IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI WEDNESDAY, THE SECOND DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HON’BLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL APPEAL NO: 839 OF 2024 Between: Sheik Abdulla, S/o. Sheik Ramana, Aged about 29 yrs, R/o. D.No. 67-1- 12/3, Gondesipalem, Near Koramandal Gate, Gajuwaka, Visakhapatnam. ...APELLANT/ACCUSED AND The State of Andhra Pradesh, Rep- by its Public Prosecutor, High Court of Andhra Pradesh at Amaravati. ...RESPONDENT/COMPLAINANT Appeal under Section 415 (2) of BNSS and U/s 374(2) of Cr.P.C, against the judgment dt.31.01.2024 passed in S.C.No.44 of 2023 on the file of the IV Addl. Metropolitan Sessions Judge, Visakhapatnam, at Gajuwaka. n lA NO: 2 OF 2024 Petition under Section 430 (1) of BNSS., praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the execution of sentence dt.31.01.2024 passed in S.C.No. 44 of 2023 on the file of the IV Addl. Metropolitan Sessions Judge, Visakhapatnam at Gajuwaka and release the petitioner on bail, pending disposal of the above criminal appeal. Counsel for the Appellant: SRI. G VIJAYA SARADHI Counsel for the Respondents: MS. K. PRIYANKA, Assistant Public Prosecutor The Court made the following; 1 APHC010590582024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3396] WEDNESDAY,THE SECOND DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE DR JUSTICE VENKATA JYOTHIRMAI PRATAPA CRIMINAL APPEAL NO: 839/2024 Between: ...APPELLANT Sheik Abdulla AND ...RESPODENT The State Of Andhra Pradesh Counsel for the Appellant: 1.G VIJAYASARADHI Counsel for the Respondent: 1.PUBLIC PROSECUTOR JUDGMENT: Having been aggrieved by the validity and correctness of the impugned judgment in S.C.No.44 of 2023 on the file of learned IV Additional Metropolitan Sessions Judge, Visakhapatnam at Gajuwaka, dated 31.01.2024, the present Criminal Appeal is preferred. The appellant herein is the accused in the above said case. 2 2. Heard Sri G.Vijaya Saradhi, learned counsel for the appellant and Ms.K.Priyanka Lakshmi, learned Assistant Public Prosecutor representing the State. 3. For sake of convenience, this Court will refer the appellant as accused. 4. Learned counsel for the appellant would submit that the prosecution has failed to prove the guilt of the accused for the offence under Section 307 of the Indian Penal Code, 1860 (for short “IPC”). Learned Sessions Judge failed to appreciate the evidence in right perspective and convicted the accused for the offence punishable under Section 307 IPC. The Ex.P1 is the statement of PW.1 which shows that three persons were present at the time of the incident. The said eye-witnesses referred in the statement of PW.1 were not examined. But prosecution introduced PWs.2 and 3, whose names were not mentioned inEx.P1. Learned counsel would further submit that PW.10 has not seized M.0.1 at the time of observation of the scene of offence. But M.0.1 i.e. broken piece of beer bottle was seized on the information alleged to have been given by the accused after five days from the date of alleged incident. Learned counsel would further submit that PWs.6 and 7 are the mediators and their evidence is not helpful to the case of the prosecution to prove the recovery of M.0.1 on the information alleged to have given by the accused. Learned counsel would further submit that except one injury, the other injuries mentioned in the wound certificate are simple in nature. The appellant is innocent of the offence and he was falsely implicated. Learned counsel finally 3 submits that the accused is aged about 26 years. His mother is eking livelihood by doing petty works and his father is suffering from severe health He is the only bread winner of the family. Learned counsel would further submit that the petitioner was sentenced to undergo rigorous issues. imprisonment for a period of seven years, which is on the higher side. Learned counsel finally submits that the impugned judgment of conviction and sentence is not sustainable on the facts and law and interference of this Court is required in the appeal. Per contra, learned Assistant Public Prosecutor would submit that the 5. prosecution has proved the guilt of the accused for the offence punishable under Section 307 of I.P.C. beyond all reasonable doubt. The evidence of PW.1 is corroborated by the evidence of PW.9 i.e. Doctor, who issued the wound certificate under Ex.P5. The evidence of PW.10 is corroborated by the evidence of PWs.6 and 7, who are the mediators for the arrest and seizure of M.0.1. Learned Assistant Public Prosecutor would further submit that PWs.4 and 5 and others shifted the injured to the hospital. The discrepancies pointed out by the defense in the evidence of PWs.1 to 5 are not helpful to their case. since they are trivial in nature. The discrepancies in the evidence of injured andeye-witnesses appears to be natural. Learned Assistant Public Prosecutor would submit that the learned trial Judge has appreciated the material on record on facts and law, rightly convicted the accused for the offence punishable under Section 307 of I.P.C. and imposed reasonable sentence. There are no grounds to intedere in the judgment of the trial Court. Learned Assistant Public Prosecutor finally prays for dismissal Considering the submissions made placed on record, the points that would appeal are: of the appeal. 6. and a fair look at the material arise for determination in the present (i) Whether the accused made an attempt to attack the de facto complainant by using M0.1 with an intention to kill him? (ii) Whether the impugned judgment of conviction and sentence passed against the accused is sustainable on facts and law? 7. POINTS: The case against the accused is emanated from an altercation that took place in the bar near Gajuwaka Depot on 28.11.2019 at 7.15 p.m. The record shows in Ex.P1 which is the statement of PW.1, he stated before the police that he went to the bar at 11.00 a.m. He further stated that the incident occurred at 7.15 p.m. After recording the statement of PW.1, the PW.8 has sent the information to the PW.10 and he registered the crime against the accused for the offence punishable under Section 307 of I.P.C. on the next day i.e. on 29.11.2019 at 9:00 PM, vide Ex.P6. So, there is no discrepancy regarding the time of the incident as projected by the defence. According to the case of PW.1, he went to the bar in the morning, while he was consuming liquor, the accused also came to the bar. They spent time whole day in the ! 5 bar. At the end of it, there was an altercation which turned to the present incident which alleged to have been happened outside the bar. The Ex.P1 further shows that one Sai, Dileep and Ganesh were present at the time of the alleged incident. They have tried to stop the accused but the accused stabbed PW.1 in the stomach with broken beer bottle.That being so, the prosecution did not examine the alleged eye-witnesses, whose names are mentioned in Ex.P1. The name of PW.2 is not there in the statement of PW.1 which was recorded at the earliest point of time. When the evidence of PW.2 is perused he deposed that while he was attending Panipuri cart, he heard the sound and witnessed the incident, where the accused took the bottle and stabbed PW.1 and later the accused ran away. Admittedly, the name of PW.2 is not there in Ex.P1. Nothing has been elicited to discredit the testimony of PW.2 in the cross-examination by the defence. 8. Coming to the evidence of PW.3, he also deposed in the same lines as PW.2. According to him, while he was preparing noodles at his cart, he heard a quarrel and witnessed the incident, where the accused stabbed the injured in stomach and also on the hands. The Ex.DI is marked in the evidence of PW.3, wherein he denied his statement before the police to the extent that the dispute arose between the accused and complainant regarding the playing cards. Be that as it may, the presence of PWs.2 and 3 at the time of alleged incident is probable, because they run the noodle cart and panipuri cart near the bar. Coming to the evidence of PW.4, he is not an eye-witness to the \ occurrence. He he rushed to the deposed in the was informed about the incident by one Gorla Rajesh. Then, the hospital. PW.5 also The evidence of PWs.6 scene and shifted the injured to same lines as that of PW.4. and 7 is the recovery of so important to prove the M.0.1. The PW.6 deposed before accused and brought him to Gajuwaka the broken bottle oi arrest of the accused and also the Court that the police caught hold the Bus Depot and the pieces-M.O.I.It was elicited in the accused showed cross-examination of PW.6 that no bottle oipieces were seized in his presence on 02.12.2019 and no report was prepared at the Bus Depot. He pleaded i the mediator's report r.e. Ex.P3 and finally he stated Signature on the mediator ignorance of contents of that police obtained his s report in the police station. That being recovery of M.0.1 on the information oi so, the evidence of PW.6 regarding the given by The PW.7 who is the other mediator stated the accused cannot be believed, that he accompanied the police accused due to lapse of time, remember whether anything signature on the mediatornama. PW.7 that he put his signatures So, the evidence of P.Ws.6 and of PW.10 that in the presence of these to Jaggu center. He could It is his evidence that he does not identify the not even was seized in his presence. But he admits his In the cross-examination, it was elicited from on the mediator report in the police station. 7 is not credit worthy to believe the evidence mediators, he has arrested the basing on the information accused and seized M.0.1 under mediatornama given by the accused. 7 The theory of defence in the present case is that the PW.1 in drunken 9. condition came out of the bar and sustained injuries by falling down on broken glass pieces. That was completely ruled out by PW.9 i.e. the Doctor. According to PW.9, on 28.11.2019 at about 8.15 p.m., he examined the injured and found nine injuries. Out of nine injuries, injury No.1 is grievous in nature. He categorically deposed that there is no possibility to sustain the injuries, which are mentioned in Ex.P5 if a person fell down on the glass pieces. Hence, the defence theory that the complainant sustained injuries in a drunken condition by falling down on the glass pieces, is safely ruled out. 10. In 313 Cr.P.C. examination, the accused denied the incriminating material in the evidence of prosecution witnesses and he did not choose to adduce any evidence on his behalf. PW.10 is the Investigating Officer who deposed regarding statements of witnesses, observation of scene of offence drawing of rough sketch of scene offence, arrest of the accused and seizure of M.0.1 in the presence of P.Ws.6 and 7. In the cross-examination, PW.10 stated that he did not send the glass pieces to the Forensic Science Laboratory and did not collect the finger prints of the accused available on the glass pieces. He further stated that PW.1 stated before him that the quarrel was took place with regard to playing cards and accused threatened that he would kill PW.1. 11. In the light of the evidence which is placed on record, on reappreciation of the same by this Court, this Court is of the view that though the prosecution 8 failed to prove the arrest and seizure of M0.1 by PW.10 in the manner stated by him in the presence of PWs.6 and 7, but the evidence of PW. 1 i.e. injured witness is well corroborated by the medical evidence coupled with Ex.P5, the prosecution has proved the guilt of the accused for the offence under Section 307 of I.P.C. As rightly put by learned defence punishable counsel, the names of PWs.2 and 3 are not there in Ex.P1 which is the statement of PW.1. 12. Be that as it may, Ex.PI would show that Sai, Dileep and Ganesh from them, some others also viewed the incident. As such, nothing from the cross-examination of PWs.2 and 3 that they are not maintaining the noodle cart and panipuri cart near the bar. Such being the case, during the course of investigation, PW.10 could find them examined as PWs.2 and 3. apart is elicited as eye-witnesses and 13. The scope and powers of Appellate Court in case of conviction are determined under Sec. 386(b) of Cr.P.C. as follows: 386. Powers of the Appellate Court. - After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in the case of an appeal under Section 377 or Section 378, the accused, if he appears, the Appellate Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may - (a)--- (b)in an appeal from a conviction - 9 (i)reverse the finding and sentence and acquit or discharge the accused, or order him to be re-tried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (ii)alter the finding, maintaining the sentence, or (Hi) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; Further, the Hon’ble Supreme Court in Amar Sardar vs. State of West Bengal (SLP (CRL.) No. 14976/2024) explained the scope of this Court while hearing an appeal under Sec. 374(2) of Cr.P.C. as follows; 13. “There shall be independent application of mind in deciding the criminal appeal against conviction. It is the duty of an appellate court to independently evaluate the evidence presented and determine whether such evidence is credible. Even if the evidence is deemed reliable, the High Court must further assess whether the prosecution has established its case beyond reasonable doubt. The High Court though being an appellate Court is akin to a Trial Court, must be convinced beyond all reasonable doubt that the prosecution's case is substantially true and that the guilt of the accused has been conclusively proven while considering an appeal against a conviction." r ( (Emphasis supplied) In the light of the aforementioned premises, the impugned judgment of 14. conviction for the offence punishable under Section 307 of I.P.C. is sustainable on facts and law. There are no grounds for this Court to interfere in the appeal regarding the conviction. Coming to the quantum of sentence awarded against the accused, he is sentenced to undergo rigorous imprisonment for a period of seven years. As can be seen from the place of 10 injury, this Court can understand the intention of the person, who attacked the victim. But the fact remains that the accused as well as the complainant were in intoxicate state at the time of alleged incident. That being imposing sentence, the learned trial Judge should have kept that in mind. Considering the circumstances and the so, while manner in which the alleged incident occurred and also the mitigating circumstances led to the incident, the punishment of seven years rigorous imprisonment is reduced to five years. 14. In the result, the Criminal Appeal is partly allowed. The impugned judgment of conviction for the offence punishable under Section 307 of is upheld. However, the sentence of rigorous imprisonment for a period of years, is reduced to five years rigorous imprisonment. I.P.C. seven Pending miscellaneous applications, if any, shall stand closed. Sd/- S.V.S.R.MURTHY JOINT REGISTRAR //TRUE COPY// r ^ SECTION OFFICER To, 1. The IV Additional, Metropolitan Sessions Judge, Visakhapatnam at Gajuwaka. (with records) 2. One CC to Sri. G Vijaya Saradhi Advocate [OPUC] 3. Two CCs to The Public Prosecutor High Court [OUT] 4. The Superintendent, Central Prison, Visakhapatnam. of AP at Amaravati. 5. The Station House Officer, Gajuwaka Police Station, Visakhapatnam. 6. The III Additional Chief Metropolitan Magistrate, Gajuwaka Visakhapatnam. 7. The Section Officer, Criminal Section, High Court of Andhra Pradesh, Amaravathi. (for dispatch of LC records) 8. Three CD Copies SD vna T \ HIGH COURT DATED:02/04/2025 JUDGMENT CRLA.No.839 of 2024 1% ^ ' ffj Co HEO PARTLY ALLOWING THE CRIMINAL APPEAL