Vijayakumar vs The State Represented By Its on 29 November, 2022

[Cites 7, Cited by 0]

Madras High Court

Vijayakumar vs The State Represented By Its on 29 November, 2022

https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 This Criminal Revision case has been filed as against the Judgment passed in Crl.A.No.02 of 2017 dated 07.08.2018 on the file of the Learned Additional District Sessions Judge, (Fast Track) Arani, Thiruvannamalai District, thereby modifying the Trial Court sentence made in S.C.No.90 of 2010 dated 21.06.2013 on the file of the Learned Assistant Sessions Judge, (Fast Track) Arani, Thiruvannamalai District, thereby convicting the petitioners for the offences punishable under Sections 323 and 324 of IPC.

2. The case of the prosecution is that the defacto complainant borrowed a sum of Rs.10,000/- from A1 and thereafter, he failed to pay the interest as agreed by him. Therefore, on 15.11.2009, at about 09.00 p.m, when the defacto complainant and his friend were eating chicken, A1 came there and abused the defacto complainant in filthy language and also attacked him. Thereafter, A1 also called his father and brothers and they also came there and attacked the defacto complainant. Thereafter, the defacto complainant reached his house. Again, on 16.11.2009, at about 06.00 p.m, when the defacto complainant was at the tea shop, all Page 2 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 the accused persons came there and attacked him by knife. It was prevented by his uncle one Ramakrishnan. The accused also attacked him. When the defacto complainant's brother intercepted the fight, he was also attacked by the accused persons. Immediately, all the three were taken to the hospital. Hence, the complaint.

3. On receipt of the complaint, the respondent registered FIR in Crime No.1618 of 2009 for the offences punishable under Sections 294(b), 323, 324, 506(i) and 307 of IPC. After completion of investigation, the respondent filed a final report and the same has been taken cognizance in S.C.No.90 of 2010 on the file of the Learned Assistant Sessions Judge, (Fast Track) Arani, Thiruvannamalai District for the offences punishable under Sections 294(b), 323, 324, 506(i) and 307 r/w 34 of IPC.

4. In order to bring home the charges, the prosecution had examined P.Ws.1 to 13 and marked Exs.P.1 to 11. The prosecution had also produced M.O.1 and M.O.2. On the side of the petitioners, they Page 3 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 examined D.W.1 and D.W.2 and marked Exs.D1 and D2. On a perusal of oral and documentary evidences, the Trial Court found the petitioners guilty for the offences punishable under Sections 323 and 324 of IPC. A1 was sentenced to undergo one year simple imprisonment and to pay a fine of Rs.1000/-, in default to undergo three months simple imprisonment for the offence punishable under Section 323 of IPC. A1 was also sentenced to undergo three years simple imprisonment and to pay a fine of Rs.5000/-, in default to undergo six months simple imprisonment for the offence punishable under Section 324 of IPC. A2 was sentenced to undergo three years simple imprisonment and to pay a fine of Rs.5000/-, in default to undergo six months simple imprisonment for the offence punishable under Section 324 of IPC. Aggrieved by the same, the petitioners preferred an appeal. The First appellate Court modified the sentence imposed on the petitioners. Hence, this revision.

5. The learned counsel for the petitioners submitted that though the prosecution had examined P.Ws.1 to 13, in order to prove the charges, they failed to bring home the charges. The person who registered the FIR Page 4 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 on the strength of the statement of P.W.1, was not examined by the prosecution. Even according to the prosecution, there were two incidents which took place on 15.11.2009 and 16.11.2009. Whereas, the prosecution failed to investigate and also failed to file any charge sheet for both incidents. When the Trial Court found A3 and A4 were not guilty, the petitioners are also given same benefit, since on the strength of the same witnesses, the Trial Court found A3 and A4 as not guilty. There are contradictions between the prosecution witnesses in respect of injuries. The injuries stated by P.W.1 is not corroborated by the evidence of Doctor. Further, the petitioners also sustained injuries in the occurrence. They were taken to Polur Government Hospital and they were treated by D.W.1. They were issued wound certificates which were marked as Exs.D1 and D2. Without considering the injuries sustained by the petitioners, the respondent mechanically filed a final report without any explanation for the injuries sustained by them. It is fatal to the case of the prosecution.

6. However, the Courts below differentiated the injuries sustained Page 5 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 by the petitioners as well as the defacto complainant and others, but convicted the petitioners alone. P.W.1 deposed that both A1 and A2 attacked him with knife, on his nose, forehead and cheek. Whereas, in his cross examination, he deposed that the first accused torn his forehead with knife and A2 had cut his left cheek. A perusal of medical records revealed that there was no injury on his left cheek. Therefore, no injury is corroborated with the medical report as alleged by P.W.1. The prosecution also failed to prove the weapon which was allegedly used in the crime.

7. The Mahazer witnesses also failed to support the case of the prosecution in order to prove the weapon used in the alleged occurrence. The Doctor, who had treated the petitioners was examined as D.W.1. He categorically deposed about the injuries sustained by the petitioner and issued wound certificates i.e, Exs.D1 and D2. Therefore, the prosecution failed to prove its case and the petitioners are entitled for acquittal.

8. Per contra, the learned Government Advocate (Crl.Side) submitted in order to bring home the charges, the prosecution had Page 6 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 examined P.Ws.1 to 13 and marked Exs.P1 to 11. Both the knives which were used by A1 and A2 were produced as M.O.1 and M.O.2. Though, the petitioners sustained injuries, those were all minor injuries and simple in nature. Whereas, the injury sustained by P.Ws.1, 3 and 4 are grievous in nature. A3 and A4 had no specific overtact and as such the said benefit cannot be given to the petitioners, since they had specific overtact and only because of their overtact, the injured witnesses sustained injuries. Therefore, he prayed for dismissal of the revision.

9. Heard, Mr.G.Dhayashakar, learned counsel appearing for the petitioners and Mr.A.Gopinath, learned Government Advocate (Crl.Side) appearing for the respondent.

10. Admittedly, there was a quarrel between both the groups in respect of non payment of the loan borrowed by P.W.1. On 15.11.2009, the first petitioner herein demonstrated repayment of the loan borrowed by P.W.1. There was a quarrel between them and all the accused persons came there and attacked him. However, there was no complaint. Again, Page 7 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 on 16.11.2009, at about 06.00 p.m, all the accused came to the tea shop and attacked P.W.1. When P.W.3 intercepted, he was also attacked by the accused. P.W.4, who is the brother of P.W.1, also intercepted the quarrel and he was also attacked by the accused. The tea master was examined as P.W.5.

11. P.W.1 deposed that A1 and A2 attacked him with knife on his cheek, nose and forehead. A1 also attacked his uncle who was examined as P.W.3, with knife and torn his cheek. His brother was attacked by A3 by knife on his thighs and head. Therefore, they were taken to the hospital by P.W.11. P.W.2, who is one of the eye witnesses deposed that there was a quarrel between A1 and P.W.1. When he intercepted the fight he was also attacked by A1 by hands. The injured persons were examined as P.W.3 and P.W.4. They also deposed that A1 and A2 attacked P.W.1 and P.W.3. However, he did not whisper about the overtact as against A3. Another injured witness was examined as P.W.4. He deposed that A1, A2 and A4 attacked his brother i.e., P.W.1. Therefore, there were full of contradictions insofar as the overtact is concerned as against the accused. Page 8 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 However, the Trial Court found that the prosecution failed to prove the charge as against A3 and A4 and acquitted them.

12. The Doctor, who treated P.W.1, P.W.3 and P.W.4 was examined as P.W.10. He issued wound certificates for P.W.1, P.W.3 and P.W.4, which were marked as Exs.P5 to 7. At the same time, A1 and A2 also sustained injuries. They went to Government Hospital, Polur, where they got treatment. They were treated by D.W.1 and he also issued wound certificates i.e., Exs.D1 and 2. D.W.1 deposed that on 16.11.2009, at about 08.00 p.m, the petitioners herein came to his hospital and they were admitted as in-patient. They were also sustained injuries on their head and shoulder. A1 sustained five injuries and he was admitted as in- patient. He issued wound certificate to A1, which was marked as Ex.D1. On the same day, A2 also came to his hospital and he also sustained four injuries including head and left hand. He also issued wound certificate to A2, which was marked as Ex.D2. However, admittedly, the respondent did not register any case as against the defacto complainant. Though, the injuries sustained by the accused are simple in nature, the prosecution Page 9 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 failed to explain the injuries sustained by them. Unfortunately, both the Courts below recorded the reason that A1 and A2 sustained only simple injuries and P.W.1, P.W.3 and P.W.4 sustained grievous injuries. In fact, A1 and A2 categorically reported to D.W.1 that they were attacked by seven known persons.

13. In this regard, the learned counsel for the petitioners relied upon the Judgment reported in 2003 9 SCC 426 in the case of State of M.P. Vs.Mishrilal(dead) and others, in which it was held that non- explanation of the injuries sustained by the accused is fatal to the case of the prosecution. In the background of the defence, as set up by the accused, it was incumbent on the part of the prosecution, to have explained the injuries sustained by the accused. Further held that in the face of defence version, which competes in probability with that of the prosecution case, it was mandatory on the part of the prosecution to have explained the injuries sustained by the accused and non-explanation of the injuries is fatal to the prosecution case.

14. In the case on hand, admittedly, the petitioners sustained injuries and they were treated by D.W.1. They were also issued wound Page 10 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 certificates which were marked as Exs.D1 and D2. A1 sustained five injuries and all the injuries are simple in nature. The injuries of A1 as follows, “1) jiyapy; eLgFjpapy; xU fpHpej; fhak; 4*2*1 br/kP mstpy; ,Ue;jJ/

2) ,lJ njhs;gl;ilapy; typ ,Ug;gjhf brhd;dhh;/ btspf;fhak; ,y;iy/

3) tyJ fhypy; typ ,Ug;gjhf brhd;dhh;/ btspf;fhak; ,y;iy/

4) tyJ fz;Qqf;F fPnH typ kw;Wk; tPff; fd;dpa fhak; 5*4 br/kP mstpy; ,Ue;jJ/

5) fGj;jpy; xU rpuha;tf[ f; hak; 7*5 br/kP mst[ ,Ue;jJ”/ The injuries sustained by A2 as follows, “1) jiy gFjpapy; xU fpHpe;j fhak; 2*1*1 br/kP mst[ ,Ue;jJ/ nkYk; jir MHk;tiu ,Ue;jJ/

2) ,lJ Kd;d';ifapy; xU fpHe;j jir bjhpa[k;

mst[f;F ,Ue;jJ/ 7*2*1 br/kP mstpy; ,Ue;jJ/

3) ,uz;L fhy; Kl;ofspYk; typ ,Ug;gjhf brhd;dhh;/ btspf;fhak; ,y;iy/

4) fPHj; j; hil Kd;gFjp Kftha;fl;ilapy; Kd;gw;fs; Mltjhft[k; typ ,Ug;gjhft[k; brhd;dhh;”/

15. All the injuries are simple in nature. However, the prosecution failed to explain the injuries sustained by the petitioners. Therefore, the Page 11 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 case of the prosecution cannot be believed. Generally, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not, wholly true. Further, where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witnesses is untrue; and (2) that the injuries probabilise the plea taken by the appellants.

16. In the case on hand, admittedly the petitioners also sustained injuries in the same occurrence. In fact, they were admitted into hospital and treated by D.W.1. But the prosecution neither produced any medical record nor the Doctor was examined on the nature of injuries sustained by the accused. Both the Courts below instead of seeking proper explanation for the injuries sustained by the petitioners appears to have simply believed what the prosecution witnesses deposed in one sentence that the accused had sustained simple injuries. Whereas, P.W.1, P.W.3 and P.W.4 sustained grievous injuries. Whether the injuries sustained by the accused and the victim are simple or grave in nature, the duty is cast Page 12 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 on the prosecution to furnish proper explanation to the Court, how the person who has been accused of assaulting the injured, received injuries on his person in the same occurrence. Therefore, the prosecution failed to prove its case beyond any doubt and the benefit of doubt goes in favour of the accused.

17. In view of the above, the Judgment passed in Crl.A.No.02 of 2017 dated 07.08.2018 on the file of the Learned Additional District Sessions Judge, (Fast Track) Arani, Thiruvannamalai District, thereby modifying the Trial Court sentence made in S.C.No.90 of 2010 dated 21.06.2013 on the file of the Learned Assistant Sessions Judge, (Fast Track) Arani, Thiruvannamalai District, are hereby set aside. The petitioners are acquitted of all charges. The fine amount, if any, paid by the petitioners shall be refunded. Bail bond, if any, executed by the petitioners shall stand cancelled.

18. Accordingly, this Criminal Revision case stands allowed. Page 13 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 29.11.2022 Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order mn To Page 14 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018

1. The Additional District Sessions Judge, (Fast Track) Arani, Thiruvannamalai District.

2. The Assistant Sessions Judge, (Fast Track) Arani, Thiruvannamalai District.

3. The Inspector of Police, Chetpet Police Station, Thiruvannamalai District.

4. The Public Prosecutor, High Court, Madras.

G.K.ILANTHIRAIYAN, J mn Page 15 of 16 https://www.mhc.tn.gov.in/judis Crl.R.C.No.1006 of 2018 Crl.R.C.No.1006 of 2018 29.11.2022 Page 16 of 16 https://www.mhc.tn.gov.in/judis

Unlock Advanced Research with PRISMAI

Madras High Court