Madras High Court
S.Murugesan vs Chinnan on 26 July, 2007
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2007
CORAM
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
Crl. R.C. No.736 of 2005
S.Murugesan .. Petitioner
Vs.
1. Chinnan
2. Karuppannan
3. Selvaraj
4. Ramalingam
5. Devendran
6. Ravi
7. State
rep by The Inspector of Police
Mac-Donalal Chetty Police Station
Salem District.
(Cr.No.560/2000) .. Respondents
Prayer:
This Revision has been preferred against the judgment dated 31.3.2005 made in C.C.No.434 of 2000 on the file of the Judicial Magistrate No.II, Sankari.
For Petitioner : Mr.D.Shivakumaran
For Respondents : Mr.V.R.Balasubramanian, Additional Public Prosecutor (For R7)
Mr.K.V.Sridharan & Mrs.Jayashree baskaran (for R1 to R6)
JUDGMENT
This revision has been preferred against the judgment in C.C.No.434 of 2000 on the file of the Judicial Magistrate No.II, Sankari.
2.According to the prosecution, the occurrence took place on 5.5.2000 at 8.30 pm at kakapalayam village. According to the complainant P.W.1, his father P.W.2 was attacked by the accused with iron pipe causing grievous injuries all over his body.
3.The case was taken on file by the Judicial Magistrate No.II, Sankari and after furnishing copies under Section 207 of Cr.P.C., the learned Judicial Magistrate has framed charges under Sections 148, 326, 506(ii) IPC and under sections 147, 326 r/w 149, 325 and under section 323 IPC and when questioned, the accused pleaded not guilty. On the side of the prosecution, P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.24 were exhibited and M.O.1 to M.O.7 were marked.
4.P.W.1 is the son of P.W.2. According to P.W.1, due to previous enmity on the date of occurrence the accused armed with deadly weapons have assaulted his father P.W.2 causing grievous injuries. The specific overtact attributed by P.W.1 against the accused is that A3-Selvaraj had assaulted P.W.2 on the left forearm, A2-Karuppannan had assaulted P.W.1 on the right flank with a log causing grievous injurie and that A4-Ramalingam, A5-Devendiran & A6-Ravi have lifted him (P.W.1) into the house and assaulted him and that A4-Ramalingam had assaulted him with stone on the left cheek and A6-Ravi had assaulted him (P.W.1) with a stone on the right flank and A5-Devendiran had assaulted with stone on the left flank and thereafter the accused ran away from the place of occurrence and that he had admitted his father P.W.2 in a private hospital at Salem and on the next day at 3.00 am he had preferred Ex.P.1-complaint with the Kakapalayam police. He has also identified M.O.1, the log used by A2 at the time of occurrence for assaulting P.W.2.
5.P.W.2 is the father of P.W.1. He speaks about the motive for the occurrence. According to P.W.2, he had two sons by name Chinnasamy and P.W.1-Murugesan and that the other son Chinnasamy died in an accident and that his daughter-in-law is one Baby and that after the death of his son Chinnasamy, his daughter-in-law is living in her parents house with his grandchildren and that one year back his daughter-in-law Baby had demanded him to execute a sale deed in respect of the land separately left for her maintenance, but he has not acceded to the request that is why on 5.5.2000 at about 7.30 am A1, the brother of Baby, A5 son of A1 and A3 son of A2 along with other accused have assaulted him with logs and that at the time of occurrence P.W.1, who had intervened, was also assaulted by the accused. He was admitted in a private hospital at Salem on the date of occurrence and the police came to the hospital and recorded his statement.
6.P.W.3 is the wife of P.W.1 and the daughter-in-law of P.W.2. She has also corroborated the evidence of P.W.1 & P.W.2.
7.P.W.4 is the minor daughter of P.W.1. According to P.W.4, A1-Chinannan, A3-Selvaraj and A2-karuppannan have assaulted P.W.2 with logs causing grievous injuries.
8.P.W.5 is an independent witness. He has not supported the case of the prosecution. Hence he was treated as hostile witness. P.W.6 is the doctor, who had examined P.W.1 on 6.5.2000 at 8.50 pm and issued Ex.P.2-wound certificate.
9.P.W.10 is the Sub-Inspector of Police, who had registered the case under Magudanchavadi Police Station Cr.No.560 of 2000 under Sections 147, 148, 323, 324, 326 & 506(ii) IPC, on the basis of the complaint preferred by P.W.1 on 6.5.2000 at 3.00 pm. Ex.P.16 is the FIR. He had visited the place of occurrence on 6.5.2000 at 6.00 pm and prepared Ex.P.18 observation mahazar in the presence of P.W.7 and had drawn a rough sketch Ex.P.17 in the presence of P.W.7 and another witness Kumar. He has examined the witnesses and recorded their statements. He has proceeded to Gokulam hospital (private), Salem, and recorded the statement of P.W.2-Sadayan. He has also examined P.W.1 and recorded his statement. He has arrested A1 on 7.5.2000 at 6.00 pm and he has recorded his voluntary confession statement in the presence of P.W.7-Chinnappan and another witness Kumar. The admissible portion of the confession statement of A1 is Ex.P.19. On the basis of Ex.P.19 he had recovered iron rod taken out and produced by A1 from the hidden place in the presence of P.W.7 under Ex.P.6-mahazar. The signature of P.W.7 in Ex.P.6 is Ex.P.7. He has arrested A2-karuppannan & A3-Selvaraj on 7.5.2000 at 8.00 am and recorded the confession statement of A2-Karuppannan in the presence of P.W.7. Ex.P.21 is the admissible portion of the confession statement of A2. On the basis of Ex.p.21, he had recovered a log in the presence of P.W.7 under Ex.P.22-recovery mahazar. He has also recorded the confession statement of A3-Selvaraj. Ex.P.23 is the admissible portion of the confession statement of A3. On the basis of Ex.P.23 he had recovered a log in the presence of P.W.7 under Ex.P.24-mahazar. He has arrested A4 to A6 on 7.5.2000 at 8.30 am and produced all the accused before the Judicial Magistrate for judicial remand.
10.P.W.8 is the doctor, who had examined P.W.2 on 5.5.2000 at about 11.15 pm at Gokulam hospital (private), Salem. Ex.P.10 is the wound certificate issued by P.W.8 for the injuries sustained by P.W.2. He has also produced M.Os.4 to 7, X-rays.
11.P.W.9 is the Radiologist, who has taken M.Os.4 to 7. He has also produced Ex.P.11 to Ex.P.15 registers to show that M.Os.4 to 7 X-rays were taken for P.W.2 on 10.5.2000, 7.5.2000 & 18.5.2000.
12.P.W.11 is the successor of P.W.10, who after completing the formalities, had filed the charge sheet against the accused.
13.When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., the accused denied their complicity with the crime. After going through the oral and documentary evidence the learned trial Judge has come to the conclusion that the charges levelled against the accused have not been proved beyond any reasonable doubt and accordingly accquitted the accused from the charges levelled against them, which necessitated P.W.1 to prefer this revision.
14.Now the point for determination in this revision is whether the finding of the learned trial judge in C.C.No.434 of 2000 on the file of the Judicial Magistrate No.II, Sankari, is perverse in nature to warrant any interference from this Court?
15.The Point: 15(a)Heard Mr.D.Shivakumaran learned counsel appearing for the revision petitioner and Mrs.Jayashree Baskaran learned counsel appearing for the respondents 1 to 6 and Mr.V.R.Balasubramanian, learned Additional Public Prosecutor appearing for the 7th respondent-State and considered their respective submissions.
15(b)The learned counsel Mr.D.Shivakumaran appearing for the revision petitioner would contend that the learned trial judge has failed to consider the evidence of the injured witnesses P.W.1 & P.W.2, the wound certificate issued by the doctors P.W.6 & P.W.8 and the X-rays M.O.4 to M.O.7 and the registers relating to the said M.O.4 to M.O.7 under Ex.P.11 to Ex.P.15 the movement registers and the injuries noted by the doctor under Ex.P.10 for P.W.2. Admittedly the occurrence had taken place on 5.5.2000 at 8.30 pm. According to the P.W.1, the complaint was preferred on 6.5.2000 at 3.00 am. But in the cross-examination, he would admit that the complaint was preferred by him only at 3.00 pm on 6.5.2000. Even in the FIR Ex.P.16 it is seen that the complaint was preferred by P.W.1 on 6.5.2000 at 3.00 pm. There is a correction in the column 3 to the printed FIR Ex.P.16. The time of the registration of the complaint was corrected as 3.00 am from 3.00 pm. But on the second page on Ex.P.16 it has been clearly stated that the complaint was preferred only at 3.00 pm on 6.5.2000. The explanation given for the delay in preferring the FIR by P.W.1, the son of P.W.2, is that immediately after the occurrence he took the injured P.W.2 to a private hospital at Salem and through out the night he was by the side of P.W.2 and on the next morning at about 3.00 am he went to Kakapalayam Police station and preferred Ex.P.1-Complaint. But in the cross-examination he would admit that only at 3.00 pm on 6.5.2002 he has preferred the complaint. But P.W.2 would categorically admit in the chief-examination that while he ws under treatment in the Gokulam hospital at Salem, police came to the hospital and recorded his statement. But as per Ex.P.18-observation mahazar it is seen the observation mahazar was prepared on 6.5.2000 at 6.00 am. There is also correction in the date from 7.5.2000 to 6.5.2000. But in the first line of the observation mahazar Ex.P.18 it is clearly stated that it was prepared on 6.5.2000 at 6.00 am. The witness P.W.7 in whose presence Ex.P.18, according to the prosecution, was prepared has not supported the case of the prosecution. Hence his signature alone in Ex.P.18 was marked as Ex.P.9. But according to P.W.10, the Investigating Officer, the complaint itself was preferred by P.W.1 only at 3.00 pm on 6.5.2000. But in the chief-examination he would state that he visited the place of occurrence on 6.5.2000 at 6.00 pm. So it is highly doubtful where the complaint Ex.P.1 was preferred by P.W.1 at 3.00 pm on 6.5.2000 or 3.00 am on 6.5.2000. Even though in the chief-examination P.W.1 would depose that he preferred the complaint at 3.00 pm on 6.5.2000 in the cross-examination he would depose that he has preferred the complaint only at 3.00 pm on 6.5.2000.
15(c) Ex.D.1 is the counter affidavit filed in M.C.4 of 2001, which was filed by one Palaniammal for maintenance. In Ex.D.1, P.W.2's wife has alleged that Baby, the daughter-in-law of P.W.2, is inimical towards P.W.2 and P.W.1 and at page 3 of the counter it has been alleged that R1-Sadayan was assaulted by rowdy elements at the instigation of Baby and caused fracture on the hands and ribs. This counter was filed by P.W.2-Sadayan and P.W.1-Murugesan. So even at the time of filing of the counter in M.C.No.4 of 2001 P.W.1 & P.W.2 have sustained injuries in the occurrence. But there is no whisper about these accused A1 to A6 in Ex.D.1-counter filed by P.W.2 & P.W.1 in M.C.4 of 2001. If these accused would have caused injuries on the date of occurrence certainly in the counter Ex.D.1 filed by P.W.2 & P.W.1 they would have mentioned these accused's name in the counter as the assailants at whose hands they have sustained injuries. No doubt P.W.2 has sustained grievous injuries in the occurrence. But the fact remains who has caused those injuries. Certainly these accused are not responsible for the injuries sustained by P.W.2 as rightly held by the learned trial judge. Under such circumstances, I do not find any reason to interfere with the findings of the learned trial Judge in C.C.No.434 of 2000 on the file of the Judicial Magistrate No.II, Sankari. Point is answered accordingly.
16.In the result, the revision is dismissed confirming the judgment in C.C.No.434 of 2000 on the file of the Judicial Magistrate No.II, Sankari.
ssv To
1. The Judicial Magistrate No.II, Sankari.
2. -do-The Chief Judicial Magistrate, Salem.
3. The Public Prosecutor, High Court, Madras.
4. The Inspector of Police, Mac Donalal Chetty Police Station, Salem District, (Cr.No.560 of 2000)