Judgment · High Court

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED 17.11.2011CORAMTHE HONOURABLE MR.JUSTICE C.T.SELVAMCrl.R.C.No.1201 of 20081.Ambicapathy2.Sadasivam3.Sankar4.Thirumalai..Petitioners/AccusedVsThe State by The Sub Inspector of PoliceUthukottai Police StationTiruvallur District...Respondent/ComplainantCriminal Revision filed under sections 397 and 401 of CriminalProcedure Code against the order dated 20.08.2008 made in C.A.No.25of 2007 on the file of Additional Sessions Court (Fast Track CourtNo.3, Tiruvallur) confirming the order in C.C.No.240 of 2003 on thefile of learned Judicial Magistrate Court I, Tiruvallur, convictingthe petitioners under Sections 148 and 326 IPC.For Petitioners: Mr.G.NagarajanFor Respondent :Mr.A.N.Thambidurai, APPO R D E RThis revision arises against the judgment of the learnedAdditional Sessions Judge, Fast Track Court III, Tiruvallur, passedin C.A.No.25 of 2007 on 20.08.2008.

A case stood registered against the four petitioners hereinand one another in Crime No.287 of 2003 on the file of the respondentpolice. The prosecution case was that at about 2 a.m. in the weehours on 02.06.2003, PW-1 was sleeping outside his house when thefive accused who were his neighbours came shouting at him saying thathe had no authority to question them about taking water to theirhouse. They used abusive language when PW-1 questioned them as to why https://hcservices.ecourts.gov.in/hcservices/ they were shouting so late in the night, A1 dealt him a cut injury inthe left hand by using a small axe, A2 hit him on the left side ofthe head with a stick, A3 beat him with a stick on the hand while theaccused 4 and 5 held him from behind. PWs.2 and 3, wife and daughterof PW-1, rushed there and the accused pushed them. PW-1 was taken tohospital at about 5.30 a.m. A case was registered in Crime No.287 of2003 for offences under Sections 147, 148, 324 and 506(ii) IPC. Oncompletion of investigation, a charge sheet was filed for offencesunder Sections 147, 148, 326, 294(b) and 506(ii) IPC and the accusedwere tried for such offences. One of the accused died pending trial.

Before the trial Court, the prosecution examined ninewitnesses, marked ten exhibits and two material objects. The defenceexamined one witness.

Under judgment dated 03.08.2007 in C.C.No.240 of 2003, thelearned Judicial Magistrate I, Tiruvallur, acquitted the petitionersin respect of charges under Sections 147, 294(b) and 506(ii) IPCwhilst convicting the petitioners for offence under Sections 148 and326 IPC. For offence under Section 148 IPC, the petitioners weresentenced to fine of Rs.1,000/- in default one month simpleimprisonment and for offence under Section 326 IPC they were awardedsix months rigorous imprisonment and fine of Rs.1,000/- in defaultone month simple imprisonment. Against their conviction, thepetitioners moved an appeal in C.A.No.25 of 2007 which came to bedismissed under judgment of the learned Additional Sessions Judge, Fast Track Court III, Tiruvallur, dated 20.08.2008.

Heard learned counsel for the petitioners and learnedAdditional Public Prosecutor.

Though learned counsel for the petitioners has drawn theattention of this Court to several discrepancies in the evidence ofwitnesses, the same are not such as would disprove the taking placeof the occurrence itself. However, this revision would have tosucceed not on the ground that no occurrence has taken place but thatthere is reason to suspect that the genesis of the occurrence standssuppressed. The defence has examined a Doctor as DW-1. On thefateful date i.e., 02.03.2003 he had been working at the PonneriGovernment hospital. His evidence is that at 3.35 a.m. on such date, the first accused was brought to the hospital with a police memo. The first accused suffered a cut injury of 4½ cms. on his rightshoulder, a cut injury in 5 x ½ cm. on the back of one hand and alacerated injury of 1 cm. on the left hand. He informed DW-1 of anattack with knives by three known persons at 11.00 p.m. on the nightof 01.03.2003. In cross, DW-1, Doctor has stated that the injuriescould have been occasioned by falling on a sharp object. The injury https://hcservices.ecourts.gov.in/hcservices/ suffered by the first accused and those by PW-1 could well haveoccurred at one and the same time. In any event, when the body ofthe accused reveals serious injuries, it is for the prosecution toexplain the same. PW-9, investigating officer, claims lack ofknowledge regards the first accused having been forwarded to the Ponneri Government hospital with a police memo. Though he deniesthat he had torn up the complaint preferred by the brother of A1, headmits the accident register and the admission of A1 at the Ponnerihospital. While the trial Court seems to have read merit into theprosecution case out of the injury suffered by the first accused, the Appellate Court has not touched upon the issue.

In circumstances where injuries of serious nature suffered bythe accused had not been explained by the prosecution, this Courtwould have to inform that the genesis of the occurrence is not clearand consequently, afford the petitioners the benefit of doubt.

In decision reported in (2009) 1 MLJ (Crl.) 837 [Panneer @Thachinamurthy and others v. State], this Court has observed asfollows: "The wound certificate and the case diary were alsomarked in this regard. A perusal of the documents wouldclearly indicate that A-1 sustained fracture. It is not acase of the prosecution that A-1 sustained injuries in adifferent transaction, but A-1 sustained injuries in the sametransaction and that too by the act of the deceased, whichfact was brought to the notice of the Investigator even on25.10.2006 itself, but no steps have been taken and noinvestigation was done in this regard and not even a materialwas recovered or produced before the Court. All would go toshow that the Investigator was not prepared to place allnecessary materials before the Court to arrive at a correctdecision. "

The Criminal Revision stands allowed and the order of thelearned Additional Sessions Judge, Fast Track Court III, Tiruvallur, passed in C.A.No.25 of 2007 dated 20.08.2008, is set aside. Thepetitioners are acquitted of all charges in the case. Fine amount, if any, paid by the petitioners shall be refunded to them. Sd/Assistant Registrar /True Copy/Sub Assistant Registrar https://hcservices.ecourts.gov.in/hcservices/ gmTo1.The Additional Sessions Judge, (Fast Track Court No.3), Tiruvallur. 2. The Judicial Magistrate I, Tiruvallur. 3. The Sub Inspector of Police Uthukottai Police Station Tiruvallur District. 4. The Additional Public Prosecutor, High Court, Madras.+1 CC to Mr.G.Nagarajan, Advocate, Sr.No.76749Crl.R.C.No.1201 of 2008VS(CO)MS:03/01/2012