This Criminal Appeal is directed against the judgement passed by the Sessions Judge, Sivagangai, in S.C.No.83 of 2008, dated 10.06.2009.
2.According to the prosecution, the complainant Selvi is the wife of the deceased Selvam and A1 and A2 are father and son and both of them are residing near the mother's house of Selvam at Kollampattarai Street, Kulithalai and on 21.08.2008 at about 7.00 pm the deceased Selvam after consuming liquor voluntarily quarrelled with A2 and due to which, when the deceased Selvam was coming near Municipal Toilet at Kulithalai, A1/Ravikumar with criminal intention uttering with filthy words and when it was questioned by Selvam, he was attacked with dangerous weapons by the accused and as a result of which, Selvam caused injury and despite giving first aid and treatment, the deceased Selvam died in the hospital. The Inspector of Police attached to Kulithalai Police Station has filed a final report against the accused persons examining the witnesses.
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3.In the trial court, 14 witnesses were examined and 17 Exhibits and 2 material objects were marked. When the accused were questioned about the incriminating circumstances, they denied the same. On the side of the accused, no witness was examined and two documents were produced. The trial court found A1 guilty of the offence under
section 326 IPC and sentenced him to under RI for 1 year and to pay a fine of Rs.1,000/-, in default to undergo further RI for one month and acquitted A2 from the charges levelled against him. Aggrieved by the judgement passed by the trial court, the appellant/A1 is before this court.
4.The learned counsel appearing for the appellant/A1 argued that the trial judge failed to consider the fact that FIR lodged after prolonged delay of 26 hours from the time of occurrence and according to the prosecution, the occurrence took place on 22.08.2008 at about 7.00 pm, whereas the case was registered only on 23.08.2008 at about 9.30 pm and the delay was not properly explained by the de-facto complainant and explanation offered by the de-facto complainant is not believable and trustworthy and in this case, the material objects were produced before the court after 20 days of its recovery and the prosecution http://www.judis.nic.in 4 has miserably failed to examine the Doctor, who gave treatment at the Government Hospital, Kulithalai and the Government Head Quarters Hospital, Trichy, which is fatal to the prosecution case and the prosecution has failed to mark the important material documents, such as X-ray and scan report and in this case, except PW1, all the witnesses were turned hostile and they have not supported the case of the prosecution and in this case, the Accident Register marked are self-contradictory and the respondent police suppressed the existence of Ex.D2 and in this case, on perusal of the postmortem report, Doctor categorically admitted the fact that if the deceased fell on the ground out of intoxication, there is sufficient to cause the head injury and the same is supporting the defence version and there is material contradiction in the evidence of PW1 and PW13 (Doctor) and in this case, PW1 categorically admitted that the place of occurrence was not able to see from the house where PW1 was at the time of alleged occurrence and this view supported by PW2 and PW14 and as such the foundation of the case is doubtful. In view of the above circumstances, the judgment of the trial court has to be set aside, by allowing the appeal.
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5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the trial court, after considering the materials available on record, has passed correct judgment, which does not require any interference by this court and prays for dismissal of the criminal appeal.
6.Heard both sides and perused the entire materials available on record.
7.The main contention raised on the side of the appellant/ A1 is that except PW1, all the prosecution witnesses turned hostile and they did not support the case of the prosecution and PW1 is an interested witness and there are contradictions in respect of place of occurrence and the evidence of the prosecution witnesses did not support by the medical evidence and hence there is material contradiction in the evidence of PW1 and PW13/Doctor, which is very fatal to the prosecution and PW1 in her cross examination categorically admitted that the place of occurrence was not able to see from the house where PW1 was at the time of alleged occurrence this view was supported by PW2 and PW14 and as such http://www.judis.nic.in 6 the foundation of case is doubtful and prays that the appellant/A1 is entitled to acquittal.
8.PW1 is the wife of the deceased Selvam and she gave Ex.P1 complaint. PW1 in her complaint stated that on 21.08.2008 she and her husband with their children came to her mother-in- law's house at Kollampattarai Street, Kulithalai. On 22.08.2008 when they were in the above house, at that time her husband came and asked money for consuming liquor, but she refused and her husband demanded money to consume liquor and then she gave nose ring and her husband pledged the above nose ring and consumed liquor and proceeded to their house and when her husband came near Nambiyar Hotel at Bajanai Mada Street, her husband quarrelled with the 2nd accused Sangupillai and then proceeded to their house and she and her mother-in-law were talking in front of their house and when her husband came near the toilet at 7.00 pm, at that time A1 and A2 used filthy language towards her husband and A1 with wooden log caused injury on the scalp of her husband and then A1 and A2 also caused injury with wooden log on the scalp of her husband and her husband fell down unconscious and when it was questioned by her and mother-in-law, http://www.judis.nic.in 7 for that A1 threatened them and then the accused ran away and she thought that her husband was in drunken mood and she has not taken him to the hospital and in the morning, her husband suffered with fits and then she took her husband to the Kulithalai Government Hospital and then her husband was referred to Trichy Government Hospital for further treatment and then she gave complaint statement to the police that her husband was unconscious.
9.PW1 during her evidence stated that eight months back, one day when she went to her mother-in-law's house at Kollampattarai Street, Kulithalai, her husband had taken nose ring for taking liquor by 7.00 pm and after he consumed liquor came back to the house by 7.00 pm and then both the accused came to the house and questioned the deceased Selvam, how did he abused A2 and for that, the deceased denied and then A1 controverting the statement of the deceased Selvam, attacked him with wooden log on his head and then A2 attacked the Selvam and then the Selvam fell unconscious and then she and her mother-in- law raised alarm and then the accused ran away and she sprinkled water on the face of the deceased and gave water to him and the occurrence had http://www.judis.nic.in 8 taken place near the toilet located nearby to their house and in the next day morning at 6.00 am, she took her husband to the Government Hospital, Kulithalai and then he was referred to the Government Head Quarters Hospital, Trichy for further treatment and after four days, her husband died.
10.The learned Government Advocate (Criminal side) appearing for the respondent/State argued that the deceased was not the aggressor and only the accused are aggressors and the accused having enraged over the abuse made by the accused decided to commit murdered of the deceased and the above intention of the deceased could be inferred from the fact that both the accused took wooden logs with them to the house of the deceased and both the accused had knowledge at the time of attacking that the deceased had consumed alcohol and quarrelled with the accused because of the intoxication and the evidence of PW1 is cogent and consistent and further, PW1 explained the circumstances under which the deceased was attacked and also she explained the manner of attack made on the deceased and the evidence of PW1 is corroborated by PW7 and PW11 to PW14 and the entire occurrence was not denied by the accused and there is http://www.judis.nic.in 9 initial quarrel took place between the deceased and the second accused for the motive for the attack made on the deceased and in Ex.P1 complaint also the earlier occurrence was narrated, but on the side of the defence, the earlier occurrence was not denied. Hence, the earlier occurrence of abusing the second accused by the deceased has been duly proved and only due to the earlier occurrence, the subsequent occurrence was taken place. Hence, the prosecution proved the guilt as against the accused and prayed for conviction of the accused.
11.The learned counsel for the appellant/A1 has argued that the case of the defence is that the accused did not attack the deceased Selvam and also did not cause any injury to the deceased. The deceased Selvam due to excessive intoxication fell down and sustained injury. PW1 is not an eye witness and she was not present in the occurrence place on the date of occurrence. PW2 is the mother of the deceased and PW8 is the sister of the deceased. Both of them in their evidence stated that the deceased died only due to falling down. The other witnesses PW3 to PW6, PW9 and PW10 also did not support the case of the prosecution. Thus there is no evidence to prove the prosecution version. http://www.judis.nic.in 10
12.It is further argued that in this case, except PW1 all the material witnesses turned hostile and did not support the case of the prosecution. On the side of the appellant/A1, it is stated that PW1 is the interested witness and her evidence is not reliable and her evidence is not supported by other material witnesses. Hence, it shows that at the time of occurrence, she was not available in the place of occurrence and in order to strengthen this case, PW1 was cited as eye witness. Hence, her evidence cannot be relied on.
13.PW1 in her complaint and evidence stated that on the occurrence day by 7.00 pm, when her husband was in the house, the first accused came and questioned the deceased how did her husband abuse the second accused and for that, the deceased replied that he did not abuse the second accused. But the first accused controverting the statement of the deceased Selvam attacked him with wooden log on the head and further, the second accused also attacked deceased and further she stated that the occurrence took place near the toilet which is located nearby her house and after attack, her husband fell unconscious and after administering water her husband was taken to her house. http://www.judis.nic.in 11
14.On careful perusal of the evidence of PW1, it reveals that the contentions found in Ex.P1 is corroborated with the evidence of PW1. Further, PW1 was elaborately cross examined on the side of the appellant/accused. PW1 categorically stated during her cross examination that her husband returned home after consuming liquor and he did not suffer any injury and after half an hour from the time of returning home, the occurrence took place and the occurrence was taken place near the public toilet nearer to her house and she has also stated that the occurrence could be seen from the house of PW2. It was suggested on the side of the appellant/accused that PW1 did not see the occurrence because she came to the place of the occurrence only after three hours. At this juncture, it is necessary to refer the cross examination of PW2, which would run thus:-
'nfhs;sk;gl;liw njUtpy; cs;s ff;$];
thry; Nkw;F ghh;f;f cs;sJ. ff;$]; - ypUe;J mUfpy; cs;s re;jpy; 3 tPL js;sp vd; tPL cs;sJ. vd; tPl;L thrypy; ,Ue;J ghh;j;jhy; ff;$]; njhpahJ.
kWehs; jhd; m.rh.1 vd; tPlb ; w;F te;jJ” http://www.judis.nic.in 12
15.PW2 is the mother of the deceased and PW8 is the sister of the deceased. PW2 deposed that she did not know PW1 and the deceased was residing for sometime in some other place. Hence, she did not know whether the deceased got married and had children. PW2 was turned hostile and did not support the case of the prosecution.
16.PW8 deposed that PW1 is the wife of the deceased and the deceased had two children and further she heard that due to intoxication, her brother fell down unconscious and then her brother was taken to the hospital and after sometime, her brother died. No suggestion was put to PW2 and PW8 that at the time of occurrence, PW1 was not available in the house of PW2. There was no contra evidence let in on the side of the appellant/accused to prove that at the time of occurrence, PW1 was not available in the place of occurrence. On careful perusal of Ex.P1 complaint and evidence of PW1, it reveals that at the time of occurrence, PW1 was in the house of PW2 and she saw the occurrence. http://www.judis.nic.in 13
17.The Doctor, who conducted postmortem on the body of the deceased was examined as PW13. PW13 stated that the deceased could have sustained injury and no external injury necessary when some one is attacked with club on head
18.The learned counsel for the appellant/A1 argued that though PW2 and PW8 have been treated as hostile witnesses, their version cannot be totally discarded by the Court. The learned counsel for the accused relied on the judgment reported in 2005 (2) MWN (Cr.) 286 (DB) (Periakutty @ Kutty @ Kalyanasundaram and another Vs. Inspector of Police, Chennai) contending that to attract the provisions under
section 294(b) IPC a witness must speak about the public breach of peace and in this case, PW1 has not spoken about the same and hence, the offence under
section 294(b) IPC is not attracted.
19.The learned counsel for the appellant/A1 further argued that to attract
Section 34 IPC, prior meeting of minds between the accused is necessary and in this case, the prosecution has not placed any material claiming both the accused met together and planned to commit the murder and in the absence of external http://www.judis.nic.in 14 injury, the Court cannot presume that the injury sustained by the deceased would have been caused by the accused and the Court cannot place any reliance on the evidence of PW1 that the accused with MO1 and MO2 attacked the deceased.
20.In this case, only the evidence of PW1 is available. PW1 during her evidence stated that the accused attacked her husband with wooden log and caused injury on the scalp of her husband. PW13 also found injury on the head of the deceased. Further, the PW13 Doctor opined that no external injury was necessary when someone is attacked with wooden log on head. Hence, it is held that the evidence of PW1 is corroborated with the evidence of the Doctor PW13.
21.Further, in this case, except PW1, all the material witnesses turned hostile and did not support the case of the prosecution. Since the evidence of PW1 is corroborated with the medical evidence, it is held that the evidence of PW1 is trustworthy and reliable. Hence, the solitary evidence of PW1 can be relied upon.
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22.The another argument advanced by the learned counsel for the appellant/A1 is that PW11 would not have written Ex.P1 as his signature, which is available in Ex.D1 differs with the signature available in Ex.P1. This Court referred to the evidence of PW11. The defence controverted the evidence of PW11. The defence controverted the evidence of PW11 would state that there is no entry available in Ex.P1 to show that the complaint was received by PW11. The defence did not suggest to PW11 that he received the earlier complaint and suppressed the same. PW11 was also not controverted by the defence or questioned the complaint Ex.P1 marked in this case as not that of earlier complaint. As such this Court would infer that the defense made attempt to dispute the complaint without any particulars and materials and failed to succeed.
23.It is stated on the side of the appellant/A1 that both Ex.P9 and D2 are not consistent and have been created for the purpose of this case. This Court has carefully perused Ex.P9. Ex.P9 is the Accident Register maintained by Government Head Quarters at Trichirapalli. On perusal of the seal in Ex.P9 would show that the Accident Register entry was received by Forensic http://www.judis.nic.in 16 Department on 28.08.2008 by 7.30 am. The initial available in the Accident Register would show that the Forensic Department, Government Head Quarters Hospital, Trichy received it on 28.08.2008. The Doctor, who prepared the Accident Register entry mentioned the date as 23.08.2008. In the Accident Register entry, Ex.P9 is mentioned. The time mentioned in the Accident Register should be 9.35 am and not 7.35 am as mentioned in the entry. Now this Court again referred to Ex.P1. From the reading of Ex.P1, this Court would infer that the complainant initially felt that her husband fell due to intoxication. PW1 came to know about the impact of attack made by the accused only at Government Head Quarters, Trichirapalli. Therefore, there is no delay in lodging the complaint. If at all any delay is available in lodging the complaint, it is explained by PW1.
24.This Court has carefully considered the entire oral and documentary evidence available in this case. The only eye witness PW1 would not state the motive for the occurrence. The entire prosecution case is also silent about the intention of the accused to cause murder of the deceased. In the absence of materials to prove that the accused had intention to commit murder, this Court has to http://www.judis.nic.in 17 arrive to the conclusion that the first accused has caused only injury to the deceased. Therefore, this Court holds that the first accused has caused injury with deadly weapon of wooden log and caused grievous injury to the deceased. In the absence of materials to link the attack and death, this Court decides that the first accused has committed an offence punishable under
Section 326 of IPC.
25.For all the reasons stated above, this court is of the considered view that the trial court after considering entire materials available on record, had corrected passed the order, which does not require any interference by this court.
26.In the result, the Criminal Appeal is dismissed.
25.06.2019 Index:Yes/No Internet:Yes/No vsd/er http://www.judis.nic.in 18 T.KRISHNAVALLI,J vsd/er Crl.A.(MD)No.176 of 2009 25.06.2019 http://www.judis.nic.in