Peer Mohamad vs State

R. Mala, J.—This criminal revision has been preferred against the judgment of conviction and sentence dated 19.08.2009, in C.A. No. 3 of

2007, on the file of the Principal Sessions Court, Kancheepuram District, Chengalpet, whereby the accused was convicted for the offence u/s 326

I.P.C. and sentenced him to undergo two years'' rigourous imprisonment and to impose a fine of Rs. 1,500/-in default in payment, to undergo three

months'' rigourous imprisonment, confirming the judgment of conviction and sentence dated 04.01.2007, in S.C. No. 78 of 2006, on the file of the

Assistant Sessions Court cum Chief Judicial Magistrate''s Court, Chengalpet.

The case of the prosecution is as follows:

(i) P.W.2 Sahul Hameed was the President of Muslim Jamad of Alima Colony, J.J. Nagar. On 26.11.2002, after finishing his prayer at Mosque,

he was returning back to his house. When he was proceeding near J.J. Nagar Alima colony water tap, at that time, the accused came with knife

and abused him. When P.W.2 questioned the same, the accused assaulted him on his head. At that time, P.W.2 was putting his cash bag in his arm

pit was fell down. When P.W.2 tried to take that cash bag, the accused assaulted him with knife on his left side chest and also right side of

abdomen. When P.W.2 made an alarm, the accused ran away. At that time, P.W.3 and P.W.4 came from Mosque and rushed to the place. Then,

P.W.1, who is son of P.W.2, was taken his father to Shanthi hospital, Neelankarai. Then, P.W.2 was referred to Government Hospital.

Thereafter, P.W.2 was taken to Stanley Hospital, where P.W.6-Dr. Chandrasekar treated him and gave Ex.P2 Accident Register copy and

P.W.7-Dr. Senguttuvan, also treated P.W.2 and gave wound certificate Ex.P3.

(ii) P.W.1-Mansur Ali, son of P.W.2, gave Ex.P1 complaint before Neelankarai Police Station. On 27.11.2002, at 1.00 a.m., P.W.9-Rajkumar,

Inspector of Police, who received Ex.P1 complaint, registered the case in Cr. No. 733/2002 for the offence under Sections 341 and 307 I.P.C.

and prepared Ex.P4 F.I.R. Then he went to the place of occurrence and prepared Ex.P5 observation mahazar and drew Ex.P6 rough sketch in

the presence of P.W.5 Kalaivanan and P.W.8 Selvaraj. Thereafter, P.W.9 examined the witnesses and recorded their statements and sent the

report to the higher official.

(iii) P.W.10-Mohan took up the matter for investigation. He examined the other witnesses and recorded their statements. After completing

investigation, P.W.10 filed charge sheet against the accused for the offence u/s 307 I.P.C. During the trial, P.W.5-Kalaivanan and P.W.8-Selvaraj,

who are the attesters of the observation mahazar, turned hostile.

The trial Court after considering the evidence of P.W.1 to P.W.10 and Exs.P1 to P6, convicted the accused for the offence u/s 326 I.P.C. and

sentenced him as stated above, against which, the accused preferred an appeal in C.A. No. 3/2007, wherein the learned Principal Sessions Judge,

Chengalpet, after hearing the arguments of both sides counsel, confirmed the conviction and sentence passed by the trial Court, against which, the

present revision has been preferred by the revision Petitioner/accused.

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

submissions on the following grounds:

As per the evidence of P.W.1, who is son of P.W.2/the injured, there are two F.I. Rs.

Weapon used for commission of offence has not been recovered.

There is a material contradiction between ocular and medical evidence.

P.W.3 and P.W.4 are not an eye-witnesses

Even though P.W.2 was treated by the Doctor, who gave first aid inShanthi Hospital, Neelankarai, the doctor was not examined before the trial

Court.

There is a delay of 9 days in despatching the F.I.R. to the concerned jurisdictional Court.

So all the above aspects have not been considered by both the Courts below. Hence, he prayed for setting aside the conviction and sentence

passed by both the Courts below and for allowing of this revision.

Refuting the same, the learned Government Advocate (Crl.side) submitted that all the above points have been raised at the time of appeal and

convincing answers have been given for the same. Since there was no merits in the appeal, it was dismissed. Here, the evidence of injured P.W.2 is

sufficient to convict the accused for the offence under Sections 341 and 326 I.P.C. The motive has been clearly deposed by the witnesses. So non

recovery of weapon is not fatal to the case of the prosecution. Hence, he prayed for the dismissal of the revision.

Considered the rival submissions made on both sides and the materials available on record.

The alleged occurrence was taken place on 26.11.2002, at about 6.00 p.m. There was no dispute in respect of the scene of occurrence, but

there was an allegation that there are two F.I.R. P.W.1., who is none other than the son of injured P.W.2, in his evidence stated that after admitting

his father into Shanthi hospital, Neelankarai, he went to the police station and gave Ex.P1 complaint at about 10.00 p.m. But P.W.9-Rajkumar,

Inspector of Police stated that P.W.1 gave Ex.P1 complaint only at 1.00 a.m. and then he registered the case in Cr. No. 733/2002 for the offence

under Sections 341 and 307 I.P.C. and prepared Ex.P4 F.I.R. As per the evidence of P.W.1 and P.W.2, the occurrence was occurred at 6.00

p.m. But P.W.6-Dr. Chandrasekar stated that P.W.1 has taken P.W.2 to the Hospital at 9.55 p.m. Considering the evidence, I do not find any

merits in the argument advanced by the learned Counsel for the Petitioner that P.W.1 has given two complaints. P.W.1 in his evidence, he never

stated that he gave two complaints. P.W.1 in his cross-examination, he stated that he gave Ex.P1 complaint at 10.00 p.m., whereas he admitted

P.W.2 in the hospital at 9.55 p.m. As per the evidence of P.W.7-Dr. Senguttuvan, he treated P.W.2 at about 10.25 p.m. and performed surgery.

Considering the above aspect, the time given by P.W.1 will not materially affect the case of the prosecution. Hence I am of the view that argument

advanced by the learned Counsel for the Petitioner that there are two complaints given by P.W.1, does not merit acceptance.

The next limb of argument advanced by the learned Counsel for the Petitioner that the P.W.2 was deposed that the weapon used for the

commission of offence was aruval, whereas P.W.7-Dr. Senguttuvan deposed that the injuries sustained by P.W.2 was not caused by aruval and it

was only caused by knife, but the weapon used for the commission of offence has not been seized, which is fatal to the case of the prosecution.

While perusing evidence of P.W.2, who was injured along with the evidence of P.W.6-doctor, taking judicial notice about the language prevailing

in the southern region of Tamil Nadu (i.e.) they have mentioned knife as aruval, kathi and vettu aruval. In such circumstances, considering the

evidence of P.W.7-doctor and Ex.P3 wound certificate, P.W.2 sustained only laceration and he was not sustained any stab injury. The

prosecution has also given an explanation that after the accused has been surrendered and got anticipatory bail, even then the prosecution obtained

a confession that the accused thrown the weapon into well. So the prosecution was unable to seize the same. Considering the same, I am of the

view that non recovery of weapon used for commission of offence is not fatal to the case of the prosecution. Hence, the argument advanced by the

learned Counsel for the Petitioner in respect of the above aspect, does not merit acceptance.

The learned Counsel for the Petitioner submitted that there is a contradiction between ocular evidence of P.W.2/injured and medical evidence of

doctor. As already stated that the injuries mentioned in Ex.P2 Accident Register copy has clearly proved that P.W.2 sustained only lacerated

injury. But P.W.2, who is injured eye-witness, narrated the fact that how the occurrence was taken place and the same was corroborated by other

witnesses. So his evidence is cogent, natural and trustworthy and hence, it is reliable. Further, the learned Counsel for the Petitioner relied upon the

cross-examination of P.W.7-Dr. Senguttuvan and submitted that P.W.2-Shahul Hameed has sustained stab injuries and that has been caused only

by knife not by aruval. In such circumstances, I do not find any material contradiction between the ocular evidence of P.W.2 and medical evidence

of doctor. Hence, the argument advanced by the learned Counsel for the Petitioner, does not merit acceptance. It is true that initially P.W.1 was

treated by Shanthi hospital, Neelankarai, but the doctor, who gave first aid to P.W.2, was not examined. So non examination of doctor, who

treated P.W.2 at first instance in the private hospital, does not materially affect the case of the prosecution, because the eye-witness is injured

P.W.2. As already stated that motive has been proved by the prosecution, which was corroborated by P.W.4-Syed Ali. Considering the same, I

am of the view that non examination of doctor, who first treated P.W.2/injured, is not fatal to the case of the prosecution.

The learned Counsel for the Petitioner mainly focussing upon that there was a delay of 9 days in despatching Ex.P4 F.I.R. to the concerned

jurisdictional Court, which has given room for further moment. At this juncture, it is appropriate to consider the above argument along with Ex.P4

F.I.R. As per the evidence of P.W.9, the F.I.R. has been registered on 27.11.2002, at 1.00 a.m. It is true that F.I.R. has been received by the

Court on 05.12.2002, at 6.00 p.m. Since the case has been registered for the offence under Sections 341 and 307 I.P.C., an Express report

ought to have been sent to the concerned jurisdictional Court, as soon as F.I.R. has been registered. So there was a delay of 9 days in despatching

Ex.P4 F.I.R. to the concerned jurisdictional Court. While considering the evidence of P.W.9-Inspector of Police, he has not assigned any

explanation for the delay of 9 days. Hence, this Court forced to consider the argument advanced by the learned Counsel for the Petitioner that

Ex.P1 complaint and Ex.P4 F.I.R. are fabricated and concocted later for implicating the accused, since there was an enmity between P.W.2 and

the accused. As per the dictum of the apex Court, on account of delay the report not only gets bereft of advantage of spontaneity danger creeps in

of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consideration. It is, therefore,

essential, that the delay in the lodging of the first information report should be satisfactorily explained. Since the case was registered under the

provisions of Sections 341 and 307 I.P.C., an Express report should have been reached the Court as soon as the case was registered, but it was

reached the Court only on 05.12.2002 (i.e.)after 9 days. When P.W.9 was in witness box, a suggestion was posed to him as follows: (sic) In such

circumstances, a delay of 9 days in despatching the F.I.R. is fatal to the case of the prosecution, since there was a motive between the accused and

P.W.2. So I am of the view that prosecution has miserably failed to prove that the accused was guilty for the offence under Sections 341 and 307

I.P.C. beyond reasonable doubt, since Exs.P1 and P4 have been reached the Court belatedly. Since there is no explanation has been assigned for

the delay of despatching the F.I.R., it is fatal to the case of the prosecution. Hence the conviction and sentence passed by both the Courts below

against the revision Petitioner/accused for the offence under Sections 341 and 326 I.P.C. are hereby set aside.

In fine,

� The criminal revision is allowed.

� The conviction and sentence passed by both the Courts below are hereby set aside.

� Fine amount, if any, paid by the revision Petitioner/accused is ordered to be refunded.

� Bail bond, if any, executed by the revision Petitioner/accused shall stand cancelled.