Madras High Court
Pavayammal vs State By The on 23 June, 2011
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.06.2011
CORAM
THE HONOURABLE MS.JUSTICE R.MALA
CRL.R.C.No. 879 of 2009
Pavayammal .. Petitioner/Defacto Complainant
..Vs..
1.State by the
Inspector of Police
Kavindapadi Police Station
Erode District.
Crime No.490/2006 .. Respondent/Complainant
2.Kohila
3.Kumar @ Sivakumar
4.Sulocha @ Ponnammal .. Respondents/Accused 1 to 3
Prayer:- This Criminal Revision Case is filed under Sections 397 read with 401 of Cr.P.C., to set aside the judgment of C.A.No.180/2008 dated 29.05.2009 on the file of the Additional Sessions Court (Fast Track Court No.II), Gobichettipalayam, reversing the judgment dated 01.07.2008 in C.C.No.259/2006 on the file of the learned Judicial Magistrate No.II, Gobichettipalayam and to allow the revision.
For Petitioner : Mr.P.R.Balasubramanian
For Respondents : Mr.C.Emalias and
Ms. M.F.Shabana
Govt. Advocate (Crl. side) for R1
Mrs.S.Meenakumari for RR2 to 4
ORDER
This revision has been preferred against the judgment of acquittal, dated 29.05.2009, on the file of the Additional Sessions Court (Fast Track Court No.II), Gobichettipalayam, whereby A1 and A2 were acquitted for the offence under Section 324 I.P.C. and A3 was acquitted for the offence under Section 323 I.P.C., reversing the judgment of conviction and sentence, dated 01.07.2008, in C.C.No.259/2006 passed by the learned Judicial Magistrate No.II, Gobichettipalayam.
2.The case of the prosecution is as follows:
(i)P.W.1-Pavayammal is wife of P.W.2; A4-Chinnasamy is brother of P.W.2; A1-Kohila is wife of A4; A2-Kumar and A3-Sulocha are their children. On 15.11.2006, a sheep belonging to P.W.2 Palanisamy was grazing the groundnut crops owned by Chinnasamy. Due to previous enmity, on 16.11.2006, at 13.30 hours, the accused 1 to 4 trespassed into the house of P.W.1 Pavayammal. A1 assaulted on her head with brick and A2 assaulted on her with handle of the spade and A3 fisted on her mouth, which resulted broken of teeth and A4 kicked on her hip. P.W.3-Gunasekaran is a son of P.W.1's sister, who witnessed the same. After returning from the lands, P.W.2 has taken P.W.1 to Government Hospital, Erode, where P.W.9-Dr.Kumar treated her and gave Accident Register Copy Ex.P4.
(ii)P.W.10-Head Constable, who received the intimation from the Hospital and recorded the complaint from P.W.1 and registered a case in Cr.No.490/2006 under Sections 323, 324 and 506(ii) I.P.C. Then, he prepared an F.I.R. under Ex.P5.
(iii) P.W.11-Sangitha, Sub-Inspector of Police, who took up the matter for investigation and on very next day (i.e.) 17.11.2006, she gone to the place of occurrence and in the presence of the winesses P.W.6 Meinathan and P.W.8 Selvakumar, she inspected the place of occurrence and prepared Observation mahazar Ex.P2 and drew the rough sketch Ex.P6 and seized the material objects (Brick and handle of the spade) M.O.1 and M.O.2 under Ex.P3 seizure mahazar. Then, P.W.11 examined the witnesses and recorded their statements and sent to the higher official for further investigation.
(iv)P.W.12-Raja Ranaveeran, Inspector of Police, took up the matter for further investigation. On 18.11.2006, P.W.12 arrested A2 at 5.00 p.m. and other accused were enlarged on anticipatory bail. After examining other witnesses, P.W.12 completed his investigation and filed a charge sheet against the accused for the offence under Sections 447, 323, 324, 325, 326 and 506(ii) I.P.C.
3.The trial Court after following the procedure, framed necessary charges. Since the accused pleaded not guilty, on examining the witnesses and on considering the evidence of P.W.1 to P.W.12, Exs.P1 to P6 and M.O.1 and M.O.2, acquitted the accused A1 to A4 for the offence under Section 506(ii) I.P.C. and convicted A1 and A2 for the offence under Section 324 I.P.C. and sentenced them to undergo six months' rigourous imprisonment and imposed a fine of Rs.2,500/- each in default in payment to undergo two weeks' simple imprisonment. A3 was convicted for the offence under Section 323 I.P.C. and sentenced her to undergo three months' rigourous imprisonment and imposed a fine of Rs.2,500/- in default in payment, to undergo two weeks' simple imprisonment. A4 was acquitted from the charges levelled against him for the offence under Section 323 I.P.C. Aggrieved against the judgment of conviction and sentence passed against A1 to A3, they preferred an appeal in C.A.No.180/2008 on the file of the Additional Sessions Court (Fast Track Court No.II), Gobichettipalayam. The learned appellate Judge after hearing the arguments and perusing the documents, came to the conclusion that the prosecution has not proved the guilt of the accused beyond reasonable doubt. Hence, the first appellate Court acquitted all the accused from the charges levelled against them and allow the appeal in C.A.No.180/2008, against which, the present revision has been preferred by the injured/P.W.1.
4.Challenging the judgment of acquittal, the learned counsel for the petitioner/P.W.1/complainant submitted that the trial Court after considering the evidence of P.W.1 to P.W.12 and Exs.P1 to P6, came to the correct conclusion that A1 and A2 were guilty for the offence under Section 324 I.P.C. and A3 was guilty for the offence under Section 323 I.P.C. But the first appellate Court, has not properly considered the same, acquitted the accused only on the flimsy grounds in respect of the place of occurrence and the delay in sending the F.I.R. and the contradiction between the ocular evidence of P.W.1 to P.W.4 and medical evidence of the doctor P.W.9. Hence, the first appellate Court has not considered the documentary evidence as well as the oral evidence in proper perspective. But, the trial Court has considered all the aspects in proper perspective and convicted the accused. Hence, he prayed for setting aside the acquittal order passed by the first appellate Court and restored the conviction and sentence passed by the trial Court.
5.Refuting the same, the learned counsel for the respondents 2 to 4/accused 1 to 3 submitted that two days delay in sending the complaint would clearly prove that has been concocted later. That factum has been clearly considered by the first appellate Court. He further submitted that there is a contradiction between the evidence of P.W.1 to P.W.4, who are eye witnesses and the medical evidence. Injuries sustained by P.W.1/the petitioner is not correlated with the manner in which she has deposed. So that aspect has been clearly considered by the first appellate Court in paragraphs-10 to 12 of its judgment. Hence the acquittal judgment passed by the first appellate Court does not warrant any interference and therefore, he prayed for the dismissal of the revision.
6.Heard the learned Government Advocate (Crl.side)
7.Admittedly, P.W.1's husband is P.W.2 and P.W.2's brother's wife and children are arrayed as accused. P.W.3 Gunasekaran is alleged to be an eye witness, who is also their relative. P.W.4 Ravichandran, who is the friend of P.W.3, is an eye-witness. P.W.6 and P.W.8 are attestors of Ex.P2 Observation mahazar and Ex.P3 seizure mahazar of M.O.1 and M.O.2. P.W.8-Selvakumar turned hostile. P.W.7-Soundararaj, who is also an eye witness. P.W.9 is a Doctor, who treated P.W.1 and gave Accident Register Copy Ex.P4.
8.P.W.1, in her chief-examination, stated that A1 assaulted on her head with brick and A2 assaulted on her head with handle of spade and A3 fisted on her mouth, which resulted broken of tooth. In her cross-examination, a suggestion was posed on her that due to enmity, she made a quarrel and fell down on the brick and sustained injuries, which was denied by her. Admittedly, there is no cordial relationship between both the family for past thirty years. On 15.11.2006, one day prior to the incident, there was a quarrel in respect of P.W.1's sheep grazed the groundnut crops of A4. So on the day itself, there is a quarrel between both the family as per the complaint. As already stated that P.W.2, who is the husband of P.W.1, is not an eye witness, because at the time of the incident, he came back from the lands. P.W.3 and P.W.4 are chance witnesses, because P.W.3 was residing at Erode and he accompanied with P.W.4, on that day only, he reached the house of P.W.1. So he is only a chance witness. So it is well settled dictum laid down by the apex Court that a single interested eye witness is sufficient to convict the accused provided her evidence is natural, cogent and trustworthy.
9.Now it is appropriate to consider the evidence of P.W.9-Doctor, who treated P.W.1. In his evidence, he stated that on 16.11.2006, at about 1.30 p.m., P.W.1 was assaulted by some known persons nearby her house. He gave Accident Register Ex.P4, where he mentioned eight injuries, except injuries 4 and 8, others were simple in nature. P.W.1 has sustained only laceration, contusion, abrasion and loss of two teeth, but there is a fracture at right mastoid. P.W.9-Doctor, in his cross-examination, he stated as follows:
VERNACULAR (TAMIL) PORTION DELETED The above paragraph shows that P.W.9 fairly conceded that due to scuffling, when a person fell down on earth, there is a possibility for sustaining such injury. He further stated that there is no laceration on her lips. If really a person fisted on mouth, naturally there must be a laceration on mouth. On considering the evidence of P.W.9-Doctor, there is a contradiction between the medical evidence of Doctor and ocular evidence of P.W.1. In such circumstances, as per the evidence of doctor, after scuffling, when a person fell down on earth, the injuries mentioned in the Accident Register Copy Ex.P4 are possible. Moreover, P.W.1 has not stated that what are the injuries she sustained. Even though she has stated that she was assaulted with M.O.1-handle of the spade and M.O.2-brick on her head, she has not sustained any injuries on her head. She has sustained only laceration on the upper portion of the right ear. So the first appellate Court has considered this aspect and came to the correct conclusion that there is a material contradiction between medical evidence of P.W.9-Doctor and ocular evidence of P.W.1 to P.W.4.
10.One more adding circumstance is that as per the evidence of P.W.10-Head Constable, he recorded the complaint on 16.11.2006 and on the same day at 23.45 hours, he registered the case in Crime No.490/2006 and prepared Ex.P5-F.I.R, but the F.I.R. was reached the Court only on 18.11.2006, at 10.00 p.m. The learned counsel for the respondents 2 to 4/accused 1 to 3 mainly focussing upon that if any complaint has been received and registered on the same day, what prompted the investigating officer to forward the F.I.R. to the Court after two days that too at 10.00 p.m. So there is a chance for concocting the complaint Ex.P1 after thought and implicating the respondents 2 to 4 due to the previous enmity. In the complaint Ex.P1, it was specifically mentioned that the case has been registered on 16.11.2006, at 23.45 hours, even though occurrence has taken place on 16.11.2006, at 1.30 p.m., the F.I.R. reached the Court only on 18.11.2006, at 10.00 p.m. and the two days delay has not been properly explained by the prosecution. So the delay in sending the F.I.R. to Court played vital role and it is fatal to the case of the prosecution. Hence the first appellate Court has considered this aspect in proper perspective and came to the correct conclusion that the occurrence has not been proved by the prosecution beyond reasonable doubt. Hence, giving benefit of doubt to the respondents 2 to 4/accused 1 to 3, the first appellate Court acquitted the accused 1 to 3 from all the charges levelled against them.
11.One more adding circumstance is that the respondents 2 to 4 have also given a complaint against P.W.1 and her husband P.W.2. P.W.1 also admitted that the complaint has been registered against her. But, as per the evidence of P.W.12-Raja ranaveeran, Inspector of Police stated that on the basis of the complaint given by the accused, a case was registered in Cr.No.500/2006 against P.W.1 and P.W.2. Further, he stated that he is unable to depose the case, without the documentary evidence in respect of Cr.No.500/2006. But it is the case in counter and investigating agency ought to have followed PSO 588A, but it has not followed the same. In such circumstances, I am of the view that the first appellate Court considered all the aspects in proper perspective and came to the correct conclusion that the prosecution has not proved the guilt of the accused beyond reasonable doubt. Hence, I do not find any infirmity or illegality in the judgment passed by the first appellate Court and therefore, it does not warrant any interference. Hence, the criminal revision is dismissed as devoid of merits.
12.In fine, The Criminal Revision is dismissed.
The acquittal judgment passed by the learned Additional Sessions Court (Fast Track Court No.II), Gobichettipalayam, is hereby confirmed.
kj To
1.The Additional Sessions Court (Fast Track Court No.II) Gobichettipalayam.
2. The Judicial Magistrate No.II Gobichettipalayam.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras