G.R.Muralidhar v. The State Of A.P.,

THE HON'BLE SRI JUSTICE M.S.K.JAISWAL CRIMINAL REVISION CASE No.1610 of 2011 ORDER:

The Criminal Revision Case is filed against the Judgment dated 06.05.2011 in Criminal Appeal No.139 of 2011 on the file of the Special Judge for trail of offences under SCs & STs (POA) Act-cum-VI Additional Metropolitan Sessions Judge, Secunderabad, by and under which the conviction and sentence imposed against the petitioner/accused by the learned XI Additional Chief Metropolitan Magistrate at Secunderabad in C.C.No.1004/2006, dated 01.03.2011, was confirmed.

2.

Heard the learned counsel appearing for the petitioner/accused and the learned Additional Public Prosecutor, representing the State.

3. The case of the prosecution in brief is that the petitioner/accused is Senior Manager in Air India, Hyderabad. PW 1 is working in the same department. PWs 2, G.B.Ramesh and PW 3, who are alleged to be the eyewitnesses, are all colleagues of the accused and PW 1. PW 3 was transferred to Abdudhabi, for which he arranged a party to all his friends and colleagues in hotel Ramada, Begumpet on 27.01.2006 at 10 p.m.

While the party was going on the petitioner/accused picked up a quarrel with PW 1 without any reason, assaulted him and beat him with hands on his mouth, chest and other parts of the body, for which, PW 1 sustained bleeding injuries on his mouth and chest. PW 1 was shifted to Yashoda hospital and on information the Station House Officer i.e. H.C.6482 of PS Begumpet came to the hospital and recorded the statement of PW 1 and basing on which, a case was registered against the petitioner/accused under section 325 IPC.

4. Before the trial Court, the accused was examined and charge under section 325 IPC was framed against the accused, for which he pleaded not guilty.

5. During the course of trial, the prosecution examined PWs 1 to 6 and marked Exs.P1 to P3. The accused denied the evidence on record.

6. On appreciation of oral and documentary evidence, the trial Court found the accused not guilty for the offence under Section 325 IPC, however, found him guilty of the offence under section 323 IPC and convicted and sentenced him to pay a fine of Rs.1000/-, in default to suffer simple imprisonment for a period of one month.

7. Challenging the conviction and sentence passed by the trial Court, the petitioner/accused preferred Crl.A.139/2011. The learned appellate Court dismissed appeal confirming the conviction recorded by the trial Court. Aggrieved by the same the petitioner/accused filed the present criminal revision case.

8. The point that arises for consideration in this revision is whether the conviction and sentence imposed by the Courts below against the revision petitioner/accused is legal and sustainable. Point:

9. The admitted case is that on 27.01.2006 PW 3 on the eve of his transfer to Abdudhabi, has arranged a party to his colleagues at Hotel Ramada, which is near Begumpet Airport, where the petitioner/accused and the injured PW 1 and others were working. Both PW 1 and accused were the senior officials of the Air India. It is also admitted fact that at that time, the petitioner/accused and the injured PW 1 were under the influence of alcohol and they were in inebriated condition. It is alleged that in the midst of the party, the petitioner/accused called PW 1 and when PW 1 did not come, the petitioner/accused went there and caught his collar and pulled him

down and in the meantime other colleagues intervened and tried to take out PW 1, but the petitioner/accused followed him and again pulled PW 1 down and beat him with hands and legs and caused injury on the lip at the tooth and some scratch marks on the chest and the hand. Immediately, after the incident, PW 1 was taken to Yashoda hospital, where PW 4 examined him and certified that PW 1 sustained simple injuries on the face, hand and chest.

10. The contention of the petitioner/accused is that even though the incident is said to have taken place in the hotel, not even single independent eyewitness has been examined by the investigating agency. The only witnesses that are examined are PWs 2 and 3 who are employees of the Air India and they were participants in the party and even PW 3 turned hostile. The presence of PWs 2 and 3 at the time of incident has been held to be suspect by the appellate court, for the reason that at 9 p.m. they were supposed to be in the Air India Office performing duties and therefore, their presence in the hotel at about 9 p.m. was doubtful.

The learned counsel further submits that as a matter of fact the petitioner/accused also filed a complaint against PW 1, but the police failed to take any action and then he filed a private complaint which was numbered as CC.No.783/2007. The investigating agency, however, registered the case against the petitioner/accused and filed the charge sheet against him which is registered as CC.No.1004/2006. The learned counsel submitted that both the cases are pending on the file of the same court, but they were not tried simultaneously as is required under law. The learned Magistrate has disposed of CC.No.1004/2006 against the petitioner/accused on 01.03.2011, convicted him for the offence punishable under section 323 IPC and sentenced him to pay a fine of Rs.1000/-.

However, the private complaint filed by the petitioner/accused for the incident said to have taken place at the same time, viz., CC.No.783/2007 was disposed of on 12.08.2011 and

PW 1 herein who was accused in that case was acquitted. The learned counsel submits that as already been held by the Hon'ble Supreme Court in Nathi Lal v. State of U.P.[1] both the cases ought to have been tried one after the other and dispose of the same simultaneously. In the said decision, the Hon'ble Supreme Court held as under:

"We think that the fair procedure to adopt in a matter like the present where there are cross cases, is to direct that the same learned Judge must try both the cross cases one after the other. After the recording of evidence in one case is completed, he must hear the arguments but he must reserve the judgement. Thereafter he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case.

The same learned Judge must thereafter dispose of the matters by two separate judgments. In deciding each of the cases, he can rely only on the evidence recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of the evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in the cross case. But both the judgments must be pronounced by the same learned Judge one after the other.

We allow this appeal partly to the aforesaid extent and direct the learned Judge to proceed with the police case and the cross case instituted by the respondent-complainant by way of a private complaint and hold the trial in both the matters in the light of the directions given hereinabove. Learned Judge will accord priority to these cross cases and dispose of both the cases expeditiously."

11. As already noticed, the case mainly rests on the evidence of PW 1, who is the injured/complainant. He was also under the influence of alcohol at the time of incident. There arose scuffle between PW 1 and accused and both of them manhandled and beat each other, due to which a police complaint and private complaint have been filed. The evidence of PW 1 is not corroborated by any independent evidence. A careful perusal of the evidence of PW 1 shows that there are material omissions which make the case doubtful. PW 1 admits that he went to the police station only two months after the incident. The complaint Ex.P1 was said to have been recorded by the Head Constable-PW 5 by visiting the hospital where PW 1 was initially taken. Ex.P1 does not contain any endorsement or signature of the hospital authorities. The signature on Ex.P1 purported to be that of PW 1 does not tally with the signature of PW 1 in his deposition before the trial court.

12. As per complaint-Ex.P.1, PW.1 stated that the quarrel started inside the hotel at 10.00 p.m., and without any reason, he was assaulted there on mouth, chest and groin, that thereafter, his friends rescued him and took him outside the hotel, that again the accused came there and beat him, due to which, he received bleeding injuries. When it came to the evidence, the injured-PW.1 stated that the quarrel started inside the hotel where the accused caught hold of his collar and pulled him here and there and in the meantime, the colleagues interfered and separated them. Thereafter, the colleagues took him outside the hotel and the accused followed him and pulled him from back, due to which, he fell down on the road and thereafter the accused started kicking him on face, nose and all over the body. If these statements are compared, it is manifest that there is material discrepancy. As per Ex.P.1, the actual assault took inside the hotel but whereas as per his statement before the Court, there was no physical

assault inside the hotel, but only after they came out of the hotel on to the road, the accused pulled him down and beat him. Learned Counsel appearing for the petitioner has also produced Section 161 Cr.P.C., statement of PW.1, which gives altogether a different version namely that the accused pulled him down when PW.1 was boarding the bus and thereafter beat him. Since the said discrepancy was not confronted to PW.1, when he was in the witness box, the same cannot be looked into.

13. In that view of the matter, the defence of the accused that in inebriated condition, due to minor scuffle in between PW 1 and the accused, both of them fell down and sustained simple injuries cannot be said to be without any substance. Therefore, the petitioner/accused can be extended the benefit of doubt. Both the Courts below have not appreciated this aspect properly and erroneously convicted the accused. Therefore, the said conviction is liable to be set aside.

14. For the reasons stated above, the Criminal Revision Case is allowed. Consequently, the judgment of the appellate Court dated 06.05.2011 in Crl.A.No.139 of 2011 as well as the judgment of the trial Court dated 01.03.2011 in C.C.No.1004 of 2006 are set aside and the petitioner/accused is acquitted of the offence for which he found guilty and convicted. The bail bonds of the petitioner/accused shall stand cancelled. The fine amount, if any paid, shall be refunded to the petitioner/accused.

Pending miscellaneous applications, if any, shall stand closed in consequence.

__________________ M.S.K.JAISWAL,J Date: 20.01.2016 Dsr

[1] 1990 (Supp) SCC 145