K. Balu vs State Inspector of Police

R. Mala, J.—The Criminal Appeal has been filed against the judgment of conviction and sentence dated 30.06.2003 made in S.C. No.235 of 1997 on the file of the Additional District Sessions Judge, Fast Track No.III, Madurai, wherein, the appellants/accused were convicted for the offence under Section 307 of I.P.C. and both of them were sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- in default to undergo simple imprisonment for one year.

The case of prosecution briefly is as follows:

(i) P.W.1 Mahalingam is residing at Subramaniyapuram and rearing pigs. Both the accused used to kill the pigs belonging to P.W.1 and ate the pork and sold the remaining pork. On the date of occurrence viz., 01.09.1996, while P.W.1 was going to Heeranagar to see the pigs, near the eastern side of the level crossing of Mayor Muthu Bridge, the accused were standing there, where the pigs were grazing. When P.W.1 questioned them as to whether it was justifiable to destroy his properties, both the accused shouted at P.W.1 and A1 took a broken soda-bottle and inflicted injury on his left chest. A2 also took a knife and inflicted injury in his back, shoulder and elbow. When P.W.1 raised alarm, the accused ran away towards eastern side. The mother of P.W.1, who came there for picking waste papers has taken P.W.1 to Government Hospital. P.W.8, Mr. Sethuraman, Sub Inspector of Police attached to Thideer Nagar Police Station came there and P.W.1 has given a complaint Ex.P.1. P.W.8 recovered M.O.1, bloodstained lungi of P.W.1.

(ii) Thereafter, P.W.8 rushed to the Police Station and on the strength of Ex.P1, registered a case in crime No. 2122 of 1996 for the offence under Sections 341, 324 and 307 of I.P.C. and prepared Ex.P8 first information report and sent the same to the Court and put up the file before P.W.10, Pon.Annamalaichamy, Inspector of Police for Investigation.

(iii) P.W.9 Dr.Natarajan, treated the injured and found the following injuries:

Incised wound back of middle of right arm 6x2x1 cm.

Incised wound left chest just above left cortel margin 6x2x3 cm

Incised wound 1 cm below would No. 2 (No.s) 6x2x2 cm.

Incised wound two in Nos.(one 1 cm (NC) the other) as the right chest at posterior auxiliary line - each 3x2x1 cm.

Incised wound left elbow 3x2x1 cm

As per the opinion of P.W.2 Dr.Soundararajan, he issued Ex.P9 would certificate, opining that wound Nos. 2 and 3 are grievous in nature and other injuries are simple in nature.

(iv) P.W.10 Pon.Annamalaichamy, Inspector of Police, took up the case for investigation and gone to the scene of occurrence and prepared Ex.P10, observation mahazer and Ex.P11 rough sketch in the presence of P.W.5 Rajamani and P.W.6 Ayyanar. He recovered M.O.4, bloodstained earth and M.O.5, sample earth in the presence of the witnesses and also seized M.O.2, broken glass- pieces under Exs.P12 and 14, Athatchies. He examined the witnesses and recorded their statements. He arrested the accused and recorded the confession statement of A2 Raja. The admitted portion of confession statement is Ex.P.13, on the basis of which, he recovered knife M.O.3. Thereafter, he sent the accused for judicial custody and after completing his investigation, he filed a charge sheet against the accused for the offences under Sections 341, 324, 326 and 307 of I.P.C. read with 34 of I.P.C. on 19.12.1996.

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 10 were examined and Exs.P.1 to 14 and M.Os.1 and 5 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 he denied them as false. On the side of the defence, D.Ws.1 and 2 were examined.

On considering the oral and documentary evidence, the learned Additional District and Sessions Judge, Fast Track Court No.III, Madurai found the accused guilty for the offence under Section 307 of I.P.C. and convicted and sentenced them as stated above.

Challenging the conviction and sentence passed by the trial Court against the accused/appellants for the offence under Section 307 of I.P.C., the learned counsel for the appellants would submit the following arguments and prayed for setting aside the convicting and sentence and acquitting the appellants/accused:

(i) The evidence of P.W.1 is not trustworthy and he has enmity with A1 and A2 and hence, he has given a false evidence.

(ii) The injuries sustained by P.W.1 is not correlated the weapon M.O.2, Soda Bottle.

(iii) Even though eye witnesses were examined, they were turned hostile and there is no independent evidence.

(iv) The ingredients of Section 307 of I.P.C. has not been made out.

Resisting the same, the learned Government Advocate (criminal side) would submit that there is no reason for discarding the evidence of P.W.1 and P.W.9 Dr.Natarajan has correlated the injuries with the weapon and only the intention of the parties is sufficient and the nature of injury is not a material. To substantiate her case, she relief upon the decision of the Apex Court State of M.P. Vs. Kashiram and Others, prayed for the dismissal of the appeal.

Considering the rival submissions made by both sides and perusal of the typed set of papers, the admitted case is that P.W.1 Mahalingam, who is the complainant is injured person. D.W.1, Palaniammal is the wife of the 1st appellant and D.W.2 Uma is the mother of the 2nd appellant. They were examined to prove the enmity between P.W.1 and the accused. While considering the cross examination of D.Ws.1 and 2, they are interested and related witnesses and hence, their evidence cannot be looked into. It is true, P.W.3 Syed Jafer and P.W.4 Doss, who were having cycle shop and tea shop respectively in the place of occurrence were examined as independent witnesses.

Now, this Court has to decide whether the evidence of P.W.1 is reliable or not and the same is base for convicting the accused for the offence under Section 307 of I.P.C. It has been held by the Apex Court that the conviction can be based on the sole testimony of the victim, if found to be worthy of credence and reliable and for that no corroboration is required. It has often been said that oral testimony can be classified into three categories, viz., (I) wholly reliable, (ii) wholly unreliable, and (iii) neither wholly reliable not wholly unreliable. In case of wholly reliable testimony of a single witness, the conviction can be founded without corroboration. This principle applies with greater vigour in case the nature of offence is such that it is committed in seclusion. In case, prosecution is based on wholly unreliable testimony of a single witness, the Court has no option that to acquit the accused. Therefore, this Court has to scrutinize the evidence of P.W.1 with great care and caution.

Considering the chief and cross examination of P.W.1 and the doctors'' evidence of P.W.2 and 9, I am of the view that the evidence of P.W.2 and P.W.9 are corroborating the injuries sustained by P.W.1 and hence, there is no reason to discard the evidence of P.W.1. Since the evidence of P.W.1 is cogent, natural and trustworthy, I am of the view that the evidence of P.W.1 is reliable, which is not required any corroboration. Hence, the argument advanced by the learned counsel for the appellants that the non examination of independent witnesses is fatal to the case of prosecution does not merit acceptance.

The another point raised by the learned counsel for the appellants is that it is not possible for the injured to sustain injury by way of Soda Bottle. Considering the evidence of P.W.9 Dr.Natarajan, he has categorically stated that the injuries sustained by the injured were caused by M.Os.2 and 3 viz., soda bottle and knife respectively. In such circumstances, I am of the view that the arguments advanced by the learned counsel for the appellants does not merit acceptance, since the evidence of P.W.1 is wholly reliable and there is no contradiction between the ocular evidence and medical evidence and the injuries sustained by P.W.1 were possible by using M.Os.2 and 3 and the prosecution has proved that the appellants caused such injuries to P.W.1.

The alleged occurrence was said to have taken place at 6.30 p.m. on 01.09.1996 and P.W.1 was seen by the doctor immediately at 7.30 p.m. Even though a suggestion was posed to P.W.1 that he fell down after taking liquor, nothing has been mentioned in Ex.P9 wound certificate of P.W.1 that P.W.1 was in inebriated mood. Considering the evidence of P.Ws.1, 2 and 9 and Ex.P9 wound certificate, the appellants have caused the injuries to P.W.1 and in such circumstances, I am of the view that the argument advanced by the learned counsel for the appellants does not hold good.

Now, this Court has to consider whether the ingredients of Section 307 of I.P.C. has been made out. It is true, as per Section 307 of I.P.C. is concerned, nature of injury is immaterial. In the decision in State of M.P. Vs. Kashiram and Others, , it was held that only the intention of the parties is sufficient and the nature of injury is not a material. It is appropriate to extract paragraph No. 10 of the said decision:

It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. Therefore, an accused charged under Section 307 I.P.C. cannot be acquitted merely because the injuries inflicted on the victim were in the nature of a simple hurt.

The intention of the accused is necessary for deciding the guilt. In the present case, on perusal of the complaint Ex.P1, A1 Balu has stated that and assaulted P.W.1. But, the intention has not been mentioned and hence, I am of the view that the intention has not been proved by the prosecution.

The learned counsel for the appellants has mainly focussed the non seizure of shirt. Admittedly, as already stated that the bloodstained lungi has been seized, whereas, the same has not been sent for chemical examination and hence, I am of the view that non seizure of the shirt and non sending the material object for chemical analysis is not fatal to the case of prosecution.

As already stated, considering the ingredients of Section 307 of I.P.C. along with the evidence of P.W.1 and Ex.P8, F.I.R., there is no intention to kill P.W.1 and hence, the ingredients of Section 307 of I.P.C. has not been made out. However, as per the evidence of Dr.P.W.9 Natarajan, he has stated that the second injury on the left chest is grievous in nature, which was caused by soda bottle and hence, I am of the view that the prosecution has proved the guilt of A1 for the offence under Section 326 of I.P.C., since he caused grievous injury and the prosecution has proved the guilt of A2 for the offence under Section 324 of I.P.C. Therefore, this Court found A1 guilty for the offence only under Section 326 of I.P.C. and not 307 of I.P.C. and found A2 guilty for the offence only under Section 324 of I.P.C. and not 307 of I.P.C. Therefore, the judgment of conviction and sentence passed under Section 307 of I.P.C. is hereby set aside.

Now, this Court has to decide the sentence to be imposed for the offence under Section 326 of I.P.C. for A1 and Section 324 of I.P.C. for A2. As this Court found A1 guilty for the offence under Section 326 of I.P.C., he is convicted and sentenced to undergo 18 months rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months simple imprisonment. The fine amount already paid by A1 for the offence under Section 307 of I.P.C. is treated as fine amount imposed for the offence under Section 326 of I.P.C.

In respect of A2 is concerned, as this Court found A2 guilty for the offence under Section 324 of I.P.C., he is convicted and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.1,000/- in default to undergo three months simple imprisonment. The fine amount already paid by A2 for the offence under Section 307 of I.P.C. is treated as fine amount imposed for the offence under Section 324 of I.P.C.

It is represented by the learned counsel for the appellants that A1 and A2 were already undergone in jail for one year. Therefore, the trial Court is directed to take steps to secure A1 and A2 and send them jail to undergo the remaining period of sentence, if any. The bail bonds, if any executed by the appellants, shall stand cancelled.

The Criminal Appeal is disposed of with the above terms.