The accused 1 and 2 who were charged and tried for an offence punishable under Section 307 IPC before the Additional District and Sessions Judge (Fast Track Court), Ariyalur in S.C.No.40/2001 and found not guilty of the said offence, have come forward with the present appeal under Section 374 Cr.P.C. as the first appellant (first accused) was found guilty of an offence punishable under Section 326 IPC, convicted and sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs.1,000/- with a default sentence of three months simple imprisonment in case of default in payment of fine, whereas the second appellant (second accused) was found guilty and convicted for an offence punishable under 323 IPC and sentenced to pay a fine of Rs.500/- with a default sentence of one month simple imprisonment in case of default in payment of fine.
The case of the prosecution, in brief, can be stated as follows:-
i) PW-1 - Subramani is a native of Siruvachur village. PW-2 - Malarkodi is the wife of PW-1. During the relevant period, PW-1 and PW-2 were residing at Pallakrishnapuram, the place of the father-in-law of PW-1. The appellants 1 and 2 (accused 1 and 2) are brothers. PW-9 - Vasantha is the wife of first appellant (first accused), Veeran @ Veerasamy. As PW-1 and PW-9, the wife of the first appellant were in talking terms, the first appellant (first accused) took it in the wrong sense due to suspicion and on an earlier occasion at the instigation of the first appellant/first accused, his brother, namely the second appellant (second accused) had warned PW-1 and advised him not to have any talk with PW-9.
ii) On 24.12.2008, PW-1 returned to Pallakrishnapuram, after paying a visit to his native place and at about 3.00 p.m he proceeded towards Marudhai river to take bath. On his way to Marudhai river, he came across PW-9 - Vasantha, who was irrigating their land and PW-9 - Vasantha asked him when he returned from his native place, for which PW-1's reply was "today". On seeing PW-1 and PW-9 talking to each other, the first appellant (first accused) who was in the other side of his field, approached PW-1 with an Aruval and cut him with the said Aruval on the right leg above the ankle, right and left forehands, asking him how dared he talked with PW-9? At the same time, the second appellant (second accused), using bamboo reaper, attacked him on the parietal region of the head and thus caused a bleeding injury.
iii) After the occurrence, PW-1 was taken to the Government hospital, Ariyalur, where first aid treatment was given by PW-5 - Dr.Prema Sakunthala at 5.45 p.m. At the time of admission in the said hospital, PW-1 informed PW-5 that he was attacked by known persons with Aruval and bamboo stick at about 3.00 p.m near Marudhai river on 24.12.1998. An intimation was sent to the police, whereupon PW-11, the then head constable attached to Ariyalur police station, went to the hospital and recorded the statement of PW-1, marked as Ex.P1. Based on the said statement, he prepared Ex.P5 - First Information Report in the printed format and registered a case on this file of Ariyalur Police Station in Crime No.657/1998 for offences punishable under
Sections 324 and
323 IPC. He took up the initial investigation of the case, went to the place of occurrence, prepared Ex.P6 - Observation Mahazar and Ex.P7 - rough sketch. He also examined the witnesses and recorded their statements under
Section 161 Cr.P.C. On 25.12.1998 at about 11.00 a.m, he arrested the first appellant (first accused) and sent him for judicial custody on the sameday.
iv) On 28.12.1998 PW-10 - Syed Mohammed, the then Inspector of police, Ariyalur circle, took up the further investigation of the case and altered the case into one for an offence punishable under
Section 307 IPC. Ex.P4 is the alteration report sent to the Judicial Magistrate concerned for the said alteration of the case. As PW-10 was transferred from the said place on 29.12.1998, thereafter PW-12 - Balaguru, the then Inspector of Police, Ariyalur Police station, took up further investigation, completed the same and submitted a final report.
2. After the case was committed by the learned Judicial Magistrate, Ariyalur the same was taken on file by the learned Principal Sessions Judge (Fast Track Court), Ariyalur as S.C.No.40/1999. The same was made over by the said court to the learned Additional District and Sessions Judge for disposal according to the law. Necessary charges were framed in the trial court and the appellants herein/accused pleaded not guilty. In order to substantiate the charges made against the appellants 1 and 2 (accused 1 and 2), the prosecution examined twelve witnesses as PW-1 to PW-12, marked six documents as Ex.P1 to P6 and produced M.O.1 series of five X Rays. After completion of examination of the prosecution witnesses, the accused were questioned under
Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. The appellants herein (accused 1 and 2) denied them to be false and once again reiterated their contention that they were innocent. No witness was examined and no document was marked on the side of the accused.
3. The trial court heard the arguments advanced on either side and considered the evidence in the light of the said arguments. Upon such consideration, the trial court came to the conclusion that the charge for the offence punishable under
Section 307 IPC made out against the appellants herein (accused 1 and 2) was not proved beyond reasonable doubt and found the appellants (accused 1 and 2) not guilty of the said offence. However, the trial court held that the first appellant (accused No.1) was guilty of a lesser offence, namely an offence punishable under
Section 326 IPC and that the second appellant (accused No.2) was guilty of an offence under
Section 323 IPC. Accordingly, the trial court found the first appellant guilty of and convicted him for an offence punishable under
Section 326 IPC and sentenced him under to six months rigorous imprisonment and to pay a fine of Rs.1,000/- with a default sentence of three months simple imprisonment in case of default in payment of fine. Similarly, the second appellant (accused No.2) was found guilty of and convicted for an offence punishable under
Section 323 IPC and sentenced to pay a fine of Rs.500/- with a default sentence of one month simple imprisonment in case of default in payment of fine.
4. Challenging the said judgment of conviction and order of sentence against each of the appellants, the present appeal has been filed on various grounds set out in the appeal petition.
5. Advancing arguments on behalf of the appellants, Mr.M.Deivanandam, learned counsel for the appellant submitted that the court below committed a grave error in accepting the evidence of the so-called eye witness of PW-2 to corroborate the evidence of PW-1 when there was a material contradiction in her own evidence suggesting that she could not have seen the occurrence; that the court below committed a grave error in offering an explanation as to why the other eye witnesses not supporting the case of the prosecution when no such explanation is forthcoming from the witnesses examined on the side of the prosecution; that the fact of PW-1 whose statement was the basis of the FIR affixing his thumb impression whereas admittedly he used to sign, was overlooked by the court below in accepting the explanation offered by PW-1 and that in the light of the fact that the other eye witnesses turned hostile and that PW-2's evidence also is capable of suggesting that she could not have seen the occurrence, the only reliable evidence turn out to be the interested testimony of PW-1; that in the said circumstances, the contradictions, the evidence of PW-1 viz-a-viz his statement recorded under
Section 161 Cr.P.C. should have been taken as factors impeaching upon the reliability of his evidence and that if all these aspects were taken into account in proper perspective by the trial court, it ought to have held that the occurrence as projected by the prosecution was not proved beyond reasonable doubt and it should have acquitted the appellants/accused holding them not guilty of any offence.
6. Per contra, Mr.R.Muniapparaj, leanred Government Advocate (Crl. Side) would submit that there is no defect or infirmity in the finding of the court below holding the appellants 1 and 2 guilty of offences punishable under Section 326 and
323 respectively and convicting them for the above said offences respectively; that the court below took into consideration each and every aspect of the case, considered the evidence in proper manner and upon such a consideration, came to the correct conclusion to convict the appellants 1 and 2 for offences punishable under
Sections 326 and
323 respectively and that the said judgment of conviction can, at no stretch of imagination, be termed a defective or infirm one.
7. It is the further contention of the learned Government Advocate (Crl. Side) that the court below had shown utmost leniency in awarding the sentence and that hence there shall be no justification for this court to interfere with the order of sentence on the ground of excessive punishment. As an alternate argument, the learned Government Advocate (Crl. Side) contends that even if the testimonies of other witnesses who were examined to prove the motive and that of the so-called eye witnesses could be rejected on the ground that they have turned hostile and the evidence of PW-2 can also be discarded on the ground of discrepancy in her own evidence leading to an inference that she could not have seen the occurrence, the conviction can be upheld relying on the evidence of PW-1, the injured which stands fully corroborated by medical evidence.
8. This court gave its anxious considerations to the above said submissions made on either side. The evidence on record were also re-evaluated by this court. Upon such a re-evaluation, this court comes to the conclusion that the evidence of PWs-3, 4, 7, 8 and 9 do not lend any support to the prosecution version. Of course, it is true that the evidence of hostile witnesses need not be thrown out altogether and that other part of the evidence, which lends support to the prosecution case or the defence case, could be relied on by the court in favour of the prosecution or the accused, if such part of evidence is reliable. Among the above said witnesses, PW-3 and 4 are the close relatives of PW-1. PW-8 is a neighbour. No motive has been alleged for their turning hostile and deposing against the prosecution. Under such circumstances, their evidence are liable to be discarded, as they are not useful to prove the prosecution version.
9. So far as PW-9 is concerned, there is every reason for her to turn hostile and depose against the prosecution version, as the prosecution case regarding motive itself is built up on the alleged suspicion entertained by her husband, who is none other than the first accused. If at all she has supported the prosecution version in this regard, she would not be in a position to live peacefully with her husband, namely the first accused. Therefore, as already pointed out by the learned Trial judge, there is no wonder in her turning hostile and deposing against the prosecution version with a view to save her husband and husband's brother from punishment. Even then in the absence of any part of her evidence being useful to the prosecution, the mere fact that she has chosen to tell a lie, will not be enough to hold the opposite of what she has deposed could be true. A consideration of her evidence in totality will show that her evidence is not even worthy of consideration. She has chosen to state that she did not know anything and did not know anybody in the area. Hence the evidence of PW-9 should also be discarded as not helpful to prove the prosecution version.
10. The remaining evidence to be taken into consideration is the evidence of PW-2. She would say in the chief examination that she was present in the scene of occurrence and in fact she witnessed the occurrence. But, during cross-examination, she has admitted that the fact that her husband was attacked and thrown into the water came to her knowledge only when PW-9 - Vasantha came to her house and informed her of the same. PW-3 and PW-4 are the brother and mother respectively of PW1. Therefore, the evidence of PW-2 also could not be taken as an evidence of eye witness.
11. However, in view of the fact that she has chosen to speak the truth in her cross-examination regarding the source of information, her evidence in the chief examination, touching the motive part of the prosecution case becomes all the more reliable. It lends corroboration to the evidence of PW-1 regarding the motive part of the prosecution case. The evidence of PW-1 and 2 regarding the motive stands uncontraverted, either by eliciting contradiction or by adducing contra evidence capable of demolishing the reliability of the said evidence. Therefore, this court has to come to the conclusion that the motive alleged stands proved. However, the court is very much conscious of the position that proof of motive alone shall not be enough to convict a person.
12. But in the instant case, there is clear and cogent evidence adduced by PW-1, the victim himself. Of course, there are certain contradictions in his evidence regarding who were all present in the scene of occurrence. But that alone is not enough to discard his evidence as unreliable. He has clearly stated in his evidence that the first accused had developed a suspicion, as he was in talking terms with PW-9, the wife of the first appellant/first accused. The further evidence of PW-1 is to the effect that prior to the date of occurrence, he has gone to his native and returned to Pallakrishnapuram only on the date of occurrence; that when he was proceeding towards Marudhai river to take bath, PW-9, who was irrigating her field situated abutting the way leading to Marudhai river, asked him when he returned from his native place, for which he gave the reply "today only" and that the first appellant/first accused, who was in the other side of the said field, on seeing this, came with an Aruval and started attacking him stating that how dared he talked with PW-9. He has also given a vivid picture of how the occurrence took place. The part played by the second appellant/second accused was also clearly deposed by PW-1.
13. An attempt has been made on the side of the appellants/accused to raise a doubt regarding the credibility of Ex.P1 statement based on which the FIR was registered, on the ground that the thumb impression of PW-1 was obtained in the said statement, whereas admittedly he used to sign. It was also pointed out by the learned counsel for the appellants that there was no external injuries found on the right hand of PW-1 to prove that he was not in a position to sign. The said contention, according to the opinion of this court, does not have any substance in it. Of course, it is true that there is an admission that PW-1 used to sign. But, clear explanation has been given as to why he had to put his thumb impression rather than his signature in Ex.P1 - complaint statement. The explanation given was that he could not sign due to the injuries and hence his thumb impression was obtained. Of course, it is true, no external injury was found on the left hand. But, as evidenced by the testimonies of PW-5 and 6 and Ex.P2 and P3, it is obvious that PW-1 did have an incised wound on the posterior aspect of the right hand and a fracture of alna in the left fore arm. It has been clearly proved by the evidence of PW-1 and Ex.P2 - Wound certificate and Ex.P3 - Report of the Radiologist and M.O.1 (5 series of X-Rays). Therefore there is no reason to doubt the statement of PW-1 that he put his thumb impression because he was not in a position to sign.
14. The injuries, four in number, found on PW-1, have been clearly accounted for. The following are the injuries found on him:-
i) an incised wound present on the left parietal region, measuring 3 cm x 0.5 x bonedepth;
ii) fracture on the left hand near the left wrist joint unable to move the hand;
iii) an incised wound measuring 2.5 cm x 0.25 cm x 0.25 cm on the posterior aspect of the right hand;
And
iv) an incised wound measuring 2.5 cm x 0.25 cm x 0.25 cm 3" above the right ankle joint.
15. As per Ex.P3 Radiologist report, no bony injury was found on the skull (injury No.1) and regarding the other three injuries, fractures of bone were found. The first injury, namely the injury found on the skull was caused by the second appellant/second accused with a bamboo reaper. The injury Nos.3 and 4 are said to be caused by the first appellant/first accused using an Aruval. There is a slight discrepancy regarding the second injury, namely the wound found on the left fore arm. No external injury was found corresponding to the said fracture on the left fore arm. The learned Trial judge has observed that the injured, namely PW-1 would not have the opportunity of watching whether the sharp part of the 'aruval' or the other side of the 'aruval' (blunt part) came in contact with the left fore arm.
16. The learned Trial judge has also observed that such a fracture could have been sustained when PW-1 fell down in the melee after receiving cut injuries and the injury caused by the second appellant/second accused with a bamboo reaper on his head. However, the fact remains that sufficient explanation has not been offered as to how the second injury was caused. Even then, the mere fact that one of four injuries sustained by the injured has not been accounted for, will not be enough to disbelieve the evidence of prosecution witnesses, as the other injuries have been properly accounted for. The medical evidence clearly corroborate the evidence of PW-1. There is nothing wrong in convicting a person based on the testimony of a single witness regarding the occurrence when the same is corroborated by the medical evidence if at all such a testimony of the witness is trustworthy and reliable. This court concurs with the Trial court regarding the trustworthiness and reliability of the evidence of PW-1.
17. For all the reasons stated above, this court comes to the conclusion that there is no defect or infirmity in the judgment of the trial court holding the first appellant herein/first accused guilty of an offence punishable under
Section 326 IPC and holding the second appellant herein/second accused guilty of an offence punishable under Section
323 IPC, as the head injury caused by him was not a grievous one whereas the injuries 3 and 4 found in the wound certificate caused by the first appellant herein/first accused are grievous. Therefore, there is no scope for interference with the judgment of the court below convicting appellants 1 and 2/accused 1 and 2 for offences punishable under
Section 326 and
323 IPC respectively.
18. For an offence punishable under
Section 326 IPC, the maximum punishment prescribed is "imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and fine". The court below, by awarding a sentence of six months rigorous imprisonment and a fine of Rs.1,000/- with a default sentence of three months simple imprisonment has shown leniency. The said sentence can even be termed inadequate and at no stretch of imagination it can be termed excessive. For an offence punishable under
Section 323, the punishment prescribed is "imprisonment of either description which may extend one year, or fine which may extend to one thousand rupees, or both". However, the court below has chosen to impose only a fine of Rs.500/- with a default sentence of one month simple imprisonment. The same also cannot be termed as excessive. Therefore, there is no scope to interfere with the order of sentence also.
19. For all the reasons stated above, this court comes to the conclusion that the appeal fails and accordingly the same deserves to be dismissed.
20. In the result, the appeal shall stand dismissed.
21. The first appellant/first accused is on bail. The bail bond executed by him shall stand cancelled forthwith and the learned Additional District and Sessions Judge (Fast Track Court), Ariyalur is directed to take steps to secure the presence of the first appellant/first accused and commit him to jail to undergo the remaining period of sentence. The period of sentence already undergone by him shall be given set off.
20.04.2009 Index : Yes Internet : Yes To The Additional District and Sessions Judge (Fast Track Court), Ariyalur P.R.SHIVAKUMAR, J.
asr/ JUDGMENT in Crl.A.No.831/2002 Dated : 20.04.2009