1 APHC010164582013 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3560] SATURDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 823/2013 Between: 1. SANAKA VENKATA DEVA PRASAD, S/O DAMODARA RAO, R/O MODUGUMUDI, AVANIGADDA MANDAL, KRISHNA DISTRICT. ...PETITIONER AND 1. THE STATE OF AP REP BY ITS PP HYD, Rep. by its Public Prosecutor, High Court of A.P., at Hyderabad, through SHO., Avanigadda PS. ...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 set-aside the revise the judgment in Crl.A.No.105 of 2011, dt.17-04-2013 on the file of Sessions Judge, Machilipatnam, Krishna District, confirming the Judgment dt.25-07-2011 in CC.No.41 of 2008 on the file of the Addl. J.F.C.M., Avanigadda, Krisna District. IA NO: 1 OF 2013(CRLRCMP 1273 OF 2013 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 suspend the judgment in Crl.A.No.105 of 2011, dt.17-04-2013 on the file of the Sessions Judge, Machilipatnam, Krishna District, confirming the Judgment dt.25-07-2011 in CC.No.41 of 2008 on the file of the Addl. J.F.C.M., 2 Avanigadda, Krishna District, by enlarging the petitioner on bail pending disposal of the above Crl.R.C. Counsel for the Petitioner: 1. CHALLA AJAY KUMAR Counsel for the Respondent: 1. PUBLIC PROSECUTOR (AP) The Court made the following: 3 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 823/2013 ORDER : Heard Sri Challa Ajay Kumar, learned counsel for the petitioner and learned Additional Public Prosecutor for the State. 2. The instant Criminal Revision Case has been preferred against order of conviction and sentence passed by the learned Trial Court in Calendar Case No.41 of 2008, thereafter, the learned Appellate Court in Criminal Appeal No.105 of 2011 against the present petitioner. Petitioner along with other co-petitioner were charged with offence punishable under Section 326, 324 read with 34 IPC. The learned Trial Court after recording the evidences has convicted petitioner being accused No.1 for offence punishable under Section 326 IPC and sentenced to undergo the rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-. Accused No.2 was sentenced to pay a fine of Rs.1,000/- for an offence punishable under Section 324 IPC. Accused No.1/petitioner preferred appeal before the learned Appellate Court. The Appellate Court after hearing the petitioner modified the sentence for the offence punishable under Section 325 IPC and imprisonment for a period of one month and to pay a fine of Rs.1,000/-. Hence, the instant Criminal Revision Case. 3. The learned counsel for the petitioner submits that the impugned order passed by the learned Appellate Court as well as the learned Trial Court is illegal and improper. Both Courts have caused miscarriage of justice of both 4 in fact and in law, thereby the order of conviction is liable to be set aside. He further submits that the learned Trial Court has convicted the petitioner being accused No.1 for the offence punishable under Section 326 IPC, but convicted accused No.2 for the offence punishable under Section 324 IPC. There are same set of facts and evidences while punishment was inflicted upon accused No.2 under Section 324 IPC, the present petitioner being accused No.1 cannot alone liable for an offence punishable under Section 326 IPC. Further, he submits that the learned Appellate Court after considering the entire circumstances and the evidences on record has reduced the sentence of petitioner to one month under Section 325 IPC. He again submits the present petitioner being a senior citizen is entitled to get a relief for punishment of fine only. 4. The learned Additional Public Prosecutor raised strong submissions that the learned Trial Court under the provisions of Section 386 Cr.P.C. is empowered to inflict lesser punishment which was ordered by the Trial Court. He further submits that the initial punishment of the petitioner was under Section 326 IPC. Now, learned Appellate Court has convicted petitioner under Section 325 IPC, thereby, there is no illegality. He further submits that the evidence of prosecution witnesses are corroborating and justified for recording conviction to the present petitioner. There are six witnesses on behalf of prosecution and some documents were exhibited. The wound certificate as well as the X-ray report was also placed on record. Thereby the case of the prosecution has sufficiently proved. He further submits that non 5 recovery of the offending weapon is not fatal to the prosecution case. In support of the contention he cited a decision of the Hon’ble Apex Court in Rakesh and Another v. State of Uttar Pradesh and Another { (2021) 7 Supreme Court Cases 188 } “12. Now so far as the submission on behalf of the accused that as per the ballistic report the bullet found does not match with the firearm/gun recovered and therefore the use of gun as alleged is doubtful and therefore benefit of doubt must be given to the accused is concerned, the aforesaid cannot be accepted. At the most, it can be said that the gun recovered by the police from the accused may not have been used for killing and therefore the recovery of the actual weapon used for killing can be ignored and it is to be treated as if there is no recovery at all. For convicting an accused recovery of the weapon used in commission of offence is not a sine qua non.” 5. Heard the learned counsel for the parties. Perused the entire case record. It appears that the present petitioner was charged under Section 326, 324 read with 34 IPC. The learned Trial Court has convicted the petitioner under Section 326 IPC. In appeal the learned Appellate Court converted the said punishment to Section 325 IPC. In my view, as punishment under Section 325 IPC is the lesser punishment than the punishment under Section 326 IPC, so the learned Appellate Court, according to provisions of Section 386 Cr.P.C. is very much empowered to order lesser punishment. In considering the merit of this matter it appears that allegation of grievous hurt committed by accused Nos.1 and 2 upon Pws.1 and 2 was before the learned Trial Court. In deciding the said issue the learned Trial Court recorded evidences of Pws.1 to 6. Pws.1 and 2 are 6 the injured witnesses, Pws.3 and 4 are the doctors and others are the official witnesses. It is argued by the learned counsel for the petitioner that there are no independent witnesses. Though the incident happened in the broad day light, it appears that after the alleged incident Pws.1 and 2 was treated by Pws.3 and 4/doctors certified that Pw.1 sustained grievous injury. The injury certificate as well as the X-ray reports was placed on record. Though there are no independent witnesses in this case, but the factum of prosecution case cannot be denied in view of the medical witnesses. The evidence of Pws.3 and 4 are doctors to justify the injury inflicted by the accused Nos.1 and 2 upon Pws.1 and 2. So, evidenciary value of Pws are corroborative nature thereby the prosecution case has sufficiently proved. Moreover, offending weapon i.e., stick, which was used as weapon in the instant case, was not recovered by the police, but due to non- recovery of offending weapon is not fatal for prosecution case. In considering entire facts and circumstances, it appears to be that recording of conviction against the present petitioner by learned Trial Court is not illegal and improper. 6. However, in considering view of learned Appellate Court at the time of deciding the issue before him, is the opinion that as no recovery is made in respect of offending weapon, the punishment under Section 326 IPC is not maintainable rather conviction under Section 325 IPC is maintainable. Admittedly, I find no illegality in the findings of the learned Appellate Court. There is no merit to interfere in the revision. 7. Accordingly, I find no justification to disbelieve the finding of the learned Appellate Court. However, as the present petitioner is more than 60 years at present, it is not possible for him to undergo the imprisonment. 7 Accordingly, the conviction for the period of one month, as imposed by the learned Appellate Court is converted to punishment of incarceration of nine (09) days, which petitioner has already undergone during enquiry, trial and appeal period; Thereby, the punishment imposed against the present petitioner is hereby modified and reduced to three (03) months instead of six (06) months. The period of detention undergone by the petitioner, during the enquiry investigation etc is hereby set of under Section 428 of Cr.P.C. Order of suspension of sentence imposed by this Court during pendency of this Criminal Revision Case is hereby vacated. 8. Petitioner is directed to appear before the Trial Court within four (04) weeks from the date of passing of this order to serve out remaining portion of sentence, failing which, the learned Trial Court shall take appropriate measures according to law to comply this Order. 9. Under the above observations the instant Criminal Revision Case is disposed of. As a sequel, miscellaneous applications pending, if any, shall stand closed. _____________________________ JUSTICE SUBHENDU SAMANTA Dated:07.03.2026 RMR 8 118 THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CRIMINAL REVISION CASE NO: 823/2013 07.03.2026 RMR