Murugadoss vs State

R. Mala, J.—The Criminal Appeal is arising out of the judgment of conviction and sentence, dated 29.06.2007 made in S.C.No. 439 of 2004 on the file of the Additional District and Sessions Judge, F.T.C.No. IV, Periyakulam, whereby the accused was convicted for the offences under Section 294(b) and 332 of I.P.C. and sentenced him to undergo three months rigorous imprisonment for each offence and the same is ordered to be run concurrently.

The respondent police filed charge sheet against the accused/appellant for the offences under Sections 294(b) and 333 of I.P.C. stating that because of the deletion of name of the appellant/accused from the inpatient register, when the injured was in official duty, the appellant/accused abused him on 16.03.2003 at 18.15 hours and prevented him from discharging his duty and assaulted him and caused sustained grievous injuries on his face, lip and teeth and thereby, they committed the offences as stated above.

The case of the prosecution is as follows:

(i) P.W.1 Muniyasamy was working as Compounder in Government Hospital, Theni. On 16.05.2003 at 07.00 p.m., he was discharging his duty at the hospital as night duty. Ex.P4 is the duty certificate issued to P.W.1 by P.W.2 Dr.M.Jealakshmi, Medical Officer incharge of the Government Hospital, Theni. On that day at 9.15 p.m., the accused came to the hospital in drunken mood. P.W.1 asked about who he was. The accused replied that he was inpatient. P.W.1 asked the nurse about the accused, for which, the nurse stated that on that day at 06.00 p.m. he himself left the hospital without permission during the treatment. Therefore, P.W.1 stated that if the accused wanted to come into the hospital for treatment, he could get permission from the Medical Officer. For that, the accused abused P.W.1 with filthy language. P.W.1 stated that without any permission from the Medical Officer, he could do nothing and he asked the accused to go out. The accused pushed P.W.1 on the ground and fisted on his face and mouth with his right hand, as a result of which, two teeth in the upper jaw and lower jaw are shaken. The occurrence was seen by P.W.7, Chinnasamy, who was inpatient in the Government Hospital, Theni.

(ii) P.W.6 Dr.Kathirkamu was the duty doctor at Theni Government Hospital. P.W.1 gave a complaint to P.W.6. P.W.6 forwarded the complaint given by P.W.1 to police for further action.

(iii) On 16.05.2003 at 22.30 hours, P.W.1 went to Theni Police Station and gave the complaint Ex.P1 to P.W.9, Mr.Jeyakumar, Inspector of Police. P.W.9 Mr.Jeyakumar received the complaint and registered a case in crime No. 147 of 2003 for the offence under Sections 294(b) and 332 of I.P.C and prepared printed F.I.R. Ex.P.8. He sent P.W.1 to the Government Hospital for treatment under medical memo.

(iv) As per the medical memo, P.W.6 Dr.Kathirkamu treated P.W.1 and found the following injuries:

A contusion about 3x2 cm on the upper lip.

An abrasion about 2x1 cm on the lower lip.

Pain contusion right side of mandible.

Right II incised teeth movement and

A contusion about 4x2 cm on the right side of chest.

He referred P.W.1 to Dentist for treatment. P.W.3 Dr.Kavitha was the Dentist at Theni Government Hospital. On 17.05.2003, she treated P.W.1. She found that right upper central incised and lower right lateral incised in the lower jaw were missing. She opined that the fourth injury is grievous in nature and the opinion of P.W.3 is Ex.P2 and the A.R.Copy is Ex.P5.

(v) P.W.9 arrested the accused on 17.05.2003 at 07.15 a.m. and produced him before the learned Judicial Magistrate for judicial custody. He visited the scene of occurrence and prepared observation mahazer Ex.P7 and drew a rough sketch Ex.P.7 in the presence of P.W.5 Velmurugan and P.W.8 Chinnan and examined the witnesses Muniyasami, Padma, Chinnachamy, murugan, Saraswathi, Velmurugan and Chinnan and recorded their statements.

(vi) P.W.10 K.Natarajamoorthy, Inspector of Police, Theni Police Station took the further investigation and examined the witnesses and recorded their statements. Since the injury is grievous, he altered the Section into 294(b) and 333 of I.P.C., and sent the alteration report Ex.P 9 to the Court. He examined the doctors, who treated P.W.1 and after completion of investigation, he filed charge sheet for the offence under Sections 294(b) and 333 of I.P.C. against the accused.

The learned Judge after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the Court examined P.W.1 to P.W.10 and marked Exs.P1 to P9. Accused was questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances. Accused denied the same and stated that since he made demonstration against the staff of the Government Hospital, a false case has been foisted against him. On the side of the accused, D.W.1 to D.W.3 were examined and Ex.D1 was marked.

On considering the oral and documentary evidence, the learned Sessions Judged convicted the accused and sentenced him as stated above.

Challenging the conviction and sentence passed by the learned trial Judge, the learned counsel for the appellant would submit that the appellant is a member of All India Youth Federation and since, the hospital authorities have been collecting bribe for each and every action, he made a demonstration and hence, the hospital authorities had enmity with the accused/appellant.

He would further submit that when the accused was admitted in the hospital, P.W.1 and others assaulted him and foisted the false case against him and that factum was not considered by the trial Court. He would further submit that the evidence of P.Ws.1 to 6 are contradicted with each other. In Ex.P1, the signature of P.W.6 has been denied by himself, who is the duty doctor, who forwarded the complaint to the police.

He further submitted that P.W.2, who is the Chief doctor has not made any enquiry with P.W.1 and the accused/appellant herein, in respect of the occurrence, even though, he visited the hospital at 10.00 p.m. after hearing the incident.

He further submitted that the medical evidence of P.W.3, Dr.Kavitha, dental surgeon is contrary to the oral evidence of P.W.1. He would further submit that the Nurse Nirmala, who has informed P.W.1 regarding the absconding of the accused/appellant was not examined before the Court and that factum has not been considered by the trial Court and hence, he prayed for setting aside the conviction and sentence.

Resisting the same, the learned Government Advocate (criminal side) would submit that P.W.6 doctor has fairly conceded his signature and he has not denied the signature and he stated that his name was written by somebody. She further submitted that non examination of P.W.1 and the accused by P.W.2 is not fatal to the case of prosecution and there is no contradiction between the medical evidence and oral evidence.

She would further submit that the arrest has been made by P.W.9, Mr.Jeyakumar on 17.05.2003 at 07.15 a.m. and only his evidence has to be looked into and not the evidence of D.W.1 to 3 and the trial Court has considered all the aspects in a proper perspective and come to the correct conclusion and hence, she prayed for the dismissal of the appeal.

I have considered the rival submissions made by both sides and materials on record.

Now, this Court has to decide as to whether the conviction and sentence is sustainable and whether the prosecution has proved that the accused is guilty under Section 294(b) and 332 of I.P.C.?

P.W.1, who is the injured, was working at Theni Government Hospital. P.W.2 is the Medical Officer incharge and he issued duty certificate Ex.P4, which shows that P.W.1 was on duty at the time of occurrence. P.W.4 Nurse Padma, who was alleged to an eye witness turned hostile. P.W.5, Velmurugan, who was the staff of Theni Government Hospital was only the attestor of observation mahazer Ex.P7. P.W.6 Kathirkamu was the duty doctor, who treated P.W.1 only at 11,00 p.m. The alleged occurrence is said to have been taken place at 9.15 a.m. Instead of treating P.W.1, he forwarded the complaint to the police and after receiving memo only, he treated him. In such circumstances, this Court has to decide whether the evidence of P.W.1 is reliable or not?

A perusal of the evidence of P.W.1, wherein, he has stated that he sustained several injuries. P.W.6 has given A.R.Copy Ex.P5, in which, it has been mentioned that P.W.1 sustained five injuries. But, P.W.3 Dr.Kavitha, dental surgeon has given treatment to P.W.1 and her opinion has been marked as Ex.P2, wherein, it has been specifically mentioned that right lateral incised and right upper central incised, completely adjusted and fresh bleeding socket seen.

P.W.1, in his chief examination stated that since the accused has assaulted him on his mandible, incised teeth are shaking and even at the time of examination before the Court, the teeth were shaking, whereas, in the later chief examination, he has stated that since the teeth has been shaken, the same has been removed. Therefore, it is clear that P.W.1 has given a contrary evidence.

Perusal of P.W.3, Dr.Kavitha, would show that she fairly conceded that if any teeth has been fallen, that socket would have been closed between one week and 10 days. She further stated in her report that fresh bleeding socket seen and that would have been occurred even the teeth has fallen prior 3 and 4 days. In such circumstances, I am of the view that there is contradiction between the oral evidence of P.W.1 and the documentary evidence of P.W.3.

As already stated, P.W.4 has been turned hostile, who is alleged to be eye witness. The only supporting evidence is P.W.7 Chinnasamy, who was treated as inpatient during the relevant time. But, in his cross examination, he fairly conceded that he has not produced any document to show that on that date, he was admitted and taking treatment as inpatient in that hospital. The prosecution has failed to prove that he was an inpatient on the date of occurrence. D.W.1 was examined to prove the version of the defence. But, he has not produced any document to show that he was taking treatment as inpatient on 16.05.2003. Therefore, the evidence of P.W.7 and D.W.1 is not trustworthy and hence it is not reliable.

As already stated, the evidence of P.W.1 is not reliable, since the appellant has been conducting demonstration after taking permission. To prove the same, D.W.2, Senior Sub Editor of Dinamalar daily was examined a publication was marked as Ex.D1, which shows that there is longer head between the hospital authorities and the appellant/accused. As per the case of prosecution, the accused/appellant was admitted into hospital at 4.00 p.m. and he absconded from the hospital at 6.15 p.m. and he returned back at 9.15 p.m. and when the same was questioned by P.W.1, the alleged occurrence was said to have been taken place. To prove the fact as to whether any endorsement made by P.W.6 regarding the absconding of the appellant/accused from the hospital, no document viz., inpatient case sheet was not filed and marked. Therefore, I am of the view that the evidence of P.W.1 is not trustworthy and discarded as not reliable.

Furthermore, the suggestion made by the defence that the accused was taken by P.W.1 and three more persons and assaulted the accused and at that time, P.W.1 has received such injuries. But, as per criminal jurisprudence, the prosecution ought to have proved the guilt of the accused beyond all reasonable doubt. Except the interested witnesses, no other supporting evidence to prove the guilt of the accused beyond all reasonable doubt.

It is pertinent to note that the arrest of the accused is also questionable. Because the prosecution witness itself stated that the accused was taken by the police when he was in the bed on the same day. P.W.7 in his cross examination has stated that the occurrence has been taken place at 9.30 p.m. The police came to the hospital and taken the accused. It is appropriate to extract the portion of the cross examination of P.W.7.

In such circumstances, the arrest was also not proved by the prosecution. Therefore, considering the same, I am of the view that the prosecution has miserably failed to prove that the accused is guilty under Sections 294(b) and 332 of I.P.C beyond reasonable doubt and the accused/appellant is entitled to benefit of doubt. Hence, the benefit of doubt is in favour of the appellant and the appellant is acquitted from all the charges levelled against him.

In fine, The Criminal Appeal is allowed.

Judgment of conviction and sentence dated 29.06.2007 passed in S.C.No. 439 of 2004 by the Additional District and Sessions Judge, F.T.C.No. IV, Periyakulam, is set aside.

The appellant/accused acquitted from the charges for the offence under Section 294(b) and 332 of I.P.C.

The bail bonds, if any executed by the appellant/accused shall stand cancelled.