BAIL SLIPThe v. The Inspector of Police

BAIL SLIPThe Appellant/Accused was directed to be released on bail in and bythe order of this Court dated 31.8.2000 made in Crl.MP.No.5880/2000 in Crl.A.No.747 of 2000 on the file of High Court, Madras.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 15.06.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.747 of 2000 Kandasamy .. Petitioner/Accused-1vs. The Inspector of Police, Oothukuli Police Station, Erode District, Cr.NO.223 of 1999 .. Respondent/ComplainantPrayer: This Revision petition has been preferred under Section 374 of Crl. P.C. against the judgment dated 14.8.2000 made in S.C.No.103 of 2000on the file of the Principal Sessions Judge, Erode. For Appellant : Mr.V.Parthiban, Legal Aid CounselFor Respondent : Mr.V.R.Balasubramanian Additional Public ProsecutorJUDGMENTThis appeal has been preferred against the judgment in S.C.No.103 of2000 wherein the present appellant was arrayed as A1, who along with hiswife-A2 was charged under Section 302 r/w 109 IPC and convicted andsentenced under Section 325 IPC to undergo two years RI and fine ofRs.1000/- with default sentence. The co-accused, the wife of theappellant, was acquitted from the charges levelled against her. 2. The short facts of the prosecution case is that on 14.7.1999 atabout 15.00 hours, the A1/appellant in front of his house due to previousenmity and with the instigation of A2 assaulted the deceased with hands onhis back, chest and kicked him from the piol to the ground due to whichthe victim sustained grievous injury on his head as a result of which hebreathed his last on 15.7.1999 at about 6.00 am. https://hcservices.ecourts.gov.in/hcservices/

The case was taken on file by the Judicial Magistrate, Perundurai inP.R.C.No.12 of 1999 and on appearance of the accused on summons, copiesunder Section 207 Cr.P.C., were furnished to the accused. Since the caseis triable by the Court of Sessions, the learned Judicial Magistrate hascommitted the case to the Court of Sessions under Section 209 Cr.P.C. Thelearned Principal Sessions Judge, Erode, on appearance of the accusedframed charges under Section 302 IPC against A1 and under Section 302 r/w109 IPC against A2 and when questioned the accused pleaded not guilty.

The prosecution has examined P.W.1 to P.W.19 and exhibited Ex.P.1 toEx.P.20 and marked M.O.1 to M.O.8.

P.W.1 is the wife of the victim. According to her, on the date ofoccurrence A1 came to her house and abused her husband and assaulted himwith hands and dragged him to his (A1) house and that she(P.W.1) andothers followed the accused and the victim and when they reached the houseof the accused, A2 came out of the house of the accused and abused thevictim in filthy language and also caught hold of the hair of the victimfacilitating A1 to fist the victim on his face. When the victim wassitting on the piol of the accused, the A1 kicked him which resulted thevictim fell from the piol on the ground and sustained injury on his head. According to P.W.1, her husband has also sustained an injury on the lowerpart of his lip and that a mediation took place at the intervention ofP.W.12 and that she and her husband returned to their house afterconsulting a private doctor P.W.6, who gave prescription and ointment forheadache and that both of them went to sleep and in the morning at about6.00 am, she found her husband lying dead in the bed. She has sent wordto her father-in-law P.W.14 and mother-in-law and that P.W.14 came to herhouse at about 2.00 pm on the following day of the occurrence and as perhis instructions she was about to go to the police station to prefer acomplaint, on her way she met P.W.7-VAO and narrated the incident whichwas reduced to writing and P.W.7 accompanied her to the police stationwhere she preferred Ex.P.1-complaint.

P.W.2 to P.W.5 have not supported the case of the prosecution. Hence, they were treated as hostile witnesses.

P.W.6 is the doctor, who had treated the victim on the date ofoccurrence for headache. Ex.P.3 is the prescription given by him to thevictim.

P.W.7 is VAO, in whose presence P.W.1 preferred the complaint inwhich he has made Ex.P.4-endorsement.

P.W.19 is the Inspector of Police, who had registered the case underCr.No.223 of 1999 of Oothukuli Police Station under Section 302 IPC on thebasis of Ex.P.1-complaint preferred by P.W.1. Ex.P.12 is the FIR. P.W.19had proceeded to the place of occurrence and conducted inquest on the https://hcservices.ecourts.gov.in/hcservices/ corpse in the presence of witnesses. Ex.P.20 is the inquest report. Hehas also prepared observation mahazar Ex.P.6 and rough sketch Ex.P.19 inthe presence of P.W.7. He has examined the witnesses and recorded theirstatement and also recovered M.O.1 and M.O.2 in the presence of P.W.7under Ex.P.7-mahazar.

According to P.W.8-VAO, on the representation made by the accusedon 16.7.1999 took them to Oothukuli Police Sation and surrendered them. The Inspector of Police had arrested them and sent them to judicialcustody. On 16.7.1999 at about 8.30 am the corpse of the victim was sentfor autopsy through P.W.16, who had handed over the corpse to P.W.15,doctor for postmortem. After postmortem P.W.16 has recovered the wearingapparels of the victim viz. M.O.5 to M.O.8 and handed over the same toP.W.19 along with his special report Ex.P.10, which were recovered underEx.P.11-Form 95 by P.W.19 and sent to the Court. Express FIR was sent tothe concerned officials including Judicial Magistrate through P.W.17.Material objects were sent to Forensic Science Laboratory for chemicalexamination through the Court. P.W.18 is the examiner of the Court of Judicial Magistrate No.III, Erode, who would depose that as per Ex.P.13-letter of requisition, material objects connected in this case were sentto Forensic Science Laboratory, Chennai along with Ex.P.14-letter of the Judicial Magistrate and that Ex.P.15 is the chemical analyst's report andEx.P.16 & Ex.P.17 are the serologist's report. The place of occurrencewas photographed by P.W.9. M.O.3(series) are the positives and M.O.4(series) are the negatives.

P.W.10 is the van driver in whose van the corpse of the victim wastaken from the place of occurrence to the mortuary at the GovernmentHospital, Tirupur.

P.W.11, P.W.12 & P.W.13 have not supported the case of theprosecution. P.W.14 is the father of the victim.

P.W.15 is the doctor, who has conducted the autopsy on the corpseof the victim. The doctor has opined that the deceased died due to shockand hemorrhage due to the head injury some 28 to 30 hours prior to theautopsy. Ex.P.9 is the postmortem certificate. In the postmortemcertificate Ex.P.9, the Doctor had noted a fracture on the right temporalbone on the skull of the deceased and he has also noted extra duralhaematoma in right fronto parieto temporal region and also noted acontusion on the left side of the lower lip of the deceased.

The Investigating Officer P.W.19 had examined the witnesses andrecorded their statements and after completing the formalities, has filedthe charge sheet against the accused on 28.7.1999 under Section 302 r/w109 IPC.

When incriminating circumstances were put to the accused under Section 313 Cr.P.C., the accused denied their complicity with the crime. https://hcservices.ecourts.gov.in/hcservices/ Neither oral evidence nor documentary evidence was let in on the side ofthe accused.

After going through the available evidence both oral anddocumentary, the learned trial Judge has come to the conclusion that anoffence under Section 325 IPC has been attracted against A1 andaccordingly convicted and sentenced A1 under Section 325 IPC to undergo 2years RI and fine of Rs.1000/- with default sentence and A2 wasacquitted on the ground that the charge against A2 was not proved beyondany reasonable doubt. Aggrieved by the findings of the learned trialJudge A1 has preferred this appeal.

The learned counsel appearing for the appellant would contend thatexcept the sole evidence of P.W.1 there is no other evidence tocorroborate the same and hence nor importance can be attributed to theevidence of P.W.1, who is also an interested witness, none other than thewife of the victim, to warrant conviction against A1.

The learned Additional Public Prosecutor relying on AIR 1991 SC1735 (Jayaram Shiva Tagore and others Vs. State of Maharashtra), wouldcontend that the testimony of sole eye witness can be relied on, whilebrining home the guilt of the accused. The short facts of the above saiddictum is that: "In a charge under Section 302 IPC all the four accused arebrothers and both the deceased as well as the accused belong tothe Maharwada community of Nandani village. P.W.5 is the wifeof the deceased. They had a male child by name Raju. P.W.10 isthe mother of the deceased. The deceased have two brothersexamined as P.Ws.8 & 7 and they were living separately in thesame house. The deceased was in occupation of one of theapartments. On the fateful day the deceased left his house forthe field after taking his breakfast. While he was working inthe field of P.W.12, P.W.5 came to the field with the food forthe deceased leaving her child Raju in the house in the care ofone Vatsala P.W.6.

The learned counsel for the appellant relying on the deposition ofP.W.6 in the cross-examination would contend that the victim had sustainedinjury due to a fall from a cycle. Admittedly P.W.6 is a private doctor, who is not entitled to treat a patient, who has involved in a medco legalcases. In the chief-examination, he would depose that both the victimand his wife approached him only for treatment for head-ache and he hadnoticed a contusion on the head. Since at that time probably both thevictim and his wife P.W.1 without realizing the seriousness of the gravityof the injury sustained by the victim might have informed P.W.6 thatvictim was suffering from headache. At the time when P.W.6 deposed before https://hcservices.ecourts.gov.in/hcservices/ the Court, the victim died. So to avoid further complication P.W.6 in thecross-examination might have deposed that the victim informed him that hesustained injury only due to a fall from a cycle. Nowhere in her evidenceP.W.1 or any other witness examined in this case deposed that the victimhas sustained injury due to a fall from a cycle. Under suchcircumstances, it cannot be inferred from the evidence of P.W.6 in cross-examination that the victim had sustained injury only due to a fall fromthe cycle eschewing the ocular evidence of P.W.1. Further the medicalevidence of P.W.15, Postmortem doctor, corroborates the evidence of P.W.1in respect of in the injuries sustained by the victim on his head.

The learned counsel for the appellant would advance anotherargumant that the offence under Section 323 is attracted against theaccused on the ground that the victim had sustained only simple injury atthe hands of A1. This contention cannot also be sustainable because it isin evidence from P.W.1. that when the victim was sitting on the piol ofthe accused, A1 kicked the victim which resulted the victim fell on theground and sustained injury on his head. Postmortem report Ex.P.9 will goto show that there was a fracture on the right temporal bone of thevictim. Under such circumstances it cannot be said that there was nointention for A1 to cause grievous injury to the victim. Only due to thekick administered by A1, the victim fell down on the ground and sustainedgrievous injury on the head. Under such circumstances, as rightly held bythe learned trial Judge, an offence under Section 325 IPC alone isattracted against A1.

When coming to the sentence part the learned counsel would contendthat some leniency may be shown considering the fact that the accused hatat no point of time had any intention to kill or cause any grievous injuryon the victim and that no weapon was used by the accused at the time ofoccurrence. Heard the learned Additional Public Prosecutor on this score, who also says that the sentence alone can be reduced or modified to thatof one year RI instead of two years RI. Under such circumstances, I am ofthe view that the sentence alone is to be modified in this appeal againstA1.