Annamalai & Ors. v. State & Ors.

Bail SlipThe Appellant A1 names Annamalai is directed to the released onbail by the order of this Court dated 26.4.2002 in Crl. Mp.No.3773/02 in Crl. Ap.No.525/2002.IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.11.2009CORAM:THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESANCrl.A.No.525/2002Crl.RC.No.1067/20021.Annamalai Appellant in Cr.A1.Rukumani2.ChinnaduraiPetitioners in Cr.RC VsState by Inspector of Police Mahudanchavadi Police Station Salem District R1 in Cr.A 1. State by Inspector of PoliceMacdonald choultry police station, Salem District. Respondent Crl. R.C2.Annamalai3.Muthu4.Palani5.Appavoo6.Ayyavoo7.Sumsayi @ Ravi RR2to7 in Cr.RCPrayer:- This Criminal Appeal is filed against the judgement dated20.3.2002 passed in SC.No.273/2000 by the learned AdditionalDistrict and Sessions Judge (FTC-II) Salem, convicting andsentencing the appellant for the offence under Section 326 of IPCto undergo three years Rigorous Imprisonment and to pay a find ofRs.5000/-, in default to pay the fine amount to undergo one yearRigorous Imprisonment. https://hcservices.ecourts.gov.in/hcservices/ This criminal revision petition is filed against the orderof acquittal made in judgement dated 20.3.2002 in SC.No.273/2000 bythe learned Additional District and Sessions Judge (FTC-II) Salem. For Appellant/ :Mr.L.Mahendran-AppellantPetitioner Mr.N.Manokaran-PetitionerFor Respondent :Mr.Hasan Mohammed Jinnah, APP 1st Respondent/StateORDER This Criminal Appeal is filed against the judgement dated20.3.2002 passed in SC.No.273/2000 by the learned AdditionalDistrict and Sessions Judge (FTC-II) Salem, convicting andsentencing the appellant for the offence under Section 326 of IPCto undergo three years Rigorous Imprisonment and to pay a find ofRs.5000/-, in default to pay the fine amount to undergo one yearRigorous Imprisonment.

This criminal revision petition is filed by the defactocomplainants/Pws.1 and 2 against the order of acquittal made injudgement dated 20.3.2002 in SC.No.273/2000 by the learnedAdditional District and Sessions Judge (FTC-II) Salem, acquittingthe Appellant/A1 and the 2nd accused under Section 302 read with 34of IPC, A3 to A6 under Section 302 read with 149 of IPC and A3 andA4 under Section 324 of IPC, A2, A5 and A6 under Section 323 (2counts).

The back ground facts in a nutshell are as follows:-a. PW.1 is the wife of the deceased. Pws.1 to 5 hail fromthe Village Peruma Goundanpatti. There was prior enmity betweenthe Prosecution party and the accused party with regard to takingof a girl in marriage from the other party. On the previous day tothe occurrence, a dispute arose between them with regard to theauction of Koil fund and the demand made by the son of thedeceased to the accused persons to furnish security if the chitamount has to be paid to them and A1 wanted them to disburse theamount without any security and refused to furnish any security andkicked the son of the deceased. They were pacified by the deceased, but the accused left the place not before warning the deceased andhis son that they would not leave them alive. b. The next day i.e. 25.4.1998, when the deceased wasabout to have his breakfast, all the accused came in front of hishouse and shouted at the deceased to come out and when the deceasedcame out, he told them not to quarrel with him.

On completion of the evidence on the side of theprosecution, the accused were questioned under Section 313 Cr.PC asto the incriminating circumstances found in the evidence ofprosecution witnesses and the accused denied the same as totallyfalse.

The court below, after hearing the arguments advanced oneither side and looking into the materials available, found theaccused/appellants guilty and awarded punishments as referred toabove, which is challenged in this Criminal Appeal and criminalrevision petition. https://hcservices.ecourts.gov.in/hcservices/

This court heard the submissions of the learned counselon either side and also perused the material records placed.

As per the case of the Prosecution, the genesis for theoccurrence is the incident that is said to have occurred on24.4.1999 wherein the son of the deceased by name Ponnusamydemanded the accused to give security for disbursement of fundamount to him, which was objected to by the accused and theyrefused to give security. In the course of said quarrel, he issaid to have kicked Ponnusamy the deceased and other personspresent in the said place have pacified them. However, the accusedpersons is said to have vowed against them that they would killthe deceased and his sons. The said Ponnusamy is the main witnessto speak about the previous day occurrence, but he has not beenexamined.

The learned counsel for the Appellants contendedraising a serious doubt regarding the existence of prior motive asto whether the prior occurrence really occurred as projected by the Prosecution. Ponnusamy is the main witness who can speak about theearlier incident and his non examination has really caused a dentin the case of the Prosecution regarding the motive alleged by the Prosecution.

There are much contradictions and inconsistencies evenin the overtact attributed to each of the accused. According toPW.1, A2 hit the deceased with MO.1 Kisf; Fr;rp on her head, A2 hit thedeceased with granite stone on his back of the head, A3 hit thedeceased with Ks;fl; il nth; bro on his hand. A5 with a brick stone onhis right knee. PW.2 to Pw.4 also have stated so in theirevidence. But, there is no corresponding injuries on the deceased. The following are the injuries found on the deceased, which isdisclosed from Ex.P15:-1.Abrasion over the right knee and right wrist2.A contusion over right front temporal region ofscalp, 8cms 5cms x 0.5cmsOn dissection of the 2nd injury communited fractureover right temporal bone with subdural andsubarachnoid haemorrhage over both cerebralhemisphere. "

Only three injuries had been found on the body of thedeceased. It is the version of the Pws.1 to 5 that the deceasedwas attacked by A1 and A2 with Kisf; Fr;rp and granite stones at theback side of the head, but there is no corresponding injury on theback of the head. That apart, even with regard to the attack madeby the accused on other witnesses viz. PW.2 to 5, these witnessescontradicted each other. More importantly in the complaint Ex.P1lodged by PW.1, it is stated that PW.6 gHdp was attacked by A4 and https://hcservices.ecourts.gov.in/hcservices/ A3, whereas the Prosecution case is that PW.3 was attacked by A3and A4 and not PW.6.

Taking into consideration the material contradictionsand discrepancies in the testimonies of the above said witnesses inregard to the attack made by the accused on these witnesses, thetrial judge acquitted all the accused with regard to the chargesmade against them under Sections 323 and 324 of IPC and also 302read with 149 of IPC.

There is no positive evidence in this case to showthat the head injury found on the deceased was only caused by the1st accused as all the witnesses PW.1 to 5 alleged that A1 hadattacked him with Kisf; Fr;rp and A2 with a stone. In view of thematerial discrepancies as pointed out earlier, it is unsafe toplace reliance on the Prosecution witnesses to hold that the headinjury was caused only by the Appellant. The evidence of Pws.1 to5 about the manner of assault attributed to the various accusedpersons was too hollow to have any credence. That being theposition, I am unable to subscribe to the conclusion arrived at bythe learned trial judge that the Appellant is liable to beconvicted under Section 326 of IPC.

In so far as the offences relatable to Section 148 asagainst A1, A2, A5 and A6, Section 147 as against A1 and A2,Section 302 read with 34 as against A3 to A6, Section 302 read with149 as against A3 to A6, Section 323 as against A2, A5, A6 (2counts) are concerned, I do not find any scope for interferencewith the order of acquittal passed by the learned trial judge andhence, the criminal revision petition is liable to be dismissed andaccordingly, it is dismissed.

In the light of the discussions made above, the Criminal Appeal stands allowed and the conviction and the sentenceimposed by the court below on the Appellant under Section 326 ofthe IPC is set aside and he is acquitted of the charge levelledagainst him. The bail bond if any executed by the appellant shallstand terminated and the fine amount if any paid is ordered to berefunded to him. Srcm Sd/- Asst. Registrar/True Copy/ Sub. Asst. RegistrarTo:1.The Judicial Magistrate No.2 Sankari Salem District. https://hcservices.ecourts.gov.in/hcservices/

2. -Do- through the Chief Judicial Magistrate Salem.3. The Additional District Session Judge Salem (Fast Track Court No.2)4. -do- Through The Principal Sessions Judge Salem5. The Public Prosecutor High Court Madras Salem.6. The Inspector of Police, Mahudanchavadi Police Station Salem.7. The Inspector of Police Salem Town Police Station Salem.8. The Inspector of Police Macdonald Choultry Police Station, Salem District.9. The Section Officer, Criminal Section, High Court, Madras.+ 1 cc to Mr. L. Mahendran, Advocate SR.60382.Crl.A.No.525/2002 and Crl.RC.No.1067/2002 MBS(CO)EU 26.11.2009.