A. Shanmugavel vs The State

R. Mala, J.—The Criminal Revision has been filed against the judgment of conviction and sentence passed in C.A. No. 120 of 2007 dated 31.03.2008 by the Additional District Sessions Judge, Fast Track Court No. 1, Thoothukudi, confirming the judgment of conviction and sentence dated 07.09.2007 made in C.C. No. 175 of 2002 by the Judicial Magistrate, Sathankulam, wherein, the revision petitioner/Accused was convicted for the offence under Section 323 of I.P.C. and sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs. 500/- in default to undergo simple imprisonment for one month.

The case of prosecution briefly is as follows:

(i) P.W. 1 Lakshmi is residing at Thadiyan colony. The accused used to consume liquor and make quarrel in the village. On 09.05.2001 at about 07.00 p.m. while the accused was quarrelling in front of the Narayanasamy temple, P.W. 1 Lakhsmi questioned the same as to why he was quarrelling like this and asked him to go home, for which, the accused abusing her in filthy language and took the stick and assaulted her on her right shoulder. Since P.W. 2 Durairaj and P.W. 3 Muthu shouted on him, he has gone to the house. P.W. 1 was taken to Tirunelveli Government Medical College by her husband Perumal and P.W. 2 Durairaj. P.W. 4 Parimalam, Assistant Surgeon treated P.W. 1 and took x-ray and issued Ex. P2 A.R. copy and opined that the injury is grievous in nature.

(ii) P.W. 6 Ayyappan, Head Constable, who was working in the Out Post Police Station of Tirunelveli Medical College has received the intimation, Ex. P.4 on 09.05.2001 at 11.45 p.m. and went to the Hospital and recorded the statement of P.W. 1, which is marked as Ex. P1 and sent the intimation to Nazareth police station. P.W. 7 Balu, Head Constable has gone to the Hospital and received the statement of P.W. 1 on 10.05.2001 at 07.00 a.m. and handed over the same to P.W. 8 Manoharan, Head Constable.

(iii) P.W. 8 Manoharan, Head Constable, on receipt of the same, on 10.05.2001 at about 10.30 a.m. registered a case in crime No. 56 of 2001 for the offences under Sections 294(b) and 323 of I.P.C. and prepared Ex. P5 first information report and sent the same to the Court and his higher officials. He took up the case of investigation and went to the place of occurrence and prepared Ex. P6 observation mahazer and Ex. P7 rough sketch in the presence of P.W. 5 Murugan and examined the witnesses Lakshmi, Durairaj, Muthu, Murugan, Prince and Ayyappan and recorded their statements. On 14.05.2001 at about 03.30 p.m. he arrested the accused and released him on bail and he put up the file before P.W. 9 Saravanakumar, Sub Inspector of Police for further investigation.

(iv) P.W. 9 Saravanakumar, Sub Inspector of Police, took up the case for further investigation and after due completion of the investigation, he filed charge sheet against the accused for the offence under Section 294(b) and 325 of I.P.C.

The learned trial Judge, after following the procedures, framed necessary charges against the accused. Since the accused denied the same in toto and pleaded not guilty, to prove the charges, P.Ws. 1 to 9 were examined and Exs. P.1 to 7 were marked on the side of the prosecution. On completion of the examination of witnesses on the side of the prosecution, the accused were questioned under Section 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and they denied them as false. No witness was examined on the side of the defence.

On considering the oral and documentary evidence, the learned Judicial Magistrate found the accused not guilty for the offence under Sections 294(b) and 325 of I.P.C. and acquitted the accused, however he found the accused guilty for the offence under Section 323 of I.P.C. and convicted and sentenced him as stated above. Aggrieved over by the judgment of the learned Judicial Magistrate, Sathankulam, an appeal was preferred by the accused in C.A. No. 120 of 2007 before the learned Additional District Sessions Judge, F.T.C. No. 1, Tuticorin, wherein, the conviction and sentence was confirmed and the appeal was dismissed. Against which, the present revision has been filed.

Challenging the conviction and sentence for the offence under Section 323 of I.P.C., the learned counsel for the revision petitioner would submit that even though the petitioner was charged for the offences under Sections 294(b) and 325 of I.P.C. the trial Court has convicted him only for the offence under Section 323 of I.P.C., which was confirmed by the first appellate court also.

He would further submit that the trial Court has failed to consider the fact that the de facto complainant has given the complaint only against the petitioner herein, whereas, in the A.R. Copy, she has stated that she was assaulted by two persons with wooden log. He would further submit that the occurrence has been taken place on 09.05.2001 at 07.00 p.m. in front of the Narayanasamy temple and the doctor has seen her at 11.10 p.m., but the complaint has been given on the very next day. According to the prosecution, Perumal, who is the husband of P.W. 1 and P.W. 2 Durairaj have taken her to hospital and then only the complaint has been given. In her evidence, she has stated that there was a fight between sons of P.W. 2 and the accused/revision petitioner herein in disbursing the money given by the Minister for performing kumbabishekam and at that time, the sons of P.W. 2 has assaulted the accused/revision petitioner and when he escaped, that blow was received by P.W. 1 and she sustained injury and that factum was not considered by the trial Court.

He would further submit that the evidence of P.W. 1 in chief and cross examination are contradictory with each other. In the cross examination, P.W. 1 has admitted that there was a fight between the sons of P.W. 2 and the accused. But, in the first information report, nothing has been stated about the same and that contradiction has not been considered by the trial Court. He would further submit that there was a delay in dispatching the first information report to the Court and the delay is fatal to the case of prosecution and hence, he prayed for setting aside the conviction and sentence.

Resisting the same, the learned Government Advocate (criminal side) would submit that since P.W. 1 is an illiterate lady belongs to rustic village, while considering her evidence, some bonus should be given on her evidence. She would further submit that since P.W. 1 sustained injury on her left hand, compensation may be ordered to her and the injury sustained by the P.W. 1 was caused by the revision petitioner and prayed for the dismissal of the revision.

Considering the rival submissions made by both sides and perusal of the typed set of papers, the first point to be decided is as to whether the evidence of P.W. 1, injured is admissible and reliable and whether the defence of the accused has been probablised by way of cross examination?. Admittedly, the alleged occurrence was said to have been taken place on 09.05.2001 at 07.00 p.m. P.W. 1, injured was treated by P.W. 4 Parimalam at 11.10 p.m. on the same day. In Ex. P2, A.R. Copy of P.W. 1, it was stated that she was assaulted by two known persons with wooden log, whereas, the complaint has been registered at 10.05.2001 at 10.00 a.m. and that was received by the Court on 15.05.2001 at 3.10 p.m., wherein, only the name of the revision petitioner has been mentioned. In the complaint, it was specifically mentioned that the accused came to the place of occurrence with an inebriated mood and abusing her in filthy language and when she pacified the same, the revision petitioner assaulted her. But, in her chief examination, P.W. 1 has deposed that when she was standing in front of the Narayansamy temple, the accused came and assaulted him on his right upper arm. In cross examination, she has categorically admitted that there was a fight between P.W. 2''s sons and the accused. But, she has accepted that she was standing 10 feet away from the place and she also fairly conceded that they are fighting with each other with wooden log and at that time, the accused came and assaulted her on her right hand, which was probablised the defence raised by the accused. Durairaj was examined as P.W. 2, who is the father of the person, who is fighting with the petitioner. In his evidence, he has fairly conceded that there is no talking term with the accused family. A suggestion was posed to P.W. 2 that at the time of distributing the amount given by the Minister, there was quarrel between his sons and the accused and when the sons assaulted the revision petitioner, he escaped and that has been fallen down on P.W. 1 was denied by him. But, as already stated, P.W. 1 was taken to hospital only by P.W. 2 In such circumstances, I am of the view that since because of the enmity, he has given false evidence and hence, the evidence of eye witness, P.W. 2 is not reliable.

The other witness P.W. 3 muthu, who is alleged to be an eye witness has turned hostile and he has not supported the case of prosecution. While considering the evidence of P.W. 1, it is true, she is an illiterate lady from the rustic village. Her evidence in chief examination and cross examination are contradictory with each other. When she was seen by P.W. 4 doctor at the first instance at 11.10 p.m., it was stated that she was assaulted by two known persons, whereas, she gave a complaint on 10.05.2001 at 10.00 a.m. stating the only the name of the petitioner herein as accused. P.W. 2 has accompanied her because of the enmity between the revision petitioner and P.W. 1 and hence, a false case has been foisted against the petitioner and that has been proved by the defence. Hence the defence has been probablised by P.W. 1''s cross examination. P.W. 1''s cross examination and A.R. copy Ex. P2 are contradictory with the evidence of P.W. 1 and the contents in the first information report. It is true that the first information is not a substantial piece of evidence and that can been used for corroboration and contradiction. But, here there are vital contradictions in the chief examination and the cross examination, which is fatal to the case of prosecution. In such circumstances, I am of the view that the prosecution has miserably failed to prove the guilty of the petitioner herein for the offence under Section 323 of I.P.C. beyond all reasonable doubt.

No doubt, P.W. 1 has sustained injury that too fracture in her right femur and P.W. 4 Dr. Parimalam has taken x-ray, whereas, no X-ray report has been filed before the trial Court. It is the duty of the prosecution to prove that the revision petitioner alone has caused injury to PW. 1. But, as already stated, at the time of occurrence, the sons of P.W. 2 and the accused were fighting with each other and P.W. 2''s son have armed with wooden long and when they assaulted the petitioner, he escaped and that blow has been fallen on the right hand of P.W. 1 and that has been probablised the case of defence. Hence, accepting the defence, I am of the view that the prosecution has not proved that the revision petitioner alone has caused injury to P.W. 1 beyond all reasonable doubt and the benefit of doubt shall be given in his favour and the petitioner shall be acquitted from the charge and the revision is liable to be allowed and the judgment of conviction and sentence passed by the Judicial Magistrate, Sathankulam and confirming by the Additional District Sessions Judge, Fast Track Court No. 1, Thoothukudi, are liable to be set aside.

In fine,

� The Criminal Revision is allowed.

� judgment of conviction and sentence passed in C.A. No. 120 of 2007 dated 31.03.2008 by the Additional District Sessions Judge, Fast Track Court No. 1, Thoothukudi, confirming the judgment of conviction and sentence dated 07.09.2007 made in C.C. No. 175 of 2002 by the Judicial Magistrate, Sathankulam are hereby set aside.

� The petitioner is hereby acquitted from the charges levelled against him.

� The fine amount already paid by the petitioner, if any, is ordered to be refunded to him.

� The bail bonds, if any, executed by the petitioner stand cancelled.