Ubanu @ Sundaravelu v. State

BAIL SLIPCRL.R.C.NO.365/2009The Appellant/Accused viz., Ubanu @ Sundaraavelu was directed tobe released on bail as per the order of this Court dated 17.4.2009and made in M.P.No.1/2009 in Crl.R.C.No.365/09.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.3.2011CORAM:THE HONOURABLE MS.JUSTICE R.MALACrl.R.C.No.365 of 2009Ubanu @ Sundaravelu.. Petitioner/appellant/accusedVs.State rep. by Inspector of Police,Kottakuppam,Auroville Police Station(Crime No.162 of 2005) .. Respondent/respondent/complainantCriminal Revision Case u/s.397 r/w 401 Cr.P.C. against thejudgment dated 6.4.2009 in Crl.A.No.69 of 2008 on the file of theAdditional District and Sessions Court (Fast Track Court No.1),Tindivanam, against the judgment dated 12.11.2008 in C.C.No.141 of2005 on the file of the Judicial Magistrate, Vanur, VillupuramDistrict.For petitioner : Mr.V.Gopinath, Senior Counsel for Mr.L.MahendranFor respondent : Mr.S.Rajakumar, Govt. Advocate (Crl. Side)ORDERCriminal Revision Case is filed against the judgment dated6.4.2009 in Crl.A.No.69 of 2008 on the file of the AdditionalDistrict and Sessions Court (Fast Track Court No.1), Tindivanam,modifying the conviction and sentence, imposed by judgment dated12.11.2008 in C.C.No.141 of 2005 on the file of the JudicialMagistrate, Vanur, Villupuram District. https://hcservices.ecourts.gov.in/hcservices/

2. The skeleton of the case of the prosecution is as follows: On 30.4.2005 at 11 am, due to the land dispute, the revisionpetitioner/accused caught hold of the complainant P.W.1 Geetha andassaulted her by wooden log and also her mother Radha P.W.2 andcaused grievous injuries and abused them with filthy language and so,P.Ws.1 and 2 locked their house. Next day, i.e. on 1.5.2005, P.W.1gave a complaint Ex.P-1 and immediately, she was sent to P.W.6Dr.Padmavathi, who treated P.W.1 Geetha and issued Ex.P-3 AccidentRegister and P.W.6 Doctor also treated P.W.2 Radha and issued Ex.P-4wound certificate. P.W.7 Kaliyaperumal, Sub-Inspector of Policeregistered a case and prepared Ex.P-5 FIR and went to the place ofoccurrence and prepared Ex.P-6 rough sketch and Ex.P-2 observationmahazar in the presence of P.Ws.4 and 5, the attestors, and concludedthe investigation and filed the charge sheet against the revisionpetitioner/accused for the offences under Sections 323, 325 IPC andSection 4 of the Tamil Nadu Prohibition of Harassment of Women Act. 3. The trial Court, after following the procedures, examinedP.Ws.1 to 7, marked Exs.P-1 to P-6 and convicted the revisionpetitioner/accused for the offence under Section 323 IPC andsentenced him to undergo simple imprisonment for three months; alsoconvicted him for the offence under Section 325 IPC and sentenced himto undergo simple imprisonment for three years and to pay a fine ofRs.3,000/-, in default, to undergo simple imprisonment for six monthsand also convicted him under Section 4 of the Tamil Nadu Prohibitionof Harassment of Women Act and sentenced him to undergo simpleimprisonment for three years and to pay a fine of Rs.3,000/-, indefault, to undergo simple imprisonment for six months. The sentencesimposed on the revision petitioner/accused were directed to runconcurrently.4. As against the said conviction and sentence imposed by thetrial Court, the revision petitioner/accused preferred CriminalAppeal in Crl.A.No.69 of 2008 before the Additional District andSessions Court (Fast Track Court No.1), Tindivanam, and the learnedappellate Judge, after considering the arguments of both sides,confirmed the conviction and the sentence imposed by the trial Courtwas modified as follows:(i) In respect of the offence under Section 323 IPC, theconviction and sentence were confirmed.(ii) In respect of the offence under Section 325 IPC and Section4 of the Tamil Nadu Prohibition of Harassment of Women Act, theconviction was confirmed and sentence was modified from three yearsto one year simple imprisonment.5. Learned counsel appearing for the revision petitioner/accused https://hcservices.ecourts.gov.in/hcservices/ made the following submissions:(a) Due to land dispute, a false complaint has been foistedagainst the revision petitioner/accused.(b) In Ex.P-3 accident register, the alleged occurrence wasstated to have been occurred on 30.4.2005 at 11 am, and in Ex.P-4wound certificate, the alleged occurrence was stated to have beenoccurred on 30.4.2005 at 11 pm, but the complaint has been given onlyon 1.5.2005 at 11 am, with a delay of one day and no explanation hasbeen given by the prosecution for the said discrepancy in the time ofoccurrence.(c) P.W.3 who is the grandmother of P.W.1, and mother-in-law ofP.W.2, was examined and she is not an eye-witness. The trial Courthas not considered the said aspect. (d) There is a material contradiction between the evidence ofP.Ws.1 and 2 relating to their presence at the time of occurrence.In the evidence of P.W.1, it is stated that she was cleaning thehouse and P.W.2 stated that she was cooking.(e) The evidence of the prosecution is that P.Ws.1 and 2 weresent to the Hospital with a Medical Memo, but in Ex.P-3 accidentregister and Ex.P-4 would certificate, it is not stated as to whetherthey were sent with medical memo or not and the same is fatal to thecase of the prosecution.He prayed for allowing the Crl.R.C.,and to set aside theconviction and sentence passed by both the Courts below.6. Learned Government Advocate (Criminal Side) appearing for therespondent-Police/complainant submitted that the trial Court and thefirst appellate Court clearly considered the reasons for delay inpreferring the complaint and the same has been properly explained.Learned Government Advocate further submitted that the Courts belowdid not accept that P.W.3 is an eye-witness and P.W.3's evidence hasnot been considered by the Courts below. The evidence of P.Ws.1 and 2who are the eye-witnesses, who are the victims, corroborate with eachother. The Courts below considered the above aspects in propercircumspection and hence, he prayed for dismissal of the Crl.R.C.7. Considering the rival submissions made by both sides andwhile analysing the first branch of argument, namely the delay inpreferring the complaint, and as to whether the evidence of P.Ws.1and 2 is trustworthy and reliable, it is seen that P.Ws.1 and 2 arethe eye-witnesses and victims. P.W.3 Machagandhi is the mother-in-lawof P.W.2 and the grandmother of P.W.1 and P.W.3's evidence does notcorroborate with the evidence of P.Ws.1 and 2 and only after hearingthe alarm, P.W.3 rushed to the place of occurrence and P.W.3 https://hcservices.ecourts.gov.in/hcservices/ witnessed that her daughter-in-law P.W.2 lost two teeth and she wasunconscious. Considering these aspects, it is to be held that P.W.3is not an eye-witness. Both the Courts below have not considered thisfactum and so, I am of the view that P.W.3 is not the eye-witness andhence, P.W.3's evidence cannot be taken into consideration and thesame is hereby discarded.8. Now, this Court has to decide as to whether the evidence ofP.Ws.1 and 2 is trustworthy and reliable. Admittedly, P.Ws.1 and 2are the eye-witnesses and they have sustained injuries. At thisjuncture, it is appropriate to consider the argument advanced bylearned counsel for the petitioner/accused that even though P.W.7Sub-Inspector of Police and P.Ws.1 and 2 have stated that they weresent to P.W.6 Doctor along with a medical memo, admittedly, in Ex.P-3 accident register and Ex.P-4 wound certificate, the said aspect ofmedical memo has been not mentioned, and it is fatal to the case ofthe prosecution. But the above argument does not merit acceptance,because, they were treated by P.W.6 Doctor and as per the evidenceof P.W.1, she went to the Police Station on the very next day andgave a complaint to P.W.7 Sub-Inspector of Police and he sent themthrough medical memo and merely because the Doctor has not mentionedthe aspect of medical memo, it will not vitiate the entireconviction. Furthermore, when P.W.6 Doctor was in the witness box, noquestion has been posed to her with regard to the said aspect ofmedical memo. In such circumstances, I am of the opinion that non-mentioning of the medical memo in Exs.P-3 and P-4, will not vitiatethe conviction and sentence.9. Now, this Court has to consider the evidence of P.Ws.1 and 2as to whether they have properly explained the delay in preferringthe complaint. Considering the evidence of P.Ws.1 and 2 and P.W.2'shusband has been far away from home and only three ladies have beenresiding in the house and even though P.W.1 was working as Lecturerin the College, admittedly there was a land dispute between thefamily of the revision petitioner/accused and the family of P.Ws.1and 2 on the date of incidence, i.e. 30.4.2005 at 11 am., and therevision petitioner/accused abused them with filthy language andassaulted them with wooden log and P.W.2 Radha has sustained loss oftwo teeth and also sustained injury. When it was questioned by P.W.1,she was also assaulted by the revision petitioner/accused. Since theyare ladies, they entered into the house and locked their house and insuch a situation, they would not have been in the mood to go thePolice Station and give a complaint. It is well settled that at thetime of incident, the human nature of the individual is different andsome may fight for the incident and some may go to Police Station andseek for legal remedy and some may hide in a different place fearingthe situation, and in such circumstances, merely because these ladieshave not given complaint on the same day, it will not vitiate theconviction. Hence, I am of the view that P.Ws.1 and 2 have properlyexplained the delay in preferring the complaint and so, the argument https://hcservices.ecourts.gov.in/hcservices/ advanced by learned counsel for the revision petitioner/accused thatthe delay in preferring the complaint vitiates the conviction, doesnot merit acceptance. 10. Now this Court has to decide as to whether the occurrencehas taken place at 11 am or 11 pm. Admittedly, in Ex.P-4 woundcertificate, in the first paragraph, it was mentioned as 11 am, butin the second paragraph, it was mentioned as 11 pm, and even thoughP.W.6 Padmavathy was examined before Court, she was confronted bycross examination and no question has been posed to her, as towhether 11 am is correct or not. Furthermore, the victims P.Ws.1 and2's categorical evidence is that the occurrence has taken place at 11am and so, the argument advanced by learned counsel for the revisionpetitioner/accused that there is a discrepancy in the time ofoccurrence, will not in any way, help the case of the defence.11. Learned counsel for the revision petitioner/accused furthersubmitted that there is material contradiction in the evidence ofP.Ws.1 and 2, but as already stated, there is no contradiction intheir evidence and their evidence is natural, cogent and convincingand hence, the same is trustworthy and reliable.12. Even at the time of trial, the trial Court and the firstappellate Court, the counsel for the defence has taken steps thatthere is no corresponding injury for the loss of two teeth and Ex.P-4wound certificate has specifically mentioned as "2 lower incisorfallen c bleed" and so, both the Courts below properly consideredwith regard to the injuries sustained by P.Ws.1 and 2. Therefore, Ido not find any infirmity in the conviction of the revisionpetitioner/accused, imposed by both the Courts below and theconviction is hereby confirmed. 13. At the time of arguments, learned counsel for the revisionpetitioner/accused submitted that at the time of occurrence, thepetitioner was 22 years and now, he is 26 years and he was in jailfor 36 days and that the occurrence had occurred due to sudden andgrave provocation and hence, the learned counsel requested forleniency in the sentence. It is stated that the fine amounts ofRs.6,000/- have been paid by the revision petitioner/accused.14. Considering the said submission of the learned counsel forthe petitioner/accused, I am of the opinion that the sentence ofimprisonment shall be modified to one already undergone by him and tomeet the ends of justice, the sentences as modified by the appellateCourt on all the three offences are modified to the one alreadyundergone by him. This Court is also of the view that the fineamounts imposed on the offences under Section 325 IPC and Section 4of the Tamil Nadu Prohibition of Harassment of Women Act, is enhancedfrom Rs.3,000/- to Rs.5,000/-, and since he has already paidRs.6,000/-, the balance fine amount of Rs.4,000/- shall be deposited https://hcservices.ecourts.gov.in/hcservices/ by the revision petitioner/accused and the same be paid to thevictims' family as compensation and the same shall be withdrawn byP.Ws.1 and 2 in accordance with law before the trial Court. ThisCourt imposes that if the enhanced fine amount is not paid in respectof the above said offences in Section 325 IPC and Section 4 of theAct, the revision petitioner/accused shall undergo a period of onemonth's simple imprisonment. 15. With the above observations, the Criminal Revision Case ispartly allowed, and the conviction in respect of all the offences isconfirmed, and modifying the sentences to the one already undergoneby the accused and enhancing the total fine amounts from Rs.6,000/-to Rs.10,000/-, out of which, Rs.4,000/- shall be paid to P.Ws.1 and2 in accordance with law. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcsTo1. Additional District and Sessions Judge (Fast Track Court No.1),Tindivanam.2.Do thro the Principal Sessions Judge, Villupuram.3. District Munsif-cum-Judicial Magistrate, Vanur, Vellore District.4.Do thro the Chief Judicial Magistrate, Villupuram5.The Inspector of Police, Kottakuppam, Auroville Police Station, Villupuram District. (Crime No.162 of 2005) 6. The Public Prosecutor, High Court, Madras.7.The Superintendent,Centrla Prison, Cuddalore.1 cc To Mr.L.Mahendran, Advocate, SR.19549Crl.R.C.No.365 of 2009ng(co)pmk.7.4.2011