Kumar v. State represented by Sub Inspector of Police, Chengam Police Station, Thiruvannamalai District

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 11.06.2012CoramTHE HON'BLE MR.JUSTICE C.S.KARNANCrl.R.C.No.501 of 2012Kumar.. Petitioner Vs.State represented bySub Inspector of Police,Chengam Police Station,Thiruvannamalai District.(Crime No.300 of 1993).. RespondentPrayer :-Criminal Revision is filed under Section 397 r/w 401 ofCr.P.C., against the judgment passed in C.A.No.68 of 2007, dated12.03.2012 by the Sessions Judge, Thiruvannamalai, convicting himunder Section 324 of IPC and sentenced to undergo rigorousimprisonment for two years, confirming the trial Court order dated07.12.2007 passed in C.C.No.231 of 1997, on the file of JudicialMagistrate, Chengam convicting him under Section 324 of IPC andsentenced to undergo rigorous imprisonment for two years. For Petitioner : Mr.R.BalakrishnanFor Respondent : Mr.C.Balasubramaniam Additional Public Prosecutor ORDERThe petitioner / appellant / accused No.3 has preferred thepresent revision against the judgment passed in C.A.No.68 of 2007 bythe Sessions Judge, Thiruvannamalai, confirming the conviction andsentence passed in C.C.No.231 of 1997, on the file of JudicialMagistrate, Chengam.2. The short facts of the case are as follows:-On 03.05.1993, at about 3 p.m., all the accused armed withdeadly weapons were waiting near Munnurmangalam Village Kollai Kottaiand when the witnesses Govindan and Murugesan crossed the spot, allthe accused attacked the witnesses and caused simple injuries. The https://hcservices.ecourts.gov.in/hcservices/ third accused attacked the witness Govindan by using a scythe andcaused grievous injury on his head. Hence, the witness Govindan hadfiled a complaint before the Sub Inspector of Police, Chengam PoliceStation and it was registered as Crime No.300 of 1993. Subsequently,the police after investigation filed the charge sheet against theaccused for an offence under Section 147, 148, 149, 326, 324 and 323of IPC and the case was taken on file of Judicial Magistrate, Chengamas C.C.No.231 of 1997.3. On being questioned, the accused had pleaded not guiltyand hence trial was conducted. On the side of the prosecution, 8witnesses were examined and 12 documents were marked as Exs.P1 toP12, viz., Ex.P1-complaint, Ex.P2-nil, Ex.P3-accident register,Ex.P4-F.I.R., Ex.P5-rough sketch, Ex.P6 and Ex.P7-mahazar, Ex.P8-Form95, Ex.P9-Form 95, Ex.P10-confession statement showing signatureaffixed by Ganesan, Ex.P11 and P12-mahazars showing signature affixedby Ganesan. 3 material objects were marked as M.O.1 to M.O.3, viz.,M.O.1-blood stained scythe, M.O.2-blood stained half trouser, M.O.3-blood stained towel. On the side of the accused, no witness, nodocuments.4. P.W.1, Govindan had adduced evidence that he is residingat Munnur Mangalam and that he is acquainted with the accused. Hedeposed that due to enmity over land property, when he was standingin his land on the day of occurrence of incident at 1 p.m., theaccused Kumar had assaulted him on the back of his head with hisscythe and also inflicted cut injury on his right hand. He deposedthat the accused Muthu (since deceased) had hit him on his shoulderwith a wooden log and the accused Parvathiammal had hit him on hisshoulder with a broom stick. He deposed that when he fell down, theaccused Chennammal came to hit him and the accused Ayothi had alsohit him. He deposed that the accused Kumar had also hit one Rajan andone Kannan had also assaulted him with a stick. He deposed thatsubsequently he was admitted at Chengam Government Hospital and thepolice had enquired with him and registered his complaint (Ex.P1). Hedeposed that the material objects marked as M.O.1, i.e., bloodstained scythe, was the instrument used for attacking him and thathis blood stained khaki trousers and blood stained towel used by himhas been marked as M.O.2 and M.O.3.5. P.W.4, Neela had adduced evidence that she is residingat Munnurmangalam and that P.W.1 is her husband. She deposed that sheis acquainted with the accused and the witnesses and that on the dayof occurrence of incident, when she was in the agricultural land, theaccused Ganesan and Mahalingam (deceased) had attacked her husbandwith a scythe inflicting cut injuries on his head and the accusedKannan had hit the shoulder of her husband with a log wood and thatthe accused Chennammal had kicked her husband with her leg. Shedeposed that the accused Kumar and Ayothi had assaulted her husbandwith sticks and that her husband lost consciousness and fell down https://hcservices.ecourts.gov.in/hcservices/ after sustaining bleedings injuries. She deposed that the accusedKannan had assaulted Rajan on his hip by using a log wood and thatRajan had lost consciousness and fallen down. She deposed that theywere admitted at Chengam Government Hospital and that the Police hadenquired with them at the hospital and taken their complaint.6. P.W.5, Dr.Mohanasundaram had adduced evidence that he ispresently working as senior doctor at Thiruvannamalai GovernmentHeadquarters Hospital and that as Dr.K.Abdul Jaffer, who had treatedthe injured persons in this case had died on 19.05.2003 at VijayaHospital, he is adducing evidence based on the records he had seen ashe is familiar with the signature of the said doctor. He deposedthat on perusal of medical records, it is seen that on 03.05.1993 atabout 3.45 p.m., the injured Govindan was admitted in the hospital byhis uncle Velu. He deposed that the said Govindan had informed thedoctor that the accused who was known to him had assaulted him with ascythe when he was in his land at Munnurmangalam at 2 p.m. He deposedthat the doctor, after examination had found that the injuredGovindan had sustained 5 injuries and that the injuries 1 to 4 weresimple in nature and the fifth injury was grievous in nature. Hedeposed that the extract of accident register issued to injuredperson was marked as Ex.P2. He deposed that on the same day, the saidVelu had also admitted the injured Rajan at the hospital and that thesaid Rajan had informed the doctor that 7 persons, known to him hadassaulted him with log wood when he was standing in his land at 2p.m., He deposed that the doctor after examination had observed thatthe injuries sustained by Rajan was simple in nature and that theextract of accident register pertaining to Rajan had been marked asEx.P3.7. P.W.6, Mohammed Ghous had adduced evidence that on03.05.1993, when he was working as head constable at Chengam PoliceStation, the witness Govindan (P.W.1) had come to the station andlodged a complaint (Ex.P1) and that he had registered the case inCrime No.300 of 1993, against the accused for an offence underSection 147, 148, 326 and 323 of IPC and prepared the F.I.R. (Ex.P4).He deposed that he had taken up investigation and gone to the placeof occurrence and prepared the rough sketch (Ex.P5). He deposed thathe had recovered the blood stained trouser and blood stained towel infront of witnesses as per seizure mahazar marked as Ex.P6 and alsorecovered the blood stained dagger in front of witnesses as perseizure mahazar marked as Ex.P7. He deposed that the accusedMahalingam and Ayothi were arrested and remanded into judicialcustody and that the seized materials was sent along with Form 95 tothe custody of Court. He deposed that subsequently, the Sub-Inspectorhad taken up the case for further investigation and enquired with himand he had stated that the witnesses 2 and 3 had seen the accident.8. P.W.7, Rajan deposed that he is residing at MunnurMangalam and that he is acquainted with the P.W.1 and other witnesses https://hcservices.ecourts.gov.in/hcservices/ and accused. He deposed that on the day of occurrence of incident, atabout 3 p.m. when he was standing on his agricultural land, theaccused Muthu, Mahalingam, Kannan, Kumar and Ayothi had affronted hisbrother (P.W.1) regarding dispute over land and that the accusedMehalingam had hit P.W.1 behind his head with a log. He deposed thatthe accused Mahalingam had given a knife to the accused Kumar and thesaid Kumar had inflicted cut injuries on P.W.1's head by using theknife. He deposed that when he tried to prevent the flight, theaccused Kannan had hit his shoulder with the log and due to this, hehad lost consciousness and fallen down. He deposed that Neela alsosustained injuries and that he, Govindan and Neela were admitted atChengam Government Hospital for treatment and that the complaint tothe police had been given by Govindan.9. P.W.8, Ganesan had adduced evidence that he was residingat Munnur Mangalam and that he is acquainted with the witnessNarayanan and the accused. He deposed that the occurrence took placeat 3 p.m and that the Chengam Police came at 5 pm and enquired withthe accused Mahalingam and that he and Narayanan had signed in thereport prepared by the Police. He deposed that he was not aware ofthe materials seized by the police. He deposed that the signature inthe confessional statement marked as Ex.P10 is his signature and alsodeposed that he had signed as a witness in the seizure mahazarsmarked as Exs.P11 and P12.10. P.W.2 and P.W.3 witnesses had turned hostile. Theproceedings against the accused 1 and 6 were dropped as the caseagainst them had abated due to their death. The learned JudicialMagistrate, Chengam observed from the evidence of P.W.5, doctor thatthe doctor had only adduced evidence that there is lacerated injuriesand swelling on the back hip of P.W.7 and that he had not mentionedanything about the injury allegedly sustained on the shoulder ofP.W.7. Hence, the learned Magistrate observed that there iscontradiction about the person who had inflicted the said injury inthe evidence of the witnesses and medical evidence. The learnedMagistrate observed from the evidence of P.W.1 and medical evidencethat he had sustained four cut injuries on his head in the incident.The learned Magistrate further observed that though the materialsseized in the occurrence had been seized in the presence of witnessP.W.8, the said P.W.8 had turned hostile but had admitted that thesignature contained in the seizure mahazar is his signature. Hence,the learned Magistrate on scrutiny of evidence of P.W.1 and P.W.4 andmedical evidence held that the injuries sustained by P.W.1 had beencaused by assault of accused 3 by using a knife. However, the learnedMagistrate on observing that no clear cut evidence had been let in toshow the manner of assault made by the second, fourth, fifth andseventh accused, held that the offences allegedly committed by themhad not been proved satisfactorily. The learned Magistrate furtherobserved that P.W.5 in his evidence had not stated that P.W.1 hadsustained fracture of bone in his forearm and had not marked the X- https://hcservices.ecourts.gov.in/hcservices/ rays to prove that P.W.1 had sustained grievous injury, hence, thelearned Magistrate held that P.W.1 had only sustained simpleinjuries. The learned Magistrate further observed that theprosecution had not proved their contentions that all the accused hadgathered with a single intention of assaulting P.W.1 and that theyhad colluded illegally to commit an offence. Hence, the learnedMagistrate held that the offences charged against the accused underSections 147, 148 and 140 of IPC had not been proved. Hence, thelearned Magistrate held the accused 2, 4, 5 and 7 not guilty ofoffence under Sections 147, 148, 149 and 329 of IPC and acquittedthem under Section 24(1) of IPC. The learned Magistrate further heldthe accused 3 not guilty of offence under Sections 326, 147, 448 and149 of IPC, but held him guilty of offence under Section 324 of IPCand sentenced him to undergo rigorous imprisonment for two years.11. Aggrieved by the conviction and sentence imposed on himby the trial Court, the third accused / Kumar had filed an appealbefore the District Sessions Judge, Thiruvannamalai. The learnedappellate Judge, after scrutiny of oral and documentary evidence andon scrutiny of order of trial Court, dismissed the appeal andconfirmed the conviction and sentence imposed by the trial Court.12. Aggrieved by the dismissal of his appeal, the appellant/ accused No.3 has preferred the present revision.13. The very competent counsel appearing for the revisionpetitioner has contended in his revision that the lower Court failedto note that though the date of occurrence of accident has beenmentioned in the F.I.R. as 03.05.1993, at 15.00 hours, theinformation had been received only at 17.45 hours and the chargesheet has been filed only on 05.09.1997. It was also contended thatthe trial Court erred in failing to consider the evidence of P.W.2and P.w.3 and also failed to note that P.W.4, in his chiefexamination had deposed that the appellant attacked with stick,whereas in the chief examination of P.W.1, it was stated that he hadbeen attacked with koduval and as such, there is contradictions inthe evidence of the witnesses. It was also contended that the trialCourt failed to consider the evidence of P.W.5, P.W.6 and P.W.7 in aproper manner and failed to note that no independent witnesses hadbeen examined by the prosecution to prove the alleged occurrence. Itwas contended that the trial Court failed to note that P.W.1 haddeposed that he was taken to hospital by the Head Constable who cameto SOC and the doctor has stated that the injured was produced beforehim at about 5 p.m on 03.05.1993, but the F.I.R. was registered at5.45 p.m., on 03.05.1993 and as such, it is seen that theinvestigation had commenced even before the registration of F.I.R.and as such, the lower Court ought to have disbelieved the evidenceof Investigation Officer and doctor and acquitted the petitionerherein / accused. Hence, it was prayed to set-aside the orders of theCourts below and to acquit the petitioner herein. https://hcservices.ecourts.gov.in/hcservices/

14. The very competent Additional Public ProsecutorMr.C.Balasubramaniam submits that the respondent-police conductedcomprehensive enquiry and submitted a final report in which theprosecution has listed 7 witnesses and marked 12 documents. Besidesthis, 3 material objects have been produced. The injured witness hadclearly stated the occurrence and stated that he is the main witness.Therefore, the third accused had been convicted on two counts underSection 324 of IPC since he had caused grievous injuries. The doctorhad also given evidence regarding nature of injuries sustained by thedefacto complainant. Therefore, the conviction and sentence imposedby the learned Magistrate, Chengam is sustainable for executionagainst the accused. 15. Per contra, the learned counsel for the revisionpetitioner submits that the accused is aged about 19 years and is notinvolved in any offence previously. Besides, he is an agriculturalcoolie and he is the only breadwinner of the family. Besides this, hehas been incarcerated for a short period in the prison. Therefore,the very competent counsel deeply entreated this Court to pardon theaccused.16. On considering the facts and circumstances of the caseand arguments advanced by the learned counsels on either side and onperusing the judgment and conviction imposed by the Court below, thisCourt does not find any discrepancy in the conclusions arrived at forconvicting the accused No.3 under Section 324 of IPC. This Court isof the view that the very competent counsel appearing for therevision petitioner submits that the revision petitioner had beeninvolved in the agricultural operations, as a coolie and he has beenin incarcerated in prison, for a short period. Considering thisaspect, this Court waives the rest of the period of sentence ofimprisonment and sets him at liberty. 17. In the result, the above revision is partly allowed.Consequently, the order passed in C.A.No.68 of 2007, dated 12.03.2012by the Sessions Judge, Thiruvannamalai, confirming the order dated07.12.2007 passed in C.C.No.231 of 1997, by the Judicial Magistrate,Chengam is modified. -s/d- Assistant Registrar( ) Dt:1/12/2014 True Copy Sub-Assitant Registrar https://hcservices.ecourts.gov.in/hcservices/ To1. The Sub Inspector of Police, Chengam Police Station, Thiruvannamalai District. (Crime No.300 of 1993).2. The Judicial Magistrate, Chengam.3. -do- thro' Chief Judicial Magistrte, Thiruvannamalai.4. The Sessions Judge, Thiruvannamalai.5. The District Collector, Thiruvannamalai district.6. The Public Prosecutor, High Court, Madras.7. The Superintendent of Prison, Thiruvannamalai.cnr(co)prk1/12Crl.R.C.No.501 of 2012