Faizan Ahmed Abdul Wahab Shah v. The State of Maharashtra1, that “a medical certificate shown fracture by symbol, it was necessary for the prosecution to prove the fracture by bringing evidence of x-ray examination and supporting testimony of radiologist”. 21. In another judgment of Hon’ble Supreme Court reported in P.Johnson v. State of Kerala2, held that “even regarding the conviction brought under Section 326 there is no legal evidence to fix the criminal liability. Section 320 IPC defines grievous hurt. Fracture comes under this Section. Non production of the X-ray report and non-examination of the doctor who took the X-ray are sufficient to deduce that the criminal liability either under Section 325 or 326 IPC is not established. This flaw is also a stronger one shaking the case of the prosecution”.

 THE HON'BLE SRI JUSTICE V.SRINIVAS

CRIMINAL REVISION CASE No.579 of 2010

ORDER:

Assailing the judgment dated 02.12.2009 in Crl.A.No.172

of 2009 on the file of the Court of learned III Additional Sessions

Judge, Guntur, modifying the conviction and sentence imposed

by the judgment dated 06.04.2009 in C.C.No.49 of 2008 on the

file of the Court of learned VI Additional Judicial Magistrate of

First Class, Guntur, the petitioner/de facto complainant filed

the present criminal revision case under Section 397 r/w.401 of

the Criminal Procedure Code, 1973 (hereinafter referred to as

“Cr.P.C.”).

2. The revision case was admitted on 11.06.2010.

3. The facts leading to file the present criminal revision case

are that:

i). On 30.04.2007 at 10.00 p.m., P.Ws.1 and 3 were

going to the fields of Narakoduru on their cycles and the

accused and his brother followed them from their

behind with a knife upto the fields and attacked on

P.W.1, threw him down and stabbed him on his back,

2023:APHC:51863

2

left shoulder and neck. As a result, he sustained

bleedings injuries.

ii). For the said act, on the statement of P.W.1, P.W.7 S.I

of Police, Chebrolu Police Station, registered a case in

Cr.No.74 of 2007 and after completion of investigation

filed charge sheet against the accused under Section

326 of IPC.

4. The said charge sheet was taken on file and numbered as

C.C.No.49 of 2008 on the file of the Court of learned VI

Additional Judicial Magistrate of First Class, Guntur. After fullfledged trial, the trial Court found the accused guilty of the

offence under Section 326 of Indian Penal Code (hereinafter

referred to as “IPC”) and sentenced him to undergo simple

imprisonment for a period of one (1) year and also pay fine of

Rs.500/-, in default to suffer simple imprisonment for one (1)

month.

5. Aggrieved by the same, the 1st respondent/accused

preferred an appeal, vide Crl.A.No.172 of 2009, before the Court

of learned III Additional Sessions Judge, Guntur, and after

appreciating the entire material on record, the first Appellant

Court found the guilt of the accused for the offence under

Section 324 of IPC instead of Section 326 of IPC and thereby,

2023:APHC:51863

3

modified the sentence of one (1) year simple imprisonment and

fine of Rs.500/- to that of fine of Rs.5,000/-, in default of

payment of fine, shall undergo simple imprisonment for four (4)

months.

6. Against the said judgment of the first Appellate Court, the

present criminal revision case was preferred by the

petitioner/de facto complainant.

7. Heard Sri A.E.R.Naidu, learned counsel representing Sri

Raja Reddy Koneti, learned counsel for the petitioner/de facto

complainant, Sri V.Jithender Rao, learned counsel for the 1st

respondent/accused and Sri Soora Venkata Sainath, learned

Special Assistant Public Prosecutor for the 2nd respondentState.

8. Now the point that arises for determination in this

revision is “whether there is any manifest error of law or flagrant

miscarriage of justice in the judgment rendered by the first

Appellate Court in Crl.A.No.172 of 2009?”

9. It is settled law that revision is a discretionary power and

not a right of the party. The Revisional Court should not reappreciate the evidence or interfere with the findings of fact,

unless they are perverse or unreasonable. More so, it is also

settled that a revision is not maintainable if an appeal lies but

2023:APHC:51863

4

has not been filed by the State. However, the Revisional Court

can entertain a revision petition by the other party who is not

entitled to appeal or by a stranger who is aggrieved by the order

of the Court. But, Revisional Court can exercise its power if the

appellate court has acted without jurisdiction or in excess of

jurisdiction or has failed to exercise its jurisdiction. These

aspects have to be looked into and thereafter only to consider to

what extent the petition is maintainable under revision.

10. Admittedly, the present revision is filed by the de facto

complainant/P.W.1 by name K.Chintaiah.

11. Learned counsel for the petitioner/de facto complainant

submits that the learned Sessions Judge failed to consider the

evidence of P.W.6 Doctor, who treated the petitioner and found

that the nature of injuries is grievous and thereby, modification

of sentence under Section 324 of IPC is illegal; that the injuries

of P.W.1 is not disputed by the accused; that the appellate

Court did not give any reason for imposing fine only, which is

violation of statutory mandate and ought to have confirmed the

judgment of the trial Court.

12. On the other hand, learned counsel for the 1st

respondent/accused submits that the accused took a defence

before the first appellate Court that there is no consistency in

2023:APHC:51863

5

the evidence of prosecution witnesses. As per the version in the

F.I.R., P.Ws.1 and 3 were going to the fields, accused chased

him, armed with a knife, accused beat P.W.3, then he went to a

side and after going to some distance, P.W.1 was pushed down

by the accused and caused injuries. But, as per the statement

before police, P.W.1 denied that, it was mentioned in Ex.D.1

that on 30.04.2007 at about 10.00 p.m., while he was going on

cycle by taking P.W.3, the incident was occurred. This

inconsistency goes to the root of the prosecution case.

13. He further submits that as per evidence of P.W.1, when

himself and P.W.3 were going to the fields on separate cycles,

accused stopped P.W.3 and on his threat P.W.3 left from that

place by running. Whereas, P.W.3 in his evidence deposed that

about three (3) years back at 09.00 a.m., himself and P.W.1

were going to their fields on cycle and at that time there was

pelting of stones towards them and due to fear he left from the

said place by running. This is another inconsistency between

the testimony of P.W.1 and P.W.3.

14. He further submits that admittedly, there is no direct

witness to the incident and there is no corroboration to the

evidence of P.W.1. Further, the radiologist was not examined, no

X-ray films were produced and in the absence of radiologist and

2023:APHC:51863

6

production of X-ray films, it cannot be accepted that the injuries

said to be received by P.W.1 will attract the offence under

Section 326 of IPC, thereby, prosecution failed to prove the said

offence.

15. Per contra, Sri Soora Venkata Sainath, learned Special

Assistant Public Prosecutor for the 2nd respondent-State,

submits that the de facto complainant is alleged to have illicit

intimacy with the wife of the accused; that the incident of

causing injuries to P.W.1 by the accused is very much

consistent; that he identified the accused, who stabbed him and

caused injuries; that proved the said injuries by P.W.6

Dr.J.V.Narasimha Rao and his evidence is very much consistent

that the injuries are grievous in nature.

16. On the above said contentions, the fist appellate Court at

paragraph No.14 of the judgment held that the presence of

P.W.1 at the place of incident is consistent in view of the

evidence of P.Ws.1 and 3. P.W.4, who is wife of P.W.1, also

deposed that there was no dispute with the family of the

accused since one year, but admitted illicit intimacy of P.W.1

with the wife of the accused. It was also held at paragraph

No.15 that accused pushed him down and stabbed on his back,

left shoulder and neck.

2023:APHC:51863

7

17. P.W.6 Dr.J.V.Narasimha Rao, who gave wound certificate,

observed that there is a deep lacerated injury over mid back and

deep lacerated injury over left side of neck. He also found

fracture of spinous on T4 vertibra and it is described as

grievous in nature. Further mentioned in Ex.P.3 wound

certificate that injuries Nos.1 and 2 are described as simple in

nature, whereas injury No.2 is also described as grievous.

18. The learned Sessions Judge in appeal opined that X-ray

report of injured only showing that he suffered grievous hurt,

but no such report was placed on record and that nonexamination of radiologist, who took x-rays and gave report goes

to show that the prosecution could not prove the offence under

Section 326 of IPC, but it should be consider as only 324 of IPC

and thereby, the first appellate Court modified the conviction

and sentence under Section 324 of IPC instead of 326 of IPC

and sentenced the accused to pay fine of Rs.5,000/-. For which,

the petitioner/de facto complainant filed this revision.

19. Herein this case, in the absence of examination of

radiologist and production of X-rays films, can a wound of the

person called as grievous injury. No doubt, those injuries which

cause severe body pain and make the person unable to follow

his daily work for a period of twenty days is a grievous injury.

2023:APHC:51863

8

Injuries that render organs incapable of performing their daily

function is a grievous injury.

20. No doubt, there cannot be a presumption that the

grievous hurt was caused without formal proof of the fact of

fracture. The fact of existence of fracture cannot be diagnosed

and certified in absence of proof of x-ray plates, unless the fact

of fractured bones is perceivable barely of perception of naked

eyes and sheerly by clinical examination, its being vivid and

palpable. Therefore, proof of x-ray plates was necessary

particularly, the prosecution must prove the injury within the

meaning of Section 320 of IPC and if the injury is a fracture, the

prosecution must ordinarily prove the fracture by adducing

radiological evidence. Suffice it to refer the observations of

Hon’ble Supreme Court reported in Faizan Ahmed Abdul

Wahab Shah v. The State of Maharashtra1, that “a medical

certificate shown fracture by symbol, it was necessary for the

prosecution to prove the fracture by bringing evidence of x-ray

examination and supporting testimony of radiologist”.

21. In another judgment of Hon’ble Supreme Court reported

in P.Johnson v. State of Kerala2, held that “even regarding

the conviction brought under Section 326 there is no legal

1 2014 ALL MR (Crl) 4841

2 1998 SCC Online Ker 477

2023:APHC:51863

9

evidence to fix the criminal liability. Section 320 IPC defines

grievous hurt. Fracture comes under this Section. Non

production of the X-ray report and non-examination of the

doctor who took the X-ray are sufficient to deduce that the

criminal liability either under Section 325 or 326 IPC is not

established. This flaw is also a stronger one shaking the case of

the prosecution”.

22. This Court also referred the same aspect in previous

orders that in-order to found the guilt of the accused under

Section 326 of IPC to prove the nature of the injuries, the

radiologist examination and production of x-ray files is

mandatory. Under these circumstances, this Court is of the

opinion that there are no grounds to interfere with the wellarticulated judgment of the first Appellate Court as the said

judgment neither perverse nor there is any manifest error of law

or a flagrant miscarriage of justice in modifying the sentence.

23. Even otherwise, no revision shall be entertained at the

instance of the de facto complainant/victim against the order of

acquittal, in a case where no appeal is preferred and victim is

relegated to file an appeal. In this connection, it is relevant to

refer a judgment of the Hon’ble Supreme Court reported in

2023:APHC:51863

10

Joseph Stephen v. Santhanasamy3, wherein at paragraph

No.8 held that “whether in exercise of the revisional jurisdiction

under Section 401 Cr.P.C., the High Court can convert a finding

of acquittal into one of conviction and what is the procedure to

be followed by the High Court, as such, the said issue is now

not res integra”.

24. The APEX Court perused its judgment reported in

K.Chinnaswamy Reddy v. State of Andhra Pradesh4, and

observed that “at that stage the revisional court stops short of

finding the accused guilty and passing sentence on him by

ordering a retrial. What order should be passed by the High

Court in a revision application against the order of acquittal,

while exercising the revisional jurisdiction, has been dealt with

and considered in paragraph No.11” of the said judgment.

25. Ultimately, in Joseph Stephen case (referred to supra),

the Hon’ble Supreme Court observed that on account of

misreading of evidence or perverse appreciation of evidence,

nothing prevents the High Court to take an independent view

and the High Court may remit the matter to the trial Court and

even direct for retrial. However, if the order of acquittal is

passed by the first appellate Court, in that case, the High Court

3 2022 13 SCC 115

4 1962 SCC Online SC 32

2023:APHC:51863

11

has two options available, (i) to remit the matter to the first

appellate Court to rehear the appeal; or (ii) in an appropriate

case remit the matter to the trial Court for retrial in such a

situation the procedure has to be followed as per the judgment

in Chinnaswamy Reddy case (referred to supra).

26. Further, the High Court taken the matter under Section

401(5) Cr.P.C. may treat the application for revision as petition

of appeal and deal with the same accordingly is concerned,

firstly the High Court has to pass a judicial order to treat the

application for revision as petition of appeal. The High Court

has to pass a judicial order because sub-section (5) of Section

401 Cr.P.C. provides that if the High Court is satisfied that such

revision application was made under the erroneous belief that

no appeal lies thereto and that it is necessary in the interests of

justice so to do.

27. Coming to the case on hand, having regard to the above

discussion, this Court does not find any such perversity or

manifest error of law or miscarriage of justice to interfere with

the well-articulated judgment of the first appellate Court and

there are no merits in this revision. Thereby, the present

criminal revision is liable to be dismissed.

2023:APHC:51863

12

28. In the result, the Criminal Revision Case is dismissed

confirming the judgment dated 02.12.2009 in Cr.A.No.172 of

2009 on the file of the Court of learned III Additional Sessions

Judge, Guntur.

Interim orders granted earlier if any, stand vacated.

As a sequel, miscellaneous applications pending, if any,

shall stand closed.

_______________________

JUSTICE V.SRINIVAS

Date: 26.12.2023

Krs

2023:APHC:51863

13

106

THE HON'BLE SRI JUSTICE V.SRINIVAS

CRIMINAL REVISION CASE No.579 of 2007

DATE: 26.12.2023

Krs

2023:APHC:51863

14

IN THE HIGH COURT OF ANDHRA PRADESH,

AMARAVATI

*****

THE HON’BLE SRI JUSTICE V.SRINIVAS

CRIMINAL REVISION CASE No.579 of 2010

Between:

Koduru Chintaiah, S/o.Samuel,

Aged about 38 years, R/o.Nara Koduru,

Chebrolu Mandal, Guntur District.

 ... Petitioner

 AND

1.Koduru Elia @ Ramaraju, S/o.Nagaiah,

 Aged about 37 years, R/o.Nara Koduru,

 Chebrolu Mandal, Guntur District.

2.The State of of Andhra Pradesh,

 Rep.by its Public Prosecutor,

 High Court of A.P., Hyderabad. .. Respondents

DATE OF JUDGMENT PRONOUNCED: 26.12.2023

SUBMITTED FOR APPROVAL:

THE HON’BLE SRI JUSTICE V.SRINIVAS

1. Whether Reporters of Local newspapers Yes/No

 may be allowed to see the Judgments?

2. Whether the copies of judgment may be Yes/No

 Marked to Law Reporters/Journals.

3. Whether Their ladyship/Lordship wishes Yes/No

 to see the fair copy of the Judgment?

______________________

JUSTICE V.SRINIVAS

2023:APHC:51863

15

* HON’BLE SRI JUSTICE V.SRINIVAS

+ CRIMINAL REVISION CASE NO.579 OF 2010

% 26.12.2023

# Koduru Chintaiah, S/o.Samuel,

 Aged about 38 years, R/o.Nara Koduru,

 Chebrolu Mandal, Guntur District

 .. Petitioner

Vs.

$ 1. Koduru Elia @ Ramaraju, S/o.Nagaiah,

 Aged about 37 years, R/o.Nara Koduru,

 Chebrolu Mandal, Guntur District.

 2.The State of of Andhra Pradesh,

 Rep.by its Public Prosecutor,

 High Court of A.P., Hyderabad.

 .. Respondents

! Counsel for the Petitioner: Sri A.E.R.Naidu, learned

…………………………….Counsel appearing on behalf of

 Sri Raja Reddy Koneti, learned

……………………………..counsel for the petitioner.

 Counsel for Respondent No.1: Sri V.Jithender Rao

Counsel for Respondent No.2: Sri Soora Venkata Sainath,

…………………………………..learned Special Assistant

…………………………………..Public Prosecutor.

<Gist :

>Head Note:

? Cases referred:

1. 2014 ALL MR (Crl) 4841

2. 1998 SCC Online Ker 477

3. 2022 (13) SCC 115

4. 1962 SCC Online SC 32

This Court made the following:

2023:APHC:51863