THE HONOURABLE MR v. Prabakaran2.Elango

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 04.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.258 of 2000State bySub-Inspector of Police,Erode Taluk Police,by Public Prosecutor,High Court, Madras. .. Appellantvs.1.Prabakaran2.Elango .. Respondents/AccusedPrayer: This appeal has been preferred against judgment dated 30.11.1999made in C.C.No.145 of 1997 on the file of the learned Judicial MagistrateNo.I, Erode.For Appellant : Mr.V.R.Balasubramanian, Additional Public Prosecutor.For Respondents : Mr.S.Kaithamalai KumaranJUDGMENTThis appeal has been preferred by the State against the acquittal.Admittedly both the accused A1 and A2 are the sons of P.W.1 the injured,the complainant herein. A1 was charged under Section 326 and 506(ii) IPCand A2 was charged under Section 324 and 506(ii) IPC. 2. The case was taken on file by the learned Judicial MagistrateNo.I, Erode, in C.C.No.145 of 1997 and on appearance of the accused onsummons copies under Section 207 Cr.P.C., were furnished to the accusedand when charges under Section 326 IPC was framed against A1 and chargesunder Section 324 IPC was framed against A2 along with a charge underSection 506(ii) IPC against both the accused and questioned the accusedpleaded not guilty.3. On the side of the prosecution P.Ws.1 to 13 were examined andEx.Ps.1 to 10 were exhibited and M.Os.1 to 4 were marked.4. P.W.1 is the injured complainant, who would depose that on2.11.1996 at about 9.00 am A1 and A2 who are none other than his sons duga pit in front of his house, which was opposed to by him and inretaliation A1 assaulted him with a crowbar on his head and both the https://hcservices.ecourts.gov.in/hcservices/ accused jointly attacked him with crowbar on his left hand, left leg,right leg causing grievous injuries and that he was taken to thegovernment hospital by Durairaj and Paramasivam, where he was treated andthat Ex.P.1 is the complaint preferred by him and after discharge from thegovernment hospital on the same day, he got himself admitted in a privatehospital and took treatment for three days. M.O.1 is the blood stainedlungi, M.O.2 is the blood stained underwear and M.O.3 (series) are thecrowbars.5. P.W.2 is a neighbour of P.W.1, who has also corroborated theevidence of P.W.1. He has deposed to the effect that both the accusedhave assaulted P.W.1 at the time of occurrence with crowbar and that hetook the injured in an auto and admitted him in a government hospital fortreatment and that the occurrence had taken place on 2.11.1996 at about9.15 am.6. P.W.3 has also corroborated the evidence of P.W.1 and P.W.2. Heis also an eye witness to the occurrence.7. P.W.4 and P.W.5 have not supported the case of the prosecution.Hence they were treated as hostile witnesses.8. P.W.11 is the Head Constable of Erode Taluk Police Station, who onintimation from the government hospital went to the government hospitaland recorded the statement Ex.P.7 from P.W.1, who was taking treatment inhospital and registered the case in Cr.No.555/99 under Section 342 and 506(ii) IPC. Ex.P.8 is the FIR. He had proceeded to the place of occurrenceon 2.11.1996 at about 6.30 pm and prepared Ex.P.9 observation mahazar inthe presence of P.W.6 and another witness Kandaswamy. He has recoveredM.O.3-crowbars from the place of occurrence and also M.O.1-blood stainedlungi from P.W.1 in the presence of the same witness. 9. P.W.6 would depose that P.W.1 had handedover M.O.1-lungi andM.O.2-underwear to the police in his presence.10. P.W.7 is the witness in the observation mahazar-Ex.P.4 for therecovery of M.O.3(series)-crowbars.11. P.W.8 is another witness in Ex.P.4-mahazar.12. P.W.9 is the doctor, who has treated P.W.1 on 2.11.1996 at about10.50 am. Ex.P.5 is the copy of the accident register, which contains thefollowing injuries.(i) A lacerated injury measuring 5 1/2 cms on the left side ofthe head.(ii) A contusion measuring 7 x 3 cms on the upper right hand.(iii) A lacerated injury on the left palm measuring 2 x 1/2cms(iv) A lacerated injury on the right leg measuring 3 x 1/2 cmsbone deep. https://hcservices.ecourts.gov.in/hcservices/ (v) A lacerated injury on the middle of the right legmeasuring 4 x 1 cm x bone deep.(vi) A lacerated injury on the right leg in the bottommeasuring 4 x 1/2 cm bone deep.(vii) A lacerated injury on the middle of left leg measuring 4x 1/2 cms bone deep.P.W.9 would depose that on the same day P.W.1 was discharged from thehospital at 2.15 pm.13. P.W.10 is the doctor working in private hospital, who examinedP.w.1 on 2.11.1996 at about 3.00 pm and issued Ex.P.6-wound certificate.14. P.W.13 is radiologist, who had taken M.O.4 x-ray for the fracturesustained by P.W.1 on the right leg.15. P.W.12 is the investigation officer, who had visited the place ofoccurrence and examined the witnesses and after completing theinvestigation had filed the charge sheet on 31.12.1996 under Section 326,324 & 506(ii) IPC against the accused.16. When incriminating circumstances were put to the accused, theydenied their complicity with the crime. After going through the oral anddocumentary evidence, the learned trail Judge has come to the conclusionthat the prosecution has miserably failed to prove the guilt of theaccused beyond any reasonable doubt and accordingly acquitted both theaccused against the respective charges levelled against them. Hence, thisappeal has been preferred by the State.17. Now the point for determination in this appeal against theacquittal is whether the findings of the learned trial judge is perversein nature, warranting interference from this Court?18. The Point:- 18(a) The learned trail Judge has acquitted the accused on theground that in Ex.P.1-complaint the complainant/P.W.1 has stated that atthe time of occurrence both the accused were digging a bit in the backyardof his (P.W.1) house, but while deposing before the Court as P.W.1 he hasstated that both the accused were digging a pit in front of his (P.W.1)house. The other discrepancy pointed out by the learned Trial judge isthat M.O.1-blood stained lungi, according to P.W.1, was handed over byP.W.1 in the hospital at the time of taking treatment, but, according toP.W.11 the Head Constable, who had registered the case on the basis of theEx.P.7-complaint preferred by P.W.1, the blood stained lungi M.O.1 wasproduced by P.W.1 at the police station along with M.O.2-blood stained https://hcservices.ecourts.gov.in/hcservices/ underwear, which were recovered under Ex.P.2-Form 95 and sent to theCourt. Only on these two points the learned Trial Judge has come to theconclusion that the prosecution has failed to prove the guilt of theaccused beyond any reasonable doubt. But the trial Court has failed toconsider the evidence of the injured witness P.W.1 which was corroboratedby P.W.2 & P.W.3 and also by medical evidence. 18(b) According to P.W.1, A1 at the time of occurrence had hithim with a crowbar on his head causing grievous injury and both theaccused together have assaulted on the right leg with separate crowbarscausing injuries resulting fracture in the tibia bone. This part of theevidence of injured witness P.W.1 has been corroborated by the evidence ofP.W.9 & P.W.10. P.W.9, Assistant Surgeon in the Government HospitalErode, would depose that on 2.11.1996 at about 10.50 am P.W.1 injured wasbrought to the hospital and admitted in the hospital and treated by him.Ex.P.5 is the copy of the accident register issued by P.W.9 for the injurysustained by P.W.1. The Doctor has opined that injury No.5 is a grievousinjury shown symptoms of fracture in the middle of the right leg below theknee. P.W.10 is the doctor, who had treated P.W.1 in the privatehospital. Ex.P.6 is the wound certificate given by P.W.10 for the injurysustained by P.W.1. The doctor has opined that the injury Nos.2 to 5mentioned in Ex.P.6 are all simple injuries, but injury No.1 is grievousin nature. P.W.13 is the radiologist, who had taken x-ray for thefracture sustained by P.W.1 on the right leg. M.O.4(series) are the x-rays. P.W.13 has opined that P.W.1 has sustained fracture of tibia bonein the right leg.18(c) The learned counsel appearing for the respondents/accused wouldcontend that even before P.W.9 & P.W.10, doctors, P.W.1 has notspecifically stated that the injuries were caused to him by his sons, butP.W.1, according to P.W.9 & P.W.10, has stated at the time of admissionthat the injuries were caused to him by known persons. The failure tomention names of the accused to P.W.9 & P.W.10 in my opinion will in noway shatter or hamper the case of the prosecution. While deposing beforethe Court as well as in Ex.P.1-complaint P.W.1, the injured, hasspecifically stated that he was assaulted with crowbar by his sonsviz.Prabakaran & Elangovan (A1 & A2 herein). Under such circumstances, Iam of the view that the findings of the learned Trial Judge that thecharge levelled against the accused were not proved beyond any reasonabledoubt cannot be sustained and warrants interference from this Court.Point is answered accordingly.19. In the result, the findings of the learned Trial Judge inC.C.No.145 of 1997 on the file of the Judicial Magistrate No.I, Erode, isset aside and A1 is convicted under Section 326 & 506(ii) IPC and A2 isconvicted under Section 324 & 506(ii) IPC. https://hcservices.ecourts.gov.in/hcservices/ Give notice to A1 & A2 for appearance for questioning under Section248(2) of Cr.P.C., about the sentence and also give notice to thecomplainant and post the matter on 6.6.2007 as the first case. ssv04.06.2007 Both A1 and A2 along with their father /complainant/ victim arepresent today(06.06.2007) . The father of A1 and A2 magnanimouslyrepresents before this Court that he has reconciled with the accused whohave repented for their act and that instead of sentencing them toimprisonment they may be shown some leniency and may be released underProbation of Offenders Act 1958. Both A1 and A2 admitting their guiltand felt sorry for the act , they have committed against theirfather/complainant/victim.2. Under such circumstances, I am of the view that instead ofsentencing both A1 and A2 to imprisonment, they can be released underProbation of Offenders Act 1958.3. The learned Additional Public Prosecutor also represents that bothA1 and A2 are the first offenders.4. Having regard to the circumstances of the case, including thenature of the offence and the character, I am of the view that in theinterest of justice, A1 and A2 shall be released on Probation of goodconduct, on each of them executing a bond for Rs.5,000/-( Rupees Fivethousand) only with two sureties each for a likesum to the satisfaction ofJudicial Magistrate No.1, Erode for one year and they shall receivesentence when called upon during the said period, to keep the peace and beof good behaviour under Section 4(1) of Probation of Offenders Act 1958.Both A1 and A2 shall execute the above said bond within a period of sevendays from today(6.6.2007) ie ., on or before 13.6.20076.6.2007sgSd/-Asst.Registrar/true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To,1. The Judicial Magistrate No.I, Erode.2. -Do- Thro' The Chief Judicial Magistrate, Erode.3. The Sub Inspector of Police,Erode Taluk Police Station,4. The public ProsecutorHigh Court,Madras+1 cc to Mr.A.K.Kumarasamy, Advocate Sr.No.32044.KLT(CO)DCP/6.6.07Crl.A.No.258 of 2000