APHC010461542009 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] TUESDAY,THE SIXTEENTH DAY OF JUNE TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 468/2009 Between: 1. REPANA VENKATAPPA, S/O CHINNAPPA, COOLIE R/O TAMATAMVARIPALLI VILLAGE, GALIVEEDU MANDAL, KADAPA DIST. ...PETITIONER AND 1. THE STATE OF A P, Through the Sub-Inspector of Police, Galiveedu P.S., Rep. by the Public Prosecutor, High Court of A.P., Hyderabad. ...RESPONDENT Revision filed under Section 397/401 of Cr.P.C praying that in the circumstances stated in the affidavit filed in support of the Criminal Revision Case, the High Court may be pleased to allow the Crl.R.C., and set-aside the Order dated 18.02.09 made in Crl.A.No.72 of 2006 on the file of the V Addl. Sessions Judge, Rayachoty, Kadapa Dist., confirming the Orders dated 03.04.06 passed by the Asst. Sessions Judge, Rayachoty, Kadapa Dist., in S.C.No.248 of 2005. IA NO: 1 OF 2009(CRLRCMP 644 OF 2009 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to release the petitioner on bail by suspending the execution of the sentence imposed against the petitioner in Crl.A.No.72 of 2006 on the file of the V Addl. Sessions Judge, Rayachoty, Kadapa Dist., dated 18.02.09 confirming the 2 Orders dated 03.04.06 passed by the Asst. Sessions Judge, Rayachoty, Kadapa Dist., in S.C.No.248 of 2005, pending disposal of the Crl.R.C. Counsel for the Petitioner: 1. L J VEERA REDDY Counsel for the Respondent: 1. PUBLIC PROSECUTOR The Court made the following: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 468/2009 ORDER: Petitioner was convicted for the offence punishable under Section 307 of the I.P.C. by learned Trial Court, wherein learned Trial Court sentenced him to 7 years' imprisonment. In appeal, the sentence was modified to 5 years. Aggrieved by the order of modification passed by the learned Appellate Court, the instant Criminal Revision Case has been preferred. 02. The brief facts of the prosecution case:- There was a quarrel in the village during the morning hours regarding passage between some persons and the accused. PW.2 tried to pacify the altercation, It has been alleged that the accused beat PW.2 on his mouth and caused a bleeding injury. Thereafter, PW.2 proceeded to take treatment at the hospital. On the same day, it has also been alleged that accused attacked PW.2 with a knife and stabbed him in the stomach, causing severe injury. The matter was reported to the police. Thereafter, a case was registered under Sections 326 and 307 of Indian Penal Code, 1860 (for brevity, “the IPC”). Submissions of learned counsel for the petitioner: 03. It is submitted by the petitioner that the prosecution witnesses have not proved the case against petitioner beyond all reasonable doubt. Though there are several witnesses cited by the prosecution, they did not 4 support the prosecution case. PW.1 is brother of PW.2 (injured witness), who alone supported prosecution case. He further submits that though the prosecution case speaks about an ocular witness (LW.3), such ocular witness was not examined by the prosecution. There is no explanation from the prosecution for non-examination of such ocular witness. He further submits that prosecution also failed to establish any particular motive of the petitioner for committing the offence punishable under Section 307 of the I.P.C. He further submits that non-examination of the ocular witness is fatal to the prosecution case, on the basis of which, conviction is not maintainable. He further pointed out that there was a delay in forwarding F.I.R. to Court. No explanation was placed by prosecution for such inordinate delay. Therefore, the conviction against the present petitioner is required to be set aside. It is further pointed out that incident happened in the year 2003, and petitioner, being the accused, has faced a long delay of criminal litigation. Therefore, necessary leniency may be observed in this case. Submission of the learned Assistant Public Prosecutor: 04. Learned Assistant Public Prosecutor submits that Trial Court as well as learned Appellate Court has recorded necessary findings to establish that prosecution has sufficiently proved the guilt committed by the petitioner. He further submits that though there are witnesses who have not supported the prosecution case, yet the evidence of PW.1 and PW.2, including the evidence of the Doctor, is corroborative in nature. On the basis of which, 5 learned Trial Court as well as learned Appellate Court sufficiently recorded conviction. He further submits that delay in forwarding F.I.R. to Court is not fatal to the prosecution case and petitioner, being accused, cannot raise such question at this later stage. 05. He further submits that the Hon’ble Supreme Court, in Ramadevi Vs. State of Bihar and Others1, has clarified the position regarding delay in forwarding the F.I.R., wherefrom it appears that when the accused suffered no prejudice, the delay in forwarding F.I.R. to the Magistrate Court is not fatal to the prosecution case. In Para 30 it was envisages that: “Delay in forwarding FIR - Mere delay by itself is not sufficient to discard and disbelieve case of the prosecution - If investigation starts in right earnest and there is sufficient material on record to show that accused were named and pinpointed, prosecution case can be accepted Criminal Procedure Code, 1973, Section 161 - Indian Penal Code, 1860, Sections 34, 302, 307, 333, 355 and 379 - Arms Act, 1959, Section 27 - Criminal Procedure Code, 1973, Sections 157, 161 and 428 - Murder of member of Bihar Legislative Assembly - Police Statements of Eye-witnesses - High Court raised concerns about minor discrepancies in testimonies of key witnesses regarding timing and location of recording their statements under Section 161 CrPC, particularly in accounts provided by eye witness - These differences, such as when each witness arrived at the hospital or when their statements were recorded, are viewed as 1 2024(10) SCC 462 6 natural given lapse of 4-6 years between incident and court testimonies - Rather than being grounds to dismiss their credibility, these inconsistencies are considered superficial and peripheral - Witnesses were subjected to detailed questioning after a long time, which can more accurately test memory than truthfulness - Further, Section 161 CrPC statements are not direct evidence but can serve as support in trial - Statement of wife of deceased was recorded on 13.06.1998 and is part of official record, though her memory lapse during cross- examination in 2006 was seen as natural consequence of the eight- year gap - Moreover, SSP Yadav was Investigating Officer on 13.06.1998 making it impossible for PW-54 to have recorded her statement on that date, as both parties agreed he only took over investigation on 14.07.1998 - Thus, minor discrepancies should not undermine prosecution's case, as core testimonies remain consistent and credible. 06. Learned Assistant Public Prosecutor further submits that LW.3, i.e., an eye-witness in this case, was not examined by the prosecution. However, such non-examination of an eye-witness is not fatal to the prosecution case. Therefore, the conviction and sentence under Section 307 of the I.P.C. are maintainable. Observation of this Court: 07. Petitioner, being the accused, was charged under Sections 326 and 307 of I.P.C. The prosecution has narrated two incidents on the fateful date. In the first incident, it has been alleged that there was a dispute between the petitioner and others in the village. PW.2 intended to pacify them; at that time, the accused/petitioner assaulted PW.2 on his mouth, causing a bleeding 7 injury. Thereafter, on the same day, it has been alleged that petitioner, being accused, stabbed PW.2 with a knife. 08. Admittedly, though prosecution has referred to LW.3 as an eye- witness, he was not cited as a witness before the learned Trial Court. It has been explained by the prosecution that LW.3 is relative of petitioner. 09. Let me consider whether the non-examination of LW.3 in this case is fatal to the prosecution case and whether, due to the non-examination of such a so-called eye-witness, the conviction recorded under Section 307 of I.P.C. is sustainable. 10. It is trite law that even if an incident occurs in broad daylight, the evidence of injured witness is sufficient if it is otherwise trustworthy and corroborative. In this particular case, there are no other eye-witnesses to support the prosecution case except PW.2, the injured witness. It is pertinent to mention that PW.2 sustained stab injuries in the present case, which were examined by the Doctors. During the trial, one of the Doctors stated before the learned Trial Court that PW.2 had sustained five (05) stab injuries on his person. Another Doctor (PW.10) also examined PW.2 and found four (04) stab injuries. Both Doctors were of the opinion that the injuries were on vital parts of the body and were grievous in nature. 11. On the basis of evidence of PW.2 as well as medical witnesses, it appears that PW.2 proved to have sustained grievous stab injuries, more than 8 one in number, on his person. However, the question remains whether the evidence of PW.2 regarding the involvement of petitioner in causing such stab injuries can be believed. The learned Appellate Court, while deciding such issue, is of the opinion that though there are no independent eye-witnesses, the evidence of PW.2 inspires confidence. 12. It appears that if the previous dispute between the petitioner and PW.2, i.e., the first incident, is taken to be true, and if there is no other enmity between them, there is no reason for PW.2 to falsely implicate the petitioner as assailant in stabbing incident. Accordingly, in my view, the involvement of the petitioner in causing such stab injuries has been sufficiently proved by the prosecution. Merely because of non-examination of an eye-witness, it cannot be said that prosecution case is not proved, as PW.2 himself is an injured eye- witness to the incident. Moreover, there is no reason for PW.2 to falsely state the name of the petitioner or implicate him in this case. 13. In considering the delay in forwarding F.I.R. to the Magistrate by the police, the issue has been correctly dealt with by the Hon’ble Apex Court in the judgment of Rama Devi vs. State of Bihar (supra). In the present case, the F.I.R. was lodged soon after the incident, but it was forwarded to the Magistrate Court with a delay of two days. No material has been placed before this Court or before the learned Trial Court to show that petitioner, being accused, has been prejudiced by such delay in forwarding the F.I.R. to the Magistrate. 9 14. It further appears that forwarding F.I.R. to the Magistrate after two days, by itself, does not render the prosecution case fatal. Merely on that ground, the prosecution case cannot be disbelieved. Moreover, there is no material on record to suggest any manipulation or interpolation has been made in the F.I.R. Therefore, I find no merit in the submission of the learned counsel for the petitioner. 15. In considering the mens rea for the offence punishable under Section 307 of the I.P.C., it appears that petitioner allegedly stabbed PW.2 with a sharp-cutting weapon on the vital parts of the body of PW.2 more than once. The injuries inflicted upon the person of PW.2 have been sufficiently proved by the medical witnesses. 16. Section 307 of the I.P.C. defines the offence of attempt to murder, i.e., causing injury with the intention to kill a person. 17. Admittedly, there is no previous incident or dispute between PW.2 and petitioner by which the prosecution can prove that petitioner had intention to kill PW.2 at any point of time. The facts suggest that PW.2 sufferred grievous injuries at the hands of the petitioner. The intention to kill, as contemplated under Section 307 of the I.P.C., must be proved by the prosecution by placing sufficient material and evidence on record. In the present case, such motive or intention is absent. Thus, in my view, the conviction under Section 307 of the I.P.C. cannot be sustained merely because of stabbing of PW.2. 10 18. There may be sudden grudge on the part of a person who assaults and inflicts several blows upon the injured, but it does not necessarily mean that the assailant had intention to kill the injured. In this particular case, the requisite mens rea under Section 307 of the I.P.C. is not established. Therefore, in my view, the conviction under Section 307 of the I.P.C., recorded by the learned Trial Court and affirmed by the learned Appellate Court, appears to be not maintainable. 19. However, PW.2 has sustained grievous injuries. Accordingly, the conviction recorded under Section 326 of I.P.C. is maintainable. 20. Considering the entire aspect of the matter and also considering the fact that prosecution has established the guilt of the present petitioner, the conviction under Section 307 of I.P.C. is modified to one under Section 326 of I.P.C. 21. In that view of the matter, the sentence imposed upon the petitioner is modified to rigorous imprisonment for two (02) years instead of five (05) years. The period of incarceration already undergone by the petitioner, namely 17 days, shall be set off under Section 428 of the Cr.P.C. 22. Accordingly, the Criminal Revision Case is dismissed. The petitioner is directed to serve out the remaining portion of the sentence in compliance with this order by surrendering himself before trial court concerned 11 within three (03) weeks from the date of this Order unless which learned court below shall take appropriate steps to comply. Consequently, pending miscellaneous applications, if any, shall stand closed. _________________________ JUSTICE SUBHENDU SAMANTA Dated:16.06.2026. SSA