Judge, Ramachandrapuram examined ten witnesses and marked seven documents besides one material object. No witness is examined and no document is marked on behalf of accused. On a over all consideration of oral and documentary evidence, trial Court held that offence under Section 307 IPC is not made out, but the evidence on record would attract offence under Section 326 IPC accordingly convicted the accused for the said offence and sentenced him to suffer three years imprisonment with a fine of Rs.500/-
. Aggrieved by the said conviction and sentence, accused preferred appeal to the Court of Session, East Godavari and I Additional District & Sessions Judge, East Godavari at Rajahmundry on a reappraisal of evidence, confirmed conviction of the trial Court, but reduced sentence of three years imprisonment to two years while confining the fine amount. Now aggrieved by the same, present revision is preferred.
3. Heard both sides.
4. Advocate for revision petitioner mainly contended that the prosecution ought to have examined the main eye- witness-Mangamma and her non-examination is fatal to the prosecution case. He further submitted that except the self- serving testimony of P.W.1, there is no other evidence to support her testimony with regard to the attack and the injuries caused to her. He further submitted that radiologist is not examined and x-rays were also not produced before the Court and not marked as exhibits and non-examination of radiologist and non-production of x-rays is also fatal to the prosecution. He submitted that as the radiologist is not examined, the offence under Section 326 IPC is not made out. He submitted that both trial Court and appellate Court have committed error in convicting the accused and the same is liable to be set aside. On the other hand, learned Public Prosecutor submitted that non- examination of radiologist is not fatal in view of the evidence of P.W.9-medical officer.
He submitted that the medical officer, who examined the injured, gave wound certificate on the basis of x-rays and the opinion of the radiologist, therefore objection of the revision petitioner is not tenable. He further submitted that evidence of P.W.1 is convincing and supported with the other circumstantial evidence and both trial Court and appellate Court have rightly convicted the revision petitioner and that there are no grounds to interfere with the concurrent findings.
5. Now the point that would arise for my consideration is whether Judgments of the Courts below are legal, proper and correct?
6. Point:- According to prosecution, the incident was on 31-05-2001 when P.W.1 along with another lady went to answer calls of nature. The main objection of the revision petitioner is that non-examination of the other lady is fatal to the prosecution case. This objection is raised before the appellate Court, the learned appellate Judge elaborately considered this objection and ultimately negatived the same. I do not find any wrong appreciation by the appellate Court while considering the objection of the revision petitioner. As seen from thee evidence, P.Ws.2 to 5 have immediately arrived at the scene on hearing the cries and they supported the version of P.W.1 on all material aspects. Here this Mangamma is given up by prosecution and the reasons stated by the prosecution is that she was won over by the accused. The appellate Court, considering this aspect, observed that prosecution ought to have examined her, but simply for her non-examination, the entire prosecution case cannot be thrown out particularly, when there is evidence of P.Ws.1 to 5. I do not find any wrong appreciation of evidence with reference to facts either by the trial Court or by the appellate Court. When the evidence of P.W.1 is consistant and convincing and not disturbed in the cross-examination, which is supported by medial evidence and the circumstantial evidence of P.Ws.2 to 5, non- examination of this Mangamma, in my view is not at all fatal and the trial Court and appellate Court have rightly rejected the objection.
7. From the evidence of P.W.1, which is supported and corroborated with Ex.P1, it is clear that she sustained injuries in the hands of accused and according to the medical officer-P.W.9, out of six injuries received by P.W.1, two injuries are grievous in nature and the other injuries are simple. This medical officer is cross-examined on behalf of the accused and nothing could be elicited from him to show that the injuries deposed by P.W.1 are not reflected in Ex.P7- wound certificate. As seen from the evidence of P.W.1, this accused is a known person and he had illegal contact with P.W.1 and there was a panchayat in that connection, where he was fined to pay Rs.4,000/- for that illegal act. Both trial Court and appellate Court have considered all the objections raised on behalf of the accused, which are now reagitated and on a scrutiny of the material, I am of the view that both Courts have not committed any error in appreciating evidence and that there are no incorrect findings in the judgments of the Courts below.
8. For these reasons, I am of the view that the conviction recorded by the trial Court and upheld by the appellate Court has to be confirmed.
9. Now coming to sentence part, trial Court sentenced the accused to suffer three years imprisonment and the appellate Court has reduced it to two years. Now the request of the advocate for revision petitioner is that revision petitioner is now aged about 55 years and considering the same, the sentence may be reduced to the period already undergone, but on a scrutiny of the evidence and the nature of injuries, the request of the counsel for the revision petitioner to reduce the sentence to the period already undergone cannot be accepted, but it can be reduced to some extent. Considering the evidence on record and the injuries sustained by P.W.1 and the relationship between P.W.1 and accused, I feel that two years imprisonment can be reduced to six months.
10. With this modification, revision is dismissed.
11. The trial Court shall take steps for apprehension of the accused for undergoing unexpired portion of the sentence.
12. As a sequel, miscellaneous petitions, if any, pending in this Criminal Revision Case, shall stand dismissed.
JUSTICE S. RAVI KUMAR
Date:24.04.2014 mrb