Perumal @ Mani vs State

A.C. Arumugaperumal Adityan, J.—This revision has been preferred against the Judgment in C.A. No. 197 of 2004 on the file of the

Principal District and Sessions Judge, Erode which had arisen out of the Judgment in C.C. No. 466 of 2001 on the file of the Judicial Magistrate

No. 3, Erode.

There are totally four accused. The learned trial Judge has convicted A1 to A4 u/s 447 of IPC, A2 was convicted u/s 323 of IPC and A1 and

A4 were convicted u/s 324 of IPC and A3 was convicted u/s 326 of IPC and sentenced A3 to undergo nine months rigorous imprisonment and

slapped a fine of Rs. 1000/- with default sentence. Aggrieved by the findings of the learned trial Judge, A1 to A4 have preferred an appeal in C.A.

No. 197 of 2004 before the Principal District and Sessions Judge, Erode. The learned Sessions Judge, while confirming the conviction had

modified the sentence against A1 and A4 u/s 323 of IPC and u/s 324 of IPC from a fine of Rs. 1000/- to Rs. 500/- each and as against A3, the

learned first appellate Judge has confirmed the conviction and sentence u/s 326 of IPC. The conviction and sentence u/s 323 of IPC against A2

has been set aside by the learned first appellate Judge. Aggrieved by the findings of the learned first appellate Judge, A3 has preferred this revision.

The learned trial Judge, after taking the case on file, had furnished copies u/s 207 of Cr.P.C. on appearance of the accused on summons and

also framed charges under Sections 447, 324, 506(ii) of IPC against A1 and A4, under Sections 447, 323, 506(ii) of IPC against A2, and under

Sections 447, 326 and 506(ii) of IPC against A3 and when questioned, the accused pleaded not guilty.

On the side of the Prosecution, P.Ws. 1 to 13 were examined. Exs. P1 to P18 were exhibited and M.Os. 1 to 12 were marked.

P.W. 1 is an injured witness. According to her,on the date of occurrence at about 3.30 p.m., due to previous enmity, A1 to A4 had trespassed

into the house of P.W. 1 and A1 had assaulted her with an iron rod on the head causing bleeding injuries and A2 in the course of the occurrence

had pelted stone on her, which caused injuries on her both thighs and hearing the hue and cry raised by her, her eldest son Matheswaran P.W. 3,

came to her rescue, was assaulted by A3 Perumal @ Mani with an iron rod on his head and face causing grievous injuries. A4 had assaulted P.W.

2, the other son of P.W. 1 with an iron rod on the head causing bleeding injuries. On hearing the distress call raised by P.Ws. 1 to 3, the

neighbours came to their rescue. On seeing the neighbours rushing towards the place of occurrence, the accused took to their heels. P.W. 7

Boopathy and P.W. 5 Nanjappan have removed the injured to Government Hospital, Bhavani for treatment from where P.W. 3 Matheswaran was

taken to National Hospital, Erode for further treatment and that Ex. P1 is the complaint preferred by her (P.W. 1) at the hospital, while she was

undergoing treatment. She has identified M.O. 1 stone, M.O. 2 iron rod, M.O. 3 iron rod as the weapons used by the accused at the time of the

occurrence.

5a. P.W. 2 Krishnan and P.W. 3 Matheswaran are the other injured witnesses in the occurrence, who have also corroborated the evidence of

P.W. 1. According to P.W. 2 at the time of the occurrence, A1 Karuppan had assaulted P.W. 1 with an iron rod on the head causing bleeding

injuries and A2 Kannan had pelted stone on P.W. 1 causing bleeding injuries on her both thighs and A3 Perumal @ Mani had assaulted P.W. 3

with an iron rod on the head and nose causing bleeding injuries and that A4 Ramesh had assaulted him (P.W. 2) with an iron rod on the head and

eye brow causing bleeding injuries and that the injured were taken to hospital. M.O. 8 and M.O. 9 are the wearing apparels. He has identified

M.O. 5 iron rod as the weapon used by A4 Ramesh in assaulting him (P.W. 2).

5b. P.W. 3 is the eldest son of P.W. 1 who has also corroborated the evidence of P.W. 1 and P.W. 2. According to him, A1 had assaulted his

mother P.W. 1 with an iron rod and A2 also pelted stone on P.W. 1 causing injuries on her thighs and A3 Perumal @ Mani had assaulted him

(P.W. 3) with an iron rod on his head and shoulder and face causing grievous injuries and that P.W. 2 was assaulted by A4 Ramesh with an iron

rod on his left eye brow causing simple injury and that all the injured were taken to Government Hospital at Bhavani and he alone was referred to

Government Hospital, Erode for further treatment and that from where he took expert treatment at a private hospital by name ""National Hospital

where he was admitted as an inpatient for two days and that he had undergone surgery in the nose. He had handed over blood stained wearing

apparels M.O. 10 Lungi and M.O. 11 Banian to the police. He has further identified M.O. 1 to M.O. 5 are the weapons used by the accused at

the time of the occurrence in assaulting P.Ws. 1 to 3.

5c. P.W. 4 is an eye witness to the occurrence, who is none other than the wife of P.W. 3. She has also corroborated the evidence of P.W. 1 to

P.W. 3 in respect of the injuries, they have sustained at the hands of the accused at the time of the occurrence. She has also identified M.O. 1 to

M.O. 4 are the weapons used by the accused at the time of the occurrence and also identified the wearing apparels of P.W. 1 to P.W. 3.

5d. P.W. 5 is also another eye witness to the occurrence. He has also corroborated the evidence of the injured P.W. 1 to P.W. 3 in respect of the

overtact attributed against each of the accused in assaulting P.W. 1 to P.W. 3. P.W. 6 is also another eye witness to the occurrence who would

also corroborate the evidence of P.W. 1 to P.W. 5.

5e. P.W. 7 Boopathy is the witness, who had removed the injured from the place of occurrence to the Government Hospital, Bhavani. He has also

identified M.O. 1 to M.O. 5 as the weapons used by the accused. P.W. 8 is the by-passer at the time of the occurrence, who would also

corroborate the evidence of P.W. 1 to P.W. 5 and also identified M.O1 to M.O. 5.

5f. P.W. 13 is the Sub Inspector of Police, who had registered the case under Crime No. 355 of 2001 of Chithode Police Station under Sections

324 and 506(ii) of IPC. He had visited the place of occurrence on the same day i.e., on 8.8.2001 at 21.30 hours and prepared Observation

Mahazar Ex. P5 in the presence of P.W. 10 Bhaskaran and another witness Kannan. Ex. P14 is the rough sketch. He has also examined the

witnesses and recorded their statements. From the place of occurrence, he has recovered M.O. 1 Stone, M.O. 2 Square stone, MO. 3 Iron rod,

M.O. 4 iron rod in Cylindrical shape M.O. 5 another iron rod in the presence of the same witnesses under Ex. P6 recovery mahazar. Ex. P15 is

form 95 under which the above said material objects were submitted to the trial Court. He had visited the Government Hospital, Bhavani and

recovered M.O. 8 blood stained lungi and M.O. 9 banian from P.W. 2 Balakrishnan under ExP16. He has also recovered M.O. 7, Jacket from

P.W. 1 Pappathy under Ex. P17. M.O. 11 blood stained banian was recovered along with M.O. 10 lungi from P.W. 3 while he was undergoing

treatment at Ward No. 3, in Government Hospital, Erode on the same day at 23.45 hours under Ex. P18 Mahazar.

5g. P.W. 9 is the doctor Senthilkumar, who had examined P.W. 3 Matheswaran on 8.8.2001 at 4.15 p.m., at Government Hospital, Bhavani. Ex.

P20 is the copy of the accident register issued by him. He had noticed a lacerated injury on the right side of the head measuring 5 x 1x 1 cm. 2) a

cut injury on the base of nose measuring 7 x 1 x 1 cm. 3) an abrasion measuring 3 x 1/2 cm on the right shoulder. There was profuse bleeding from

the nose. An x-ray was taken for the nose injury of P.W. 3 but there was no fracture detected. The C.T. Scan was taken on P.W. 3 on 10.1.2001

which reveals a fracture on the right side of the bone. He has examined on the same day at 4.10p.m P.W. 2 Balakrishnan for the injuries, he had

sustained and issued Ex. P3 copy of the accident register. He had noticed a cut injury on the fore head measuring 5 x 1/2 x 1/2 cm, 2) a lacerated

injury on the left side of the eye brow measuring 3 x 1/2 x1/2cm. P.W. 2 was admitted as an inpatient in the Government Hospital, Bhavani. The

doctor has opined that both the injuries are simple in nature. On 8.8.2001 at about 4.30 p.m., he had examined P.W. 1 Pappathy for the injuries,

she had sustained and issued Ex. P4 copy of the accident register. The doctor has noted the lacerated injury on the fore head measuring 5 x 1/2

x1/4 cm 2) 5 x 1 x1/2 cm cut injury on the left fore arm.

5h. P.W. 11, Dr. Suresh is the radiologist of Government Hospital, Bhavani at the relevant point of time. He would depose that on 8.8.2001, X-

ray was taken for P.W. 3 Matheswaran. M.O. 12 is the X-ray and Ex. P10 is his opinion. According to him, there was no fracture detected in

P.W. 3. P.W. 12 is the doctor, who had taken C.T. Scan on P.W. 3, on 10.8.2001 at Government Hospital, Erode. According to him, he had

detected fracture in the center of the skull but he has not produced the C.T. Scan report. P.W. 14 would depose that after completing the

investigation, the Inspector of Police Mr. Sundaram had filed the charge sheet against the accused on 7.9.2002 and that he is familiar with the

signature of Inspector Sundaram.

When incriminating circumstances u/s 313 Cr.P.C. were put to the accused, they would deny their complicity with the crime. The accused have

not examined any witness on their side. The learned trial Judge, after going through the evidence both oral and documentary meticulously has

convicted A1 to A4 u/s 447 of IPC and slapped a fine of Rs. 400/- each with default sentence and convicted A2 u/s 323 of IPC and levied a fine

of Rs. 500/- with default sentence and convicted A1 and A4 u/s 324 of IPC and sentenced them to undergo six months rigorous imprisonment and

imposed a fine of Rs. 500/- each with default sentence and convicted A3 u/s 326 of IPC and sentenced to undergo nine months rigorous

imprisonment and fine of Rs. 1000/- with default sentence. On appeal, the learned Principal District and Sessions Judge, in C.A. No. 197 of 2004

,has acquitted A2 from the charges u/s 323 of IPC, after setting aside the conviction and sentence of the learned trial Judge. As against A1 and A4

the sentence imposed by the trial Court u/s 324 of IPC was modified to that of a fine of Rs. 1000/- instead of six months rigorous imprisonment

each and a fine of Rs. 500/- each. As far as A3 is concerned, the first appellate Judge had confirmed the conviction and sentence u/s 326 of IPC

which necessitated A3 to approach this Court by way of this revision.

Now the point for determination in this revision is whether the findings of the first appellate Court u/s 326 of IPC against A3 is sustainable for

the reasons stated in the memorandum of revision?

Heard Mr. M. Duraisamy, learned Counsel appearing for the revision petitioner and Mr. V.R. Balasubramaniam, learned Additional Public

Prosecutor for the State and considered their respective submissions.

The Point:

The learned Counsel appearing for the revision petitioner would focus the attention of this Court to an important fact which was lost sight of by

both the learned trial Judge as well as the learned first appellate Judge while convicting A3 u/s 326 of IPC. The learned Counsel appearing for the

revision petitioner would represent that it is the fundamental requirement under the criminal law to convict the accused u/s 326 of IPC only, if it is

proved by the prosecution that he had caused grievous injuries to the victim with a weapon.

According to the evidence of P.W. 3, the injured at the hands of A3, at the time of the occurrence A3 had assaulted him with an iron rod on

the head and nose causing grievous injuries. P.W. 3 was immediately taken to the Government Hospital, Bhavani from where he was referred to

the Government Hospital, Erode. P.W. 9 is the doctor who had examined P.W. 3 and issued Ex. P2 copy of the accident register. P.W. 9 had

suspected a fracture in the nose of P.W. 3. According to him, x-rays were taken at Government Hospital, Bhavani for the skull but no fracture was

detected on the skull. According to him, C.T. Scan was also taken for P.W. 3 and according to him in the C.T. Scan, a fracture was noticed in the

nostril bone.

P.W. 11 Dr. Suresh had produced the x-rays M.O. 12 taken for P.W. 3 for the skull on 8.8.2001 at Government Hospital, Bhavani. Ex. P10

is his report which shows that there was no fracture in the skull of P.W. 3. P.W. 12 is the doctor at Government Hospital who had taken C.T.

Scan for P.W. 3 Matheswaran, on 10.8.2001. His evidence in the cross examination which was not given due consideration by the Courts below

was relied on by the learned Counsel for the revision petitioner before this Court. In the cross examination, P.W. 12 would admit that he had not

produced the report of the C.T. Scan taken for P.W. 3 on 10.8.2001 at the Government Hospital, Erode. He would fairly admit that the fracture

seen in the X-ray will be seen in C.T. Scan also. But unfortunately, C.T. Scan report is not produced by P.W. 12 whereas the evidence of

radiologist P.W. 11 Dr. Suresh who had taken X-ray for the skull of P.W. 3 under M.O. 12 in his report Ex. P10 has clearly stated that there was

no fracture found in the skull of P.W. 3.

In the absence of C.T. Scan report, the conviction of both the Courts below u/s 326 of IPC against A3, in my view cannot be sustainable.

Under such circumstances, A3 is liable to be convicted only u/s 324 of IPC and not u/s 326 of IPC since there is no documentary evidence

produced to show that P.W. 3 had sustained grievous injuries at the hands of A3 in the occurrence. Point is answered accordingly.

In fine, the revision is allowed and the conviction and sentence of the first appellate Court in C.A. No. 197 of 2004 on the file of the Principal

District and Sessions Judge, Erode as against A3 u/s 326 of IPC is set aside, instead A3 is convicted and sentenced u/s 324 of IPC to pay a fine

of Rs. 2000/- in default to undergo two months simple imprisonment. The fine of Rs. 1000/- paid by A3 u/s 326 of IPC before the first appellate

Court shall be converted as a part of the fine paid by him u/s 324 of IPC. The total fine amount of Rs. 2400/- levied against A3 u/s 324 of IPC

and also u/s 447 of IPC is ordered to be paid as compensation to P.W. 3 u/s 357(1) of Cr.P.C.