Madras High Court
M.Prabakaran vs State Through on 12 August, 2021
Author: T.Krishnavalli
Bench: T.Krishnavalli
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.08.2021
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.RC(MD)No.688 of 2020
M.Prabakaran : Appellant/Sole Accused
Vs.
State through
The Inspector of Police,
Devakottai Taluk Police Station,
Sivagangai District. : Respondent/Complainant
Prayer: Criminal Revision has been filed under section
397 r/w 401 of the Criminal Procedure Code against the judgment
of the Judicial Magistrate, Devakottai, made in CC No.30 of 2020,
dated 25.05.2017, which was confirmed by the Additional District
and Sessions Judge, Sivagangai, in CA No.55 of 2017, dated
04.03.2020.
For Petitioner :Mr.K.Ramanathan
For Respondent : Mr.RMS.Sethuraman
Standing Counsel for State
(Criminal side)
https://www.mhc.tn.gov.in/judis/
2
JUDGMENT
This Criminal Revision has been directed against the judgment of the Judicial Magistrate, Devakottai, made in CC No.30 of 2020, dated 25.05.2017, which was confirmed by the Additional District and Sessions Judge, Sivagangai, in CA No.55 of 2017, dated 04.03.2020.
2.The case of the prosecution is that on 04.07.2016, due to wordy quarrel, the petitioner abused in filthy language and assaulted the de-facto complainant by iron rod and caused grievous injury to him.
3.The learned Judicial Magistrate, Devakottai, on proper appreciation of the evidence, convicted the accused for the offence under section 326 IPC and sentenced him to undergo Rigorous Imprisonment for 2 years and to pay a fine of Rs.1,000/-, in default to further undergo 1 month of Simple Imprisonment. Challenging the same, the petitioner filed appeal before the Additional District and Sessions Judge, Sivagangai, in CA No.55 of 2017. On 04.03.2020, the First Appellate Court also confirmed the findings of the trial court. Against which, the petitioner is before this court. https://www.mhc.tn.gov.in/judis/ 3
4.Heard both sides and perused the materials available on record.
5.Even though so many grounds were raised in the grounds of revision, it is mainly contended by the learned counsel appearing for the petitioner/accused that the allegations found in the FIR do not prima facie constitute of any offence or make out a case against the petitioner and there are contradictions in so far as the injuries mentioned in the complaint and the hospital records and there are material contradictions between the evidence of the prosecution witnesses and prays for allowing the Criminal Revision.
6.On the other hand, the learned Standing counsel appearing for the respondent/State argued that the concurrent findings of the courts below is on proper appreciation of the materials available on record and prays for dismissal of the Criminal Revision.
7.PW1 is the injured and he gave Ex.P1 complaint to the police. PW1 in his complaint statement stated that on 04.07.2014 at 1.00 am, after dropping his sister-in-law, he returned in his two https://www.mhc.tn.gov.in/judis/ 4 wheeler to see the Drama in the temple festival and when he reached near Karuppar Kovil, at that time, the accused Prabakaran and one Karthick walked on the centre of the road and it was inconvenient to drive his vehicle and for that, he asked the accused to leave place for his vehicle to go further and at that time, Accused Prabhakara due to previous enmity with his sister-in-law, took the iron rod and caused injury on his scalp and left hand and it was pacified by Karthick and his wife Revathi and then, he was taken to the Government Hospital and he gave the complaint statement.
8.PW1 in his evidence stated that prior to the occurrence, there was enmity between his sister-in-law Kalyani and the accused and on 04.07.2014, after dropping his sister-in-law in her house, returned to see the Drama and at that time, he asked the accused to walk on the side of the road to leave place to driver his vehicle, for that the accused used filthy language and took the iron rod and caused injury on his scalp and left head. PW1 in his complaint stated that the occurrence was seen by one Karthick and his wife Revathi and they only pacified the dispute between the accused and PW1. But PW1 during his cross examination stated that at the time of occurrence, there was no person available in the place of https://www.mhc.tn.gov.in/judis/ 5 occurrence. Further, during his cross examination, he stated as follows:-
“jpUtpHh fUg;gh;nfhtpypy;
ele;jJ. rpkpz;l; nuhl;oypUe;J 50 mo
J}uj;jpy; fUg;gh; nfhtpy; cs;sJ.
rk;gtk; ele;j md;W ehlfk; ele;J
bfhz;oUe;j nghJ Rkhh; 1000
ngh; ,Ue;jhh;fs;.
..ehd; vjphpaplk; Xukhf ele;J
bry; vd;W brhy;Yk; nghJ vdf;F
vjphpy; 3 ,Urf;fu thfdj;jpy; Ml;fs;
te;jhh;fs;. me;j ,U rf;fu thfdKk;
vq;fs; ChpypUe;J te;jhh;fs;. vjphp ehd;
Xukhf bry; vd;W brhd;dt[lndna vd;id jpl;o fk;gpahy;
moj;Jtpl;lhh;. ,U rf;fu thfdj;jpy;
te;jth;fs; ngha;tpl;lhh;fs;.” Hence from the cross examination of PW1, it reveals that several persons saw the occurrence. But the above persons were not cited as witnesses. Further, PW1 in his complaint stated that only due to previous enmity between his sister-in-law and the petitioner/accused, the occurrence took place. But during his cross examination, PW1 stated that prior to one year, there was enmity between him and the accused. Hence, there are lot of contradictions between the FIR and the evidence of PW1. https://www.mhc.tn.gov.in/judis/ 6
9.PW2 is the Sister-in-law of PW1. PW2 is not the eye witness. PW1 in his compliant stated that there was previous enmity between PW2 and the accused Prabakaran. But PW2 during her cross examination, stated that there was no previous enmity between her and the accused and further stated that there was no previous enmity between the accused and PW1. From the evidence of PW2, it reveals that there was no enmity between her and the accused. But PW1 stated that due to previous enmity between his sister-in-law and the accused, the occurrence took place. Hence, there are lot of contradictions between the evidence of PW1 and PW2.
10.In this case, the Doctor, who gave treatment to the injured was examined as PW7. PW7 deposed that PW1 told him that he was assaulted by one male person with iron rod and the above person caused injury on his scalp and he found that there is cut injury on the middle head measuring 5 cm x 1 cm x 1 cm and PW7 further deposed that after examination, as PW1 told him that he suffered into the bone fracture on the 4th finger of left hand, he referred the injured for taking X-ray. PW1 has not stated before the Doctor that the known person caused injury on his left hand. It was https://www.mhc.tn.gov.in/judis/ 7 admitted by PW7 during his cross examination. PW7 found injury only on the scalp of PW1. Further, PW7 stated that PW1 told him that he had sustained fracture on the 4th finger of his left hand, hence, he mentioned in the Wound Certificate that the injuries sustained by PW1 are grievous in nature. PW7 has not specifically stated that he found injuries on the left hand of PW1. Hence, the Wound Certificate given by PW7 is not at all genuine one.
11.Further, in this case, X-ray report was not filed and the Doctor, who took X-ray for the injured was also not examined. At this juncture, it is necessary to refer the cross examination of PW7, which would run thus:-
“..fhak;gl;l egh; jd;id ,lJ ifapnyh> tpuy;fspnyh jd;id ahUk;
jhf;fpajhf brhy;ytpy;iy. nghyPrhh; vd;id kWehs; tprhhpj;jhh;fs;. mt;thW tprhhpf;Fk; nghJ fhak;gl;l egUf;F ifapy; fhak; ,Ue;jjhf brhy;ytpy;iy.” PW7 deposed that only on the basis of the statement given by the injured, he determined the injuries as grievous. Hence, the https://www.mhc.tn.gov.in/judis/ 8 evidence of PW7 is not acceptable, since PW7 has not produced the X-ray report for the injured, but determined the injuries sustained by the injured as grievous. Further, PW7 stated that PW1 himself came to the hospital. But PW1 during his evidence stated that he was taken to the Government Hospital by his Uncle. Hence, this Court is of the considered view that PW7 evidence is not corroborated with the evidence of PW1.
12.Further, in this case, PW1 in his cross examination stated that already he informed the occurrence to the police, who are on duty in the temple festival and the accused was immediately arrested. But the Investigating Officer/PW8 during his evidence stated that he arrested the accused in the Anumanthagudi Bus stop at 15.00 hours. It is to be noted that the police to whom PW1 informed the occurrence, was not examined. PW1 during his evidence stated that when he was in the hospital, police came and recorded his statement. Hence, in respect of the complaint and arrest, there are contradictions. Therefore, it creates doubt about the prosecution case.
https://www.mhc.tn.gov.in/judis/ 9
13.For all the reasons stated above, this Court is of the considered view that both the Courts below without considering the materials available on record, in a proper manner, had passed the erroneous judgment, which according to this court, is liable to be set aside.
14.In the result, this Criminal Revision is allowed. The impugned judgment of conviction and sentence of both the courts below are set aside. The revision petitioner/accused is acquitted of the charges levelled against him. The bail bond, if any executed by him shall stand cancelled and the fine amount, if any paid by him shall be refunded to him.
12.08.2021 Index:Yes/No Internet:Yes/No er Note :
In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/ litigant concerned.
https://www.mhc.tn.gov.in/judis/ 10 T.KRISHNAVALLI,J er To,
1.The Additional District and Sessions Judge, Sivagangai.
2.The Judicial Magistrate, Devakottai.
3.The Inspector of Police, Devakottai Taluk Police Station, Sivagangai District.
4.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.Crl.RC(MD)No.688 of 2020
12.08.2021 https://www.mhc.tn.gov.in/judis/ 11 https://www.mhc.tn.gov.in/judis/