THE HONOURABLE MR v. Vellaichamy @ Venkidusamy2.The State

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 12.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.R.C.No.330 & 537 of 2004Sivaraj.. Petitioner in both the revisions/PW1Vs.1.Vellaichamy @ Venkidusamy2.The State represented by The Sub-Inspector of Police, Madathukulam Police Station, Udumalpet Taluk, Coimbatore District, in Cr.No.216 of 2002 .. Respondents in both the revisions/ComplainantPrayer:- These revisions have been preferred against the judgmentdated 10.11.2003 made in C.C.No.222 of 2002 on the file of theJudicial Magistrate No.II, Udumalpet.For Petitioner :Mr.N.E.A.Denesh (in both the above Revisions)For Respondents :Mr.M.N.Balakrishnan (for R1) (Legal Aid Counsel) Mr.V.R.Balasubramanian (for R2)Additional Public Prosecutor(in both the above Revisions)COMMON JUDGMENTThese revisions have been preferred against the judgment inC.C.No.222 of 2002 on the file of the Judicial Magistrate No.II,Udumalpet.2.The short facts of the case of the prosecution is that on15.10.2002 at about 9.00 pm the accused had waylaid the lorrybearing registration No.TDY-9983, which was driven by the driver https://hcservices.ecourts.gov.in/hcservices/ Marimuthu (P.W.3) by parking his jeep bearing registrationNo.TN.55-4444 in the midst of the road thereby wrongfullyrestraining P.W.3 Marimuthu from proceeding further in his lorryand also criminally intimidated P.W.3, with a Koduval and whenP.W.3 informed about the occurrence to P.W.1, his employer,P.W.1 rushed to the place of occurrence and asked whether theaccused had restrained his driver, thereupon the accused hasassaulted P.W.1 with an aruval causing injury on his right middlefinger. Hence, the accused has been charged under Section 341,352, 326 and 506(ii) IPC.3.The case was taken on file by the learned JudicialMagistrate and on appearance of the accused, on summons, copiesunder Section 207 of Cr.P.C., were furnished to the accused andcharges were framed under Section 341, 352, 326 and 506(ii) IPCand when questioned, the accused pleaded not guilty. On the sideof the prosecution P.W.1 to P.W.15 were examined and Ex.P.1 toEx.P.7 were exhibited and M.O.1 to M.O.4 were marked.4.P.W.1 in his evidence would depose that on 15.10.2002 atabout 9.00 pm his lorry driver Marimuthu (P.W.3) came andinformed him that while he was proceeding in his lorry theaccused had wrongfully restrained him near Paraimedu by parkinghis jeep bearing registration No.TN.55-4444 across the road andalso criminally intimidated him with an aruval. Immediatelyalong with Karupasamy (P.W.2) went to the place of occurrence andsaw the jeep belonging to the accused was parked across the roadand when enquired about the complaint made by P.W.3, the accusedtook up an aruval and attempted to cut him which was resisted byhim with his right hand and during the assault he received a cutinjury in the right middle finger. He has identified M.O.1 asthe aruval used by the accused in assaulting him. He wouldfurther depose that on seeing the villagers rushing towards himthe accused left the aruval in the place of occurrence itself andtook to his heels and while he was returning to his house aperson by name Thangavel came in a two wheeler helped him to goto government hospital Udumalpet, wherein he was given first aidand then referred to the government hospital at Coimbatore.M.O.2 is the blood stained shirt and M.O.3 is the blood staineddothi recovered by the police from P.W.1 after the occurrence.P.W.1 has preferred Ex.P.1-complaint.5.P.W.2 - Karupasamy is the brother of P.W.1. According tohim, on 15.10.2002 he followed the lorry bearing registrationNo.TDY-9983 to his village on the eve of Ayuthapuja and that theaccused had parked his jeep bearing registration No.TN.55-4444 inthe midst of the road obstructing the lorry from proceedingfurther and that the accused had made an attempt to assault thelorry driver, immediately he along with the lorry drive went andinformed P.W.1, who also accompanied them to the place of https://hcservices.ecourts.gov.in/hcservices/ occurrence and when he enquired about the incident, the accusedhad assaulted P.W.1 with an aruval on the right middle fingercausing grievous injury. He has identified M.O.1 as the aruvalused by the accused at the time of the occurrence. 6.P.W.3 is the driver of the lorry bearing registrationNo.TDY-9983, who has also corroborated the evidence of P.W.1 &P.W.2. P.W.4 is also an eye witness to the occurrence. P.W.5is not an ocular witness, but only a circumstantial witness.P.W.6 is also an eye witness to the occurrence. P.W.7 has seenthe injured after the occurrence in the place of occurrence.P.W.8 is also not an occurrence witness. P.W.9 is a witness inthe recovery mahazar Ex.P.2 for the recovery of M.O.3-dothi fromthe injured P.W.1. P.W.10 is a witness in the observationmahazar-Ex.P.3. He is also a witness in Ex.P.4-recovery mahazarfor M.O.1.7.P.W.14 is the Head Constable, who had registered the caseunder Cr.No.216 of 2002 on the basis of the complaint preferredby P.W.1 under Ex.P.1. He had visited the place of occurrenceand prepared observation mahazar in the presence of P.W.9 &P.W.10 and had drawn Ex.P.7-rough sketch in the presence of thesame witnesses.8. P.W.15 is the Investigating Officer, who had taken upfurther investigation and examined the witnesses and recordedtheir statements.9.P.W.11 has deposed that only in his presence M.O.1-weaponwas recovered. P.W.12 is the doctor, who had examined P.W.1 forthe injury he had sustained. Ex.P.5 is the copy of the accidentregister. She has noticed a fracture in the right middle fingerof P.W.1 to an extent of 0.3 x 0.2 x 0.2 cms. 10.P.W.13 is a radiologist in CMC hospital, Coimbator.M.O.4 is the x-ray taken to P.W.1 for the fracture he hadsustained in the right middle finger. The doctor has deposedthat proximal bone in the right middle finger of P.W.1 was foundfractured. 11.After following the formalities P.W.15 has completed theinvestigation and filed the charge sheet against the accused.12.When incriminating circumstances were put to the accusedunder Section 313 of Cr.P.C., the accused denied his complicitywith the crime. After going through the evidence both oral anddocumentary, the learned trial judge has come to the conclusionthat the accused is not guilty under Section 341, 352 & 506(ii)IPC and under Section 326 IPC, but convicted the accused underSection 335 IPC and sentenced him to undergo one week RI and afine of Rs.2,000/- with default sentence. Aggrieved by thefindings of the learned trial judge P.W.1 has preferred https://hcservices.ecourts.gov.in/hcservices/ Crl.R.C.No.330 of 2004 challenging the order of acquittal by thelearned trial judge under Section 341, 352 & 506(ii) against theaccused and also preferred Crl.R.C.No.537 of 2004 for enhancementof the punishment imposed on the accused under Section 335 IPC.13.Now the points for determination in this case are (i) Whether the order of acquittal by the learned trialjudge of the accused under Section 341, 352 & 506(ii) IPC can besustainable?(ii) Whether the conviction and sentence of the learnedtrial judge under Section 335 IPC is liable to be enhanced?14.The Points:- 14(a) P.W.3-Marimuthu is the driver of thelorry bearing registration No.TDY-9983. According to him, theaccused had parked his jeep bearing registration No.TN.55-4444 inthe midst of the road near paraimedu, thereby wrongfullyrestrained him from proceeding further. The evidence of P.W.1 isto the effect that on seeing the jeep of the accused and afterthe assault made by the accused he took the lorry in reverse andwent away from the place of occurrence. This part of theevidence has been corroborated by P.W.4. Under suchcircumstances, it cannot be said that the accused had wrongfullyrestrained P.W.1. There is absolutely no evidence on record toshow that only on sudden provocation the accused had assaultedP.W.1. So as rightly observed by the learned trial judge that anoffence under Section 352 cannot be attracted against the accusedwill also sustain. P.W.1 in his evidence has nowhere statedthat the accused at the time of occurrence criminally intimidatedhim in a way to endanger his life. On that score only thelearned trial judge has acquitted the accused from the chargeunder Section 506(ii) IPC. Under such circumstances, I do notfind any reason to interfere with the findings of the learnedtrial judge that the offence under Section 341, 352 & 506(ii)have not been made out against the accused. So the revisionpetitioner in Crl.R.C.No.330 of 2004 is not entitled to anyrelief in the revision.14(b) When coming to Criminal Revision No.537 of 2004 forenhancement of punishment under Section 335 IPC, on the basis ofthe evidence of P.W.1 to the effect that he was assaulted by theaccused with M.O.1-aruval causing grievous injury in the rightmiddle finger, which was also corroborated by the medicalevidence of the doctor P.W.13, who had given an opinion on thebasis of M.O.4 X-ray as to the grievous injury sustained by P.W.1in the right middle finger, and P.W.12 doctor, who had examinedP.W.1 and issued Ex.P.5-copy of the accident register describedthe nature of the injury sustained by P.W.1 on the right middlefinger as greivous one due to the fracture of the proximal bonein the right middle finger of P.W.1, the learned trial judge has https://hcservices.ecourts.gov.in/hcservices/ convicted the accused under Section 335 IPC, which cannot besustainable in lieu of the evidence of P.W.1 and the evidence ofdoctors P.W.13 & P.W.12. It is the specific evidence of P.W.1that he was assaulted with M.O.1 aruval by the accused at thetime of the occurrence, which evidence has been corroborated bymedical evidence of P.W.13 & P.W.12 as to the injury P.W.1 hassustained is grievous injury in the right middle finger. Undersuch circumstances, an offence under Section 326 IPC alone isattracted and not an offence under Section 335IPC. At thisjuncture, the learned Legal Aid Counsel Mr. M.N.Balakrishnanwould represent that the accused is aged nearly 60 years and asper the judgment of the trial Court he has served out a weeks RI.Under such circumstances, I am of the view that instead ofsending the accused once again to the prison the fine aloneimposed by the learned trial judge can be enhanced from Rs.2000-to Rs.10,000/-. Points are answered accordingly.15.In fine, Crl.R.C.No.330 of 2004 is dismissed.Crl.R.C.No.537 of 2004 is allowed and the conviction passed bythe learned trial judge under Section 335 IPC is modified to thatof 326 IPC and while confirming the sentence of one week RI, thefine imposed by the learned trial judge is enhanced fromRs.2,000/- to Rs.10,000/- in default to undergo 4 months RI. Thefine amount of Rs.10,000/- is ordered to be paid as compensationto the victim P.W.1 under Section 357(1) of Cr.P.C.ssvSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo,1.The Judicial Magistrate No.II, Udumalpet.2-do-The Chief Judicial Magistrate, Coimbatore.3.The Public Prosecutor, High Court, Madras. https://hcservices.ecourts.gov.in/hcservices/

4.The Sub-Inspector of Police, Madathukulam Police Station, Udumalpet Taluk, Coimbatore District, in Cr.No.216 of 2002+ one cc to Mr. V. Nicholas, Advocate sr no. 42426+ one cc to Mr. M.M. Balakrishnan, Advocate sr no. 42531rs(co)nm(20.07.07)Crl.R.C.No.330 & 537 of 2004