Sampath, Kotteswaran and Shamugam vs State

R. Balasubramanian , J.—The revision petitioners are accused 1 to 3 in Calendar Case No.26 of 1995 on the file of the Judicial Magistrate

No.1. Cheyyar and the appellants in Criminal Appeal No.2 of 1998 on the file of the Additional District Judge. Thiravannaiualai. They were tried

along with another accused for offences punishable under Sections 341, 325 and 323 of the Indian Penal Code. The learned trial Judge acquitted

the fourth accused of the charges framed against him: convicted the first accused for offences punishable under Sections 325 and 323 of the Indian

Penal Code and sentenced him to imprisonment till the raising of the Court together with a fine of Rs. 1,000/- carrying a default sentence for the

offence u/s 325 of the Indian Penal Code and to pay a fine of Rs.250/- carrying a default sentence for the offence u/s 323 of the Indian Penal

Code: convicted the second accused for the offence punishable u/s 323 (2 counts) and sentenced him to pay a fine of Rs.250/- for each count

carrying a default sentence and convicted the third accused for the offence punishable u/s 323 of the Indian Penal Code and sentenced him to pay

a fine of Rs.250/- carrying a default sentence. The judgment of conviction and sentence was confirmed in the appeal It is the correctness of those

judgments referred to above is being challenged in this revision. Heard Mr. V. Karthic learned counsel appearing for the petitioners and Mr. R.

Karthikeyan, learned Government Advocate on the criminal Side appearing for the State.

The occurrence is stated to have taken place on 23.01.1994 PWs 1 and 2 are father and son Accused 1 to 3 are brothers and they are the sons

of the fourth accused since acquitted. It appears that they are owning adjacent lands. The occurrence is stated to have ""taken place at 8.00 p.m.

on 23.01.1984 It appears that on that day the accused were burning the agriculture wastes in their lands. The spark from that fire is stated to have

damaged some property belonging to the prosecution party. In that regard P.W.1 and the accused came in direct confrontation with each other

and during the course of the incident, it is stated by the prosecution that the accused attacked PWs. 1 and 2 by sticks. Both the injured witnesses

have been examined by P. W.5. the doctor and the respective wound certificates are Exs.P.2 and P.3 From the materials before the Courts below

and appreciated by them, it is clear that the prosecution has proved the case against the accused beyond all reasonable doubts. There is no reason

at all to disbelieve the evidence of the injured witnesses P Ws.l and 2 and their evidence gets the support from the medical evidence as well

regarding the manner in which they could have sustained the injuries.

However as far as the first accused is concerned the question that still survives for consideration is as to whether his conviction for the offence

u/s 325 of the Indian Penal Code is legal. In this respect the learned counsel for the petitioner would argue that the doctor''s opinion that one of the

injuries to PW.l is grievous in nature is based on his reading of the X-ray of the injured P W. I P.W.5 would admit that X-ray was taken. Unless

the X-ray is before the Court, it cannot be legally sustained that the nature of the"" injury stated to have been sustained by P.W.1 was grievous in

nature I have perused the judgments of the Courts below in this context and find that X-ray was taken for P.W. 1 with regard to the injury found

on his left hand That X-ray is not marked. The opinion of P.W.5 in Ex.P.2 and his oral evidence that P.W.1 had sustained grievous injury must get

the support from the X-ray. Unless the X-ray is exhibited before the court, the Court would not be in a position to come to a conclusion that

P.W.1 sustained grievous injury or not. The burden is on the prosecution to establish this fact by exhibiting the X ray. which they have not done for

the reasons best known to them. In the absence of X ray relating to P.W.1, it cannot be legally accepted that P.W. 1 had sustained grievous injury.

It may be noticed here that even the weapon stated to have been used by die first accused while P.W. 1 was attacked was not even recovered.

This Court is not in a position to even visualise as to what type of weapon the accused could have used while causing injury to P.W.1. The totality

of the circumstances noticed above makes this Court to hold that the finding of conviction of the first accused for an offence punishable u/s 325 of

the Indian Penal Code cannot be legally sustained. But at the same time the first accused can be definitely and safely held guilty of an offence

punishable u/s 323 of the Indian Penal Code. As far as the conviction and sentence for the other offences against accused 1 to 3 are concerned I

find no materials at all to interfere. Therefore while confirming the judgments of the Courts below against all the accused concerned, the conviction

of the first accused for the offence u/s 325 of the Indian Penal Code alone is modified into one u/s 323 of the Indian Penal Code.

Coming to the question of sentence, it is contended that all the accused are respectable people and they are law abiding citizens as well The

manner in which the occurrence is stated to have taken place itself shows that it is due to sudden loss of self control. In such circumstances and

when the punishment imposed by the lower Court is only imprisonment till the raising of the Court for the first accused and fine only for the other

accused, the Court is under a legal obligation to consider to extend the benefits available either u/s 360 of the Code of Criminal Procedure or

under the provisions of the Probation of offenders Act. Learned counsel for the petitioners also pointed out that if the Court is not inclined to

extend the benefits of any one of the enactments referred to above, then it shall record the reasons as found in Section 361 of the Code of Criminal

procedure. It is the statutory duty which the trial Court omitted to do and that also escaped the eyes of the learned appellate judge Going by the

totality; of the circumstances available in this case I am inclined to extend the benefits to all the accused under the Probation of Offenders Act.

Accordingly 1 set aside the conviction imposed upon them on condition that each one of them executes a bond for a sum of Rs. 1,000/- with one

surety each for a like sum to the satisfaction of the Judicial Magistrate No.l. Cheyyar and to keep peace and be of good behaviour for a period of

six months and to appear and receive sentence if called upon during the said period of six months. The fine amount paid shall be refunded to each

of the accused. The revisions is disposed of in the lines indicated above.