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2003 DIGILAW 1235 (MAD)

Chella Muthu v. Harikrishnan & Another

2003-08-06

M.CHOCKALINGAM

body2003
Judgment :- Aggrieved over the Judgment of the learned District and Sessions Judge, Ramanathapuram setting aside the judgment of the Chief Judicial Magistrate, Ramanathapuram in C.C.No.99 of 1992, the complainant in the original private complaint, has brought forth this appeal. 2. The appellant herein launched a private complaint before the Chief Judicial Magistrate Court, Ramanathapuram stating that on 28.11.1988 at about 10.30 a.m., himself and his wife surrendered before the Court of Judicial Magistrate, Mudukulathoor in connection with the Crime No.116 of 1988 registered in Peraiyur Police Station and at that time, at about 1.00 p.m.,the Inspector Ram Mohan, Head Constable Rajaram and some other constables kicked them and caused injury; that he was treated by a Doctor, Rajagopal who issued a certificate in that regard. Ex.P4 is Wound Certificate. After following procedural formalities, the case was taken up for trial. 3.In order to prove the accusation against these accused who are the respondent herein, the complainant examined himself as P.W.1 and three more witnesses. After completion of the evidence on the prosecution side, the accused was questioned under Section 313 Cr.P.C. as to the incriminating circumstances found in the evidence of the prosecution witnesses which the accused/appellant flatly denied as false. No defence witness was examined. 4.After considering the materials available on record, the trial Court found them guilty under Section 323 IPC and sentenced them to pay a sum of Rs.500/-, in default to undergo six weeks simple imprisonment. Aggrieved accused, took it on appeal before the Sessions Judge, Ramanathapuram in Appeal No.31 of 1994 . The learned Sessions Judge, Ramanathapuram after making a due enquiry, allowed the appeal and set aside the Judgment of the trial Court. Aggrieved complainant has brought forth this appeal. 5.Learned counsel appearing for the appellant would submit that the complainant has examined himself as PW1 and in order to prove the injuries sustained , he examined P.W.4,doctor and through him Ex.P.1 Wound certificate was also marked. The occurrence has taken place within the Court compound when the complainant and his wife surrendered before the Judicial Magistrate Court,Mudukulathor on 28.11.1988 in connection with Crime No.116 of 1988, Peraiyur Police Station. At that time, the police officials have attacked them and caused injuries while they were in Judicial custody. The occurrence has been clearly spoken to by the witnesses P.Ws.1 to 3. The trial Court only on appreciation of evidence found them guilty. At that time, the police officials have attacked them and caused injuries while they were in Judicial custody. The occurrence has been clearly spoken to by the witnesses P.Ws.1 to 3. The trial Court only on appreciation of evidence found them guilty. But the learned Sessions Judge without proper reasoning has set aside the Judgment and hence the Judgment of the trial court has got to be restored. 6.Mr.M.Murali, learned counsel for the respondents would submit that the alleged incident was not proved. There was a huge delay in lodging the complaint and there were lot of discrepancies in the evidence of P.Ws.1 to 3. It is the specific case of the complainant that his wife was also injured, but she was not examined. It is true that P.W.4 doctor was examined and the wound certificate issued by him is marked as Ex.P.1. But in no way that has supported the case of the complainant and hence the appellate court was perfectly correct in setting aside the Judgment of the trial court and hence the Judgment of the appellate forum has got to be confirmed. 7.After careful scrutiny of the materials and consideration of the recorded submission, this Court is unable to see any substance in this appeal. The alleged occurrence according to the complainant has taken place at about 10.30 a.m. on 28.11.1988 when himself and his wife Murugayee, surrendered before the Judicial Magistrate Court,Mudukulathur in connection with Crime No.116 of 1988 registered at Peraiyur Police station. The first and foremost thing striking the mind of the Court is that while the alleged occurrence of a sort has taken place within the Court compound, that too when they surrendered before the Court in connection with the case on 28.11.1988, why the same was not brought to the notice of the said Court immediately. But surprisingly, P.W.1 has given a sworn statement only on 7.4.1989, nearly after a period of about five months. No explanation was tendered, nor even an attempt was made by the complainant as to the delay. It was the specific case of the complainant that the occurrence has taken place after they surrendered before the Court. The learned Sessions Judge on evidence available has clearly found that the occurrence has not taken place within the Court or outside the Court building. It was the specific case of the complainant that the occurrence has taken place after they surrendered before the Court. The learned Sessions Judge on evidence available has clearly found that the occurrence has not taken place within the Court or outside the Court building. Though it was contended by the complainant that his wife was also injured at the time of attack, she was not examined. P.W.2 has deposed that he came to know about the same only when he was informed by P.W.1 as to the alleged occurrence. Hence it would be indicative of the fact that P.W.2 could not have been an eye witness. 8.According to P.W.1, the accused kicked on his legs with their shoes. But P.W.4,the Doctor has spoken that no corresponding injuries were found. It is pertinent to point out that P.W.1 even at the time of sworn statement has not stated so. 9.Under such circumstances, in view of the discrepant evidence of P.W.1, while it was not supported by the medical evidence coupled with the delay of five months in lodging the complaint, it would be unsafe to find the accused guilty. The Sessions Judge was perfectly correct in setting aside the Judgment of the trial Court which has got to be confirmed. The appeal fails and the same is dismissed.