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Judgment
Criminal Appeal No.139 of 2023 is filed by the appellants/A1 to A3 & A5 questioning the conviction for the offence under Section 324 r/w 34 of IPC. The appellants were tried for the offence under Section 307 r/w 34 of IPC by the II Additional Metropolitan Sessions Judge, Hyderabad. The learned Sessions Judge vide judgment dated 30.12.2022 found that the appellants were guilty for the offence under Section 324 r/w 34 of IPC and sentenced them to pay fine of Rs.10,000/-.
Criminal Appeal No.441 of 2023 is filed by the defacto complainant/injured seeking enhancement of the punishment. The injured/appellant is aggrieved by the order of the learned Sessions Judge in not ordering imprisonment but letting off the accused on fine.
The case of the prosecution is that on 03.12.2011 at about 19.00 hrs, there was pretty quarrel among the brothers of P.W.5 and in that quarrel his second brother Gopal Singh’s son Naresh Singh @ Pappu (A3), Asish Singh (Boy Juvenile) called their elder brother Mahender Singh (A5) and his sons Ramender Singh(A2), Vivek Singh @ Lakhan Singh (A1) over telephone and altogether beat him with hands. Thereafter, they have compromised before the elders. At about 22.00 hours, P.W.5 went out from his house for recharging his mobile. All of a sudden, his elder brother Mahender Singh (A5) and his sons Ramender Singh(A2), Vivek Singh @ Lakhan Singh (A1) and Gopal Singh’s sons Nitesh Singh @ Pappu (A3) and Asish Singh (Boy Juvenile) have attacked him with an intention to put end to his life. Vivek Singh @ Lakhan Singh (A1), Ramender Singh (A2) stabbed him with dagger on his abdomen, chest and back side and Gopal Singh’s sons Nitesh Singh @ Pappu (A3), Asish Singh (Boy Juvenile) and Mahender Singh (A5) beat him with stones with an intention to end his life and sped away from the spot and on his hue and cries with severe bleeding injuries, his brother Suresh Singh along with his friend Suddu Rao shifted him to Osmania General Hospital for treatment. Basing on the complaint, a case in Crime No.230 of 2011 under Section 324 r/w 34 IPC was registered.
Heard both the learned counsel for the parties.
Learned counsel appearing for the accused would submit that A5, P.W.5, P.W.6 and D.W.1, are own brothers. A1 and A2 are sons of A5. A3 is also son of another brother namely Gopal Singh. A4, who was tried by the Juvenile Court is son of Gopal Singh. P.Ws.1 and 2, who are the alleged witnesses to the incident have turned hostile to the prosecution case. Further, P.Ws.3 and 4 also turned hostile to the prosecution case and did not support the scene of offence panchanama.
In the Medico Legal Certificate (MLC) that was filed by the prosecution, it is mentioned that “one person” assaulted. When A5 is the own brother and others are also siblings, the question of stating that some stranger attacked would not arise. D.W.1, who is the brother, has deposed that no such incident had taken place. He entered into the witness box and stated that there was family meeting that was held regarding properties. The meeting included A5, P.W.5, P.W.6, himself and others. After the meeting, he went inside the house and heard P.W.5 raising hue and cry holding his chest. On enquiry, P.W.5 allegedly informed that one of his customers, who came for purchasing ganja, injured him and fled.
In the said back ground of the case when the eye witnesses have turned hostile and also the independent witnesses to the scene, only on the basis of P.W.5’s evidence with whom there were differences with the accused regarding property, reliance cannot be placed on such solitary testimony of P.W.5 to convict the accused. In fact D.Ws.1’s evidence runs contrary to the case of PW.5. The evidence of defence witnesses cannot be disbelieved only for the reason of deposing before the Court on behalf of the accused. Treatment of prosecution witnesses and defence witness should be equal. He relied on the following judgments: i) Amar Singh and others v. The State (NCT of Delhi) 2021(1) ALD (Crl.) 213 (SC); ii) Tomaso Bruno and another v. State of Uttar Pradesh (2015) 3 Supreme Court Cases (Cri) 54; iii) Sohan and others v. State of Haryana and others 2001 CrlLJ 1707 (SC); iv) Kota Peda Nagesh v. State of A.P 1999 (1) ALD (Cri) 519; v) Dudh Nath Pandey v. State of Uttar Pradesh 1981 CriLJ 618; and vi) State of Bihar v. Naresh Yadav and others 2004 (1) ALD (Crl.) 766 (SC).
On the other hand, learned counsel appearing for the injured in Criminal Appeal No.441 of 2023 would submit that the learned Sessions Judge was right in declining to accept the evidence of D.W.1, who is an interested witness. There is no reason why the own brother of the accused would speak false against his brothers and their children. Grievous injuries were inflicted with knife and for the said reason, the punishment should commensurate with the gravity of the offence. In cases of such serious nature of inflicting injuries with knife, the accused cannot be let off by imposing fine.
The injuries received by P.W.5 whether grievous or simple are not mentioned in the final opinion Ex.P10. However, under Ex.P11, it is mentioned that the injuries are grievous in nature. P.W.7 was examined and he stated that he did not look into the opinion referred to in Ex.P11. The alleged knifes that were stained with blood were not sent for medical examination. The witnesses for confession and seizure turned hostile to the prosecution case.
In the evidence of P.W.1 and D.W.1 who are brothers, it is evident that there were disputes in between the brothers regarding the property. Presence of accused and P.W.5 is stated by D.W.1. However, D.W.1 states that he did not see who attacked P.W.5, but stated before the Court that P.W.5 informed that one of his customers had inflicted injuries. There is no reason why if unknown person/customer had inflicted injuries, same would not be revealed by P.W.5 and falsely implicate his brothers. I do not find any infirmity with the order of the learned Sessions Judge.
In the facts of the present case, the incident is of the year 2011, I do not deem it appropriate to entertain the appeal filed by the defacto complainant seeking enhancement of sentence.
Accordingly, both the Criminal Appeals are dismissed. Consequently, miscellaneous applications, if any, shall stand closed.