Heard Mr.R.M.Anbunithi, learned counsel appearing for the appellant and Mrs.J.Ananda Devi, learned Government Advocate (Crl. Side) appearing for the respondent.
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2.This appeal has been filed to set aside the Judgment passed in S.C.No.32 of 2009 dated 01.09.2009 by the learned Additional Sessions Judge (FTC-I), Thoothukudi.
3.The case of the prosecution as per the final report filed by the Inspector of Police is that on 08.04.2008, at about 10.00 a.m., with intent to murder Mariammal, the first accused attacked her with aruval and caused grievous injury on her forehead up to the right eye-lid and the second accused attacked Angala Eswari on the right forearm with an aruval. The third accused attacked Mariammal with a stick on the left forehead. The fourth accused attacked Angalaeswari with a stick. The accused 1 to 4 committed criminal intimidation against the witness and thereby committed the offences punishable under Sections as detailed below:
4.The learned Judicial Magistrate, Thoothukudi took cognizance of the case in P.R.C.No.54 of 2008 and committed the same to the Court of Sessions after following the due process of law. The learned Principal District and Sessions Judge took cognizance of the case in S.C.No. 32 of 2009 and made over the case to the Fast Track Court, the learned Additional Sessions Judge, http://www.judis.nic.in 3 Thoothukudi. The prosecution has examined 9 witnesses and marked 12 documents and 3 M.Os. No witnesses were examined and no document was marked on the side of the accused. On the completion of the trial, the learned Additional Sessions Judge found the first accused guilty under
Section 326 of IPC instead of
Section 307 of IPC and sentenced him to undergo five years Rigorous Imprisonment and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) in default to undergo six months Rigorous Imprisonment and acquitted the first accused against the charges under
Section 506(ii) of IPC and acquitted the other accused against all other charges. Against which, the first accused has filed this appeal.
5.The brief substance of the prosecution case is as follows: On 08.04.2008, the first accused has placed some thorn infront of the house of P.W.1 Angala Eswari. P.W.2 Mariammal, the mother of P.W.1 scolded him. On that motive, A1 attacked P.W.2 with aruval. When P.W.1 tried to intervene, the second accused attacked P.W.1 with aruval and caused injures on her right hand. At the same time, A3 caused injury to P.W.1 by using a stick and A4 caused injury on the head of P.W.2 by using the stick. P.W.3 and others witnessed the occurrence. P.Ws.1 and 2 were taken to the Government hospital at Thoothukudi.
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6.P.W.7 Dr.Karthikayini examined P.W.2 and she gave a finding in the accident register that the injuries of Mariammal is grievous in nature. The accident register copy of Mariammal is marked as Ex.P6. P.W.9, Dr.Flora Jenitta examined P.W.2 and took M.O. series X-rays. X-rays report was marked as Ex.P11. P.W.7 issued the wound certificate, describing the injuries of P.W.1 as simple. The accident register copy of Angalaeswari is marked as Ex.P7. P.W.9 has examined P.W.1 and two X-rays, M.O.2 and the X-ray report is marked as Ex.P12. P.W.9 intimated the Police regarding the admission of P.Ws.1 and 2. The intimation is marked as Ex.P8.
7.P.W.6, Sub Inspector of Police, Mr.Chellapah received the information, Ex.P8 and he went to the hospital, on 08.04.2008 at about 11.40 am and he recorded the statement of P.W.1 and the statement is marked as Ex.P1. He registered a case under
Sections 294(A),324 and
307 of IPC and under Section 4 of Tamil Nadu Women Harassment Act. FIR is marked as Ex.P5.
8.P.W.8, Inspector of Police Mr.Krishna Kumar took up the case for investigation and he went to the occurrence spot and prepared the observation mahazer, Ex.P4 in the presence of P.W.5 Mr.Karupasamy and Ramasamy and P.W.8 prepared the rough sketch Ex.P9. P.W.5 admitted that he has signed the observation mahazer as a witness. P.W.8 on 08.04.2008, at http://www.judis.nic.in 5 about 17 hours arrested A1 and A2 near the 4th gate of new busstand at Meelavittan and A1 gave a confession statement in the presence of P.W.4, Jegaveeraperumal and Sunmugam. On the basis of confession statement on identification of the weapon M.O.1 by A1. P.W.8 recovered the same and he prepared seizure mahazer, Ex.P3 in the presence of P.W.4 and Sunmugam. P.W.8 examined of the witness and he altered the Section from
Sections 294(b), 324,
304 of IPC and Section 4 of Tamil Nadu Women Harassment Act into
Sections 324,307 and
506(ii) of IPC and the section alteration report is marked as Ex.P10. P.W.8 filed chargesheet after the completion of the investigation. In the trial Court, A2 to A5 were acquitted from their respective charges. The charges against A1 was altered into
Section 326 of IPC and A1 was convicted only under
Section 326 of IPC and A1 was sentenced to undergo five years Rigorous Imprisonment and to pay a fine of Rs.5,000/- (Rupees Five Thousand only) in default to undergo six months Rigorous Imprisonment.
9.On the side of the appellant, it is stated that there were material contradictions in the evidence of P.Ws.1 to 3. It is stated that in Exs.P1 and P5, it is stated that the occurrence was witnessed by Chelliah and Sekar but they were not examined before the trial Court. It is further stated that P.W.4 who is the identifying witness in Ex.P1 turned hostile and P.Ws.1 to 3 are all relatives and the evidence of P.W.4 is not supporting the case of prosecution. http://www.judis.nic.in 6
10.On the side of the prosecution, it is stated that the evidence of P.Ws.1 and 2 was corroborated by the evidence of eye witness and that the case against A1 is that he cut the forehead of P.W.2 with aruval. It is stated that the evidence of P.Ws.1 to 3 is corroborated in the evidence of P.Ws.7 and
9. Two medical Officers P.W.7 and P.W.9 stated that they issued a wound certificate stating that injuries are grievous in nature. It is stated that M.O.1 aruval was recovered from A1 and the prosecution has proved the case beyond reasonable doubts.
11.On the side of the appellant, it is further stated that P.W.4 is a witness who is said to have signed the seizure Mahazer, Ex.P3. P.W.4 is shown as a witness to the confession statement Ex.P2. It is stated the since P.W.4 turned hostile, Exs.P2 and P3 and M.O.1 were not proved by the prosecution.
12.On the side of the prosecution, it is stated that M.O.1 aruval was recovered from A1 in the presence of P.W.4 on the basis of the confession statement Ex.P2. It is further stated that P.W.1 clearly identified M.O.1 and evidence of P.Ws.1 and 2 corroborated the evidence of P.W.4 who has deposed that M.O.1 was recovered from A1.
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13.On the side of the prosecution, it is stated that P.W.1 has deposed about the attack of A1 on the forehead of P.W.2 with aruval. P.W.2 has clearly stated that A1 has inflicted injury with aruval upon her right eye. P.W.3 also has stated that A1 inflicted injuries upon the forehead of P.W.2. The evidence of P.W.7 Medical Officer clearly reveals that P.W.2 was having a cut injury to the size of 10x2x2 c.m., on the right forehead extending up to the right eyelid. X-ray marked under M.O.2 series have been taken for P.W.2. X-Ray report is marked as Ex.P11. The evidence of P.Ws.7 and 9 and M.O.2 and Ex.P11 proved that the injury is grievous in nature. It is further stated that non examination of independent witness is not significant, as the evidence regarding the injury is cogent, believable and trustworthy and that the case of the prosecution cannot be thrown out due to the defect of the Investigating Officer when the case is proved otherwise.
14.On the side of the appellant, it is stated that the observation mahazer and rough sketch did not reveal the spreading of thorns at the place of occurrence. It is stated that as per Ex.P9, the thorn fence is situated infront of the field of the appellant and not in front of the house of P.Ws.1 and 2 and that motive was not proved by the prosecution.
15.On the side of the respondent, it is stated that P.W.1 never stated that the accused made a fence in front of the house of P.W.1 and when the http://www.judis.nic.in 8 accused tried to carry branches of thorny trees, Some of them fell infront of the house of P.W.1, thereby resulting in a wordy quarrel.
16.A perusal of the records reveals that the evidence of P.Ws.1 to 3 is cogent and trustworthy. Though P.Ws.1 and 3 are relatives of P.W.2, their evidence cannot be brush aside. The evidence of P.Ws.1 to 3 is corroborated by evidence of P.Ws.7 and 9. Ex.P6 reveals that there was a fracture in the skull in the right frontal portion and the injury was grievous in nature. The case of the appellant is that this injury is self inflicted and due to previous motive, a false complaint was lodged against the appellant. Inflicting a grievous injury upon oneself to take revenge against an enemy is unbelievable and the contention of the appellant is not acceptable.
17.It is seen that immediately after the occurrence, P.Ws.1 and 2 were taken to the hospital. P.W.2 gave a statement to the Doctor that they were attacked by four known persons. It is seen that the hospital people gave intimation to the Police and P.W.6, the Sub Inspector of Police recorded the statement of P.W.1 which is marked as Ex.P1 and he registered FIR as Ex.P5. It is seen that P.W.8 took up the case for investigation and he visited the occurrence spot and had prepared a rough sketch and an observation mahazer. The evidence of P.W.5 corroborated the evidence of P.W.8. Hence, P.Ws.4 and 9 are proved by the prosecution. Though P.W.4 turned as hostile, http://www.judis.nic.in 9 in his chief examination he had clearly stated that A1 and A2 were arrested on 08.04.2008 and A2 gave a confession statement and he has signed the confession statement, Ex.P2 and that A1 undertake to produce the aruval and that aruval is M.O.1 and he has admitted that he signed the seizure mahazer, Ex.P3. Hence, the arrest of A1 and the recovery of aruval, M.O.1 from A1 and preparation of seizure Mahazer, Ex.P3 were proved by the prosecution. A confession leading to recovery is admissible and hence, Ex.P2 is proved by the prosecution. Inshort, Exs.P1 to P6, P8, P9, P11 and M.O.1 are proved by the prosecution. There is no material contradiction in the evidence of P.Ws.1 to 3. The evidence of P.W.4 and the evidence of P.W.8 corroborated each other.
18.Hence, there is no sufficient reason to interfere in the findings of the trial Court. The decision of the trial Court in finding the accused guilty under
Section 326 of IPC is correct. On the facts and circumstances of this case, it is decided to modify the sentence.
19.On the above grounds, this criminal appeal is partly allowed and the order passed in S.C.No.32 of 2009 dated 01.09.2009 by the learned Additional Sessions Judge (FTC-I), Thoothukudi as to the conviction is confirmed. The sentence alone is modified that the accused has to undergo Rigorous Imprisonment for a period of one year and he has to pay a fine of Rs.5,000/- http://www.judis.nic.in 10 in default to undergo a further period of six months Rigorous Imprisonment. Bail bonds if any executed, shall stand cancelled. The excess fine amount if any paid by the appellants shall be refunded.
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1.The Principal District and Sessions Judge, Thoothukudi.
2.The Additional Sessions Judge, (FTC-I) Thoothukudi.
3.The Judicial Magistrate No.I, Thoothukudi.
4.The District Collector, Thoothukudi District.
5.The Director General of Police, Chennai.
6.The Superintendent of Police, Thoothukudi District.
7.The Inspector of Police, SIPCOT Police Station, Thoothukudi.
8.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
9.The Section Officer, Criminal Section, Madurai Bench of Madras High Court, Madurai.
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Mrn Crl.A(MD)No.271 of 2009 01.07.2019 http://www.judis.nic.in