Madras High Court
Asokan vs The Inspector Of Police on 19 October, 2022
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.A.No.896 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.09.2022
PRONOUNCED ON : 19.10.2022
CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A.No.896 of 2019
Asokan ... Appellant
Vs
The Inspector of Police,
E-5, Pattinapakkam Police Station,
Chennai – 600 021 ... Respondents
Prayer:- Criminal Appeal filed under Section 374 of Criminal
Procedure Code, to call for the records in S.C.No.384 of 2016 on the file
of the learned Sessions Judge, Special Court for trial of Criminal Cases
related to elected Members of Parliament and Members of Legislative
Assembly of Tamil Nadu, Chennai – II, and set aside the judgment dated
22.11.2019.
For Appellant : Mr.N.R.Elango, Senior Counsel
For Mr.G.Sriram
For Respondent : Mr.Lenard Arul Joseph Selvam
Government Advocate (Crl. Side)
Page 1 of 28
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Crl.A.No.896 of 2019
JUDGMENT
This Criminal Appeal is directed as against the judgement dated 22.11.2019, passed in S.C.No.384 of 2016 by the learned Sessions Judge, Special Court -II for trial of Criminal Cases related to elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai, thereby convicting the appellant and sentenced him to undergo six months simple imprisonment and to pay a fine of Rs.1,000/- in default, to undergo further period of two weeks simple imprisonment for the offences under Section 509 of IPC and sentenced him to undergo three years imprisonment and to pay a fine of Rs.10,000/- in default to undergo further period of one month simple imprisonment for the offence under Section 307 of IPC and further sentenced him to undergo six months simple imprisonment for the offences under Section 20 r/w Section 30 of Arms Act.
2. The case of the prosecution is that the appellant was a special representative of the Government of Tamil Nadu and he was allotted government housing and he was living with the defacto complainant and Page 2 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 their son and daughter. While being so, in the month of December, 2015, there was a flood in Chennai and the defacto complainant's mother Saroja was also staying with them. On 06.12.2015, when the defacto complainant and her son and daughter along with the former aide to the appellant, one Sathish went to Kotturpuram to deliver relief materials to the flood affected general public and returned to their house at 9.30 p.m. The appellant was also returned at that time and on seeing Sathish, he suspected the defacto complainant's fidelity and abused her. He also abused the defacto complainant in obscene language while climbing the stairs.
3. Immediately after entered into the house, the appellant threatened the defacto complainant to leave the house, since she had illegal intimacy with the said Sathish. Thereafter, he went to his room and came out with his revolver. Immediately, the defacto complainant pushed her mother and children outside and they went to downstairs. The appellant pointed the revolver at the defacto complainant and shot at her twice. However, the said bullets passed her without any injury. Immediately, she Page 3 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 and her mother and children went to the respondent police station and lodged complaint.
4. On receipt of the complaint, the respondent registered the FIR in Crime No.2932 of 2015 for the offences under Sections 509, 307 of IPC and Section 20 r/w. 30 of Arms Act. After completion of investigation, the respondent filed final report and the same has been taken cognizance in S.C.No.384 of 2016, by the learned Sessions Judge, Special Court for MP/MLA cases, Chennai.
5. During the trial the prosecution examined P.W.1 to P.W.11 and marked Ex.P.1 to Ex.P.12 and five material objects were marked as M.O.1 to M.O.5. At the time of arguments, the accused examined D.W.1 to D.W.3 and marked Ex.D.1 & Ex.D.2. After considering the evidence adduced by the prosecution as well as the defence side and also hearing either side, the trial Court convicted the appellant and sentenced him as stated above. Aggrieved by the same the present appeal. Page 4 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019
6. The learned Senior Counsel appearing for the appellant submitted that the defacto complainant was not in a fit state to lodge the complaint. Immediately after the occurrence, she went to the police station and after four hours, she lodged complaint and the FIR has been registered. There is no explanation for the delay in lodgement of complaint, though she went to the police station immediately. There are material improvements in the statement recorded under Section 161 of Cr.P.C. For example, the shots being fired at the defacto complainant instead of merely having heard gunshots inside the house, when both the complaint and the statement are alleged to have been prepared contemporaneously. Therefore, the complaint itself hit by the Section 162 of Cr.P.C., and it is inadmissible evidence.
6.1. He further submitted that P.W.1, P.W.2 & P.W.9 were examined during the course of investigation and they had not whispered about the words allegedly uttered by the appellant. These words were not recorded during the time of investigation and for the first time they were spoken during their evidence before the trial Court. When the appellant Page 5 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 and the defacto complainant were near the entrance of the building, it is quite unnatural that P.W.2 & P.W.9 who were inside the house of the first floor would have heard anything said by the appellant. When P.W.2 reproduces the exact same words alleged by P.W.1 to have been used against her, it raises suspicion about the truthfulness of the allegations, since P.W.2 is none other than the mother of P.W.1.
6.2. When the prosecution witnesses turned hostile, the trial Court ought not to have taken cognizance in piecemeal manner by relying on the part of the evidence corroborating P.W.1 and discarding the other part of the evidence. Though the prosecution have examined P.W.3 & P.W.4 as independent witnesses, they turned hostile. In fact, P.W.3 lives directly above the house of the appellant and if there was any sound of shots from a revolver being fired on that night, he would have heard the same. However, he deposed that he had not heard any sound on the night of the occurrence. Therefore, the prosecution failed to prove the case. Page 6 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 6.3. He further submitted that as far as P.W.4 is concerned, he is a chance witness having no connection to the locality or with any of the parties in this trial. P.W.5 knows both the appellant and the defacto complainant for several years and he was previously employed with the appellant. He deposed that the appellant had sent them to Kotturpuram and there was no reason for him to be angry after seeing P.W.5 with the defacto complainant when they returned to home.
6.4. He further submitted that P.W.1 is not a credible witness in respect of the charges as against the appellant. She had improved lot from her earlier statement during her deposition before the trial Court. In the complaint and also in her previous statement, she has not mentioned the obscene words allegedly used by the appellant and after four years, before the trial Court, she mentioned the obscene words. There is no explanation for the omission and addition. Immediately after the occurrence, the defacto complainant and others went to the police Station and she had given an excuse of having frozen during and after the incident, and after four hours, she lodged complaint. However, she failed to mention any Page 7 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 obscene words, allegedly uttered by the appellant.
6.5. P.W.5 had contradicted with P.W.1 and stated that the appellant knew about the visit to Kotturpuram and that in fact, he only arranged it. It is pertinent to note that P.W.5 was employee of the appellant at that time, he would not and it would have been entirely unnatural for him to have accompanied P.W.1 for an entire evening without the knowledge of the appellant. P.W.5 took the defacto complainant and her children to Kotturpuram without the knowledge of the appellant have never been the case of the prosecution.
6.6. He further submitted that there is no indication in Ex.P.2 Mahazar and Ex.P.7 Rough sketch, as to contents of the house and where the quarrel and the subsequent firing of the revolver took place. No reliance can be placed on these exhibits to corroborate the version of P.W.1 and ascertain the veracity of her account of events. Therefore, if any shot had been fired, it should have entered, become stuck on the door of the opposite flat or entered the flat, which is the only target from the Page 8 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 house of the appellant. The prosecution failed to examine any occupant of the opposite flat and it is fatal to the case of the prosecution.
6.7. According to the prosecution, the bullets were lost in the thorny bushes which is on the other side of the street from the scene of occurrence. It is simply impossible for a bullet fired from the entrance of the appellant's flat to ricochet upon firing on a perpendicular and straight path for several meters. Therefore, the inherent contradiction in the case of the prosecution with the witnesses contradiction each other and witnesses and prosecution documents discrediting one other, clearly indicate that the prosecution case simply does not exist. Therefore, the prosecution failed to prove the case beyond any doubts and as such the appellant is entitled to be acquitted from all the charges. In support of his contention, he relied upon the following judgments :-
i. 1957 SCR 981 – Varivelu Theva Vs. State of Madras. ii. 1959 Supp (2) SCR 875 – Tahsildar Singh Vs. State of UP iii. 1972 (3) SCC 393 – Thulia Kali Vs. State of T.N iv. 1976 (1) SCC 442 – Badri Vs. State of Rajasthan v. 1981 (2) SCC 35 – Shankarlal Gyarasilal Dixit Vs. State of Page 9 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 Maharashtra vi. 1994 Supp (1) SCC 590 – State of A.P. Vs. Punati Ramulu vii. 1997 SCC Online Mad 24 – Nadimuthu Vs. State viii. 2002 (3) SCC 1 Hasan Murtza Vs. State of haryana ix. 2003 SCC Online Mad 782 – Madana Gopal Vs. State x. 2005 SCC Online Mad 519 – Babu Vs. State xi. 2016 (15) SCC 440 – Ram Sunder Sen Vs. Narender xii. 2019 (8) SCC 50 – Anand Ramachandra Chougule Vs. Sidarai Laxman Chougala.
7. Per contra, the learned Government Advocate (Crl. Side) submitted that the prosecution proved the case beyond all reasonable doubts and the trial Court rightly convicted the appellant. Therefore, judgment of the trial Court is liable to be confirmed. Hence, he prayed for dismissal of the appeal.
8. Heard Mr.N.R.Elango, learned Senior Counsel appearing for the appellant and Mr.Lenard Arul Joseph Selvam, learned Government Advocate (Crl. Side) appearing for the respondent police.
9. Admittedly, the appellant got married with one Sindhuja and Page 10 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 gave birth to one son and daughter. The victim also got married with one Chitravel and gave birth to one daughter. Due to misunderstanding between them, they got separated and she was living with her daughter and mother. Due to poverty, she could not maintain her family and as such the appellant being neighbour, the victim and her mother approached him for job. He arranged job at Jeevan Milk Industries for the defacto complainant/P.W.1. Therefore, both had acquainted with each other and had relationship. Subsequently, they got married and she was put in possession at I-3, MGG Block, I Floor, Government quarters, Pattinapakkam, Chennai-28. The appellant used to stay with the victim for 10 days and used to stay along with his first wife for 10 days. He also possessed licensed gun revolver and it was under his custody.
10. During the month of December, 2015, there was a flood in Chennai and therefore, the mother of the victim was also stayed with her. While being so, on 06.12.2015, the victim and her son and daughter along with the appellant's assistant one Sathish went to flood area to provide milk, biscuits and other essential things to the flood affected people at Page 11 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 about 6.30 p.m. After distribution of freebies, they returned at about 9.15 p.m., to her home. When they were claimed to stair case, the appellant also had came to the house and enquired with the said Sathish. Thereafter, he followed the victim and her son and daughter in the stair case. The appellant suspected the victim's fidelity with the said Sathish and shouted at the victim and her mother and asked them to leave the house by using abusive words against them. Thereafter, he went inside of the room and had taken his revolver and threatened them to leave the house. Immediately, the victim pushed her mother and her children out of the house. When the victim was also trying to leave the house, the appellant shot at her twice.
11. The appellant was shot at the defacto complainant from inside of the house, when the victim was standing outside the house. At that time of shot, she turned her face and therefore, she escaped from the gun shot at two rounds. The bullets were lost in the thorny bushes which was on the other side of the street from the scene of occurrence. The defacto complainant did not know what to do further. Immediately, she came out Page 12 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 along with her mother and children and went to the police station at about 9.30 p.m. She was shocked and she got fainted and nervous Thereafter, at about 1.30 a.m., she lodged complaint and the same has been registered in Crime No.2932 of 2015 for the offence under Sections 509, 307 of IPC and Section 20 r/w 30 of Arms Act, after recover from her nervousness.
12. The victim was examined as P.W.1 and her mother was examined as P.W.2. The independent witnesses were examined as P.W.3 and P.W.4. The son of the victim was examined as P.W.9. The daughter of the victim was examined as D.W.1. It is seen from the deposition of P.W.1 to 4 & 9, it is clear that the appellant shot at the victim twice. Further she escaped from the gun shot. She got shock and nervous. Therefore, though they reached the police station at about 9.30 p.m., she lodged complaint only at about 1.30 a.m. It is also corroborated from their deposition. After the occurrence, the victim was frozen in fear and she was not able to lodge complaint immediately. It is relevant to extract the portion of P.W.9 evidence:-
“@mg;ght[fF ; Vw;bfdnt jpUkzkhfp ,Ue;jJ/ mg;bghGJ vd; mg;gh vd;ida[k;
Page 13 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 vd; mk;khita[k; mf;fhita[k; bfhLikg;gLj;Jthh;fs; Jd;g[Wj;Jthh;fs; re;njfg;gLthh;fs;/ 2015?y; ehd; Mwhk;
tFg;g[ goj;njd;/ ork;gh;?y; bts;sk; te;jJ/ vd; ghl;o rnuh$h tPlo ; y; bts;sk;
te;jjhy; v';fs; tPlo
; y; te;J
j';fpapUe;jhh;fs;/ ehDk; vd; mf;fht[k;
cz;oaypy; nrh;jJ
; itj;j gzj;ij
itj;J bts;sj;jpy; ghjpf;fg;gl;lth;fSf;F
cjtyhk; vd;W brhy;yp ghy;. O. gp!;fl;L
th';fpf; bfhz;L ghjpf;fg;gl;lth;fSf;F
bfhLf;fyhk; vd;W Ioah bra;njhk;/
06/12/2018 md;W vy;yhUf;Fk; bfhLf;fyhk; vd;W Kot[ bra;J vd; mk;kh mg;ght[ila X/V/ rjP!; mth;fis cjtpf;F miHj;Jf;
bfhz;L nfhl;Lh: g
; u[ k; rha';fhyk;
MWkzpf;F brd;nwhk;/ vy;yhUf;Fk;
bfhLj;Jtpl;L tPlo
; w;F jpUk;gp
tUk;bghGJ ,ut[ 09/15 Mfptpl;lJ/ eh';f
Ml;nlhtpy; te;J ,w';fpndhk;/ vjph;ff
;
mg;gh fhhpy; te;J ,w';fpdhh;/ mg;gh rjP!;
mz;zhitg; ghh;jJ
; v';flh te;j vd;W
rj;jk; nghl;lhh;/ ehDk; vd; mf;fht[k;
khog;goapy; Vwp te;njhk;/ gpd;dhy; vd;
mk;kh te;jhh;/ ehDk; mf;fht[k; tPlo
; w;Fs;
brd;nwhk;/ mk;kh gpd;dhy; te;jhh;/ mjw;Fg;Page 14 of 28
https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 gpd;dho vd; mg;gh khog;goapy; mk;khitg;
gw;wp jg;ghf ngrp bfl;l thh;ji
; j
ngrpdhh;/ cwhh;c&hf ngrptpl;L nkny
te;jhh;/ vy;yhUk; btspna ngh';f ,y;yhl;o Jg;ghf;fpif itj;J Rl;L tpLntd;
vd;whh;/ vd; mk;kh eh';f Vd; btspna
nghf ntz;Lk; vd;W Mh;ff
; pa{ gz;zpdhh;/
mg;gh cs;ns U:kpw;F brd;whh;/ cs;ns
ngha; mtUila fd;id vLj;J te;J
v';fis nehf;fp ghapz;l; bra;jhh;/ v';f
mk;kh gjw;wk; Mfp tpl;lhh;/ vd;id xU
ifapYk; vd; mf;fhita[k; xU ifapYk;
gpoj;J ghl;oa[ld; btspna ngh';fs; vdj;
js;sptpl;lhh;/ eh';fs; cldoahf khog;goapy;
fPnH ,w';fp jiuj;jsj;jpy; epd;nwhk;/
mk;kh gpd;dho tUthh; vd;W ghh;jn
; jhk;
tutpy;iy/ eh';f gjw;wkhf epw;Fk;nghJ
nkny fd; c&hl; rj;jk; ,uz;L jlit
nfl;lJ/ eh';f mk;khit Rl;Ltpl;lhh; vd;W
epidj;njhk;/ mk;kh bfh";r neuj;jpy; fPnH xo te;jhh;fs;/@ Therefore, there is absolutely no delay in lodgement of complaint by the victim. It is quit natural after sudden gun shot any human being will get shock and nervous. It can not be expected the victim to lodge complaint immediately. Further, it is also seen that the appellant used to suspect the Page 15 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 fidelity of the victim and on the date of occurrence, the victim came along with the appellant's Office Assistant one Sathish who was examined as P.W.5. Therefore, the appellant scolded them with abusive words. It is corroborate with the evidence of P.W.1, P.W.2 & P.W.9. Therefore, there is no delay and a small gap will occur to anyone after reaching the police station for lodging the complaint.
13. In order to prove the charge for the offence under Section 509 of IPC, the victim was examined as P.W.1. She deposed that he got married with one Chitravel and due to misunderstanding, they got separated. Therefore, she was suffering with financial crisis and as such she approached the appellant for job. The appellant arranged the job for distribution of Jeevan milk. Thereafter, they met often and developed intimacy. Due to which, they got married and gave birth to a male child, who was examined as P.W.9. While being so, on the date of occurrence viz., on 06.12.2015, the victim along with P.W.5 went for distribution of freebies to the affected people due to flood and they returned home at 9.15 p.m. At that time, the appellant also reached the home and after seeing the Page 16 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 victim along with P.W.5, he scolded as follows :-
@Vd;o njtpoah Kz;il. cd;
g[zi ; lf;F rpd;dg; igad; nfl;fpwhdh
g[zi ; laiaf; fpHpj;J tpLntd;/@
It is also corroborated by P.W.2 who is the mother of P.W.1. P.W.9, who is another witness to the occurrence also deposed that his father scolded his mother with filthy language.
14. On the side of the defence, the daughter of the victim was examined as D.W.1. She also deposed that after distribution of milk and biscuits to the affected people due to flood, when they returned to home, there was a quarrel between the appellant and the victim. Thus, it is clear that modesty of the victim was put to shame, since the appellant scolded the victim and uttered obscene words with intention to insult her modesty. Therefore, the charge under Section 509 of IPC is proved by the prosecution.
15. Insofar as the charge for the offence under Section 307 of IPC is concerned, the appellant suspected the fidelity of the victim. On the date of occurrence, when the victim and others were returning home after Page 17 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 distribution of freebies materials to the flood affected persons, the appellant had seen the victim along with P.W.5. Therefore, he scolded the victim and relevant portion of P.W.1's deposition is as follows:-
“@vy;yhtw;iwa[k; bfhLj;Jtpl;L
jpUk;g tUk;bghGJ kzp 9/15 ,Uf;Fk;/
ehd; nkny Vwpndd;/ rjP!; g[wg;gl;Ltpl;lhh;/ vd; FHe;ijfs; vdf;F Kd;nd Vwptpl;lhh;fs;/ mth; eh';fs; Vwpf;bfhz;nl ,Uf;Fk;bghGJ fhhpypUe;J ,w';fpdhh;/ rjP!t ; l [ d; Vnjh ngrpdhh;/ mjw;F gpwF vd; gpd;dho gonawp te;jhh;/ vd;
bgz;ikia kpft[k; bfhr;irg;gLj;jp
nfhj;jh njtpoah Kz;il. cd; g[zi
; lf;F
rpd;dg; igad; nfl;fpwhdh/ g[zi
; liaf;
fpHpj;J tpLntd; vd;W ngrpf;bfhz;nl
gpd;dhy; te;jhh;/ ehd; cwhypy; EiHe;J
tpl;nld;/ mtUk; gpd;dho te;jhh;/
vy;nyhUk; tPli
; l tpl;L ngh';fo vd;W
brhd;dhh;/ ,y;iybad;why; vd; fd;id
vLj;J Rl;Lf; bfhd;W tpLntd; vd;whh;/
ehd; rhjhuzkhf brhy;Yfpwhh; vd thjk;
gz;zpnzd;/ mth; cs;ns brd;W fd;id
vLj;J te;jhh;/ jpl;of; bfhz;nl fd;id
vLj;J te;jhh;/ ehd; cwhypy; epd;nwd;/
nrhgh ,Ue;jJ/ mth; tUtijg; ghh;jJ
;
Page 18 of 28
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Crl.A.No.896 of 2019
vd; mk;khitj; js;sptpl;nld;/ gps;isfs;
,Utiua[k; ifapy; gpoj;J btspna
ngh';fs; vd js;sptpl;nld;/ mtiu
fd;Dld; ghh;jj
; ehd; KGikahf freeze
Mfp tpl;nld;/ gps;isfs; mk;kht[k;
btspna Xotpl;lhh;fs;/ ehd; filrpahf
btspna te;njd;/ tPl;Lf;F cs;ns EiHa[k;
thrypy; te;J fd;id itj;J vd;id
nehf;fp ,uz;L Kiw Rl;lhh;/ m';nf fphpy;
,y;yhky; bghpa Xgd; ng!; ,Uf;Fk;/ fPnH
Kl;gj
[ h; mlh;eJ
; ,Uf;Fk;/ mth; fd;dhy;
vd;id Rlk;nghJ ehd; Kfj;ij
jpUg;gptpl;nld;/ Mdhy; rj;jk; vdf;F
ed;whf nfl;lJ/ ,uz;LKiw nfl;lJ/
mJ ga';fukhd rt[zl
; ;/ vdf;F vd;d
bra;tbjd;W bjhpatpy;iy/ ehd; vg;go
btspna te;njd; vd;gJ bjhpatpy;iy/
fPnH vd; mk;kh gps;isfs; ,Ue;jhh;fs;/
mth;fis miHj;Jf; bfhz;L </5 nghyP!;
!;nlc&Df;F brd;nwd;/@
It is also corroborated with the evidence of P.W.2 and P.W.9
16. However, the learned Senior Counsel appearing for the appellant vehemently contended that these words were not present in the Page 19 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 FIR as well as the statement recorded under Section 161 of Cr.P.C. It is only after thought as such this contradiction cannot be said that the prosecution proved the case. As stated supra, after occurrence, the victim got shock and nervous. Therefore, though she went to police station immediately, only after four hours, she turned to her normal stage and lodged the complaint. It is also corroborated by the Investigation officer, who was examined as P.W.12. That apart, the FIR is not an encyclopaedia and it should not contain all the words uttered by the appellant. Therefore, it is not fatal to the case of the prosecution.
17. Further the learned Senior Counsel contended that the bullets were threw away from the cartridge and it was not recovered by the Investigation Officer. The empty cartridges fell down and it is a false story that the appellant collected the used cartridge and arranged it in the plastic box. Admittedly, the gun used by the appellant is revolver. When the revolver shot, the bullets alone will leave from the cartridge and not the empty cartridge. Normally, the empty cartridge after firing will remain in the revolver chamber itself and it will not fall down after a bullet is fired. Page 20 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 Therefore, the question of collecting the empty cartridge does not arise to disprove the case of the prosecution.
18. Further from the evidence of P.W.1, P.W.2 & P.W.9, it is clear that two bullets left from the revolver and fell down in the bush. The two empty cartridges used for the crime by the appellant have been recovered and marked as M.O.5. Further the seized revolver, used cartridges and unused cartridges were sent for the examination at Forensic Sciences Department and their report was marked as Ex.P.5. Ballistic expert was examined as P.W.8 and through him the report Ex.P.5 was marked. The report revealed as follows :-
“(i) Item 1 is a 0.22 inch caliber, eight chambered revolver; it is a factory made revolver made in India.
(ii) Combustion products of smokeless powder were detected in the barrel of the revolver, item 1 indicating that it was used for firing sometime before our examination
(iii) the cartridges in item 2 are of 0.22 inch caliber, and they can be chambered in the revolver Page 21 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 item 1;
(iv) test firing experiments were conducted with the revolver item 1 using eight (8) cartridges from item 2 and the revolver item 1 was found to be in working condition and,
(v) the fired cartridge cases in item 3 are of 0.22 inch caliber; they were examined under comparison microscope along with the test fired cartridge cases obtained from the revolver item 1 and the characteristic features of firing pin and breech marks found on them were similar; hence the cartridge cases item 3 were identified as those fired in the revolver, item 1.” Thus, it is clear that the recovered used cartridge M.O.5 were chambered in the revolver, which was marked as M.O.1.
19. Further, it is also seen from the statement recorded from the appellant under Section 313 of Cr.P.C., it is proved that there was a quarrel between the appellant and the victim on the date of occurrence. He also admitted that he scolded her to go out from the house. In order to prove the charge for the offence under Section 307 of IPC, it is not Page 22 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 essential that bodily injury capable of causing death should have been inflicted. The provision under Section 307 of IPC makes a distinction between the act of the accused and its result, if any. Therefore, the Court has to see whether the act irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the provision.
20. It is sufficient to justify a conviction under Section 307 of IPC, if there is present an intent coupled with some overt act in execution thereof. Therefore, the intention and knowledge of the accused have a vital role to prove the offence under Section 307 of IPC. In this case, the weapon used in the crime is revolver. Though it is licensed one, the contravention of licence or rule is punishable. If anyone is hit by bullets, it would result in grievous injury or cause death and it is well known to all. Therefore, it is clear that the intention of the appellant was to kill the defacto complainant. Fortunately, she turned her face and escaped from the bullets. Therefore, the trial Court rightly held that the offence under Section 307 of IPC has been proved beyond doubts.
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21. Insofar as the charge for the offence under Section 20 r/w 30 of Arms Act is concerned, it would attract if a person is in possession of a firm arm and creates suspicion that the person may use the weapon for any unlawful purpose, can be arrested without warrant and seize from him such arms or ammunition. In the case on hand, the appellant had already shot twice pointing at the complainant. Therefore, suspicion does not arise in this case. In fact, on the date of occurrence, after arrest of the appellant, the revolver was recovered from him. Therefore, the revolver which was used for unlawful purpose which is clear violation of gun licence under the Arms Act.
22. Further, the used cartridges were recovered and unused cartridges which were kept in the plastic box also recovered from the appellant. In all 23 unused cartridges and two used cartridges were recovered from the appellant. Two used cartridges were marked as M.O.5. Eight cartridges were used for test firing and these were marked as M.O.3. Page 24 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 The bullets for the eight cartridges were marked as M.O.4. Fifteen unused cartridges were marked as M.O.2. The prosecution proved all the charges, and the trial Court rightly convicted the appellant. Therefore, the judgements citied by the learned Senior Counsel appearing for the appellant are not helpful to the case on hand.
23. In view of the above discussions, this Court is of the considered opinion that the evidence recorded by the trial Court are based on proper appreciation of all evidence available on records and there is no illegality or infirmity in the impugned judgment passed by the trial Court. The appeal is devoid of merits and it is liable to be dismissed.
24. Accordingly, the appeal is dismissed and the judgment and order of conviction and sentence passed by the learned Sessions Judge, Special Court for trial of Criminal Cases related to elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu, Chennai – II, in S.C.No.384 of 2016, dated 22.11.2019, is hereby confirmed. The Page 25 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 respondent is directed to secure the appellant for the purpose of sentencing him to undergo the remaining period of conviction. It is also directed that the period of sentence already undergone by the appellant, if any, shall be given set off, as required under Section 428 Cr.P.C.
19.10.2022 Index:Yes/No Internet:Yes/No Speaking/Non-speaking order rts Page 26 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 To
1. The Sessions Judge, The Special Court for MP/MLA cases, Chennai – II.
2.The Inspector of Police, E-5, Pattinapakkam Police Station, Chennai – 600 021.
3.The Public Prosecutor, Madras High Court, Chennai.
Page 27 of 28 https://www.mhc.tn.gov.in/judis Crl.A.No.896 of 2019 G.K.ILANTHIRAIYAN, J., rts JUDGMENT IN Crl.A.No.896 of 2019 19.10.2022 Page 28 of 28 https://www.mhc.tn.gov.in/judis