This Criminal Appeal is directed against the judgment of the Additional District and Sessions Court/Fast Track Court No.1, Madurai, made in SC No.349 of 2008, dated 02.09.2009.
2.The case of the prosecution is that on 04.04.2008 at about 5.45 pm, the appellant came to the shop of PW1 in a drunken mood and tried to sleep in front of PW1's shop and while so, PW1 and PW2 prevented him and in a sudden fury, the appellant abused them and poured the heated oil on PW1, thereby attempted to kill him. The Inspector of Police attached to Alanganallur Police Station, Madurai District, has filed a final report against the accused examining the witnesses.
3.The trial court, after proper appreciation of the entire materials available on record, convicted the appellant/Accused for the offence under
sections 307 IPC and sentenced him to undergo Rigorous Imprisonment of 7 years with fine amount of Rs.10,000/-, in default to undergo one year Rigorous Imprisonment. Aggrieved by the judgment of the trial court, the appellant/accused is before this court.
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4.Heard both sides and perused the materials available on record.
5.The contention raised on the side of the appellant/accused is that PW1 to PW7 are close relatives and they belong to the same community, whereas the accused belong to a different community and the accused had no intention or knowledge to murder PW1 and the Investigating Officer, who arrested the accused found injuries on his hand at the time of arrest, but the same was not mentioned by him in the Arrest Memo and no confession was recorded by the Investigating Officer and even though the place of occurrence is in front of the bus stop, no independent witness was examined and there is no testimony to prove the crime committed by the appellant/accused and the appellant/accused borrowed money from PW1 and he failed to repay the amount and due to it, PW1 gave a false complaint against the appellant/accused and there are discrepancies in the evidence of witnesses and prayed that the appellant/accused is entitled to acquittal.
6.PW1 is the injured and he gave Ex.P1 complaint to the police. PW1 in his complaint and evidence stated that he was http://www.judis.nic.in 4 working in Broiler Shop in Pallamedu road and in the evening, he will sell chicken-65 in that shop and frequently, the appellant/accused came and slept in front of his shop and on 04.04.2008 in the evening at 05.30 pm, the appellant/accused came and slept in front of his shop and further, he requested the appellant to leave his shop and for that, he used filthy language as “eP capnuhL ,Ue;jhy; jhnd ,e;j ,lj;jpy; gLf;ftplkhl;nl';fpwha; ,j;njhL xHpe;J ngh vd;W brhd;dhh;”and suddenly the accused poured the heated oil, which was boiling in the vessel and the heated oil sprinkled on his face, left side of the chest, right hand and it caused injuries and his wife and his neighbours attempted to catch the accused, but the accused fled away and he was taken to Madurai Meenakshi Mission Hospital and the police came and received his statement. Hence, the evidence of PW1 is corroborated with the contents found in Ex.P1 complaint.
7.PW2 is the wife of PW1. PW2 deposed that on 04.04.2008 at 5.30 pm, the appellant/accused came and slept in front of their shop and her husband requested him to leave the place and for that, the appellant used filthy language as “eP capnuhL ,Ue;jhy; jhnd ,e;j ,lj;jpy; gLf;ftplkhl;nl';fpwha; vd;W brhy;yp gpwF vz;bza; rl;oia Jf;fp vd; fzth; nky; Cw;wp tpll; hh;. ,j;njhL xHpe;J tpL vd;W brhy;yp; Cw;wp http://www.judis.nic.in 5 tpll; hh;” and then touched the vessel in which the oil was boiling and poured the boiling oil towards her husband and the boiled oil sprinkled on the face, right hand and left side of the chest and his neighbour, Damodharam, Sathya Moorthy and Chinnasamy came and tried to catch the appellant, but he ran over and her husband was taken to Madurai Meenatchi Mission Hospital and the police came and received the statement of her husband. Hence, the evidence of PW2 is corroborated with the evidence of PW1.
8.PW3 to PW5 are cited as eyewitnesses. PW3 stated that on 04.04.2008 at 5.30 pm, he and his father Sathyamoorthy, Chinnasamy and Damodharan were talking in front of the shop of PW1, at that time the appellant poured boiled oil, sprinkled on the face, chest and head and then PW1 was taken to Madurai Meenakshi Mission Hospital and the police came and recorded the statement of PW1.
9.PW4 deposed that on 04.04.2008 at 5.15 pm, the appellant slept in front of the shop of PW1 and PW1 requested the appellant to leave the place and suddenly the appellant poured the boiled oil towards PW1 and he tried to catch the accused, but he http://www.judis.nic.in 6 ran over.
10.PW5 stated on 04.04.2008 at 5.30 pm, he returned to his house and while he was talking with Sathyamoorthy, Chinnaswamy in front of the shop of PW1 and he saw that quarrel arose between PW1 and the accused and the accused used filthy language and then he poured heated oil towards PW1 and he tried to catch him, but the accused ran away.
11.On careful perusal of PW2 to PW5, it reveals that due to quarrel between the accused and PW1, the accused poured heated oil towards PW1 and it caused injury on the face, chest and head of PW1. Hence, the evidence of PW1 is corroborated with the evidence of PW2 to PW5.
12.The Doctor, who gave treatment to PW1 was examined as PW8. PW8 deposed that on 04.04.2008 at 7.00 pm, when he was on duty, PW1 was brought for treatment and told him that he alleged to have sustained burnt injuries by pouring heated oil by a know person and he found 45% scalds involving face, chin, abdomen and in both upper limbs on the body of PW1. He further http://www.judis.nic.in 7 opined that the injuries sustained by PW1 are grievous in nature.
13.PW1 alleged that on 04.04.2008 at 5.30 pm, the accused slept in front of his shop and when he questioned it, the accused poured heated oil towards PW1 and due to it, PW1 suffered burnt injuries on face, stomach and two hands. PW2 to PW5 also alleged that the accused poured heated oil towards PW1, when he questioned the accused not to sleep in front of his shop and due to it, he sustained burnt injuries on his face, chest and hands. Hence the evidence of PW1 is corroborated with the evidence of PW8.
14.PW6 and PW7 are recovery witnesses. PW6 and PW7 deposed that in their presence, the police arrested the accused and he gave confession and on the basis of the confession, the vessel which was used for making chicken-65 was recovered. PW1 stated during his evidence that at the time of occurrence, he boiled the oil in the vessel and the accused poured the heated oil only from the vessel towards him and sustained burnt injuries and hence, the evidence of PW6 and PW7 is corroborated with the evidence of PW1.
15.The learned counsel for the appellant/accused http://www.judis.nic.in 8 submitted that as per the prosecution case, he took the vessel in which the oil was heating and hence, there is a chance for the accused to sustain burnt injury on his hand, but in this case, it was not stated that the accused sustained injury on his hand, but several persons for consuming liquor bought chicken-65 from PW1 and quarrel arose between the buyers and PW1 and due to it, the vessel fell down and the heated oil sprinkled on the body of PW1 and hence, the accused has no intention or knowledge to murder PW1 and therefore, the offence under
section 307 IPC is not made out. But on the contrary, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the accused had the habit of sleeping in front of the shop of PW1 and it is hindrance to his business and he had knowledge that pouring of heated oil on the body will cause injury or death, but he poured the heated oil towards PW1 and hence, the offence under
section 306 IPC is made out.
16.Further, the oral evidence of PW1 is corroborated with the medical evidence. The learned counsel for the appellant/accused submitted that PW1 to PW7 are close relatives and all are interested witnesses and hence their evidence cannot be http://www.judis.nic.in 9 relied upon.
17.In the decision laid down in Namdeo v. State of Maharashtra, 2007 AIR SCW 1835: 2007(2) CCSC 634: 2007(2) ACR 1522(SC), one of us (C.K. Thakker, J.) has said that a close relative cannot be characterized as an "interested" witness. He is a natural witness. His evidence, however, must be scrutinised carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one."
18.In this case, on careful perusal of evidence of PW1 to PW7, it is seen that their evidence is cogent, trust-worthy and reliable and hence, the evidence of PW1 to PW7 are relied upon. Hence the arguments put forth on the appellant/accused side stating that there are discrepancies in the testimonies of PW1 to PW7 is not at all acceptable.
19.In this case, the learned counsel for the http://www.judis.nic.in 10 appellant/accused while cross examining the accused put a question that on the date of occurrence, several persons who came to the shop of PW1 and bought chicken 65, quarrel arose between the buyers and due to their quarrel, they pushed the vessel in which the oil was boiling and due to it, PW1 sustained injury. But it was denied by PW1. The accused has not taken any steps to examine any one of the persons, who came to the shop on the date of occurrence to buy chicken-65 and quarrel arose among buyers and due to falling down of the vessel in which oil was boiling, PW1 sustained injuries. No contra evidence was let in on the side of the accused to prove the above fact. The accused has not taken any steps to give complaint as against PW1. Without giving any complaint to the police that he sustained injury in the alleged occurrence and hence, the argument put forth on the side of the accused that the suppression of injuries sustained by the accused is fatal to the prosecution is not at all acceptable.
20.Further, the learned counsel for the appellant/accused, while cross examining PW1 suggested that on the date of occurrence, the accused has not come to the shop of PW1 and on that date, he gone to Paramakudi. On the side of the http://www.judis.nic.in 11 appellant/accused, alibi is stated and hence, it is the bounded duty of the accused to prove it, but the accused has not examined any witness or filed any document to prove the alibi. Hence, the argument put forth on the side of the appellant/accused stating that on the date of occurrence, the accused is not in the place of occurrence and he has gone to Paramakudi is not at all acceptable.
21.In this case, PW1 in his complaint and evidence stated that the accused was in drunken mood slept and he slept in front of the shop and when he asked the accused to leave the place, the accused poured the heated oil towards PW1. Hence, only due to sudden provocation, the accused poured heated oil towards PW1. Hence, it is held that he had no intention to murder or kill PW1. Further, there was no previous motive between the accused and PW1. Hence it is held that the offence under
section 307 IPC is not made out. But considering the nature of injuries, the accused is found guilty under
section 326 IPC.
22.Further, the learned counsel for the accused/accused argued that there was a delay in giving complaint to the police and it is fatal to the prosecution.
23.In this case, the date of occurrence is on 04.04.2018 at http://www.judis.nic.in 12 4:30 pm and the accused was taken to hospital at 6.45 pm and the Doctor gave treatment to the injured on 700 pm and the occurrence was intimated to the police and then the police came and recorded the statement of PW1. Hence, proper explanation was given for the delay in giving the complaint to the the police. Hence, it is held that it is not fatal to the prosecution.
24.For all the reasons stated above, this court is of the considered view that the appellant is found guilty under
section 326 IPC and not under
section 307 IPC.
25.In the result, the criminal appeal is partly allowed. The appellant/accused is found guilty for the offence under
section 326 IPC and he is directed to undergo 2 years RI with a fine amount of Rs.10,000/- as imposed by the trial court. The appellant/accused is directed to pay a compensation of Rs.50,000/- (Rupees Fifty Thousand only) to the injured/PW1 within a period of two weeks from the date of receipt of a copy of this order, failing which the punishment imposed by the trial Court is restored.
26.For reporting compliance, post the matter after four http://www.judis.nic.in 13 weeks.
15.11.2019 Index:Yes/No Internet:Yes/No er To,
1.The Additional District and Sessions Judge/ Fast Track Court No.1, Madurai.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
T.KRISHNAVALLI,J http://www.judis.nic.in 14 er CRL.RC(MD).No.305 of 2009 15.11.2019 http://www.judis.nic.in