Nagesh and another vs State of A.P.

This appeal by Al and A5 is directed against the judgment dated 31-3-1993 rendered in SC No.444 of 1992 on the file of IVth Addt. Metropolitan Sessions Judge, Hyderabad. All the six accused Al to A6 were charged for the offence under Sections 148, 307 and 324 read with 149 1PC. A2, A3, A4 and A6 were acquitted of all the charges. Al and A5 were convicted for the offence u/s 324 I PC for causing hurt to PWs.2 and 3 respectively.

The facts relating to this appeal may be stated briefly as follows : On 18-4-1991 at about 9p.m. in front of Abhilasha Wine Shop in Chinthalbasthi Al to A6 are said to have attacked PW4 Vijaya Raj initially. It appears that his brothers PW2 Prithviraj and PW3 Anup Raj reached the scene and questioned the accused about their beating PW4, then they were also attacked with knives, swords and rods. When their father PW1 was in his house somebody informed him as..to what was going on, he immediately ran to the scene and witnessed the incident. PW5 Rajender Singh the brother-in-law of PW1 is also said to have accompanied PW1 to the scene of offence. PWI immediately gave the report Ex.PI at Saifabad Police Station on which a case in Cr.No.218/91 was registered and FIR Ex.PS was issued. The injured PWs.2 and 3 were sent to the hospital for treatment and medical examination. The Doctor PW6 examined the injured and issued medical certificates Ex.P2 in respect of PW3 and Ex.P3 in respect of PW2. Ex.P4 is described as final opinion as to the nature of injuries sustained by PW2- After completion of investigation, charge-sheet was filed.

Thus on behalf of the prosecution PWs.l to 6 and Exs.Pl to P6 and MOs.l and 2 have been marked. The accused has not chosen to examine any defence witnesses on their behalf. As stated above, A2, A3, A4 and A6 have been acquitted of all the charges.

The question for consideration is :

Whether the prosecution has succeeded in bringing home the charge against Ai and A5 for the offence u/s 324 1PC?

PWs.l to 5 were all said to be the eye-witnesses to the occurrence, PWs.2 and 3 among them are the injured themselves. Thus the prosecution case hinges on the evidence of eye-witnesses. Out of these, PW5 having been examined in chief was not tendered for cross-examination, obviously his evidence is of no avail to the prosecution.

The learned Counsel for the accused firstly contends that PWs.2, 3 and 4 have categorically stated in their cross-examination that about 40 to 50 persons gathered in their locality and there was a quarrel and they went to see the quarrel and received injuries. PW2 says that during the quarrel he received injuries and fell unconscious and he did not observe who beat him, though in his examination-in-chief he had given the version implicating the accused. PW3 also stated in his cross-examination that he cannot say who beat him in the mob. Thus he also resiled from what he stated in his examination-in-chief implicating the accused. PW4 in his cross-examination stated that there was quarrel between them and the accused and later on they compromised and they did not want to proceed against the accused. It may be mentioned that after examination-in-chief on 19-3-1993, the cross-examination of PWs.2 to 4 was deferred and on 5-2-1993 during their cross-examination they stated as mentioned above. It is not a case where after the entire examination including the cross-examination was over and after enormous delay witnesses were permitted to be recalled and during their further cross-examination they resiled from their previous statements. Under the circumstances whatever may be the reasons for PWs.2, 3 and 4 resiling from their previous statements in examination-in-chief, they are witnesses who contradict themselves and scarcely inspire confidence. There is no material on record to hold that what they stated in their cross-examination is false or what they stated in their examination-in-chief was true. The discussion of the evidence of PWs.2 and 3 by the learned Sessions Judge would show that in respect of injuries sustained by PW2, he is the solitary witness on that aspect and in respect of injuries sustained by PW3, he is the solitary witness on that aspect. In view of their contradictory versions in examination-in-chief and in cross-examination, it is not possible to accept implicitly the evidence of PWs.2 and 3. In regard to PW1 who is the first informant and who has been examined as an eyewitness, it would appear that in fact he had no opportunity to witness the incident at all though in his evidence in Court he deposed as if he witnessed the entire incident. A careful scrutiny of the complaint given by PWI Ex.Pl would show that when he was in his house,he received some information and thereafter he went to the scene and before he reached the scene, the assailants seeing the arrival of PW1 from a distance, ran away. In view of this, it would have been scarcely possible for PW1 to have witnessed the details of the incident. Besides, the learned Counsel for the accused contends that even if the cross-examination of PWs.2 and 3 is ignored their version in examination-in-chief itself cannot be accepted. It is in the evidence of PW2 that At beat PW3 with knife on his right hand shoulder and fingers but according to PW3 it was A5 who hit him with knife on his shoulder. The version of PW2 is that Al hit him with a knife on the left side of his stomach but the medical evidence runs counter to this. The wound certificate Ex.P3 would show that PW2 had not sustained any injury on his stomach. It is true that in the case of a witness other than the injured who witnessed the incident from some distance, the discrepancy as to whether injury was caused on the stomach or chest could have been ignored as insignificant but when the injured himself has stated that he received injury on his stomach which is contrary to the medical evidence such variance cannot be brushed aside as inconsequential. Similarly, PW3 in his evidence stated that A5 stabbed on his right shoulder and on the left hand fingers, but the relevant medical certificate Ex.P2 pertaining to him discloses that the injury on the shoulder of PW3 was a lacerated injury and the Doctor PW6 has categorically stated that such an injury could not have been caused by any sharp edged weapon like knife or sword. Considering these discrepancies and considering the circumstances that PWs.2 and 3 have totally resiled from their earlier statements in their cross-examination, it has to be held that the prosecution failed in bringing home the charge against Al and A5 also beyond all reasonable doubt.

In the result, the appeal is allowed. Al and A5 are acquitted of the charge u/s 324 IPC.