Eli @ Ganesan vs State

R. Mala, J.—Criminal Revision Case against the judgment dated 2.3.2009 in Crl. A. No. 1 of 2008 on the file of the Additional Sessions

Court, Puducherry at Karaikal, confirming the conviction and sentence passed against the revision Petitioner/accused by judgment dated

23.1.2008 in C.C. No. 219 of 2004 on the file of the Judicial Magistrate-II, Karaikal.

The Respondent-complainant filed the charge sheet against the revision Petitioner/accused stating that on 23.9.2004 at about 8 am, near Sea

Shore, Karukkalacherry, Neravy, the accused assaulted the de-facto complainant Swaminathan with a blue metal stone on his left cheek and hand

and also assaulted Swaminathan''s wife Anjammal and caught hold of her hair and pushed her down with an intention to outrage her modesty and

thereby caused simple injuries to them due to wordy quarrel. The incident was witnessed by P.W.1 Ravi and P.W.2 Mariappan. Swaminathan

went to the Police Station and gave a complaint in Ex.P-5 and the complaint has been received by P.W.4 Head Constable who registered a cases

in Crime No. 131 of 2004 for the offences under Sections 324 and 354 IPC and prepared Ex.P-4 FIR. He inspected the place of occurrence in

the presence of P.Ws.1 and 2 and prepared Ex.P-1 observation mahazar and seized M.O.1 under Ex.P-2 seizure mahazar. He sent Swaminathan

to P.W.3 Dr. M. Balaji Rao who examined him and gave Ex.P-3 wound certificate and P.W.5 Dr. M. Danasegaran examined the wife of

Swaminathan and issued Ex.P-6 wound certificate. P.W.6 Sub-Inspector of Police investigated the case and laid charge sheet against the revision

Petitioner/accused for the offences under Sections 324 and 354 IPC.

The trial Court, after following the procedures, framed necessary charges against the accused and after considering the oral evidence of P.Ws.1

to 6 and documentary evidence of Exs.P-1 to P-6 and the material object in M.O.1, convicted the accused for the offence u/s 324 IPC and 354

IPC and sentenced him to undergo simple imprisonment for six months and simple imprisonment for three months respectively, and ordered to run

the sentences concurrently. As against the judgment of conviction and sentence passed by the trial Court, the Petitioner/accused preferred appeal

in Crl. A. No. 1 of 2008 before the appellate Court, which after considering the arguments of both sides'' counsel, confirmed the conviction and

sentence passed by the trial Court, against which, the present Crl. R.C. is filed by the Petitioner/accused.

Challenging the conviction and sentence passed by both the Courts below, learned Counsel appearing for the revision Petitioner/accused

submitted that the complainant and the injured person were not examined before the trial Court. Ex.P-5 complaint was marked only through Sub-

Inspector of Police. Learned Counsel further submitted that the wife of the said Swaminathan, namely Anjammal, witness No. 2, who is the

competent person to depose about the ingredients of Section 354 IPC, was not examined before the trial Court. P.Ws.1 and 2, who are alleged to

have been the eye-witnesses, are only the attestors of the observation mahazar and seizure mahazar for M.O.1. He prayed for setting aside the

conviction and sentence imposed by the Courts below.

Learned Government Advocate (Puducherry) appearing for the Respondent/complainant, stated that it is true that the complainant was not

examined, but steps have been taken for summoning the witnesses and even bailable warrant has also been issued, but they are unable to produce

Witness No. 1 Swaminathan and Witness No. 4 Anjammal. Learned Government Advocate further submitted that P.W.1 Ravi and P.W.2

Mariappan, even though they are the attestors of the observation mahazar and seizure mahazar, they are also the eye-witnesses and their evidence

is corroborate with each other to prove the occurrence and guilt of the accused for the offences under Sections 324 and 354 IPC, beyond

reasonable doubt. The injuries have been deposed by P.Ws.1 and 2 and that is corroborated by the evidence of P.Ws.3 and 5 Doctors in Exs.P-3

and P-6 wound certificates. Hence, he prayed for dismissal of the Crl. R.C. To substantiate his contentions, he relied upon the decision of the

Supreme Court reported in Krishna Mochi and Others Vs. State of Bihar, and submitted that non-examination of the complainant is not fatal to the

case of the prosecution.

Considering the rival submissions made by both sides, it is seen that the alleged occurrence has taken place on 23.9.2004 at about 8 am, near

Sea Shore, Karukkalacherry, Neravy, and the injured person is Swaminathan who has given complaint Ex.P-5. Admittedly, he is alive, but he was

not examined before the trial Court. The other witness is Anjammal, wife of Swaminathan, and the accused caught hold of her hair and pushed her

down with an intention to outrage her modesty. To prove the ingredients of Section 354 IPC, the victim-Anjammal was not examined. It is well

settled principle of law that the complaint-FIR is not the document to be admitted as the gospel truth. This document can be used for contradiction

and corroboration of the deponent of the document. Admittedly, the deponent/author of the document/Ex.P-5 complaint, was not examined before

the trial Court. It is not the case of the prosecution that the said Swaminathan and Anjammal are not alive. While perusing the records, it has been

proved that the bailable warrant of the witnesses 1 and 4 (Swaminathan and Anjammal) had been issued on 27.7.2007, but no reason has been

assigned as to why the bailable witness warrants were not executed and produced before the trial Court.

It is relevant to consider the evidence of P.W.1 Ravi and P.W.2 Mariappan to find out as to whether the ingredients of Sections 354 and 324

IPC, have been made out. While perusing the evidence of P.W.1, he has stated in his chief examination that at about 8.30 a.m., on 23.9.2004, he

heard the alarm and at that time, he witnessed that the accused assaulting Swaminathan with granite stone on his left cheek and hand. He further

stated that Anjammal, wife of Swaminathan, rushed to the place and the accused abused her in filthy language and dragged her sari and attempted

to outrage her modesty.

At this juncture, it is appropriate to consider the complaint given by Swaminathan. In Ex.P-5 complaint, Swaminathan stated that before the

incident, there was a wordy altercation between the Petitioner/accused and Swaminathan. So, while considering the complaint along with the

evidence of P.W.1, I am of the view that P.W.1 is not an eye-witness, because, in his evidence, he has fairly conceded that he has not attempted

to pacify both parties. Further, it is pertinent to note that P.W.1 also belonged to the same Village. P.W.1 further stated that he has not taken

Swaminathan and his wife to hospital. In such circumstances, on a perusal of the evidence of P.W.1, it is seen that he is not an eye-witness.

While considering the evidence of P.W.2, he stated that when he went for walking, he heard an alarm and that he witnessed that the revision

Petitioner/accused assaulting the said Swaminathan on his cheek and shoulder with M.O.1 granite stone. He further stated that Swaminathan''s wife

Anjammal made alarm stating that, @Xo th'';f@ and then the villagers came there and the accused left the place of occurrence.

So, the evidence of P.Ws.1 and 2 does not corroborate with each other. In such circumstances, non-examination of the complainant-victim

plays vital role and it is fatal to the case of the prosecution. While considering their evidence in chief and cross examination, it is revealed that they

are not the eye-witnesses. In such circumstances, the eye-witness-victim-complainant Swaminathan and Anjammal, were not examined and their

non-examination is fatal to the case of the prosecution.

Further, the decision relied on by the learned Government Advocate for the Respondent-Police, is not relevant to this case, because, in that

case, even though the complainant was not examined, the person who deposed about the incident is one of the victims, who suffered injuries in the

incident.

Since in the present case, non-examination of the complainant who is the victim, is fatal to the case of the prosecution, the benefit of doubt has

to be given in favour of the revision Petitioner/accused. So, I am of the view that it is a fit case for setting aside the conviction and sentence passed

against the Petitioner/accused for the offence u/s 324 IPC, even though P.Ws.3 and 5 Doctors deposed about the wound certificate, in which it is

stated that, the said Swaminathan and Anjammal were assaulted by known person on 23.9.2004, but the said Swaminathan, the injured, is the

competent person to identify the accused, and he was not examined, and so, the prosecution has failed to prove that the accused is guilty of the

offence u/s 324 IPC beyond reasonable doubt. So, the benefit of doubt has to be given in favour of the Petitioner/accused.

Likewise, the Witness No. 4, Anjammal, wife of Swaminathan, was not examined by the prosecution. Except the ipse-dixit of P.W.1, no

evidence is available to show that the Petitioner/accused has an intention to commit the offence u/s 354 IPC and hence the prosecution has not

proved the same beyond reasonable doubt and the benefit of doubt has to be given in favour of the Petitioner/accused.

For the reasons stated above, Crl. R.C. is allowed, and the conviction and sentence imposed on the Petitioner/accused, by the Courts below,

for the offences under Sections 324 and 354 IPC, are set aside and he is acquitted of the charges levelled against him in respect of the offences

under Sections 324 and 354 IPC. The bail bond if any executed by him shall stand cancelled.