This Criminal Revision is directed against the judgment passed by the I Additional Sessions Judge, Tirunelveli, in Crl.A.No. 133 of 2007, dated 16.09.2009, confirming the judgment of the Judicial Magistrate, Tenkasi, in C.C.No.119 of 2005, dated 03.07.2007.
2.The case of the prosecution that the accused and PW1 belongs to same village and due to wordy altercation during Amman Kovil Festival, on 09.10.2004 while PW1 after finishing his work, he along with PW2 proceeding in their bye-cycle, the accused came with aruval and waylaid PW1/de-facto complainant and attacked with aruval and caused injuries all over the body, while PW2 also sustained injury in his left ear.
3.In the trial court, 12 witnesses were examined and 7 Exhibits and one material object were marked. When the accused was questioned about the incriminating circumstances, he denied the same. The trial court convicted the revision petitioner and sentenced him to under RI for one year and imposed a fine of Rs. 1,000/-, in default to suffer 3 months of SI for the offence under http://www.judis.nic.in 3
Section 343 IPC and to undergo 3 months of SI for the offence under
Section 326 IPC. Aggrieved by the judgment passed by the trial court, the revision petitioners/accused filed an appeal in C.A.No.133 of 2007, which was heard by the I Additional Sessions Judge, Tirunelveli. The first appellate Court confirmed the findings of the trial court. Hence, the criminal revision.
4.The learned counsel for the revision petitioner/accused submitted that there are material contradictions and inconsistencies in the prosecution witness and the courts below failed to note that PW1, PW6 and PW7 are highly interested witnesses and their evidence also are not cogent and trustworthy and the courts below failed to consider the fact that PW2 states in his evidence that the revision petitioner has sustained injury at the hands of PW1 on the very same occurrence and further admitted that the revision petitioner also went to the respondent police station and gave a complaint against PW1 and the petitioner was sent to the Hospital by the respondent police, but nothing had spoken on the side of the prosecution in respect of the petitioner's injuries and that the courts below failed to consider the injuries sustained by the revision petitioner and also suppressed the same http://www.judis.nic.in 4 by the prosecution; the courts below failed to consider the fact that PW6 and PW7 categorically admitted in their evidence that in their presence the bicycles, bloodstained earth have been recovered by PW11 and further PW6 admitted that he has signed in the Athachi also, but nothing has been marked before the trial court, which is fatal to the prosecution and the prosecution has failed to constitute the offence alleged against the revision petitioners and the prosecution has failed to prove the case beyond reasonable doubt and the accused are entitled to acquittal and prays that the criminal revision may be allowed.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that both the courts below appreciated the evidence in a proper manner and believed the evidence of the eye witnesses and having regard to the nature of the offences, convicted the revision petitioner, which does not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal revision may be dismissed.
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6.Heard both sides and perused the materials available on record.
7.PW1 is the complainant and he gave Ex.P1 Complaint. PW1 in his complaint stated that on 05.10.2004, temple festival was conducted, at that time, quarrel arose between him and the accused and due to it, on 09.10.2004, when he was proceeding from his house to the Rice Mill, in which he was working and the accused came with aruval from his house and used absence words and caused injury with aruval on his left forearm and then, he caused injury on several parts of his left hand with aruval and further, he caused injury on his thigh and left side of his leg with aruval and when his Co-employee Bala Murugan came in order to save him, at that time, the accused said vg;goy gpof;f tuyhk; and attacked Bala Murugan with aruval and due to it, he sustained injury on his left ear and Murugan and Ganeshan came to the place of occurrence and they shouted, then the accused ran away and then, he went to the police station and gave Ex.P1 Complaint.
8.PW1 in his evidence stated that on 05.10.2004, temple festival was conducted, at that time, quarrel arose between him and http://www.judis.nic.in 6 the accused and on 09.10.2004, while he was proceeding from his house to the Rice Mill where he was working and when he crossed the house of the accused, at that time, the accused came with aruval and used obscene words and attempted to cause injury towards his neck and it was resisted by him, but the aruval caused injury on the left forearm, left wrist, left thigh and left side of her back and one Bala Murugan attempted to catch the accused, the accused said that “eP vg;goy gpof;f tuyhk;” and caused injury on his left ear with aruval and the accused threatened him and then, he Bala Murugan and Essaki Muthu went to the police station and gave Ex.P1 complaint and hence, PW1's evidence is corroborated with the contents found in Ex.P1.
9.PW2 is the injured. PW2 stated during his evidence that on 09.10.2004, he and PW1 proceeded in bicycles to the Rice Mill where they are working and when they were crossing the house of the accused, at that time, the accused with aruval came and caused injury on the left hand back side, left thigh and then, he attempted to catch the accused and at that time, the accused caused injury with aruval on his left ear and the accused threatened him and PW1 and the occurrence was witnessed by Selvam, Murugan and he http://www.judis.nic.in 7 along with PW1 went to the police station and gave Ex.P1 complaint. But PW2 during his cross examination stated that wordy quarrel arose between the accused and PW1 and at that time, PW1 and the accused had aruval and there was altercation between them and due to it, both of them sustained injuries and when he tried to resist it, the aruval in the hand of PW1 caused injury on his ear and then, PW1 went to the police station and gave Ex.P1 complaint.
10.PW2 was examined in chief on 01.09.2006, however, he was cross examined on 09.10.2006. When the occurrence as stated by PW2 in cross examination, really happened he would definitely state the occurrence during his cross examination. But PW2 has not stated the occurrence as stated in his cross examination. But he has categorically stated during his chief examination that only the accused alone attacked PW1 and caused injury and when he tried to resist it, the accused also caused injury on his left ear. Hence, in order to safe guard the accused, during the cross examination, PW2 stated different story. Hence, the version stated by PW2 is only an after-thought and hence, the version stated by PW2 in the cross examination is not at all acceptable. Hence, it is http://www.judis.nic.in 8 held that the PW2's chief examination is corroborated with the evidence of PW1.
11.PW6 and PW7 are cited as eye witnesses. They have stated during their evidence that on 05.10.2004, quarrel arose between PW1 and the accused during the temple festival and due to it, on 09.10.2007, the accused came with aruval and caused injury on the left hand, left thigh and back side of PW1 in front of his house and then, PW1 went to the police station and gave the complaint.
12.The Doctor, who gave treatment to PW1 and PW2 was examined as PW9. PW9 stated during his evidence that on 09.10.2004, PW1 and PW2 came and PW1 told him that he was assaulted by a known person with aruval in Santhana Mariamman Kovil Street and he found 10 cut injuries over several parts of the body of PW1 more particularly on his left hand, thigh and on his back and certified injuries 1 to 4 are severe in nature and 5 to 10 are simple in nature. PW1 also deposed that due to assault by the accused, he sustained injuries on his left hand, thigh and on his back side. Hence, the evidence of PW9 is corroborated with the evidence of PW1 and PW2.
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13.The learned counsel for the revision petitioner/accused argued that the prosecution has not put forth the real facts before the trial court and it was clearly established in the evidence of PW2 that there is major contradiction between the evidence of PW1 and PW2 and further, there was contradiction of evidence in respect of the place of occurrence and the real aggressor is PW1 and PW6 and PW7 have not witnessed the occurrence and PW6 and PW7 have not stated during their evidence the availability of PW2 in the place of occurrence and PW6 and PW7 are interested witnesses and further the doctor admitted during his cross examination that the injuries caused to PW1 can be possible by way of stabbing when two persons role in the ground along with aruval and hence, only due to altercation, PW1 sustained injury and not by the accused and hence, the revision petitioner/accused is entitled to acquittal.
14.Further, the learned counsel for the revision petitioner/accused argued that when the prosecution failed to explain the injuries sustained by the accused at the time of occurrence and no document was produced regarding the injuries sustained by the accused and hence, it is fatal to the prosecution case and the accused would be entitled to benefit of doubt. For http://www.judis.nic.in 10 that, the learned counsel for the accused submitted a ruling reported in 2006(2) MLJ (Crl) 808 (Gopal and others Vs. State rep. by Inspector of Police, Poolampatty Police Station).
15.On careful perusal of entire records, it is seen that no reliable documents were filed to prove the fact that the accused had sustained injuries at the time of the occurrence. Hence, the accused failed to prove that at the time of occurrence, he sustained injury. Further, the accused has not given any complaint before the police for the injuries sustained by him. Hence, it creates doubt about the allegations stated by the accused that he sustained injuries during the course of occurrence. At this juncture, it is necessary to refer the cross examination of PW11 Investigating Officer. PW11 during his cross examination stated as follows:-
gpoj;jjhft[k; jdf;F fhaq;fs; Vw;gLj;jpdhh;
vd;W TW Myq;Fsk; fhty; epiyaj;jpy; g[fhh; bfhLj;jhh; vd;Wk;> mtiu ehd; jdpahh; kUj;Jtkidf;F rpfpr;irf;F mDg;gp itj;J tpl;L ,e;j tHf;if ehd; xUjiygl;rkhf tprhuiz bra;njd; vd;Wk; brhd;dhy; rhpay;y.” http://www.judis.nic.in 11
16.It is seen that the accused even though raised the contention that the accused sustained injury at the time of occurrence, but he failed to prove the same. Hence, the argument put forth on the side of the revision petitioner/accused stating that due to altercation between the accused and PW1, the accused sustained injury and the accused was sent to prison and took treatment is not at all believable.
17.Further, it is the contention of the revision petitioner/accused that there are major contradictions in respect of place of occurrence. It is to be noted that PW1 in his complaint and evidence stated that the place of occurrence is nearer to the house of the accused. PW2 also stated during his evidence that the place of occurrence is nearer to the house of the accused.
18.On perusal of the Ex.P6 rough sketch and Ex.P7 observation Magazar, the place of occurrence is shown as in front of the house of the accused. In the observation magazar, it is stated that the house of the accused lies at Kasiyapuram Nainar Kovil Street. PW1 and PW2 told PW9 Doctor that they were assaulted by the accused at Kasiyapuram Santhana Mariamman Kovil North Street.
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19.It is admitted that the house of the accused is situated at Kasiyapuram North Street. As per the prosecution case, the occurrence took place near the house of the accused.
20.On careful perusal of the evidence of PW1 and PW2, rough sketch and observation mahazar, it reveals that the occurrence took place near the house of the accused. Hence, there is no contradiction between the evidence of the prosecution witnesses in respect of the place of occurrence.
21.In this case, the independent eye witness turned hostile and did not support the case of the prosecution. But the victim has categorically stated the manner of occurrence. This court is of the the view that the solitary evidence is enough and reliable to connect the accused with the alleged crime. Hence, it is held that the prosecution has proved the case beyond reasonable doubt.
22.For all the reasons stated above, this court is of the considered view that the prosecution has proved the case beyond reasonable doubt and the impugned judgment of conviction and sentence are liable to be confirmed. However, considering the age http://www.judis.nic.in 13 and family circumstances of the revision petitioner, the punishment imposed on the revision petitioner by the courts below is modified into six months R/I for the offence under
Section 326 IPC. In respect of other aspects, the findings of the Courts below are confirmed. The sentences are directed to run concurrently. The period of sentence, if any, already undergone by the accused shall be given set off under Section 428 of Cr.P.C.
23.With the above modification, this criminal revision is partly allowed.
02.08.2018 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 14 T.KRISHNAVALLI,J er To,
1.The I Additional Sessions Judge, Tirunelveli.
2.The Judicial Magistrate, Tenkasi.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Judgment made in Crl.R.C(MD)No.742 of 2009 02.08.2018 http://www.judis.nic.in 15 http://www.judis.nic.in