Madras High Court
Veemaraj vs State: Rep. By Inspector Of Police on 5 March, 2012
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reservation 02.04.2019
Date of Judgment 01.07.2019
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.A.(MD)No.60 of 2012
Veemaraj : Appellant/A1
Vs.
State: rep. by Inspector of Police,
Koodankulam Police Station,
Tirunelveli District. : Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of the
Criminal Procedure Code, against the judgment and conviction,
dated 05.03.2012 passed by the Sessions Judge (Mahila Court),
Tirunelveli, in S.C.No.349 of 2008.
For Appellant : Mr.S.R.A.Ramachandran
For Respondent : Mr.A.Robinson,
Government Advocate (Crl.side)
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JUDGMENT
This Criminal Appeal is directed against the judgment and conviction, dated 05.03.2012 passed by the Sessions Judge (Mahila Court), Tirunelveli, in S.C.No.349 of 2008.
2.According to the prosecution, A1 married the victim on 23.11.2006 and the victim belongs to Christian and A1 belongs to Hindu and after marriage, both of them lived at Township Quarters at Chettikulam and A2 is the sister of A1 and A3 is the husband of A2 and after marriage, the victim used to attend Church Prayer Meeting, but that was opposed to by her husband (A1) and A2 and A3, who were also opposing the victim in attending Prayer Meeting by her and on 19.01.2008, A1 informed her sister/A2 and brother- in-law/A3 that her wife (the victim) is attending Church and A2 and A3 instigated and abetted A1 by saying that if the victim visits Church, you will kill her and that on 20.02.2008, when the victim with her four months old daughter, A1 attacked her with scissors and thrown her from the second floor of the building to the ground. The Inspector of Police attached to Koodankulam Police Station, Tirunelveli District has filed a final report against the accused examining the witnesses.
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3.In the trial court, 10 witnesses were examined and 8 Exhibits and 2 material objects were marked. When the accused were questioned about the incriminating circumstances, they denied the same. On the side of the accused, one witness was examined and one document was produced. The trial court convicted the appellant/A1 for the offence under Section 307 IPC and sentenced him to undergo 10 years RI and to pay a fine of Rs. 25,000/-, in default to undergo one year RI and acquitted the other accused from the charges levelled against them. Aggrieved by the judgment passed by the trial court, the appellant/A1 is before this court.
4.The learned counsel for the appellant/A1 submitted that the motive for the alleged occurrence had not been properly proved by the prosecution and Ex.P1 the complainant and Ex.P5 FIR are highly doubtful and cannot be relied upon, more-ever the prosecution has suppressed the genesis and origin of the occurrence and the nature of the injury caused to the appellant, which was stated in Ex.P3 Wound Certificate will not match with the statement of PW1 victim and PW2, who claims to be eyewitness that A1 said to have took the deceased and put her down from the second floor and that there is no independent witness examined in http://www.judis.nic.in 4 this case, even though it was stated that one Solomon, who accompanied with PW2 was not examined before the trial court, but he was examined by the respondent police on 21.01.2008 and the independent witness (DW1), who is the Doctor gave First Aid to PW1 immediately after the occurrence and the Case Sheet also marked as Ex.D1, which clearly shows that due to family quarrel, PW1 jumps from the second floor and there are material contradictions with regard to factual aspect as well as legal aspect and prosecution failed to clarify these contradictions. It is further submitted that beyond the merits of the case, now the victim (PW1) and the appellant/A1 was compromised and settled their issues once for all and now, they are happily leading their matrimonial life for the welfare of the minor child, who is now aged about 12 years. In view of the above circumstances, the learned counsel appearing for the appellant/A1 prays for allowing the criminal appeal.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the trial court after considering the entire materials available on record, had passed correct order, which does not require any interference by this court and prays for dismissal of the appeal. http://www.judis.nic.in 5
6.When this criminal appeal came up for hearing on 02.04.2019, the learned counsel appearing for the appellant/A1 submitted that the dispute between the de-facto complainant and the appellant has been settled. A compromise memo has been filed by the parties. This court enquired the husband and wife as to the present state of their relationship, for which both of them informed this court that on the intervention of the elders of the family and considering the welfare of both the families, they have decided to live in a peaceful and happy life and they wanted to settle the issues before this court and prays to accept the compromise arrived at between them and acquitted the appellant/A1 in this appeal in addition to compromise arrived at between the parties. Further, the learned counsel appearing for the appellant/A1 submitted that there is also arguable point for acquitting the appellant/A1, considering the nature of the offence and it is the dispute between two individuals, who is non other than the husband and wife and prays that the Joint Compromise Memo entered into between the appellant and the victim may be recorded and this criminal appeal has to be allowed.
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7.Further, the learned counsel appearing for the appellant/A1 argued that there are contradictions in the evidence of the witnesses and there was no corroboration between the oral evidence and medical evidence and there was a delay in lodging the First Information Report and prays that the appellant/A1 is entitled to acquittal.
8.PW1 is the victim and she gave complaint Ex.P1. PW1 in her evidence stated that she belonged to Christian and her husband belonged to Hindu and due to it, dispute arose between them and on 19.01.2008, she came to her sister's house and went to the Church and A1 came to understand that she went to Church and came and took her to the house of A2 and A1 beat his wife and A1 and A3 said ,ts; ,d;Dk; NfhtpYf;F Nghdhs; ntl;o nfhd;WtpL and on the same day at 6.00 am, her husband assaulted her and it was seen by her brother and his friend and when she went to balcony to give milk to her daughter, at that time, A1 came and assaulted her with scissor and pushed her from the balcony and she fell down and sustained injuries.
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9.PW2 is the father of PW1. PW2 stated that he saw the occurrence. PW2 after the occurrence has not taken any steps to give the complaint to the police and further, he has not taken his daughter to the hospital.
10.On perusal of Exs.P1 and P5, there is no averment that PW2 was present at the time of occurrence. At this juncture, it is necessary to refer the cross examination of PW2, which would run thus:-
“rk;gtk; ele;j gpd;dh; me;j Fhe;ijia ahh; nfhz;Lte;jhh;fs; vd;W njhpahJ rk;gtk; ele;jTld; vd; kfis Mk;Gyd;rpy; itj;J nfhz;L nrd;whh;fs; vq;F nfhz;Lr; nrd;whh;fs; vd;W njhpahJ rk;gtk; ele;jgpd; vd; kfis vjph tPkuh[hTk; mtUld; gzpGhpAk; Njtjh]; vd;gtUk; mD tp[;a; lTd; rPg;gpy; cs;s kU;jJtidapy; 20.1.08k; Njjp fhiy 11 kzpf;F Nrh;j;jhh;fsh vd;W vdf;F njhpahJ mq;F Kjy; cjtp nra;ag;gl;L mjw;F gpd;G ehfh;Nfhtpypy; cs;s jputpzk; kUj;Jtidapy; kjpak; 11 kzpf;F Nrh;f;fg;gl;lhh; vd;why;
vdf;F njhpahJ”
“rk;gtj;ij ghh;j;Jtpl;L fldlfhty;
epiyaj;jpNyh NtW ve;j fhty; epiyaj;jpNyh Gfhh; vJTk; nfhLf;ftpy;iy.” http://www.judis.nic.in 8 “m.rh.M.1y; 2001.08 k; Njjp ehNdh vd;Dld; te;j irkNkh mZtp[a; lTd; rPg;gpw;F nrd;wjhfNth rk;gtj;ij Nehpy; ghh;j;jjhfNth $wg;gltp;y;iy vd;why; rhp jhd;.”
11.On careful perusal of the evidence of PW2, it reveals that at the time of occurrence, he was not in the place of occurrence and saw the occurrence. PW1 in her complaint stated that quarrel arose between her and her husband due to dropping of ear drops in the ear of their son. But PW1 during her evidence stated that she went to Church and due to it, quarrel arose between her and her husband. PW1 during her evidence that quarrel arose since she went to Church. There are contradictions in respect of the quarrel arise between PW1 and her husband. Hence, motive is not proved on the side of the prosecution.
12.PW1 in her evidence stated that her husband dropped her from balcony and due to it, she sustained injuries. The learned counsel appearing for the appellant/A1 argued that PW1 gave statement to the Doctor, when he was admitted in Kudankulam Nuclear Power Project Anuvijay Dispensary that she sustained injury when she jumped from the second floor due to the quarrel http://www.judis.nic.in 9 between her and her husband and hence, A1 has not pushed her from the balcony and sustained injuries and prays that the appellant/A1 is entitled to acquittal.
13.To prove it, on the side of the accused, the Doctor, who gave first treatment to PW1 was examined as DW1. DW1 deposed that on 20.01.2008 at 11.00 am, when he was on duty PW1 was brought to their Dispensary and PW1 told him that she jumped from the second floor, due to the quarrel between her and her husband and DW1 found the following injuries:-
(i)Laceration over lower third of thigh exposing the fractured bone and tissues with lots of contamination;
(ii)A laceration over the forehead (bone deep) seen 3 x 1 cm;
(iii)Black eye right with contusion; and
(iv)Laceration in the web space between thumb and index finger .
14.After the first aid, PW1 was taken to Thiraviam Orthopaedic Hospital. The Doctor who gave treatment in Thiraviam Hospital was examined as PW5. PW5 deposed that PW1 http://www.judis.nic.in 10 told him that she was dropped down by her husband from the balcony and he found the following injuries:-
“1.A laceration over the forehead (bone deep) measuring 6 x 1 x.05 cm;
(2)Black eye right with contusion;
(3)Laceration in the web space between thumb & index finger measuring 1x0.56 x 05 cm;
(4)Contusion right heel; and (5)Laceration over lower third of thigh measuring 7 x 3 x 2 cms, exposing the fractured bone & tissues with lots of contamination.
15.In this case, the wound certificate was issued by PW5 marked as Ex.P3. On perusal of Ex.P3, it is stated that the injuries are occurred due to fall from height. But PW5 deposed that PW1 told him that her husband dropped from the balcony.
16.It is seen that from Thiraviam Hospital intimation was given to Kudankulam Police Station and the intimation was marked as Ex.P4. On perusal of Ex.P4, the nature of accident is stated as “fall from height”. The statement given to the Doctor, who gave first treatment is the basis of the case. PW1 told the Doctor, who http://www.judis.nic.in 11 gave first treatment that she herself fell down from the balcony due to the dispute between her and her husband. This is the basis of the case. Hence, from the evidence of DW1 and Ex.D1, it reveals that PW1 jumped from the second floor due to the quarrel between her and her husband and not due to dropping by her husband.
17.The learned counsel appearing for the appellant/A1 argued that the occurrence took place on 20.01.2008, but the complaint was given on 22.01.2008 and there was no proper explanation given on the side of the prosecution. Hence, it is fatal to the prosecution.
18.In this case, the date of occurrence is 20.01.2008 at 10.00 am, but the case was registered on 21.01.2008 at 13.00 hours. DW1 already sent intimation to the police on 20.01.2008 and further PW5 also sent intimation to the police, which was marked as Ex.P4. But the police recorded the statement from PW1 only on 21.01.2008 at 13.00 hours and registered the case on 21.01.2008 at 17.00 hours. No explanation was given for the delay in registering the case. Hence, the delay in giving and registering the case is fatal to the prosecution.
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19.The trial court without properly appreciating the entire materials on record, both oral and documentary has erroneously passed the judgment, which according to this court, the judgment of the trial court is liable to be set aside. Further, it is to be noted that already PW1 and A1 entered into compromise.
20.In the result, this criminal appeal is allowed. The impugned judgment of conviction and sentence are set aside. The appellant/A1 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.
01.07.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 13 T.KRISHNAVALLI,J.
er To,
1.The Sessions Judge, (Mahila Court) Tirunelveli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Judgment made in Crl.A.(MD)No.60 of 2012 01.07.2019 http://www.judis.nic.in 14 http://www.judis.nic.in