Madras High Court
Durai @ Durairaj vs State Rep. By on 27 July, 2012
Author: R.Mala
Bench: R. Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27.07.2012
CORAM:
THE HONOURABLE MS. JUSTICE R. MALA
Criminal Appeal No.536 of 2004
1.Durai @ Durairaj
2.Thangaraj
3.Ramu
4.Rajendiran .. Appellants/A1 to A4
v.
State rep. by
Inspector of Police
Pennadam Police station
Cuddalore District. .. Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374 of Cr.P.C., against the judgment of conviction and sentence dated 27.02.2004, made in S.C.No.171 of 2003 on the file of the Additional District Court, Fast Track Court No.III, Virudhachalam, Cuddalore District.
For Appellan : Mr.D.Veerasekaran
For Respondent : Mr.C.Emalias
Government Advocate (crl.side)
J U D G M E N T
The criminal appeal arises out of the judgment of conviction and sentence, dated 27.02.2004, made in S.C.No.171 of 2003, on the file of the Additional District Court (Fast Track Court No.III), Virudhachalam, whereby A1 to A3 were convicted for the offence under Section 324 IPC and sentenced to pay a fine of Rs.1,000/- each in default in payment to undergo three months simple imprisonment. A4 was convicted for the offence under Section 326 IPC and sentenced him to undergo three years rigorous imprisonment and imposed a fine of Rs.1,000/- in default in payment to undergo six months rigorous imprisonment and he was convicted for the offence under Section 324 IPC and imposed a fine of Rs.1,000/- in default in payment to undergo three months simple imprisonment.
2.The respondent has filed a charge sheet against the accused stating that on 05.09.2001, at 7.30 a.m., when P.W.1 to P.W.4 were in their house, the accused persons 1 to 6 due to previous enmity, forming themselves into an unlawful assembly armed with deadly weapons with an intention to commit murder assaulted P.W.2/Chandiran, P.W.3/Annamalai, P.W.4/Annamayil and thereby committed the offence under Sections 147, 148, 294(b), 323, 324 and 307 IPC.
3.The case of the prosecution is as follows:
(i) P.W.2 Chandiran and P.W.4/Annamayil are husband and wife and their son are P.W.1/Vasudevan, who is the complainant and P.W.3/Annamalai. There was a civil dispute in respect of obliteration of ridge between the accused persons and P.W.1 to P.W.4. On the fateful day (i.e.) on 05.09.2001, at 7.30 a.m., when P.W.1 to P.W.4 were in their house, the accused persons came in front of their house and abused P.W.1 to P.W.4 in filthy language. P.W.1 to P.W.4 came out of their house and P.W.3 questioned them as to why they abused. At that time, A4/Rajendran assaulted P.W.2/Chandiran on his head with aruval. While P.W.3 snatching that aruval, A4 picked up the wooden reaper and assaulted on the right leg of P.W.2. A1/Durai assaulted on the right hand of P.W.2 and A3/Ramu assaulted on the head of P.W.3. When P.W.4 made an alarm, she was assaulted by A2/Thangaraj on her head with koduva knife. A5/Subramanian and A6/Venkatachalam indiscriminately assaulted P.W.4 on her head and all over the body. When the injured persons made an alarm, P.W.5/Selvaraj and one Ramasamy rushed to the spot. On seeing them, the accused persons fled away from the place. Immediately, P.W.1/Vasudevan went to Pennadam police station and gave Ex.P1 complaint at 10.00 a.m. on the same day.
(ii) One Pazhamalai, who was working as Special Sub-Inspector in Pennadam Police station, received Ex.P1 complaint and registered a case in crime No.209 of 2001 under Sections 147, 148, 294, 324 and 307 IPC and the F.I.R. was marked as Ex.P8 and forwarded the same to the Court. Then he sent the injured persons to Thittakudi Government Hospital along with medical memo.
(iii) P.W.2 to P.W.4 went to Thittakudi Government Hospital, where P.W.9/Dr.Maheshwari treated them. At 11.00 a.m., she examined P.W.2/Chandiran and gave Ex.P3 Accident Register copy, in which, she stated that P.W.2 was assaulted by six known persons with karuvakazhi, reaper, iron rod at 7.30 a.m. on 05.09.2001, in front of his house. She mentioned the following injuries:
Right leg is swollen and it may be fractured.
Cut injury over the left side of scalp < inch above the fore head 3 X < X 1/4 inches.
Cut injury over the right hand thumb over the Palmar aspect 3 X < X < inches.
Left fore arm is swollen and it may be fractured.
Since P.W.2 was sustained grievous injuries, he was referred to Cuddalore Government Hospital, where he was treated by P.W.8/Dr.Natarajan and he took x-rays on his right leg, head and left hand wrist. X-rays were marked as Exs.P6 and P7, in which, it was stated that there was a fracture on right leg in the bones of tibia and fibula.
(iv) P.W.9/Dr.Maheswari also examined P.W.3/Annamalai and P.W.4/Annamayil, at 11.25 and 11.35 a.m. and gave Exs.P4 and P5 Accident Register copies, in which, she stated that they were sustained simple injuries.
(v) P.W.10/Chellamuthu, who was working as Inspector of Police, took up the case for investigation. On 05.09.2001, at 11.00 a.m., he went to the place of occurrence and prepared Ex.P2 observation mahazar and drew Ex.P9 in the presence of P.W.6/Venu and one Govindasamy. Then he went to the Hospital and examined the witnesses and recorded their statements.
(vi) On 06.09.2001, at 7.30 p.m., P.W.10 arrested A1 to A3 at Pennadam bus stand and recorded the confession given by A1 in the presence of the witnesses one Jayaraman and Paramasivam. A1 handed over M.O.1/koduva knife and the same was seized under Ex.P10 seizure mahazar.
(vii) On 20.09.2001, at 8.30 a.m., A5/Subramanian was surrendered before the police station and he was arrested and sent for judicial custody. On 6.11.2001, P.W.10 examined P.W.8/Dr.Natarajan and P.W.9/Dr.Maheswari and recorded their statements. He also examined other witnesses and recorded their statements. He has not arrested A4 and A6, since they were surrendered before the Court. After completing investigation, he filed a charge sheet against the accused for the offences under Sections 147, 148, 294(b), 323, 324, 307 r/w 149 IPC.
4.The learned trial Judge after following the procedure framed necessary charges against the accused. Since the accused pleaded not guilty, the trial Court examined P.W.1 to P.W.10 and marked Exs.P1 to P10 and M.O.1. The trial Court placed the incriminating evidence before the accused and the accused denied the same in toto. On the side of the defence, no witness was examined and no documentary evidence was marked. On considering the oral and documentary evidence, the trial Court acquitted A5 and A6 and convicted and sentenced A1 to A4 as stated above.
5.Challenging the conviction and sentence passed by the trial Court, Mr.D.Veerasekaran, learned counsel for the appellants would make the following submissions.
(i) There is a contradiction between oral and medical evidence.
(ii) There is a contradiction in the oral evidence of P.W.2 to P.W.4, who are the injured eye witnesses.
(iii) The evidence of P.W.1 is contradictory to Ex.P1 complaint. P.W.1 in his evidence stated that injury on the right leg of P.W.2 was caused by wooden reaper. Whereas in Ex.P1 complaint, he stated that it was caused by knife.
(iv)Nomenclature of the weapon has not been properly described.
(v) There is a case and counter case. A1 also sustained injury and the same has not been explained by the prosecution and no independent witness has been examined. On the basis of the complaint given by A1, the case in Crime No.210 of 2001 has been registered, but the investigating officer has not followed the procedure laid down in PSO 588A, which is fatal to the case of the prosecution. The trial Court has not considered the aspects in proper perspective and hence, he prayed for allowing of this appeal. He also relied upon the decision reported in 1988 (1) MWM (Cr) 83 (Ekambaram v. Sundaramurthy and State).
6.Resisting the same, Mr.C.Emalias, the learned Government Advocate (Crl. Side) submitted that P.W.2 to P.W.4, who are injured eye-witnesses, deposed that as to how the occurrence had been taken place. Moreover, P.W.2, who sustained grievous injury, is a competent person to speak about as to how he sustained injury. So there is no contradiction between ocular and medical evidence. He further submitted that the occurrence had taken place in front of the house of P.W.1 to P.W.4, so non recovery of blood stained earth is not fatal to the case. Crime No.210 of 2001 is not a counter case for Crime No.209 of 2001, because no time and place has been given by the defence in respect of the case in Crime No.210 of 2001, which was referred as mistake of facts. Hence, he prayed for dismissal of the appeal.
7.Considered the rival submissions made on both sides and the materials available on record.
8.On perusal of record, it is seen that there was a land dispute between the appellants and P.W.1 to P.W.4. P.W.1 and P.W.3 are sons of P.W.1 and P.W.4. The occurrence was said to have been taken place in front of the house of P.W.1 to P.W.4. Immediately, after the occurrence, P.W.1 gave Ex.P1 complaint before Pennadam Police station. Admittedly, P.W.1 has not sustained any injuries, but P.W.2 to P.W.4 were sustained injuries, merely because P.W.1 has not sustained any injuries, this Court cannot disbelieve his evidence. In his cross-examination, a suggestion was posed to him that while the appellants filling up the pit in front of their house, at that time, P.W.1 to P.W.4 were assaulted the appellants and that the Villagers were chased P.W.1 to P.W.4, which was denied by him.
9.Now this Court has to decide whether the case in Crime No.210 of 2001 is a counter case of crime No.209 of 2001? As soon as P.W.2 to P.W.4 sustained injuries, they were taken to hospital, where P.W.9/Dr.Maheswari treated them at 11.00 a.m. onwards and gave Exs.P3 to P5/Accident Register copies, in which, it was stated that they were assaulted in front of their house. In Ex.P1 complaint also, it was stated that the accused were standing in front of the house of P.W.1 to P.W.4 and abused and assaulted them. Admittedly, the complaint was registered at 10.00 a.m. on 05.09.2001 and it was reached the Court at 14.00 hours on 6.9.2001. As per Exs.P1, P3 to P5, the occurrence was said to have been taken place in front of the house of P.W.1 to P.W.4 and that has been fortified by Ex.P2 observation mahazar and Ex.P9 rough sketch.
10.As per the evidence of P.W.10/Chellamuthu, Inspector of Police, in his cross-examination, he fairly conceded that on the basis of the complaint given by A1, a case in Crime No.210 of 2001 was registered.
11.On perusal of Ex.P9/rough sketch, house of A1/Durai is not mentioned. P.W.6/Venu, who is the attestor of Ex.P2 observation mahazar, deposed that he put his signature in Ex.P2 in the place of occurrence itself. In such circumstances, there is no reason for discarding the evidence of P.W.6/Venu and it would prove that the occurrence took place in front of the house of P.W.1 to P.W.4. The evidence of P.W.1 has been corroborated by the evidence of P.W.2 to P.W.4 and Ex.P1. But the case of the appellants is that the occurrence had been taken place in front of their house at 7.00 a.m, so time and place of occurrence is different. Hence, Crime Nos.209 of 2001 and 210 of 2001 are not case and counter case.
12.At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellants reported in 1988 (1) MWM (Cr) 83 (Ekambaram v. Sundaramurthy and State). He submitted that non following of Tamil Nadu Police Standing Order 588A is fatal to the case of the prosecution. But as per the dictum of the Apex Court, non-following the procedure laid down in PSO 588A is not fatal to the prosecution case, because the prosecution shall explain the injuries sustained by the accused and omission to do so renders the conviction unsustainable.
13.As already stated that occurrence had taken place in front of the house of P.W.1 to P.W.4, so P.W.1 gave Ex.P1 complaint and the same was registered as Crime No.209 of 2001. As per Crime No.210 of 2001, A1 alleged to have been sustained injury in front of his house. On perusal of Ex.P2 observation mahazar and Ex.P9 rough sketch, it would reveal that scene of occurrence in both the Crime Numbers are different. Furthermore, learned Government Advocate (Crl. Side) would submit that the case in Crime No.210 of 2001 has been referred as mistake of fact, the appellants did not file any A.R. Copy before the Court to probabilise the defence. In such circumstances, I am of the view, the cases registered in crime Nos.209 of 2001 and 210 of 2001 are not case and counter case. So the argument advanced by the learned counsel for the appellants in this aspect, does not merit acceptance.
14.Now this Court has to decide whether the evidence of P.W.1 to P.W.4 are reliable? P.W.4/Annamayil, who aged about 47 years, is an illiterate lady and hailing from rustic village. So this Court has to give some weightage to her evidence. While considering their chief and cross-examination, there is no reason for discarding their evidence. Admittedly, A1 to A3 were convicted for the offence under Section 324 IPC for causing simple injuries to P.W.2 to P.W.4 with deadly weapons. Considering the evidence of P.W.2 to P.W.4, A1/Durai assaulted P.W.2 on his right hand, A3/Ramu assaulted P.W.3 on his head, A2/Thangaraj assaulted P.W.4 on her head with koduva knife. So the trial Court convicted A1 to A3 for the offence under Section 324 IPC and sentenced to pay a fine of Rs.1,000/- in default in payment to undergo three months simple imprisonment. Therefore, I do not find any infirmity or illegality in the judgment of conviction and sentence passed by the trial Court in respect of A1 to A3.
15.Now this Court has to decide as to whether A4 is guilty for the offence under Sections 326 and 324 IPC by causing grievous and simple injuries to P.W.2? It is true, P.W.2 sustained four injuries viz., two cut injuries and two contusions. The learned counsel for the appellants mainly focussing upon the first injury mentioned in Ex.P3/Accident Register copy and submitted that it is only a contusion on right leg. But P.W.9/Dr.Maheswari opined that the right leg may be fractured and that P.W.2 was referred to Cuddalore Government Hospital, where he was treated by P.W.8/Dr.Natarajan and he took x-rays on his right leg. X-rays were marked as Exs.P6 and P7, in which, it was stated that there was a fracture on the bones of tibia and fibula. At this juncture, it is appropriate to consider the evidence of P.W.2, who is an injured eye-witness. It is a well settled principle of law that if six persons indiscriminately assaulted P.W.2 to P.W.4, it is not possible for the injured to find out each and every overt act made by the respective accused and weapons used by them. In such circumstances, P.W.2 is a competent person to speak about as to how he sustained injuries by whom and by which weapons. P.W.2 deposed that A4 caused head injury with knife and assaulted on his right leg with reaper, due to which, his leg was fractured. In such circumstances, the prosecution has proved that A4 alone caused simple injury on the head of P.W.2. The trial Court is correctly held that A4 is guilty for the offence under Section 324 IPC for causing simple injury to P.W.2. Therefore, I do not find any infirmity in the judgment of conviction and sentence passed by the trial Court in respect of offence under Section 324 IPC and hence, it is hereby confirmed.
16.Insofar as Section 326 IPC is concerned, in Ex.P1 complaint, P.W.1 stated that A4/Rajendiran assaulted his father on his right leg with knife. In his chief-examination, he stated that A4 assaulted his father on his right leg by using reaper. But P.W.2 in his evidence deposed that A4 assaulted on his right leg using reaper. As per the evidence of P.W.8/Dr.Natarajan, he took x-rays on the right leg and opined that there was fracture in the bones of tibia and fibula and no fracture on left hand wrist and head of P.W.2. According to x-rays Exs.P6 and P7, A4 caused grievous injury to P.W.2. As per the version of P.W.2, injury has been caused by reaper.
17.Now this Court has to decide whether reaper is a deadly weapon? It is true, reaper was not produced before the Court. In such circumstances, this Court cannot decide that the first injury sustained by P.W.2 has been caused with deadly weapon, since the description of weapon is not properly mentioned. In the colloquial language, knife is mentioned as aruval and koduval, which are used by the villagers that too agriculturists. Since the case is mainly based on the eye witnesses, it is no way affect the case of the prosecution that what kind of weapons are used by the appellants. It is also true, the other weapons used by the appellants are not recovered. P.W.1 to P.W.4 stated that A4 assaulted P.W.2 with reaper on his right leg, which caused fracture. Since the wooden reaper was not seized, it is unsafe to conclude that the reaper is a dangerous weapon. So I am of the view, A4 caused grievous hurt, but not by using deadly weapon. Therefore, the A4/appellant is convicted for the offence under Section 325 IPC and acquitted for the offence under Section 326 IPC.
18. As per the quantum of sentence is concerned, learned counsel for the appellants submitted that A4 was sentenced to undergo three years rigorous imprisonment, which is very high. Considering the same, I am of the opinion, A4 is convicted for the offence under Section 325 IPC and he is sentenced to undergo one year rigorous imprisonment and the fine amount is increased from Rs.1,000/- to Rs.5,000/-.
19.In fine,
(i) Criminal Appeal is partly allowed.
(ii)Conviction and sentence passed by the trial Court against A1 to A4 for the offence under Section 324 IPC are hereby confirmed.
(iii) Conviction and sentence passed by the trial Court against A4 for the offence under Section 326 IPC is hereby set aside.
(iv) A4 is convicted for the offence under Section 325 IPC and he is sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs.5,000/-, in default in payment to undergo three months simple imprisonment.
(v)The bail bond, if executed by the appellants/accused 1 to 4 shall stand cancelled.
(vi)The trial Court is directed to secure the custody of the appellant/A4 to undergo the remaining period of sentence.
27.07.2012 Index:Yes Internet:Yes kj R.MALA,J.
kj To
1.The Additional District Court Fast Track Court No.III, Virudhachalam Cuddalore District.
2.Inspector of Police Pennadam Police station Cuddalore District.
3.The Public Prosecutor High Court, Madras.
4.The Record Keeper Criminal Section, High Court, Madras.
Pre-delivery judgment made in Criminal Appeal No.536 of 2004 27.07.2012