Sections 323,324, Section 326 read with Section 34 of the Indian Penal Code (IPC). = Evidence of interested witness not to be considered when the eye witnesses turned hostile with out any independent evidence -The revision is laid by the de facto complainant. The respondents 2 to 5 are the accused.- dismissed = P. Tirupathi The State of A.P., rep.by its Public Prosecutor,= Reported in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=8380

Sections 323,324, Section 326 read with Section 34 of the Indian Penal Code (IPC). = Evidence of interested witness not to be considered when the eye witnesses turned hostile with out any independent evidence -The revision is laid by the de facto complainant.

The respondents 2 to 5 are the accused.- dismissed = 

 EVIDENCE INTERESTED WITNESS CAN NOT BE CONSIDERED WITHOUT CORROBORATION:-

 It is not as though in every case, the uncorroborated testimony of the
victim deserves to be ignored.
The uncorroborated testimony of a victim
nevertheless can form the basis of a conviction, so long as the same is
inspiring.
 In the present case, it is not as though PW.2 claimed that no one
was present at the time of the attack on him by A.1 to A.4.
It is his case that
PWs.3 and 4 witnessed the incident.
The evidence of PWs.3 and 4, consequently,
is not a case of non-corroboration but a case of rejection of the case of PW.2.
12.     That apart, admittedly, there is enmity between the accused on the one
side and PWs.1 and 2 on the other side.  It is also patent from the fact that it
is PW.1, who preferred the present revision, questioning the acquittal and not
the State.  Thus, where there is admitted enmity between the accused on the one
side and the PWs.1 and 2 on the other side, it is not safe at all to record a
conviction on the basis of the uncorroborated testimony of PW.2.

NON- EXAMINATION OF I.O. NOT FATAL :-

the prosecution did not examine the Investigating Officer and that theaccused deserves to be acquitted ipso facto. I am afraid that the non-examination of the Investigating Officer does not automatically lead to theacquittal of the accused.If the non-examination of the Investigating Officer caused prejudice to theaccused, it may lead to a state of benefit of doubt in favour of the accused.In the present case, the non-examination of the Investigating Officer (LW.8) isof no consequence.
Indeed, Exs.P.2 and P.3 have not been proved. It would appearthat the Investigating Officer examined PWs.3 and 4 and recorded their detailedstatements. When the Investigating Officer was not examined, the pre-trialstatements of PWs.3 and 4, which are Exs.P.2 and 3, are not proved.  At anyrate, the non-examination of the Investigating Officer did not cause anyprejudice to the accused in this case.

DOCTOR :-

PW.2 was suffering from injuries, that the injuries were fresh and that therewere fractures in the injuries. He, however, admitted that the injuries werepossible on account of fall on the road from a running auto.

CONCLUSION :-

 the corroboration of medical evidence with the evidence of PW.2is sufficient to accept the case of the prosecution.I do not agree with this contention of the learned counsel for the de factocomplainant for the reason that the evidence of PW.2 is the evidence of aninterested witness and consequently, the mere proof that PW.2 sustained injuries is not sufficient to hold that the prosecution proved its case.17.     Therefore, I have no hesitation to conclude that the prosecution hasfailed to establish the guilt of the accused, much less beyond reasonable doubt.The trial Court was perfectly justified in recording acquittal against theaccused.  The judgment of the trial Court is not perverse in any manner.  Thereis no circumstance to interfere with the judgment of the trial Court.  Therevision is devoid of merits and is accordingly dismissed.

THE HON'BLE SRI JUSTICE K.G. SHANKAR      
Crl.R.C.No.1113 of 2005
09.09.2011
 P. Tirupathi
The State of A.P., rep.by its Public Prosecutor,
High Court of A.P., Hyderabad and 4 others                            
Counsel for the petitioner:  D. Bhaskar Reddy
Counsel for the Respondents:   Public Prosecutor for R-1
V. Ravikiran Rao for R-2 to R-5
ORDER:
 This revision is laid questioning the acquittal of A.1 to A.4 by the learned
Judicial Magistrate of First Class, Sultanabad, Karimnagar District in
C.C.No.434 of 2000.  The revision is laid by the de facto complainant.
The respondents 2 to 5 are the accused.
2.      The case of the prosecution is
a)      PW.1 is the son of PW.2. A.1 and A.2 are the sons of A.3.  A.4 is their
relative.  The accused are inimically disposed towards PWs.1 and 2.
b)      On 22.09.2000, at about 8.30 p.m., PW.2 was chitchatting with PW.4 in
front of the house of PW.3.  All the accused at that time attacked PW.2.  While
A.1 beat PW.2 with an iron rod, A.2 beat him with a stick.  A.3 and A.4 beat
PW.2 with their hands. In the process, PW.2 sustained two grievous injuries and
two simple injuries.
3.      The accused were charge sheeted for the offences under Section 326 read
with Section 34 of the Indian Penal Code (IPC).  The learned J.F.C.M. charged
A.1 for the offence u/s.326 IPC, A.2 for the offence u/s.324 IPC, A.3 and A.4
for the offence u/s.323 IPC and A.2 to A.4 for the offences u/s.326 r/w Sec.34
IPC.
The prosecution examined seven witnesses and exhibited Exs.P.1 to P.4.
Considering that no case was made out against the accused, the learned trial
Judge acquitted all the accused. PW.1 preferred the present revision impugning
the judgment of acquittal.
4.      The point for consideration is whether the prosecution has brought home
the guilt of the accused beyond reasonable doubt and whether the judgment of the
learned trial Judge suffers from any error of law.
5. Sri V. Ravi Kiran Rao, learned counsel for the respondents/accused contended
that the prosecution failed to establish the case against the accused and that
the order of acquittal recorded by the learned trial Judge is justified.  As
rightly noticed, PW.2 is the victim.  PW.1 is his son.  PWs.3 and 4 are supposed
to be eyewitnesses for the incident proper.  PW.5 is a corroborative witness.
PW.6 is the Doctor, who treated PW.2.  PW.7 arrested the accused.  However, he
was not the main Investigating Officer.
6.      The case of the prosecution is that there has been enmity between the
accused on the one side and PWs.1 and 2 on the other side.  It is alleged that
on 11.09.2000, at about 8 p.m., while PW.2 was chitchatting with PW.4 in front
of the house of PW.3, the accused jointly attacked PW.2.  A.1 allegedly beat on
the left hand of PW.2 with a rod.  A.2 allegedly beat on the left leg with a
stick.  All the accused thereafter attacked PW.2 with sticks.  PW.1 received
information that his father, PW.2 was beaten.  He rushed to the scene of offence
and found his father lying on the road. He immediately shifted PW.2 in the auto
of PW.5 to Sultanabad Police Station. He lodged Ex.P.1 complaint at the Police
Station.   Police sent PW.2 to the Government Hospital for treatment.  PW.6, who
treated PW.2, found fracture of the left radius and fracture of the fibula.  He
found four injuries in all, out of which two were grievous.  PW.6 issued Ex.P.4
medical certificate.
7.      The incident allegedly occurred in front of the house of PW.3 while PW.2
was chitchatting with PW.4.  PW.1 was not an eyewitness at all.  He rushed to
the scene of offence only after receipt of the information that his father
sustained injuries.  While PWs.3 and 4 were eyewitnesses, they did not support
the prosecution story.  PWs.3 and 4 were considered to be hostile and the
learned Assistant Public Prosecutor was permitted to put leading questions to
PWs.3 and 4. Nevertheless, they did not support the prosecution story.  They
claimed that they heard commotion, rushed to the scene of offence and found PW.2
in an injured condition.  PW.4 went further and deposed that no incident
occurred between the accused on the one side and PW.2 on the other side.
8.      Sri D. Bhaskar Reddy, learned counsel for the revision petitioner/de facto
complainant submitted that PW.5 corroborated the evidence of prosecution.  PW.5
is an auto driver.  It is the case of PW.1 that PW.1 shifted the injured PW.2 in
the auto of PW.5 to the Government Hospital, Karimnagar. PW.5 was not an
eyewitness for the incident.  He merely shifted the injured PW.2 in his auto to
the Government Hospital.  Undoubtedly, PW.5 corroborated the story of the
prosecution to the incident that PW.2 was shifted in the auto of PW.5 to the
Government Hospital.  PW.5 does not speak anything else.
9.      The learned counsel for the revision petitioner/de facto complainant also
contended that PW.6 corroborates the case of PWs.1 and 2.
PW.2 was suffering from injuries, that the injuries were fresh and that there were fractures in the injuries. He, however, admitted that the injuries werepossible on account of fall on the road from a running auto.10.     Be that as it may, the most important circumstance of the case is that
there are no eyewitnesses for the main incident of the accused beating PW.2.Even according to the prosecution story, PW.1 was not an eyewitness.  

Accordingto the prosecution, PWs.4 and 5 are eyewitnesses. 

They, however, did not support the prosecution case.11.     It is not as though in every case, the uncorroborated testimony of the
victim deserves to be ignored.
The uncorroborated testimony of a victim
nevertheless can form the basis of a conviction, so long as the same is
inspiring.
 In the present case, it is not as though PW.2 claimed that no one
was present at the time of the attack on him by A.1 to A.4.
It is his case that
PWs.3 and 4 witnessed the incident.
The evidence of PWs.3 and 4, consequently,
is not a case of non-corroboration but a case of rejection of the case of PW.2.
12.     That apart, admittedly, there is enmity between the accused on the one
side and PWs.1 and 2 on the other side.  It is also patent from the fact that it
is PW.1, who preferred the present revision, questioning the acquittal and not
the State.  Thus, where there is admitted enmity between the accused on the one
side and the PWs.1 and 2 on the other side, it is not safe at all to record a
conviction on the basis of the uncorroborated testimony of PW.2.
13.     The learned counsel for the revision petitioner/de facto complainant
contended that the learned trial Judge placed reliance upon Section 161 Cr.P.C.
statement of PW.2 to record an acquittal against the accused and that he was
erroneously relied upon Sec.161 Cr.P.C. statement of PW.2.  It may be noticed
that the prosecution marked Sec.161 Cr.P.C. statements of PWs.3 and 4 alone as
Exs.P.3 and P.4.  

PW.2 was not confronted with his Sec.161 Cr.P.C. statement. 

 I am afraid that the trial Court was not justified to look into Sec.161 Cr.P.C.
statement of PW.2, which was not even exhibited.  

Added to it, as rightly
submitted by the learned counsel for the revision petitioner/de facto
complainant, u/s.145 of the Evidence Act, the pre-trial statement of PW.2 could
be used to contradict PW.2.  His pre-trial statement cannot even use to
corroborate the evidence of PW.2.  Much worse, the statement of PW.2 u/s.161
Cr.P.C. statement was not exhibited.  There was no justification for the trial
Court to place reliance upon such 161 Cr.P.C. statement of PW.2.
14.     However, as already pointed out, the evidence of PW.2 is the evidence of
an interested witness.
He is interested in the conviction of the accused on
account of his previous enmity with the accused.
The evidence of such a
witness, therefore, may not be accepted without sufficient corroboration.  As
repeatedly pointed out, there is no corroboration for the evidence of PW.2.
15.     Inter alia, the learned counsel for the respondents/accused pointed out
that
the prosecution did not examine the Investigating Officer and that theaccused deserves to be acquitted ipso facto. I am afraid that the non-examination of the Investigating Officer does not automatically lead to theacquittal of the accused.If the non-examination of the Investigating Officer caused prejudice to theaccused, it may lead to a state of benefit of doubt in favour of the accused.In the present case, the non-examination of the Investigating Officer (LW.8) isof no consequence.
Indeed, Exs.P.2 and P.3 have not been proved. It would appearthat the Investigating Officer examined PWs.3 and 4 and recorded their detailedstatements. When the Investigating Officer was not examined, the pre-trialstatements of PWs.3 and 4, which are Exs.P.2 and 3, are not proved.  At anyrate, the non-examination of the Investigating Officer did not cause anyprejudice to the accused in this case.16.     The learned counsel for the revision petitioner/de facto complainant
contended that
  the corroboration of medical evidence with the evidence of PW.2is sufficient to accept the case of the prosecution.I do not agree with this contention of the learned counsel for the de factocomplainant for the reason that the evidence of PW.2 is the evidence of aninterested witness and consequently, the mere proof that PW.2 sustained injuries is not sufficient to hold that the prosecution proved its case.17.     Therefore, I have no hesitation to conclude that the prosecution hasfailed to establish the guilt of the accused, much less beyond reasonable doubt.The trial Court was perfectly justified in recording acquittal against theaccused.  The judgment of the trial Court is not perverse in any manner.  Thereis no circumstance to interfere with the judgment of the trial Court.  Therevision is devoid of merits and is accordingly dismissed.                                                                     _________________
                                                             K.G. SHANKAR, J
Date:   09.09. 2011