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2022 DIGILAW 3334 (MAD)

Vadivel v. State Rep. Inspector of Police, Salem

2022-09-15

SUNDER MOHAN

body2022
JUDGMENT (Prayer: Criminal Revision petition filed under Sections 397 and 401 Criminal Procedure Code, to call for the records on the file of the Learned III Additional Sessions Judge, Salem District in Crl.A.No.42 of 2017 by judgement dated 24.08.2017 and confirming the Judgement and sentence passed by the learned Judicial Magistrate No.I, Attur, Salem District in C.C.No.42 of 2007 dated 24.03.2017 and set aside the judgement dated 24.08.2017.) 1. The Petitioner has preferred the above Revision, challenging the judgement passed in Crl.A.No.42 of 2017 on the file of the learned III Additional Sessions Judge, Salem, Salem District, confirming the Judgement passed in C.C.No.42 of 2007 on the file of learned Judicial Magistrate No.1 Attur, Salem District. 2. The Petitioner was charged for the Offences under Sections 294(b) and 325 IPC. The Trial Court convicted and sentenced the Petitioner for the following offences:- (a) Section 325 IPC - Sentenced to one year R.I and pay a fine of Rs.1000/- (Rupees One Thousand only) and in default to suffer one month S.I. (b) Section 294 (b) IPC - Sentenced to three months R.I and to pay a fine of Rs.500/- (Rupees Five Hundred only) and in default to suffer one month S.I. 3. On Appeal, the Appellate Court confirmed the conviction and sentence imposed on the Petitioner. 4. The case of the prosecution is that on 26.08.2006 at about 6:00 P.M, P.W.1 and P.W.2 were standing in front of Kalpaganoore Pallakadu Mariyamman Temple. The Petitioner and another person put up a thatched shed in a common public place. When P.W.1 and P.W.2 questioned them the Petitioner and another person attacked P.W.1 and P.W.2 with wooden sticks and caused injuries to both P.W.1 and P.W.2. The Petitioner is alleged to have bitten P.W.2’s left side ear and caused grievous injuries. Based on the statement of P.W.2, the Respondent registered the case and filed Final Report against the accused persons. 5. The Prosecution had examined 11 witnesses and marked 9 exhibits on his side. P.W.1 and P.W.2 were injured witnesses. P.W.3 to P.W.5 are the other eye witnesses to the occurrence. P.W.6 speaks about the motive. P.W.7 and P.W.8 are the observation Mahazar witnesses. P.W.9 speaks about the motive. P.W.10 is a Doctor who treated the injured witnesses P.W.1 and P.W.2. P.W.11 is the Investigating Officer. 6. Heard Mr.E.Kannadasan, learned counsel for the Petitioner and Mr.S.Balaji, learned Government Advocate (Crl. Side) for the Respondent. P.W.6 speaks about the motive. P.W.7 and P.W.8 are the observation Mahazar witnesses. P.W.9 speaks about the motive. P.W.10 is a Doctor who treated the injured witnesses P.W.1 and P.W.2. P.W.11 is the Investigating Officer. 6. Heard Mr.E.Kannadasan, learned counsel for the Petitioner and Mr.S.Balaji, learned Government Advocate (Crl. Side) for the Respondent. 7. The learned counsel for the Petitioner would submit that the prosecution has suppressed the manner in which the occurrence took place and in such circumstances, it is a highly unsafe to rely upon the evidence of witnesses. The learned counsel would submit that both P.W.1 and P.W.2 had stated before the Doctor, (P.W.10) that they were attacked by five persons. However, the charge sheet was filed only as against the Petitioner and the other accused (A2) viz. Pichamuthu. The Petitioner and the other accused were injured in the occurrence and the prosecution has not explained the injuries of the accused. The Investigation Officer had admitted in his evidence that both the Petitioner and the other accused were treated as inpatients for the injuries suffered by them. These aspects have been ignored by the Courts below. Further, the learned counsel submitted that P.W.1 has admitted in his cross examination that he came to know from his brother, P.W.2 that he was bitten by the Petitioner. His evidence is hearsay. The learned counsel therefore submitted that P.W.2 cannot be relied upon. The learned counsel further submitted that there were alterations in the Penal Provisions and time in the FIR. 8. The learned Government Advocate (Crl.Side) submitted that the evidence of P.W.1 to P.W.5 are very clear and the Petitioner has not made out any ground for interference in the Revision. The learned Government Advocate submitted that the scope of Revision is limited and this Court cannot reappreciate the evidence and facts in a Revision. 9. I find from the evidence that both the injured witnesses namely P.W.1 and P.W.2 have informed the Doctor who treated them that they were attacked by five known persons. However, in the FIR and in the subsequent versions, allegations have been made only as against the Petitioner and another who faced the Trial. The Charge Sheet also named only the Petitioner and one Pichamuthu (A2). Therefore, the FIR and the subsequent versions of P.W.1 and P.W.2 are contrary to the statement made before the Doctor at the earliest point of time. The Charge Sheet also named only the Petitioner and one Pichamuthu (A2). Therefore, the FIR and the subsequent versions of P.W.1 and P.W.2 are contrary to the statement made before the Doctor at the earliest point of time. There is no explanation from the prosecution as to how the number of persons who attacked the victim got reduced from five to two in the subsequent versions. 10. Further, I find that the Investigating Officer had admitted that the accused suffered injuries and they were treated as inpatients in the Hospital. He further admits that though he ascertained the nature of injuries caused to the petitioner, he had not recorded it in the case dairy nor placed it before the Court. The relevant portions of the evidence of Investigating Officer (P.W.11) is extracted hereunder for better understanding:- “IMAGE” The above evidence would make it clear that the prosecution has not explained the injuries on the accused. 11. The fact that originally the witnesses stated that five people attacked them and thereafter changed their version and stated that only the Petitioner and the said Pichamuthu attacked them and that the Petitioner's injuries have not been explained and has been suppressed by the prosecution, throws a serious doubt on the prosecution case. The manner in which the occurrence took place as projected by the prosecution is highly doubtful. 12. Further, I find that P.W.2, who had lodged the FIR has stated that the Police came to the scene of occurence immediately after the occurrence. Whereas, the version of the Investigating Officer is that he received information from the Hospital and thereafter, recorded the statement of P.W.2 at the Hospital at 9.30 P.M on 26.08.2006. The above fact also throws a serious doubt about the truth of the prosecution case. It is well settled if there is a doubt with regard to the manner in which the FIR was registered the entire fabric of the prosecution case would collapse. The Apex Court in Marudanal Augusti vs. State of Keralareported in (1980) 4 SCC 425 held as follows. “... The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check authenticity of their evidence...” 13. “... The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the FIR is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check authenticity of their evidence...” 13. Thus, I find that the above vital aspects have not been duly considered by the Courts below. The Prosecution case with regard to the manner in which the occurrence took place is highly doubtful. Therefore, the findings of the Courts below are liable to be set aside. 14. Hence, the judgement of learned III Additional Sessions Judge, Salem passed in Crl.A.No.42 of 2017 dated 24.08.2017 confirming the conviction and sentence passed by the Trial Court is set aside. The Criminal Revision Petition is allowed. The Petitioner is set at liberty. The bail bond if any executed by the Petitioner is cancelled.