Thirulogachandar vs State

C.T. Selvam, J.—This revision arises against the Judgment of the learned First Additional Sessions Judge (PCR), Thanjavur in C.A. No. 29

of 2007, who by Judgment dated 13.07.2007 confirmed the finding of conviction u/s 324 I.P.C. Before the trial Court, there was three accused

persons. The first accused was acquitted of charge u/s 506(ii) I.P.C. and the third accused of charge u/s 323 I.P.C. by the trial Court. The first

accused was convicted for offence u/s 324 I.P.C. while A2 was convicted for offence u/s 323 I.P.C. The trial Court imposed a fine of Rs. 500/- in

default to undergo one month simple imprisonment against A2 for offence u/s 323 I.P.C. and one year simple imprisonment and fine of Rs. 2500/-

in default three months simple imprisonment against the first accused for offence u/s 324 I.P.C. On the appeal filed by the first accused, the first

appellate Court while confirming the conviction, modified the sentence of imprisonment to one of five months. The finding of the trial Court

otherwise was confirmed.

The facts of the prosecution case are as follows:

(i) P.W.1 is the injured. P.Ws.1, 2, 3 and the accused are the residents of Palayapatti north street. On 08.01.2004, P.W.1 has purchased a cow.

The cow got startled and bolted. P.W.1 had a torrid time in chasing and catching it. P.W.1 complained that none had come to his rescue. While he

was talking to P.W.3 at about 08.00 p.m. on 08.01.2004, the appellant and other accused under the impression that P.W.1 was speaking ill of

them, attacked him. The appellant, A1 cut him on the back of the head with an aruval, A2 Mathavan attacked him on the neck with a log and A3,

Periyanayagam, attacked on the right thumb with sickle. Thereafter P.W.2 came there and separated them. At that time appellant has returned with

sickle and said if you give complaint to the police Station, I will cut and close you. Thereafter P.W.1 went to the hospital, where the police came

and obtained the statement Ex.P1.

(ii) P.W.2 is also resident of the same place. While P.W.1 was making shout as to cow running, A1 attacked P.W.1 on the back of the head and

A2 attacked on the neck and A3 attacked on the leg. Thereafter P.W.2 took P.W.1 to hospital by engaging auto. P.W.3 with whom P.W.1 was

talking at the relevant period. At that time A1 came with aruval and attacked P.W.1 and his father A2 attacked him on the neck and A1 attacked

on his leg. According to P.Ws.1 to 3 accused attacked P.W.1 under impression that P.W.1 was scolding them.

(iii) P.W.4, on hearing the sound went to the place and saw the accused A1 with sickle and P.W.1 with bleeding. P.W.4 also seen A3 beating

P.W.1 on the leg and A2 beating on the neck. In P.W.5''s presence police came to the place of occurrence on 09.01.2004 at about 01.30 p.m.

and prepared observation mahazar Ex.P2.

(iv) P.W.6 is the Medical Officer attached to the Thanjavur Medical College Hospital. He treated P.W.1 on 08.01.2004 at about 11.00 p.m. and

noted down the following injuries.

About 6 x 2 cm. x with bone deep;

Irregular lacerated injury on the occipital region;

Abrasion on the back side of the neck.

P.W.6 admitted P.W.1 in the hospital and issued Ex.P3 A.R. Copy. P.W.7 is also the Medical Officer attached to the Government Hospital. After

admission of P.W.2, he treated him. P.W.1 has discharged himself from the hospital on 13.01.2004. P.W.7 has issued Ex.P4, opinion stating that

the above injuries are simple in nature.

(v) P.W.9 is the Head Constable at the relevant period. On receipt of the intimation from the hospital he went to the hospital and obtained Ex.P1

statement from P.W.1 and registered a case under Sections 323, 324 and 506(ii) I.P.C. under Ex.P5, F.I.R. Thereafter went to the place of

occurrence and prepared observation mahazar and rough sketch Ex.P6. Thereafter examined the witnesses and recorded their statement and

finally handed over the file to P.W.8, Sub Inspector of Police. P.W.8 has conducted the further investigation and went to the place of occurrence

and examined the witnesses. However, he has not recorded separate statement. On 13.03.2004, he examined the doctor and obtained wound

certificates and completed investigation and laid charge sheet under Sections 323, 324 and 506(ii) I.P.C. against the accused A1 to A3.

(vi) Incriminating evidence was put to the accused by the lower Court, the accused denied the same.

Urging the innocence of the revision petitioner/A1, the learned Counsel impresses upon this Court that the first appellate Court fell into grave

error in arriving at a finding of conviction of the revision petitioner, despite such Court taking note of the delay of three days in the First Information

Report reaching the Court and the interpolations made in the complaint to make out a case (i) that the accused beat P.W.1 under the impression

that he had scolded them and (2) that it was P.W.2, who had separated them. The first appellate Court rightly appreciated the fact of P.W.3

admitting to the accused already having given a complaint against her husband P.W.1 and of there being a dispute between them, such Court

rightly appreciated the fact of Ex.P2 Observation Mahazar not informing anything about the houses of P.Ws.2 and 3, which should be the case if

P.Ws.2 and 3 were neighbours of P.W.1 and also disbelieved P.W.2 as a purely interested witness, who had subsequently been planted. While

so, the lower appellate Court fell into error in convicting A1 on the reasoning that P.W.1 an injured witness, had spoken about the occurrence and

the Medical Officer''s evidence supported his version. According to the learned Counsel for the revision petitioner, the reasoning of the lower

appellate Court that there was no reason for P.W.1 to implicate A1 and his father was not a tenable one. Why a witness was implicating a

particular accused is not for the accused to explain.

The learned Counsel for the revision petitioner submits that the finding of conviction arrived at has been solely based on the truth of the injury

suffered by P.W.1. According to him such a finding is erroneous particularly given the fact that P.W.8, the Investigating Officer, who in cross,

though initially denied the receipt of any complaint from the accused party, had admitted the fact of the complaint having been given by the accused

to the higher officials finding mention in the case diary. According to him, even if for the purpose of argument, it was to be accepted that the injury

was caused to P.W.1 by the accused party, still in circumstance where the complaint by the accused had been suppressed, the genesis of the

occurrence could not be established. Who was the aggressor or the manner in which the injury was occasioned to P.W.1, whether in self defence

or otherwise, could not be ascertained. These aspects gain significance in this case, particularly in view of non-recovery of weapons said to have

been used in the occurrence and the admission of P.W.8 that no blood stains were recovered from the alleged scene of occurrence.

Heard the learned Government Advocate (Criminal side) on the submissions of the learned Counsel for the petitioner.

On an appreciation of the facts, it is seen that neither the genesis of the occurrence nor the place of occurrence is certain. It is bad enough that

the First Information Report had been delayed by three days in reaching the Court, it is worse that interpolations have been made therein to suit the

prosecution case. The Investigating Officer is unable to deny that the accused party had given a complaint. The evidence of P.W.2, wife of P.W.1,

the injured reveals a case of proven animosity between the prosecution party and the accused. The absence of blood stains at the alleged place of

occurrence and the non-recovery of weapons said to have been used therein also add weightage to the defence case. In these circumstance, I am

inclined to allow the appeal and set aside the sentence imposed by the lower Court against the appellant/A1.

In the result, this Criminal Revision Case is allowed by setting aside the Judgments of the Courts below in respect of the appellant/A1. The

appellant/A1 is acquitted of the offence charged against them. The bail bond, if any, executed by him, shall stand cancelled and the fine amount, if

any, paid by him, is ordered to be refunded forthwith.