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2006 DIGILAW 855 (MAD)

Rajendran v. State rep. by Sub Inspector Police

2006-03-28

S.SARDAR ZACKRIA HUSSAIN

body2006
Judgment :- (Criminal Appeal filed under Section 374 of Criminal Procedure Code against the judgment dated 15.4.1999 made in S.C.No.196 of 1998 on the file of the Assistant Sessions Judge, Kallakurichi, convicting the accused.) The appellant is A-2 in S.c.No.196 of 1998 on the file of the Assistant Sessions Judge, Kallakurichi, who was convicted and sentenced to undergo Rigorous Imprisonment for a period of ten years for the offence under Section 307 I.P.C. and to pay a fine of Rs.20,000/-, in default to undergo Rigorous Imprisonment for a period of two years, as per judgment dated 15.4.1999. Out of the fine amount of Rs.20,000/-, the appellant was directed to pay a sum of Rs.10,000/- to P.W.2 Ravikumar. 2. A-1 was charged for the offences under Sections 341 and 307 read with Section 34 I.P.C. and A-2 was charged for the offences under Sections 341 and 307 I.P.C. and after trial, A-1 was acquitted. 3. The brief facts that led to the filing of this appeal are as follows: (a) P.W.1 is the paternal uncle of P.W.2, who is injured. A-2 is the maternal uncle of A-1. (b) As per the case of prosecution, the occurrence took place on 26.4.1997 at 10.00 A.M. at Tholuvanthangal in the Tar Road near Rice Mill of one Muthaiyan. The brief facts that led to the filing of this appeal are as follows: (a) P.W.1 is the paternal uncle of P.W.2, who is injured. A-2 is the maternal uncle of A-1. (b) As per the case of prosecution, the occurrence took place on 26.4.1997 at 10.00 A.M. at Tholuvanthangal in the Tar Road near Rice Mill of one Muthaiyan. When P.W.2 Ravikumar was working in his field, he found Anbazhagan and Kolanji cutting the tree belonged to him and when he questioned the same, they pushed him down; When P.W.1, his paternal uncle, took him to Hospital in his T.V.S.50 Moped along with his brother-in-law Annadurai, for treatment for the injuries sustained by him due to the attack made by them and during which time, A-1 and A-2 restrained them; when P.W.1 stopped the Moped, they attacked P.W.2 Ravikumar with M.O.1 Crowbar on his head causing bleeding injuries because of which, he became unconscious and fell down; P.W.1 and his brother-in-law Annadurai caught hold of the Crowbar, which A-2 was having, tightly; father of P.W.2 Dharmalingam, who came there in a cycle, also caught hold of M.O.1 Crowbar; Kuppuswamy Naicker, who came there, snatched the Crowbar M.O.1 and threw the same; P.W.1 and Annadurai took the injured P.W.2 in T.V.S. 50 Moped to Hospital at Ariyalur where since the Doctor was not available they took P.W.2 by hiring Van during which time, near Anthiyur Santhaimedu at Thirukovilur Road, the accused A-1 and A-2 and Vattesan of Tholuvanthangal Colony restrained the van and stated that the matter can be settled in the panchayat; since P.W.2 suffered severe injuries, he was taken in the TVS 50 Moped by P.W.1 and Annadurai to Kallakurichi Government Hospital at about 1.30 or 2.00 P.M. (c) P.W.4 Doctor attached to Kallakurichi Government Hospital, gave treatment to P.W.2 and issued Wound Certificate Ex.P.2 and advised to take him to Madras for further treatment. P.W.2 was taken to Madras by Annadurai, brother-in-law of P.W.1, and his father Dharmalingam and P.W.1 went to Vadaponparappi Police Station and gave complaint Ex.P.1. P.W.2 was taken to Madras by Annadurai, brother-in-law of P.W.1, and his father Dharmalingam and P.W.1 went to Vadaponparappi Police Station and gave complaint Ex.P.1. (d) P.W.6, Nagarajan, Head Constable, on receipt of the complaint Ex.P.1 at 6.30 P.M. on 26.4.1997, registered the case in Crime No.176 of 1997 under Sections 324 and 307 I.P.C. and Ex.P.5 is the printed First Information Report and sent the copy of the same to the Inspector of Police, Sankarapuram, Court of Judicial Magistrate and the officials concerned. He also registered case against P.W.1, P.W.2 and Annadurai that they attacked Kolanji in Crime No.175 of 1997 and Ex.D.1 is the printed First Information Report. (e) P.W.8, Neuro Surgeon attached to Government General Hospital, Madras, has stated that P.W.2 was admitted as in-patient at 9.50 P.M. on 26.4.1997 in the Neuro Ward and after giving treatment, he was discharged on 07.5.1997 at the request of his relatives and Ex.P.7 is the Medical Report. (f) P.W.7, Inspector of Police, on receiving the copy of the First Information Report Ex.P.5 at 8.00 P.M. on 26.4.1997, went to the scene of occurrence, accompanied by the Head Constables, on 27.4.1997 at 6.30 A.M. and prepared observation mahazar and rough sketch Exs.P.3 and P.6 respectively in the presence of witnesses. He also recovered bloodstained mud M.O.2 and sample mud M.O.3 from the scene of occurrence under mahazar Ex.P-4 in the presence of the above witnesses. He examined the witnesses Annadurai on 29.4.1997 and Dharmalingam on 15.4.1997 and recorded their statements. He also examined the injured P.W.2 and recorded his statement. (g) P.W.9 Dakshinamurthy, Inspector of Police, on his transfer, took up further investigation. He examined P.W.4 and P.W.8 and recorded their statements and after completion of investigation, he filed the final report. 4. In order to prove the guilt of the accused, the prosecution examined P.Ws.1 to 9 and marked Exs.P-1 to P-7 besides M.O.1 to M.O.3. As against such evidence, Ex.D.1 was marked on the side of the accused but no witness was examined. 5. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against him by the State, he denied the offence and stated that false case has been foisted against him. 6. 5. When the accused was questioned under Section 313 of the Code of Criminal Procedure, on the basis of the incriminating evidence made available against him by the State, he denied the offence and stated that false case has been foisted against him. 6. The trial Court, considering the evidence adduced on the side of prosecution, finding that no case is made out against A-1, acquitted him, but, however, finding A-2 guilty for the offence under Section 307 I.P.C., convicted and sentenced him as set out above. The conviction and sentence imposed on A-2 is under challenge in this Criminal Appeal. 7. Heard the learned counsel for the appellant/A-2 and the learned Government Advocate (Criminal side) for the State. 8. Learned counsel for the appellant/A-2, taking this Court through the entire evidence, submitted that even before P.W.1 gave complaint Ex.P.1 in respect of the occurrence that took place on 26.4.1997 at 10.00 A.M. during which time, P.W.2 was attacked with crowbar M.O.1 by A-2, Kolanji gave complaint against P.W.2 and P.W.4 and also Dharmalingam, father of P.W.2, which was registered in Crime No.175 of 1997 as per the printed First Information Report Ex.D.1 in which case he was arrested and released on bail. Therefore, according to the learned counsel, the complainant party were the aggressors. It is further submitted by the learned counsel that P.W.1 and P.W.2 are related to each other and as such, the evidence of P.W.1, being interested testimony, should not be given much weight. He also argued that though the occurrence, as per the case of prosecution, took place at 10.00 A.M., the complaint Ex.P.1 was made by P.W.1 only at 6.30 P.M., which would go to show the inordinate delay in lodging the complaint. It is the further contention of the learned counsel for A-2 that no independent witness was examined on the side of prosecution to corroborate the evidence of P.W.1 and P.W.2, which is fatal to the case of prosecution. Learned counsel for A-2 also argued that though P.W.2 was taking treatment in hospital as in-patient for injury alleged to have been sustained by him at the time of occurrence, there is no evidence to show that any fracture was caused to him. Learned counsel for A-2 also argued that though P.W.2 was taking treatment in hospital as in-patient for injury alleged to have been sustained by him at the time of occurrence, there is no evidence to show that any fracture was caused to him. According to him, P.W.1 sustained injuries attracting the offence under Section 324 I.P.C. alone and that the judgment passed by the trial Court convicting A-2 for the offence under Section 307 I.P.C. cannot be sustained. 9. Learned Government Advocate submitted that inasmuch the evidence of P.W.2 is supported by P.W.1, which tallies with the First Information Report and medical evidence, that at the time of occurrence P.W.2 was attacked by A-2 with M.O.1 Crowbar on his head, being vital part, Section 307 I.P.C. is attracted and, therefore, the conviction and sentence passed by the trial Court cannot be said to be improper and the same do not call for any interference. 10. As per the case of prosecution, the occurrence had taken place on 26.4.1997 at 10.00 A.M. near Rice Mill belonged to one Muthaiyan at Tholuvanthangal village. With regard to the said occurrence, P.W.1, who is the paternal uncle of the injured P.W.2, gave complaint Ex.P.1 at 6.30 P.M. to Vadaponparappi Police Station. It is seen from the evidence of P.W.1 and P.W.2 that when P.W.2 was taken in the T.V.S.50 Moped by P.W.1 and his brother-in-law Annadurai, they were restrained on the way by A-2 by stopping the Moped during which time, he attacked P.W.2 with M.O.1 Crowbar on his head. Thereafter, P.W.2 was taken to Hospital at Ariyalur in the same T.V.S.50 Moped for treatment and then to Kallakurichi Government Hospital and on the way they were stopped near Anthiyur Santhaimedu at Thirukovilur Road and requested to settled the matter in the panchayat. However, P.W.2 was taken to Government Hospital, Kallakurichi, at 2.00 P.M. where P.W.4 Doctor advised them to take him to Madras for further treatment. Accordingly, he was taken by Dharmalingam, father of P.W.2. Therefore, it is clear that only after that, P.W.1 went to Vadaponparappi Police Station and gave complaint Ex.P.1 at 6.30 P.M. and as such, the delay in preferring complaint has been explained by P.W.1. 11. Accordingly, he was taken by Dharmalingam, father of P.W.2. Therefore, it is clear that only after that, P.W.1 went to Vadaponparappi Police Station and gave complaint Ex.P.1 at 6.30 P.M. and as such, the delay in preferring complaint has been explained by P.W.1. 11. As regards the attack made by A-2 with M.O.1 crowbar, the same has been proved with clinching evidence let in on the side of prosecution through P.W.1 and injured P.W.2, which tallies with the First Information Report and medical evidence. But it is seen from the evidence of P.W.8, Neuro Surgeon, that though P.W.2 was taking treatment as in-patient in Government General Hospital, Madras, from 26.4.1997, he was discharged on 07.5.1997 at the request of his relatives and that no fracture was caused to him and as such, the offence under Section 307 I.P.C. cannot be said to be attracted in this case. Inasmuch as the accused attacked P.W.2 with M.O.1 crowbar with the description as mentioned above and caused grievous injury, only the offence under Section 324, I.P.C. alone is attracted. Accordingly, the findings, conviction of the accused is modified as one under Section 324 I.P.C. 12. The learned counsel for the appellant further submitted that inasmuch as the accused was in prison for nearly eight months, i.e., from 15.4.1999 till 15.12.1999 on which date the sentence was suspended by this Court in Criminal M.P.No.10155 of 1999, leniency may be shown to the appellant / A-2 with regard to the sentence by modifying the same as to the sentence already undergone and confirming the fine of Rs.20,000/- already imposed for the offence under Section 307, I.P.C. as one imposed for the offence under Section 324, I.P.C. 13. Considering the facts and circumstances of the case and the submission made by the learned counsel for A-2, it is just and proper if the sentence is modified as already undergone confirming the fine amount of Rs.20,000/- as ordered by the trial Court. 14. Considering the facts and circumstances of the case and the submission made by the learned counsel for A-2, it is just and proper if the sentence is modified as already undergone confirming the fine amount of Rs.20,000/- as ordered by the trial Court. 14. In the result, the appeal is partly allowed and the accused is found guilty under Section 324, I.P.C. instead of 307 I.P.C. Accordingly, the sentence is modified to that of already undergone besides imposing fine of Rs.20,000/-, in default to undergo rigorous imprisonment for two years and on such payment of fine, in view of the fact that in the occurrence, P.W.2 suffered grievous injuries in his head because of the attacked made by A-2 with M.O.1 crowbar, a sum of Rs.10,000/- is ordered to be paid to him. The fine amount is directed to be paid within two months in the Court of Assistant Sessions Judge, Kallakurichi, and if the same is not paid in time, the Assistant Sessions Judge, Kallakurichi, is directed to secure the custody of the appellant/A-2 to undergo the sentence of two years rigorous imprisonment.