Veeran @ Veerasamy v. State, Rep. by Inspector of Police Ariyalur Police Station Ariyalur

BAIL SLIPCrl.A.No.831 of 2002The first Appellant herein viz.,Veeran @ Veerasamy was directedto be released on bail in and by the order of this Courtdated.17.6.2002 and made in Crl.Mp.5224/02 in Crl.A.No.831/02.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 20.04.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.831 of 20021. Veeran @ Veerasamy2. Srinivasan...Appellants/AccusedVs.State,Rep. by Inspector of PoliceAriyalur Police StationAriyalur(Cr.No.657/98)...RespondentThis Criminal Appeal has been filed under Section 374 of CriminalProcedure Code as against the judgment and sentence of imprisonmentdated 27.05.2002 made in S.C.No.40 of 2001 on the file of theAdditional District Sessions Court (Fast Track Court), Ariyalur to setaside the same.For Appellants: Mr.M.DeivanandamFor Respondent: Mr.R.Muniapparaj, Govt Advocate (Crl.Side)J U D G M E N TThe accused 1 and 2 who were charged and tried for an offencepunishable under Section 307 IPC before the Additional District andSessions Judge (Fast Track Court), Ariyalur in S.C.No.40/2001 andfound not guilty of the said offence, have come forward with thepresent appeal under Section 374 Cr.P.C. as the first appellant (firstaccused) was found guilty of an offence punishable under Section 326IPC, convicted and sentenced to undergo six months rigorousimprisonment and to pay a fine of Rs.1,000/- with a default sentenceof three months simple imprisonment in case of default in payment offine, whereas the second appellant (second accused) was found guilty https://hcservices.ecourts.gov.in/hcservices/ and convicted for an offence punishable under 323 IPC and sentenced topay a fine of Rs.500/- with a default sentence of one month simpleimprisonment in case of default in payment of fine.The case of the prosecution, in brief, can be stated as follows:-i) PW-1 - Subramani is a native of Siruvachur village. PW-2 -Malarkodi is the wife of PW-1. During the relevant period, PW-1 andPW-2 were residing at Pallakrishnapuram, the place of the father-in-law of PW-1. The appellants 1 and 2 (accused 1 and 2) are brothers.PW-9 - Vasantha is the wife of first appellant (first accused), Veeran@ Veerasamy. As PW-1 and PW-9, the wife of the first appellant werein talking terms, the first appellant (first accused) took it in thewrong sense due to suspicion and on an earlier occasion at theinstigation of the first appellant/first accused, his brother, namelythe second appellant (second accused) had warned PW-1 and advised himnot to have any talk with PW-9. ii) On 24.12.2008, PW-1 returned to Pallakrishnapuram, afterpaying a visit to his native place and at about 3.00 p.m he proceededtowards Marudhai river to take bath. On his way to Marudhai river, hecame across PW-9 - Vasantha, who was irrigating their land and PW-9 -Vasantha asked him when he returned from his native place, for whichPW-1's reply was "today". On seeing PW-1 and PW-9 talking to eachother, the first appellant (first accused) who was in the other sideof his field, approached PW-1 with an Aruval and cut him with the saidAruval on the right leg above the ankle, right and left forehands,asking him how dared he talked with PW-9? At the same time, thesecond appellant (second accused), using bamboo reaper, attacked himon the parietal region of the head and thus caused a bleeding injury.iii) After the occurrence, PW-1 was taken to the Governmenthospital, Ariyalur, where first aid treatment was given by PW-5 -Dr.Prema Sakunthala at 5.45 p.m. At the time of admission in the saidhospital, PW-1 informed PW-5 that he was attacked by known personswith Aruval and bamboo stick at about 3.00 p.m near Marudhai river on24.12.1998. An intimation was sent to the police, whereupon PW-11,the then head constable attached to Ariyalur police station, went tothe hospital and recorded the statement of PW-1, marked as Ex.P1.Based on the said statement, he prepared Ex.P5 - First InformationReport in the printed format and registered a case on this file ofAriyalur Police Station in Crime No.657/1998 for offences punishableunder Sections 324 and 323 IPC. He took up the initial investigationof the case, went to the place of occurrence, prepared Ex.P6 -Observation Mahazar and Ex.P7 - rough sketch. He also examined thewitnesses and recorded their statements under Section 161 Cr.P.C. On25.12.1998 at about 11.00 a.m, he arrested the first appellant (firstaccused) and sent him for judicial custody on the sameday.iv) On 28.12.1998 PW-10 - Syed Mohammed, the then Inspector ofpolice, Ariyalur circle, took up the further investigation of the caseand altered the case into one for an offence punishable under Section https://hcservices.ecourts.gov.in/hcservices/ 307 IPC. Ex.P4 is the alteration report sent to the JudicialMagistrate concerned for the said alteration of the case. As PW-10was transferred from the said place on 29.12.1998, thereafter PW-12 -Balaguru, the then Inspector of Police, Ariyalur Police station, tookup further investigation, completed the same and submitted a finalreport.2. After the case was committed by the learned JudicialMagistrate, Ariyalur the same was taken on file by the learnedPrincipal Sessions Judge (Fast Track Court), Ariyalur asS.C.No.40/1999. The same was made over by the said court to thelearned Additional District and Sessions Judge for disposal accordingto the law. Necessary charges were framed in the trial court and theappellants herein/accused pleaded not guilty. In order tosubstantiate the charges made against the appellants 1 and 2 (accused1 and 2), the prosecution examined twelve witnesses as PW-1 to PW-12,marked six documents as Ex.P1 to P6 and produced M.O.1 series of fiveX Rays. After completion of examination of the prosecution witnesses,the accused were questioned under Section 313(1)(b) regarding theincriminating materials found in the evidence adduced on the side ofthe prosecution. The appellants herein (accused 1 and 2) denied themto be false and once again reiterated their contention that they wereinnocent. No witness was examined and no document was marked on theside of the accused.3. The trial court heard the arguments advanced on either sideand considered the evidence in the light of the said arguments. Uponsuch consideration, the trial court came to the conclusion that thecharge for the offence punishable under Section 307 IPC made outagainst the appellants herein (accused 1 and 2) was not proved beyondreasonable doubt and found the appellants (accused 1 and 2) not guiltyof the said offence. However, the trial court held that the firstappellant (accused No.1) was guilty of a lesser offence, namely anoffence punishable under Section 326 IPC and that the second appellant(accused No.2) was guilty of an offence under Section 323 IPC.Accordingly, the trial court found the first appellant guilty of andconvicted him for an offence punishable under Section 326 IPC andsentenced him under to six months rigorous imprisonment and to pay afine of Rs.1,000/- with a default sentence of three months simpleimprisonment in case of default in payment of fine. Similarly, thesecond appellant (accused No.2) was found guilty of and convicted foran offence punishable under Section 323 IPC and sentenced to pay afine of Rs.500/- with a default sentence of one month simpleimprisonment in case of default in payment of fine.4. Challenging the said judgment of conviction and order ofsentence against each of the appellants, the present appeal has beenfiled on various grounds set out in the appeal petition.5. Advancing arguments on behalf of the appellants,Mr.M.Deivanandam, learned counsel for the appellant submitted that thecourt below committed a grave error in accepting the evidence of the https://hcservices.ecourts.gov.in/hcservices/ so-called eye witness of PW-2 to corroborate the evidence of PW-1 whenthere was a material contradiction in her own evidence suggesting thatshe could not have seen the occurrence; that the court below committeda grave error in offering an explanation as to why the other eyewitnesses not supporting the case of the prosecution when no suchexplanation is forthcoming from the witnesses examined on the side ofthe prosecution; that the fact of PW-1 whose statement was the basisof the FIR affixing his thumb impression whereas admittedly he used tosign, was overlooked by the court below in accepting the explanationoffered by PW-1 and that in the light of the fact that the other eyewitnesses turned hostile and that PW-2's evidence also is capable ofsuggesting that she could not have seen the occurrence, the onlyreliable evidence turn out to be the interested testimony of PW-1;that in the said circumstances, the contradictions, the evidence ofPW-1 viz-a-viz his statement recorded under Section 161 Cr.P.C. shouldhave been taken as factors impeaching upon the reliability of hisevidence and that if all these aspects were taken into account inproper perspective by the trial court, it ought to have held that theoccurrence as projected by the prosecution was not proved beyondreasonable doubt and it should have acquitted the appellants/accusedholding them not guilty of any offence.6. Per contra, Mr.R.Muniapparaj, leanred Government Advocate(Crl. Side) would submit that there is no defect or infirmity in thefinding of the court below holding the appellants 1 and 2 guilty ofoffences punishable under Section 326 and 323 respectively andconvicting them for the above said offences respectively; that thecourt below took into consideration each and every aspect of the case,considered the evidence in proper manner and upon such aconsideration, came to the correct conclusion to convict theappellants 1 and 2 for offences punishable under Sections 326 and 323respectively and that the said judgment of conviction can, at nostretch of imagination, be termed a defective or infirm one.7. It is the further contention of the learned GovernmentAdvocate (Crl. Side) that the court below had shown utmost leniency inawarding the sentence and that hence there shall be no justificationfor this court to interfere with the order of sentence on the groundof excessive punishment. As an alternate argument, the learnedGovernment Advocate (Crl. Side) contends that even if the testimoniesof other witnesses who were examined to prove the motive and that ofthe so-called eye witnesses could be rejected on the ground that theyhave turned hostile and the evidence of PW-2 can also be discarded onthe ground of discrepancy in her own evidence leading to an inferencethat she could not have seen the occurrence, the conviction can beupheld relying on the evidence of PW-1, the injured which stands fullycorroborated by medical evidence.8. This court gave its anxious considerations to the above saidsubmissions made on either side. The evidence on record were also re-evaluated by this court. Upon such a re-evaluation, this court comesto the conclusion that the evidence of PWs-3, 4, 7, 8 and 9 do not https://hcservices.ecourts.gov.in/hcservices/ lend any support to the prosecution version. Of course, it is truethat the evidence of hostile witnesses need not be thrown outaltogether and that other part of the evidence, which lends support tothe prosecution case or the defence case, could be relied on by thecourt in favour of the prosecution or the accused, if such part ofevidence is reliable. Among the above said witnesses, PW-3 and 4 arethe close relatives of PW-1. PW-8 is a neighbour. No motive has beenalleged for their turning hostile and deposing against theprosecution. Under such circumstances, their evidence are liable tobe discarded, as they are not useful to prove the prosecution version.9. So far as PW-9 is concerned, there is every reason for her toturn hostile and depose against the prosecution version, as theprosecution case regarding motive itself is built up on the allegedsuspicion entertained by her husband, who is none other than the firstaccused. If at all she has supported the prosecution version in thisregard, she would not be in a position to live peacefully with herhusband, namely the first accused. Therefore, as already pointed outby the learned Trial judge, there is no wonder in her turning hostileand deposing against the prosecution version with a view to save herhusband and husband's brother from punishment. Even then in theabsence of any part of her evidence being useful to the prosecution,the mere fact that she has chosen to tell a lie, will not be enough tohold the opposite of what she has deposed could be true. Aconsideration of her evidence in totality will show that her evidenceis not even worthy of consideration. She has chosen to state that shedid not know anything and did not know anybody in the area. Hence theevidence of PW-9 should also be discarded as not helpful to prove theprosecution version. 10. The remaining evidence to be taken into consideration is theevidence of PW-2. She would say in the chief examination that she waspresent in the scene of occurrence and in fact she witnessed theoccurrence. But, during cross-examination, she has admitted that thefact that her husband was attacked and thrown into the water came toher knowledge only when PW-9 - Vasantha came to her house and informedher of the same. PW-3 and PW-4 are the brother and mother respectivelyof PW1. Therefore, the evidence of PW-2 also could not be taken as anevidence of eye witness. 11. However, in view of the fact that she has chosen to speak thetruth in her cross-examination regarding the source of information,her evidence in the chief examination, touching the motive part of theprosecution case becomes all the more reliable. It lendscorroboration to the evidence of PW-1 regarding the motive part of theprosecution case. The evidence of PW-1 and 2 regarding the motivestands uncontraverted, either by eliciting contradiction or byadducing contra evidence capable of demolishing the reliability of thesaid evidence. Therefore, this court has to come to the conclusionthat the motive alleged stands proved. However, the court is verymuch conscious of the position that proof of motive alone shall not beenough to convict a person. https://hcservices.ecourts.gov.in/hcservices/

12. But in the instant case, there is clear and cogent evidenceadduced by PW-1, the victim himself. Of course, there are certaincontradictions in his evidence regarding who were all present in thescene of occurrence. But that alone is not enough to discard hisevidence as unreliable. He has clearly stated in his evidence thatthe first accused had developed a suspicion, as he was in talkingterms with PW-9, the wife of the first appellant/first accused. Thefurther evidence of PW-1 is to the effect that prior to the date ofoccurrence, he has gone to his native and returned toPallakrishnapuram only on the date of occurrence; that when he wasproceeding towards Marudhai river to take bath, PW-9, who wasirrigating her field situated abutting the way leading to Marudhairiver, asked him when he returned from his native place, for which hegave the reply "today only" and that the first appellant/firstaccused, who was in the other side of the said field, on seeing this,came with an Aruval and started attacking him stating that how daredhe talked with PW-9. He has also given a vivid picture of how theoccurrence took place. The part played by the second appellant/secondaccused was also clearly deposed by PW-1. 13. An attempt has been made on the side of theappellants/accused to raise a doubt regarding the credibility of Ex.P1statement based on which the FIR was registered, on the ground thatthe thumb impression of PW-1 was obtained in the said statement,whereas admittedly he used to sign. It was also pointed out by thelearned counsel for the appellants that there was no external injuriesfound on the right hand of PW-1 to prove that he was not in a positionto sign. The said contention, according to the opinion of this court,does not have any substance in it. Of course, it is true that thereis an admission that PW-1 used to sign. But, clear explanation hasbeen given as to why he had to put his thumb impression rather thanhis signature in Ex.P1 - complaint statement. The explanation givenwas that he could not sign due to the injuries and hence his thumbimpression was obtained. Of course, it is true, no external injurywas found on the left hand. But, as evidenced by the testimonies ofPW-5 and 6 and Ex.P2 and P3, it is obvious that PW-1 did have anincised wound on the posterior aspect of the right hand and a fractureof alna in the left fore arm. It has been clearly proved by theevidence of PW-1 and Ex.P2 - Wound certificate and Ex.P3 - Report ofthe Radiologist and M.O.1 (5 series of X-Rays). Therefore there is noreason to doubt the statement of PW-1 that he put his thumb impressionbecause he was not in a position to sign. 14. The injuries, four in number, found on PW-1, have beenclearly accounted for. The following are the injuries found on him:-i) an incised wound present on the left parietal region,measuring 3 cm x 0.5 x bonedepth;ii) fracture on the left hand near the left wrist joint — unableto move the hand; https://hcservices.ecourts.gov.in/hcservices/ iii) an incised wound measuring 2.5 cm x 0.25 cm x 0.25 cm on theposterior aspect of the right hand;Andiv) an incised wound measuring 2.5 cm x 0.25 cm x 0.25 cm 3"above the right ankle joint.15. As per Ex.P3 — Radiologist report, no bony injury was foundon the skull (injury No.1) and regarding the other three injuries,fractures of bone were found. The first injury, namely the injuryfound on the skull was caused by the second appellant/second accusedwith a bamboo reaper. The injury Nos.3 and 4 are said to be caused bythe first appellant/first accused using an Aruval. There is a slightdiscrepancy regarding the second injury, namely the wound found on theleft fore arm. No external injury was found corresponding to the saidfracture on the left fore arm. The learned Trial judge has observedthat the injured, namely PW-1 would not have the opportunity ofwatching whether the sharp part of the 'aruval' or the other side ofthe 'aruval' (blunt part) came in contact with the left fore arm.16. The learned Trial judge has also observed that such afracture could have been sustained when PW-1 fell down in the meleeafter receiving cut injuries and the injury caused by the secondappellant/second accused with a bamboo reaper on his head. However,the fact remains that sufficient explanation has not been offered asto how the second injury was caused. Even then, the mere fact thatone of four injuries sustained by the injured has not been accountedfor, will not be enough to disbelieve the evidence of prosecutionwitnesses, as the other injuries have been properly accounted for.The medical evidence clearly corroborate the evidence of PW-1. Thereis nothing wrong in convicting a person based on the testimony of asingle witness regarding the occurrence when the same is corroboratedby the medical evidence if at all such a testimony of the witness istrustworthy and reliable. This court concurs with the Trial courtregarding the trustworthiness and reliability of the evidence of PW-1.17. For all the reasons stated above, this court comes to theconclusion that there is no defect or infirmity in the judgment of thetrial court holding the first appellant herein/first accused guilty ofan offence punishable under Section 326 IPC and holding the secondappellant herein/second accused guilty of an offence punishable underSection 323 IPC, as the head injury caused by him was not a grievousone whereas the injuries 3 and 4 found in the wound certificate causedby the first appellant herein/first accused are grievous. Therefore,there is no scope for interference with the judgment of the courtbelow convicting appellants 1 and 2/accused 1 and 2 for offencespunishable under Section 326 and 323 IPC respectively. 18. For an offence punishable under Section 326 IPC, the maximumpunishment prescribed is "imprisonment for life, or with imprisonmentof either description for a term which may extend to ten years, andfine". The court below, by awarding a sentence of six months rigorousimprisonment and a fine of Rs.1,000/- with a default sentence of three https://hcservices.ecourts.gov.in/hcservices/ months simple imprisonment has shown leniency. The said sentence caneven be termed inadequate and at no stretch of imagination it can betermed excessive. For an offence punishable under Section 323, thepunishment prescribed is "imprisonment of either description which mayextend one year, or fine which may extend to one thousand rupees, orboth". However, the court below has chosen to impose only a fine ofRs.500/- with a default sentence of one month simple imprisonment. Thesame also cannot be termed as excessive. Therefore, there is no scopeto interfere with the order of sentence also.19. For all the reasons stated above, this court comes to theconclusion that the appeal fails and accordingly the same deserves tobe dismissed.20. In the result, the appeal shall stand dismissed.21. The first appellant/first accused is on bail. The bail bondexecuted by him shall stand cancelled forthwith and the learnedAdditional District and Sessions Judge (Fast Track Court), Ariyalur isdirected to take steps to secure the presence of the firstappellant/first accused and commit him to jail to undergo theremaining period of sentence. The period of sentence already undergoneby him shall be given set off.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Additional District and Sessions Judge (Fast Track Court), Ariyalur2. -do- Thro' The District & Sessions Judge, Ariyalur.3. The Judicial Magistrate, Ariyalur.4. The Chief Judicial Magistrate,Ariyalur.5. The Inspector of Police, Ariyalur Police Station, Ariyalur.6. The Public Prosecutor, High Court, Madras.+ 1 CC to Mr.G.R.Swaminathan,Advocate,SR.16515 Crl.A.No.831/2002KG(CO)EM/19.5.09