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2022 DIGILAW 3236 (MAD)

M. Rajeshkumar v. Inspector of Police, Tiruvallur

2022-09-09

D.BHARATHA CHAKRAVARTHY

body2022
JUDGMENT (Prayer: Criminal Revision Case filed under Section 397 and 401 of The Code of Criminal Procedure, 1973, against the judgment of the I Addl. District and Sessions Judge at Tiruvallur made in C.A.No.73 of 2019, dated 03.03.2021 confirming the conviction and sentence imposed by the learned Judicial Magistrate, Tiruttani in C.C.No.319 of 2009, dated 20.05.2019 in convicting the petitioner herein for the offence under Section 341, 323, 325 and 506 (2) of IPC and convicted and sentenced to undergo one month Simple Imprisonment and pay a fine of Rs.500/- in default one week Simple Imprisonment for one week u/s 341 IPC, one year Simple Imprisonment and to pay a fine of Rs.1000/- in default undergo three weeks Simple Imprisonment for the offence u/s 323 IPC, two years Simple Imprisonment and to pay a fine of Rs.5000/- in default one month Simple Imprisonment for the offence u/s 325 IPC, 2 years Simple Imprisonment and to pay a fine of Rs.5000/- in default one month Simple Imprisonment for the offence u/s 506(2) IPC, and sentences were ordered to run concurrently as per Section 248(2) Cr.P.C.) 1.On 14.04.2007, when P.W.11, Ravanan was on duty at the Tiruttani Police Station, an incident happened within the Police Station itself, in which, P.W.2, Ramesh lodged a complaint to the effect that P.W.2 is a constable. He fell in love with another Constable, namely Kokila and both of them were married. While so, the accused M.Rajesh Kumar, who is also a Constable, confronted him, accosted him stating that when already he and the said Kokila were in a relationship, how dare he got married to the said Kokila. He started sending abusive messages. While so, on 14.04.2007, when he was proceeding in his father's Car, the said accused waylaid him and thrashed him on the face, confronting him how dare he could still have  contacts with the said Kokila. He, therefore, ran inside the Police Station. There also, the first accused Rajesh Kumar and the second and third accused, being his mother and sister, followed him and hit him with a cricket bat and iron rod inside the Police Station itself, which is witnessed by the Police personnel present in the station and hence the complaint. 2. He, therefore, ran inside the Police Station. There also, the first accused Rajesh Kumar and the second and third accused, being his mother and sister, followed him and hit him with a cricket bat and iron rod inside the Police Station itself, which is witnessed by the Police personnel present in the station and hence the complaint. 2. On the strength of the said allegations, a case in Cr.No.132 of 2007 for the offences under Sections 341, 294B, 324 and 506(ii) of the Indian Penal Code, was registered and P.W.12 completed the investigation and laid a Final Report proposing the accused guilty for the offences under Sections 341, 294B, 323, 325 and 506(ii) of the Indian Penal Code. The case was taken on file as C.C.No.319 of 2009 by the learned Judicial Magistrate, Tiruttani and upon appearance of the accused and furnishing of copies under Section 207 of the Code of Criminal Procedure, the accused denied committing the offences and stood trial. In order to bring home the charges on behalf of the prosecution, P.Ws.1 to 12 were examined and Exs.P-1 to P-11 were marked and the old cricket bat was produced as M.O.1. Upon being questioned about the material evidence and incriminating circumstances, the accused denied the same as false. Thereafter, no evidence was let in on behalf of the defence. 3. The learned Judicial Magistrate, Tiruttani proceeded to hear the learned Assistant Public Prosecutor and the learned Counsel on behalf of the accused and by a judgment, dated 20.05.2019, acquitted the accused Nos.2 and 3. The accused No.1 was found guilty of the offence under Section 341 of the Indian Penal Code and was imposed with a sentence of Simple Imprisonment of one month and a fine of Rs.500/- and in default of payment of fine, to undergo Simple Imprisonment for one more week. The accused No.1 was also found guilty for the offence under Section 323 of the Indian Penal Code and was imposed with a sentence of Simple Imprisonment for a period of one year and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo three weeks Simple Imprisonment. The accused No.1 was also found guilty for the offence under Section 323 of the Indian Penal Code and was imposed with a sentence of Simple Imprisonment for a period of one year and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo three weeks Simple Imprisonment. The first accused was also found guilty of the offence under Section 325 of the Indian Penal Code and was imposed with a punishment of two years Simple Imprisonment and a fine of Rs.5,000/- and in default of payment of fine, to undergo one month Simple Imprisonment. The first accused was also found guilty of the offence under Section 506(ii) of the Indian Penal Code and was imposed with a sentence of two years Simple Imprisonment and a fine of Rs.5,000/- and in default, to undergo one month Simple Imprisonment. 4. Aggrieved by the same, the accused No.1 filed Crl.A.No.73 of 2019 and the learned I Additional District and Sessions Judge, Tiruvallur, by a judgment, dated 03.03.2021, after appreciating the evidence on record, dismissed the appeal and confirmed the conviction and sentence imposed on the accused. Aggrieved by the same, the present Revision Case is filed before this Court. 5. Heard Mr.C.D.Johnson, learned Counsel appearing on behalf of the petitioner, Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) appearing on behalf of the prosecution and Mr.N.Manoharan, learned Counsel for the intervenor/de-facto complainant. 6. Mr.C.D.Johnson, learned Counsel appearing for the petitioner, taking this Court through the evidence on record, would submit that in this case, there is a case and counter. While it is the allegation of P.W.2 that the petitioner had waylaid him and attacked him, the fact remains that P.W.2 only came to the house of the petitioner/accused and hit him and also his mother in his house and therefore, he had also given a complaint in Cr.No.133 of 2017. In respect of the case and counter, the respondent Police ought to have seen that it is only P.W.2, who is the aggressor and therefore, the very action of the respondent in filing the separate Final Report that too holding the petitioner, his mother and sister guilty is inherently illegal. In respect of the case and counter, the respondent Police ought to have seen that it is only P.W.2, who is the aggressor and therefore, the very action of the respondent in filing the separate Final Report that too holding the petitioner, his mother and sister guilty is inherently illegal. He would further submit that the entire evidence of P.W.1, being the Constable in duty, who was the eye witness, P.W.2, the defacto complainant and P.W.4, Narasimhan are at variance with each other and therefore, the said contradictions themselves make the case of the prosecution doubtful. He would submit that the very motive alleged by the prosecution cannot be true because the said Kokila herself gave a complaint against P.W.2 alleging rape. Therefore, the statement that P.W.2 and the said Kokila got married cannot be true. In any event, he would submit that the accused ought to have been convicted under Sections 334, 335 of the Indian Penal Code and not under Section 323 and 325 of the Indian Penal Code. 7. Per contra, Mr.S.Vinoth Kumar, the learned Government Advocate (Crl. Side) would submit that this is a case in which the occurrence happened in the Police Station. P.W.1 was a Constable and was an eyewitness to the occurrence. P.W.2, the de-facto complainant/injured eye witness has spoken about the incident. P.W.4, the Sub-Inspector of Police has spoken about the incident. P.W.9, the Inspector of Police, All Women Police Station, Avadi has also witnessed and spoken about the incident. P.W.2 suffered grievous injury. The Doctors, who issued A.R copy, who treated P.W.2 for fracture in his arm, were all examined as P.Ws.6 to 8 and 10. The wound certificate, discharge summary are duly marked. Therefore, this is a case where the petitioner and P.W.2 were fellow Police Constables, developed enmity over the relationship with yet another woman Constable, by name Kokila and because of the enmity, the petitioner/accused went to the extent of hitting the de-facto complainant, P.W.2 in the Police Station itself and in fact, all the other witnesses had to prevent him, separate him and lock him inside the lock room and otherwise, the incident could have led to even more serious offence. Therefore, he would submit that all the offences, as convicted by the Trial Court, are proved beyond the reasonable doubt and does not call for any interference. 8. Therefore, he would submit that all the offences, as convicted by the Trial Court, are proved beyond the reasonable doubt and does not call for any interference. 8. Mr.N.Manoharan, the learned Counsel appearing on behalf of the intervenor/de-facto complainant would submit that in this case, the said Kokila is the wife of P.W.2 and in fact, P.W.2 had divorced her by duly filing petition before the Court. Even though she had given a rape complaint, P.W.2 was acquitted of the same. He would submit that as a matter of fact, it is only the handy work of the petitioner/accused, misleading the said Kokila, to give such a complaint and also interfering in their marital life and sending unwarranted messages and therefore, because of the enmity and unable to bear the fact that the said Kokila married P.W.2, the petitioner attacked him brutally and therefore, would submit that this case does not call for any interference by this Court. The learned Counsel would rely upon the judgment of the Hon'ble Supreme Court of India in Sahabuddin and Anr. Vs. State of Assam (2012) 13 SCC 213 , more specifically relying upon the paragraph No.21 to contend that the every variation or immaterial contradiction cannot provide advantage to the accused. He would further rely upon the judgment of the Hon'ble Supreme Court of India in State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri (1999) 2 SCC 452 , more-fully relying upon the paragraph No.5 that the scope of revisional jurisdiction lies in a narrow compass and unless and otherwise there is gross miscarriage of justice, the High Court cannot re-appreciate the evidence and arrive its own finding. For the same proposition, the learned Counsel relied upon the judgment of the Hon'ble Supreme Court of India in State represented by the Drugs Inspector Vs. Manimaran(2019) 13 SCC 670, more specifically the paragraph No.16 of the said judgment. 9. I have considered the rival submissions made on behalf of either side and perused the material records of this case. For the same proposition, the learned Counsel relied upon the judgment of the Hon'ble Supreme Court of India in State represented by the Drugs Inspector Vs. Manimaran(2019) 13 SCC 670, more specifically the paragraph No.16 of the said judgment. 9. I have considered the rival submissions made on behalf of either side and perused the material records of this case. In this case, on a perusal of the First Information Reports in Cr.No.132 of 2017 and Cr.No.133 of 2017, whether the Constable, by name Kokila, was living peacefully with the de-facto complainant/P.W.2 and was interfered by the petitioner/accused in their marital life or whether the said Kokila suffered in the hands of P.W.2 and being a co-employee, the petitioner/accused genuinely intended to help or whether he had developed any relationship with the said Kokila is in dispute. The prosecution has failed to examined the said Kokila as a witness in this case and therefore, any categorical finding regarding the same could not be arrived at. But, however, from the evidence of P.W.2, it can be safely assumed that there is enmity whether at the instance of P.W.2 himself developing grudge or whether the petitioner/accused unnecessarily interfering in the marital life. On account of the said enmity, according to the present complaint and version of the P.W.2, he was waylaid and attacked in the road and thereafter when he proceeded to the Police Station, there also he was attacked. 10. According to the F.I.R in Cr.No.133 of 2017, P.W.2 had actually gone to the house of the petitioner/accused and there arose a quarrel in which P.W.2 is said to have attacked the mother of the petitioner/accused also. Be that as it may, in the said complaint, given by the petitioner/accused himself, it is clearly mentioned that thereafter, when the petitioner/accused saw P.W.2 in the Police Station, provoked by the fact that he hit his mother, he attacked him with the cricket bat. Therefore, the incident at the Police Station is admitted in the other complaint also, besides the fact as to the petitioner attacking P.W.2 is witnessed by P.W.1, P.W.4 and P.W.9, who are the Police officials, who are on duty at the Police Station and therefore proven to the hilt by the prosecution. 11. Therefore, the incident at the Police Station is admitted in the other complaint also, besides the fact as to the petitioner attacking P.W.2 is witnessed by P.W.1, P.W.4 and P.W.9, who are the Police officials, who are on duty at the Police Station and therefore proven to the hilt by the prosecution. 11. As far as the contention that the case and counter has to be dealt with by simultaneous investigation is concerned, it is seen that both the incidents cannot be said to have happened continuously and there is a time gap. After the first incident at the house of the petitioner/accused, when P.W.2 had come to the Police Station, the petitioner/accused followed him and there, the present incident happened and therefore, it cannot be said that both the incidents happened in the same course of events/transactions and thus, the filing of separate final reports, in respect of each of the incidents, cannot be said to be fatal. Neither the aggressor-defender theory can be brought into play on the facts of this case. Therefore, the contention of the learned Counsel for the petitioner does not deserve acceptance. As rightly pointed out by the learned Government Advocate (Crl. Side) appearing on behalf of the prosecution, the contradictions are only minor in nature and the learned Counsel for the petitioner is unable to point out any material contradiction between the eye witnesses so as to disbelieve the entire occurrence. 12. As far as the injury is concerned, the medical opinion corroborates the prosecution case that the injury could have been by hitting by the M.O.1 and the mere suggestion that it could have happened by P.W.2 falling down during the scuffle by itself will not in any manner prove the said theory of the said defence. Therefore, the prosecution has proved that upon sudden provocation in an uncontrollable anger, the petitioner/accused had attacked P.W.2. 13. As rightly pointed out by the learned Counsel for the petitioner/accused, on a cumulative and complete reading of the evidence of P.Ws.9 and 4, it would be clear that only upon uncontrollable provocation, without any thinking or knowledge of the nature of his act, the petitioner/accused has caused grievous hurt and therefore, the conviction of the petitioner/accused under Section 325 of the Indian Penal Code is modified as to one under Section 335 of the Indian Penal Code. Similarly the conviction under Section 323 is modified as one under Section 334 of Indian Penal Code. Apart from the above, the conviction for the offences under Sections 341 and 506(ii) of the Indian Penal Code shall stand. 14. Now, coming to the question of sentence, it is seen that both the petitioner/accused and P.W.2 are Constables working together. The said Kokila, the woman Constable was also working along with them. Both of them wanted to get married with the said Kokila. Sadly, even though P.W.2 and Kokila got married, after the marriage, she has given a complaint and forcible intercourse against P.W.2. Ultimately, P.W.2 also divorced the said Kokila and all the three persons have since moved on in their respective lives and got married to third parties and are living separately. But, however, the rivalry between both the petitioner/accused and P.W.2 has not died down. The trial in the other case, arising out the Cr.No.133 of 2017, is also in progress. Considering the overall facts and circumstances of this case and the age of the accused and the background of the parties, I am of the view that interest of justice would be made if the petitioner is sentenced to undergo a maximum imprisonment for a period of three months. 15. Considering the overall facts and circumstances of this case and the age of the accused and the background of the parties, I am of the view that interest of justice would be made if the petitioner is sentenced to undergo a maximum imprisonment for a period of three months. 15. Accordingly, this Criminal Revision Case is partly allowed on the following terms:- (i) The conviction and sentence of the petitioner for the offence under Section 341 of the Indian Penal Code is confirmed and sentence that the accused shall undergo one month Simple Imprisonment and pay a fine of Rs.500/- is confirmed; (ii) The conviction of the accused under Section 323 of the Indian Penal Code is modified as Section 334 of the Indian Penal Code and the accused is sentenced to undergo one month Simple Imprisonment and to pay a fine of Rs.500/-; (iii) The conviction of the accused under Section 325 of the Indian Penal Code is modified as to one under Section 335 of the Indian Penal Code and the petitioner/accused is sentenced to undergo three months Simple Imprisonment and to pay a fine of Rs.5,000/-; (iv) The conviction of the accused under Section 506(ii) of the Indian Penal Code is confirmed and the accused is sentenced to undergo two months Simple Imprisonment and pay a fine of Rs.5,000/-; (v) The accused is entitled to adjust the fine amount already paid by him; (vi) The sentence shall run concurrently and the accused is entitled to set off the period of imprisonment, if any, undergone already.