Vadivel v. The Sub Inspector of Police,Thalaivasal Police Station,Salem District

B A I L S L I PThe Accused Vadivel/Petitioner released on bail asper order of this court dated 16.11.2006 and made inCrl.MP.No.1/06.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:22.6.2009CORAM:THE HONOURABLE MR.JUSTICE G.RAJASURIACrl.R.C.No.1317 of 2006Vadivel... Petitioner / Petitioner /Accused 2.vs.State rep.by:The Sub Inspector of Police,Thalaivasal Police Station,Salem District... Respondent /Respondent/Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against theorder dated 17.1.2005, passed by the Judicial Magistrate,No.2-cum-Special Judicial Magistrate, Sandlewood Offence Attur Salem,in C.C.No.159 of 2003 confirming the judgment dated 31.5.2006passed by the Additional District Judge, Fast Track Court, No.1,Salem, in C.A.No.20 of 2005.For Petitioner : No appearanceFor Respondent : Mr.Hasan Md.Jinnah,A.P.P. O R D E R Challenging and impugning the order dated 31.5.2006, passedby the Additional District Judge, Fast Track Court, No.1, Salem,in C.A.No.20 of 2005 confirming the judgement dated 17.1.2005passed by the Judicial Magistrate, No.2-cum-Special JudicialMagistrate, Sandlewood Offence, Attur, Salem, in C.C.No.159 of2004, this criminal revision case is focussed.2. A summation and summarisation of the relevant facts,which are absolutely necessary and germane for the disposal ofthis criminal revision case would run thus:The police laid the police report in terms of Section 173 ofCr.P.C. as against the accused for the offence of accused having https://hcservices.ecourts.gov.in/hcservices/ caused grievous hurt on the victim-Amaravathi, namely, breakingof both the bones of the left forum and also abused her withfilthy language at 6.30 p.m. on 20.3.2001 at Periyeri, AnnaNagar, within Thalaivasal Police Station limits. The accusedpleaded not guilty; whereupon trial was conducted. 3. During trial, on the prosecution side, the victim wasexamined as P.W.1 along with seven others as P.Ws.2 to 8 andExs.P1 to P8 and M.O.1 were marked. On the accused side, D.W.1and D.W.2 were examined and no documentary evidence was adduced.4. Ultimately, the trial Court acquitted A1 and convictedonly A2 by imposing the following sentence: Offence Punishment imposed Sec.326 IPCto undergo simpleimprisonment for six months and to pay a fine of Rs.500/-,in-default, to undergo simple imprisonment for one monthBeing aggrieved by and dis-satisfied with the same, C.A.No.20 of2005 was filed before the Additional District Judge, Fast TrackCourt-I, Salem, which Court dismissed the appeal confirming thetrial Court's conviction and sentence. Challenging and impugningthe judgements of both the Courts below, this revision is filedon various grounds, the gist and kernal of them would run thus:-Both the Courts below failed to see that the weaponof offence was not seized, including the blood stainedearth and clothes. The non-examination of Palanimuthu andNatesan, who were present at the scene of occurrence, werenot examined, but both the Courts below ignored the fact.The motive aspect of the crime has not been taken intoconsideration. P.W.2 even though not an eye witness tothe occurrence, both the Courts below believed it. Theyfailed to consider that P.W.5-the Doctor categoricallystated that the injury was possible by fall on a roughsurface and that there was delay in lodging the FIR.5. The point for consideration is as to whether there is anyperversity or non application of law in assessing the evidence.6. Despite opportunity given, no one represented theplaintiff.7. The learned Additional Public Prosecutor would put forthand set forth his point that both the Courts below taking intoconsideration the evidence of the prosecution witnesses correctlyarrived at the conclusion, warranting no interference. https://hcservices.ecourts.gov.in/hcservices/

8. A bare poring over and perusal of the records wouldreveal that P.W.1 injured-Amaravathy, in her deposition detailedand delineated the facts, which were considered by the trialCourt in dearth. P.W.2 Rajendran-the eye witness to theoccurrence also spoke about it, which was evaluated by both theCourts below and accepted by them. P.W.5-the Doctor issuedEx.P3-the wound certificate dated 20.3.2001.9. It is a trite proposition of law that this Court, whileexercising its revisional power, is not expected to once againre-evaluate or re-assess the evidence. If at all there is anyperversity or non-application of mind in properly evaluating theevidence by both the Courts below, this Court has to interfere. 10. In this case, the revision petitioner/A2 raised thepoint that there was delay in lodging the FIR. No doubt, thatpoint deserves to be considered. Even though the occurrence tookplace on 20.3.2001 at 6.30 p.m. the FIR was registered only on22.3.2001. By way of curing the apparent defect, P.W.5-theDoctor, who is having no axe to grind the matter, with referenceto the public record, namely, the Accident Register, dated20.3.001, clearly and categorically stated that soon after theoccurrence, P.W.1 approached the hospital and she was treated.P.W.5 also recorded the history. As such, in this case, simplybecause there was some apparent delay in lodging the F.I.R.adverse inference cannot be drawn. The trial Court alsoconsidered the evidence of D.Ws.1 and 2 and disbelieved the samein view of the incoherent and inconsistencies in theirdepositions. The stand emanated from the accused's side that theinjured fell down and sustained injury is a far fetched one, asit is quite antithetical to the ocular evidence coupled with themedical evidence placed before the Court.11. The motive part of the crime also was spoken to byP.W.1 that when she questioned as to why the accused allowed hecattle to trespass into her land, the accused attacked her.P.W.1 also specifically deposed that A2 used an iron rod toattack her in causing fracture of both the bones of forum and tothat effect she also stated before the Doctor. Hence, nonrecovery of the weapon of offence is not fatal to this case.12. In all cases, invariably, it may not be taken that non-recovery of weapon of offence would lead to any doubt, unless,the circumstance warrants the Court to look askance at the caseof the prosecution.13. Here P.W.1's deposition has been relied on by both theCourts below, coupled with the medical evidence and in such acase, this Court finds no reason to interfere. https://hcservices.ecourts.gov.in/hcservices/

14. Regarding the punishment aspect is concerned, the trialCourt awarded six months imprisonment and imposed a fine ofRs.500/-, which in my opinion, is some what disproportionate tothe offence committed. It appears, at the spur of the momentalone there was some altercation and in that the occurrence tookplace and hence, I would like to reduce the substantive sentenceof imprisonment to three months. Accordingly, the sentence isreduced to three months imprisonment and the fine imposed shallremain intact.15. In the result, the criminal revision case is partlyallowed. The lower Court is directed to issue warrant to therevision petitioner on receipt of a copy of this order, so as tosecure his presence and commit him to jail in order to undergothe reduced sentence of imprisonment imposed in this revision, ifhe has not already undergone. MskSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Judicial Magistrate,No.2-cum- Special Judicial Magistrate, Sandlewood Offence Attur Salem.2.Do Thro The Chief Judicial Magistrate, Salem.3.The Additional District Judge, Fast Track Court, No.1, Salem.4.The Prl Sessions Judge, Salem.5.The Superintendent, Central Prison, Salem.6.The Sub Inspector of Police,Thalavaivasal Police Station,Salem.7.The Public Prosecutor, High Court.PKB(CO)SR/13.7.2009 Crl.R.C.No.1317 of 2006