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2014 DIGILAW 3326 (MAD)

Kamalakannan v. State Rep. by Inspector of Police

2014-09-15

M.VENUGOPAL

body2014
Judgment 1. The Appellant/Accused has focused the present Criminal Appeal as against the conviction and sentence dated 22.12.2008 in S.C.No.67 of 2008 passed by the Learned Additional Sessions Judge, Fast Track Court, Dharmapuri. 2. The Appellant was found guilty by the trial Court in respect of an offence under Section 341 of IPC and was awarded with a punishment of one month imprisonment and was also directed to pay a fine of Rs.100/-. Further, in default of payment of fine, he was directed to undergo further one week imprisonment. In respect of an offence under Section 323 of IPC (3 counts), he was found guilty and was directed to undergo imprisonment for a period of three months for each count and further he was directed to pay a fine of Rs.250/-for each count and in default of payment of fine, he was awarded further with an imprisonment of two weeks. In regard to an offence under Section 324 IPC (3 counts), he was found guilty and for each count, he was awarded with a punishment of six months rigorous imprisonment and was also directed to pay a fine of Rs.400/- for each count and in default of payment of fine, he was also awarded with further imprisonment of one month by the trial Court in terms of judgment dated 22.12.2008 in S.C.No.67 of 2008. In so far as an offence under Section 3 of the Tamil Nadu Public Properties (Damages and Loss) Act, the Appellant/Accused was found not guilty and he was acquitted. 3. The case of the prosecution is that on 23.03.2008 at about 8.30 hours near Nallampalli Bus Stand at Ambedkar Nagar, Murugan (PW1), Arumugam (PW2) and Munusamy (PW3), travelled in an Autorickshaw bearing Regn.No.TN29AP8100 to Northampatti and at that time, the Appellant/Accused asked them to stop the vehicle and scolded in indecent words/language and after stopping the vehicle, he beat Murugan (PW1) with his hand and beat Arumugam (PW2), with wooden log and also beat Munusamy (PW3) with hand and also beat Senthil Kumar (PW4) with his hand on his left /chest and caused simple injury and after picking up a stone, with it, he broke the front side Hospital of the Auto and caused a loss of Rs.6,932/-. Further, Muthu (PW5), sustained injuries, because of the Glass mirror touching upon him and further the Appellant/Accused beat Mani (PW6) with his hand and caused injury on chest. Further, Muthu (PW5), sustained injuries, because of the Glass mirror touching upon him and further the Appellant/Accused beat Mani (PW6) with his hand and caused injury on chest. Resultantly, the Adhiamankottai Inspector of Police laid a charge sheet against the Appellant/Accused under Sections 341, 294(b), 324 (3 counts), 323 (3 counts) and under Section 3 of the Tamil Nadu Public Properties (Damages and Loss) Act. 4. On the basis of the accusation levelled against the Appellant/Accused the trial Court framed necessary charges against the Appellant/Accused under Sections 341, 294(b), 324 (3 counts), 323 (3 counts) and under Section 3 of the Tamil Nadu Public Properties (Damages and Loss) Act and the same were read over and explained to him. The Appellant/Accused denied the charges. 5. Before the trial Court, on the side of prosecution, witnesses, PW1 to PW13 were examined and Exs.P1 to P15 were marked. Also, M.O.1 to M.O.3 were marked. On the side of the Appellant/Accused, no one was examined as a witness. No exhibits were marked. 6. The Learned Counsel for the Appellant/Accused contends that originally all the witnesses joined together and tried to attack the Appellant/Accused and the Appellant to save his life caused simple injuries on the witnesses and he sustained injury. 7. The Learned Counsel for the Appellant/Accused submits that the Appellant had no intention to cause injuries to the witnesses and there was no motive to quarrel with them. 8. The Learned Counsel for the Appellant/Accused, contends that there was sudden quarrel and the Appellant was proceeding before the Auto which was used by PW.1 to PW6 and there was no intention on his part to cause injury to the prosecution witness and the driver of the Auto alone caused nuisance and the same was questioned by the Appellant. 9. The Learned Counsel for the Appellant/Accused projects an argument that the Appellant sustained injuries and he was admitted into the Hospital and that the Respondent/Prosecution had failed to explain the injuries which was sustained by the Appellant. In fact, the non explanation of Accused's injuries was fatal to the prosecution case. 10. 9. The Learned Counsel for the Appellant/Accused projects an argument that the Appellant sustained injuries and he was admitted into the Hospital and that the Respondent/Prosecution had failed to explain the injuries which was sustained by the Appellant. In fact, the non explanation of Accused's injuries was fatal to the prosecution case. 10. The Learned Counsel for the Appellant/Accused urges before this Court that the trial Court should have seen that the prosecution witnesses alone tried to attack the Appellant/Accused and only because of that to save himself from the prosecution witnesses he caused simple injuries and he never took any amounts from any one of the witnesses. 11. Per contra, it is the submission of the Learned Additional Government Pleader for the Respondent/Complainant that the trial Court on an appreciation of oral and documentary evidence available on record had found the Appellant/Accused guilty in respect of the offences under Sections 341, 323 (3 counts) and 324 (3 counts) of IPC and awarded him the necessary punishments and also imposed the fine thereto. 12. For fuller and better appreciation of the merits of the case projected on the side of the prosecution, it is useful for this Court to make a reference to the evidence of PW.1 to PW.13 in furtherance of substantial cause of justice. 13. PW1 (Murugan), in his evidence (before the trial Court) has deposed that on 23.03.2008, he returned from work at Noolahalli and came to Dharmapuri and got down at Nallampalli to reach his house and at that time he hired a Auto and travelled in the same to his house. In fact, he went to his house together with Arumugam (PW2) and Munusamy (PW3) and at that time it was about 8.30 during night time and before their Auto, the Appellant/Accused and another person were walking and at that time, the driver of the Auto sounded horn so that the said persons would move aside and for that they stopped the Auto and they asked as to who was sounding the horn and also asked the persons to get down from the Auto and raised noise by uttering filthy language and also they beat the driver and tore his shirt. When they asked him as to why the Appellant/Accused was beating the driver and when they also informed him that they were returning after finishing their work, at that time, the Appellant/Accused caught hold of Murugan's (PW1) shirt and took cell phone (with camera facility) and a sum of Rs.5,000/-from pocket. Further the Appellant/Accused also beat Arumugam (PW2) who was with PW1 and also took his sum of Rs.3,500/- and also broke the front Glass of the Auto. Later, when Muthu (PW5) and Mani (PW6) who came that way asked the Appellant/Accused as to why he was doing like that at that time, he scolded them. Subsequently Murugan (PW1) along with Munusamy (PW3), Arumugam (PW2), Mani (PW6), Muthu (PW5), Senthil Kumar (PW4) went to Hospital for treatment and when they were at the Hospital the Inspector of Police came there and Murugan (PW1) gave a statement as to the happening of the occurrence to him and after reading the same they had affixed the signature and the complaint was Ex.P1. 14. PW2, Arumugam, in his evidence had deposed that on 23.03.2008 he returned from Noolahalli, by boarding a bus, after finishing his work and came to Dharmapuri and also by boarding another bus came to Nallampalli and from Nallampalli he took an Auto and he along with Murugan (PW1) and Munusamy (PW3) travelled in the said Auto and when the Auto was proceeding at Nallampalli during night time, the Appellant/Accused Kamalakannan waylaid the Auto and scolded them in no uncertain words and also caught hold of the driver of the Auto and beat him, besides beating Murugan (PW1). Further, the Appellant/Accused took the cell phone and the money and when PW2 (Arumugam), got down from the Auto and when he questioned the act of the Appellant, the Appellant also beat him and took a sum of Rs.3,500/- from PW2's shirt and later the police from Adhiyamankottai came there and for receiving treatment in regard to the injuries sustained by them PW2, along with Munusamy (PW3), Murugan (PW1), went to Dharmapuri Government Hospital, where Murugan (PW1) gave a complaint and when he was under treatment, the police enquired him. 15. 15. PW3 (Munusamy), in his evidence also had inter alia deposed that when they came to Nallampalli at about 8.00 pm in the night they boarded a Auto to reach Northamppati along with one Munusamy (PW3) and Senthil Kumar (PW4) and travelled in the Auto and at that time, two fully drunk persons came at the Colony Road and out of the said two persons one was in peaceful condition and another person raised a noise by asking the Auto to stop and also he tore the Auto driver's shirt and also broke the front Glass of the Auto and further gave two blows to the driver of the Auto and gagged his voice box(Fuy; tis). At that time, Murugan (PW1) asked the Appellant as to why he was doing like that and at that time, the Appellant torn his left side shirt and took a cell phone and a sum of Rs.5,000/-and at that time behind the Auto, Bus No.2 came and the person who got down from the bus, who belong to their village asked them as to what had happened and at that time they informed that their cell phone and money were stolen and also he along with Murugan (PW1), Arumugam (PW2), Auto driver Senthil Kumar (PW4), Muthu, (PW5) and Mani (PW6), six in numbers went to the Dharmapuri Government Hospital, where the police enquired him and others. 16. It is the evidence of PW4 (Senthil Kumar, driver of the Auto) that on 23.03.2008 at about 8.30pm, in the night Munusamy (PW3), Arumugam (PW2) and Murugan (PW1) hired his Auto for rent to proceed to Laligam and the agreed rent was at Rs.30/-and when he was driving the Auto and after going past Nallampalli school on the bus stop side two persons were walking down on the right side and he sounded horn and the said persons spoke in an indecent / vulgar language and asked them to stop the vehicle and they broke the front Glass of his Auto with stones, etc. 17. 17. Further, it is the evidence of PW4 (Senthil Kumar) that they caught hold of his shirt and tore the same and also beat him, punched him on the left side of the chest and the Appellant/Accused beat the persons who are all in the Auto and also took money and they informed that their money and cell phone were stolen and it was only the Appellant/Accused, who damaged his Auto and he was also beaten by the Appellant/Accused and the injured six persons later went to the Hospital and further even when the person who came that way questioned the Appellant/Accused and the Appellant/Accused beat him also and the complaint was lodged by Murugan (PW1) and also he was examined by the police. 18. It is to be borne in mind that PW7, Doctor in his evidence had clearly deposed that on 23.03.2008, when he was on duty, at the Dharmapuri Government Hospital, at about 12.05 hours during night time, Murugan (PW1), S/o. Perumal came to him for treatment, and informed that he was beaten with hands by a known person at Nallampalli during 7.00 pm in the night and he examined him and that the injured complained of pain on the left chest. Further, on examination he found an abrasion measuring 3 cm x 1 cm at right ankle and he gave Ex.P2, Accident Register copy wherein he had mentioned that the injuries 1 and 2 were of simple in nature. Further, it is the evidence of PW7, Doctor, that the 2nd injury could be caused if a person was attacked by Hand and also when he was pushed down. 19. In short, PW7 had examined, Arumugam (PW2), Muthu (PW5), Munusamy (PW3), Senthil Kumar (PW4) and Mani (PW6) and issued Exs.P2 to P7 and the Outpatient Slip and the Police Intimation was Ex.P8. 20. PW12 (The Sub Inspector of Police, Adhiyamankottai Police Station), in his evidence had deposed that based on the intimation he received from the Dharmapuri Government Hospital on 23.03.2008, he enquired Murugan (PW1), who was under treatment and recorded his statement and also prepared a First Information Report in P.S.Cr.No.325/08 under Sections 294(b), 323, 373 IPC and under Section 3 of Tamil Nadu Public Properties (Damages and Loss) Act. Ex.P13 was the printed FIR and the original and copies of the same were sent to the concerned officers by PW12. 21. Ex.P13 was the printed FIR and the original and copies of the same were sent to the concerned officers by PW12. 21. PW13, Inspector of Police, Adhiyamankottai Police Station, took up the case for further investigation and accordingly inspected the place of occurrence, prepared Ex.P9, Observation Mahazar, Rough Sketch, Ex.P14 and M.O.1, seized Glass pieces (which was lying in front of the Auto at the scene of occurrence) and also seized stone (M.O.2), wooden log (M.O.3) and further examined PW1 to PW6, individually, who were receiving treatment at Dharmapuri Government Hospital and ultimately after completion of investigation laid the charge sheet against the Accused. 22. As far as the present case is concerned one cannot ignore an important fact that to substantiate the evidence of PW3 (Munusamy), the evidence of PW5 and PW6 lend credence and in fact when PW5 and PW6 at that time came in a bus and they got down from the bus, after seeing the Auto and the crowd and that the Appellant/Accused beat with his hands and also damaged the Auto with a stone and broke the front Glass of the Auto and the said Glass piece fell on PW5 (who is also injured) and he was admitted into the Government Hospital. To put it precisely the evidence of PW5 and PW6 corroborate the version of PW1 to PW3 about the manner / happening of occurrence and the beating of the Appellant/Accused. 23. PW6, also went to the Hospital and took treatment. In fact, PW1 to PW6 had sustained injuries in the occurrence and they had taken treatment. The evidence of PW7, Doctor was in quite in consonance with the evidence tendered by PW1 to PW6. 24. The Appellant/Accused waylaid the Auto which was coming behind and he caught hold of the shirt of the Auto driver and broke the Glasses of the Auto and when it was questioned by PW1 to PW3 he beat those witnesses and injured them as a result of which the charges levelled against the Appellant/Accused in respect of an offence under Sections 341, 323 (3 counts), 324 (3) of IPC, were proved beyond all reasonable doubt in the considered opinion of this Court. Furthermore, based on the request given by the Inspector of Police, on 2.4.2008, PW11, Motor Vehicle Inspector had given a report in regard to the loss sustained and also the owner of the Auto Company had also given a report about the damages in the present case. 25. However, in view of the fact that the Auto which was damaged belong to the private individual the charge in respect of an offence under Section 3 of Tamil Nadu Public Properties (Damages and Loss) Act, was not attracted, in the considered opinion of this Court. Resultantly, the said charge was not proved by the prosecution in respect of the Appellant/Accused. 26. In view of the foregoing detailed discussions and on an appreciation of entire oral and documentary evidence available on record, this Court unhesitatingly holds that the Appellant/Accused was rightly found guilty in respect of the offences under Sections 341, 323 (3 counts) and 324 (3 counts) of IPC. Also, this Court in the light of facts and circumstances of the present case holds the Appellant/Accused, guilty in respect of an offence under Section 294(b) of IPC. 27. However, in regard to the quantum of punishment awarded to the Appellant/Accused in respect of an offence under Section 341 of the IPC, this Court, is in complete agreement with the imposition of punishment of one month imprisonment and a fine of Rs.100/-, in default of payment of fine, he was directed to undergo further imprisonment of one week. 28. In regard to the proved offence in respect of Section 294 (b) of IPC, the Appellant/Accused is imposed with a punishment of one month simple imprisonment by this Court. 29. However, in respect of an offence under Section 323 (3 counts) of IPC, this Court comes to an inevitable conclusion that the ends of justice would be met that if the Appellant/Accused, in respect of each count is awarded with a punishment of one month (for each count) (instead of three months imprisonment awarded on each count) and imposes the same. However, in respect of the imposition of fine of Rs.250/-each count, imposed by the trial Court to the Appellant/Accused in the interest of justice, was not interfered by this court. However, in respect of the imposition of fine of Rs.250/-each count, imposed by the trial Court to the Appellant/Accused in the interest of justice, was not interfered by this court. Also, the default sentence in regard to the payment of fine of Rs.250/-each count, the punishment of two weeks imprisonment awarded by the trial Court, in the considered opinion of this Court, does not require any interference. 30. However, in respect of offence under Section 324 (3 counts) of IPC, this Court in the interest of justice, is of the considered view that the imposition of the punishment of three months imprisonment for each count (instead of six months imprisonment awarded on each count) would suffice and accordingly, impose the same to prevent an aberration of justice. In regard to the imposition of fine of Rs.400/- each count and in default of payment of said fine the imposition of further one month imprisonment is left undisturbed by this Court. Further, this Court orders that the sentences of imprisonment awarded to the Appellant/Accused, to run concurrently. 31. In the result, the Criminal Appeal is partly allowed, in above terms.