High Court · 2007

BAIL SLIP--------The Petitioners/Accused namely 1) Siva Prakasam (A1), 2) Arunachalam(A3), 3) Nagaraj (A4), 4) Balachandran (A6), were directed to be releasedon bail as per order of this Honble Court dated 29/7/04 in Crl.M.P.No.8593/04 in Crl.R.C. No. 802/04.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 05.07.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRL.R.C.NO.802 OF 20041.Sivaprakasam(A1)2.Arunachalam(A3)3.Nagaraj(A4)4.Balachandran(A6).. Petitioners/Accused-vs-1. Thiruvengadam .. Respondent /ComplainantThis Revision is filed against the Judgment of the learned Districtand Sessions Judge, Nagapattinam in C.A.No.37 of 2003 dated 27.10.2003confirming the conviction and modifying the sentence awarded by theJudicial Magistrate, No.2, Mannargudi in C.C.No.121 of 1998 dated10.6.2003.For petitioners : Mr.M.SathyanarayananFor respondent : Mr.Veera Kathiravan O R D E RThis revision has been preferred against the Judgment in C.A.No.37 of2003 on the file of the District and Sessions Judge, Nagapattinam whichhad arisen out of the Judgment in C.C.No.121 of 1998 on the file ofJudicial Magistrate No.2, Mannargudi.2. It is the case of the complainant that the occurrence had takenplace on 10.7.1995 at about 6.30pm., all the accused came in cycle andpicked up quarrel with Thiruvengadam(P.W.1) and immediately he hadpreferred a complaint with the Kottur Police , Nagapattinam District andon the same day, the complaint was registered under Crime NO.209 of 1995under Sections 147,148,323,324 and 506 (ii) of IPC. Since the police havenot taken any further steps on the complaint preferred by him and thepolice have closed the First Information Report, after waiting for nearlyone year 5 months, from the date of action drop report of the police dated9.8.1996,the complainant P.W.1 has preferred a private complaint under https://hcservices.ecourts.gov.in/hcservices/ Section 200 of Cr.P.C. on 23.1.1998 before the Judicial Magistrate No.2,Mannargudi, who after taking cognizance of the case had summoned theaccused for their appearance and on their appearance copies under Section207 of Cr.P.C. were furnished to the accused and when the offence wasexplained to the accused and questioned the accused pleaded not guilty.3. Before the trial Court, P.Ws 1 to 11 were examined. Exs P1 to P13were exhibited and M.Os 1 to 3 were marked.4. P.W.2 and P.W.4 are the injured witnesses in this case. P.W.1 inhis evidence would depose that all the six accused are brothers of his(P.W.1) son Rajendran's wife Jayalakshmi and that the marriage betweenhis son Rajendran and his wife Jayalakshmi/the sister of the accused tookplace in the year 1988 and their matrimonial life was not very cordialbecause Jayalakshmi used to go to her mother's house very often and therearose a dispute between his son Rajendran and brothers of Jayalakshmi andthat on the date of occurrence, ie., on 10.7.1995 at about 6.30a.m., allthe accused came in cycle and picked up quarrel with him(P.W.1) and A1took a bamboo stick from the thatched shed in front of his house andassaulted him(P.W.1) on the head causing bleeding injury and in the courseof the same transaction, A2 Shanmugam had assaulted him(P.W.1) with ironrod on the head causing simple injury and A3, Arunachalam had assaultedhim(P.W.1) with Aruval on the right hand and right leg causing injuries.When his wife Kunjammal(P.W.4) intervened, preventing the accused fromassaulting P.W.1, A2 Shanmugam has assaulted her with an iron rod on theright shoulder causing grievous injuries and A1 had assaulted P.W.4 with astick on the left wrist causing fracture and A4 Nagarajan kicked her onthe chest causing fracture on the ribs and A6 had assaulted his(P.W.1)son Rajendran with a bamboo stick on his(P.W.2) head. A2 Shanmugam alsoassaulted his(P.W1) son Rajendran (P.W2) on the left wrist causinggrievous injuries. A5 Selvaraj had assaulted Rajendran(P.W.2) with abamboo stick on the back causing fracture in the back bone and aftercommitting the offence. The accused had left the place of occurrence intheir cycle and that the injured witnesses were taken to GovernmentHospital, Mannargudi, where they were admitted as an inpatients and tooktreatment and the Kottur Police Head Constable came to MannargudiGovernment Hospital and recorded his(P.W.1) statement which is Ex P1 andthat P.W.2 and P.W.4 were referred to Government Head Quarters Hospital,Tanjore and that since the police have not taken any action against thecomplaint preferred by him, he had preferred Ex P2 private complaint.4a. P.W.2 Rajendran is the son of his parents P.W.1 and P.W.4. He hasalso corroborated the evidence of P.W.1 as to the assault made by A1 onP.W.1 with a stick causing injuries on P.W1's head and also assault madeby A2 and A3 on P.W.1 with an iron rod and Aruval respectively. He wouldalso depose that A2 Shanmugam had assaulted P.W.4 with an iron rod on theright shoulder and that A1 Sivaprakasam had assaulted his mother P.W.4with a stick on her left wrist causing fracture of the wrist bone and hermother was also assaulted by other accused. A6 Balachandran had assaultedwith the bamboo stick on his head causing bleeding injury and that A5 https://hcservices.ecourts.gov.in/hcservices/ Selvaraj had assaulted him with a bamboo stick on the centre of the backcausing fracture of the back bone and that A2 Shanmugam had assaulted himwith an iron rod on the left wrist causing fracture and that he wasremoved to the Government Hospital at Mannargudi for treatment along withother injured witnesses and that P.W.1 has preferred a complaint with thepolice.4b. P.W.3 is the doctor, who had treated P.W.2 Rajendran on 10.7.1995at about 9.00 a.m. and issued Ex P3 Wound certificate for the injuries,hehad sustained . P.W.3 has also examined P.W.1 Thiruvengadam on the sameday at about 11.00 a.m., and issued ExP4 wound certificate. P.W.4Kunjammal was examined by him on the same day and Ex P5 is the woundcertificate relating to P.W.4 Kunjammal P.W.3 the doctor had noted thefracture in the left wrist and fracture of 8th,9th,and 10th ribs on theright side of chest of P.W.4. Kunjammal besides other injures noted in ExP5. He has also noted the dislocation of S5 and S1 bone in the back boneof P.W.2 Rajendran.4c. P.W.4 is another injured witness Kunjammal, who had alsocorroborated the evidence of P.W.1 and P.W.2. She has stated that A1assaulted her with a bamboo stick on the left wrist and A4 kicked her onthe right side of the chest causing fracture in the ribs. She speaks aboutthe injuries sustained by P.W.1 and P.W.2 at the hands of the otheraccused. 4d. P.W.5 has seen all the accused going towards north from the houseof P.W.1 after committing the crime in four cycles and that he had removedthe injured in a taxi to the Government Hospital Mannargudi. P.W.6 is theNephew of P.W.1. He has also corroborated the evidence of P.W.5 to theeffect that after committing the crime six accused proceeded towardsnorth from the house of P.W.1 in four cycles and that P.W.5 had removedthe victim in a taxi to the Government Hospital, Mannargudi.4e. P.W.7 had seen the injured in the house of P.W.1 and hasassisted P.W.5 in removing the injured to the hospital.P.W.8 is theDoctor, who had examined PW.1 on 11.7.1995 at about 2.15p.m., atGovernment Head Quarters Hospital,Tanjore and X-rays were taken to him butno fracture was detected. Ex P10 is the wound certificate issued to P.W.1.At about 2.30p.m., on the same day, he had examined P.W.2 at Ward No. 28in the same hospital and X-rays M.O.1 series were taken for the injuriessustained by him and from the X-ray , it was brought to light that theleft radius bone was found fractured for P.W.2 Rajendran. He has furtherdeposed that from the x-ray ,it was further revealed that S5 and S1 ofthe back bone was also found dislocated. M.O.2 series are the X-raysrelating to P.W.2 Rajendran and that Ex P11 is the wound certificate givento P.W.2 by assessing the above said injuries are grievous in nature.4f. P.W.9 the doctor, who had examined P.W.4 Kunjammal on 11.7.1995for the injuries she had sustained. Ex P9 series are the x-ray relating toP.W.4 Kunjammal. The Doctor has opined that bone in the left wrist and the https://hcservices.ecourts.gov.in/hcservices/ 8th,9th,10th ribs on the right side of the chest were fractured. P.W.10 isthe doctor, who had examined P.W.2 Rajendran, for whom M.O1 series X-rayswere taken by him. M.O.2 is the X-ray relating to P.W.2 Rajendran, whichshows the fracture of radius bone on the left hand and dislocation of S5and S1 bone in the back bone. Ex P11 is the wound certificate given byP.W.10. Ex P12 is the X-ray report. 4g. P.W.11, the doctor has examined P.W.4 Kunjammal on 11.7.1995 andthat M.O.3 series are X-ray relating to Kunjammal. She has deposed thatKunjammal had sustained fracture in the achromine bone in the rightshoulder and alna bone in the left wrist and 8th,9th, 10th ribs on the rightchest were found fractured.5. On the basis of the above evidence,when incriminatingcircumstances under Section 313 of Cr.P.C. were put to the accused,A1,A3,A4 and A6 would totally deny their complicity with the crime.A5 died during the trial and A2 was absconding during the trial.6 After going through the evidence before him, both the oral anddocumentary, the learned trial Judge has held that A1, A3, A4 and A6guilty under Section 147 of IPC and convicted and sentenced them toundergo six months simple imprisonment and convicted and sentenced A1, A3,and A6 under Section 323 of IPC to undergo three months simpleimprisonment and convicted and sentenced A1 and A4 under Section 325 ofIPC to undergo two years simple imprisonment and also imposed a fine ofRs.1000/- each with default sentence. Apart from this, the learned trialJudge has awarded compensation of Rs.4,000/-(Rs.1000/-each) to the P.W.1/complainant. Aggrieved by the findings of the trial Judge, the accusedpreferred an appeal in C.A.No.37 of 2003 before the District and SessionsJudge, Nagapattinam. The learned Sessions Judge, after due deliberation onthe submissions made by the learned counsels for both sides, had confirmedthe conviction against all the accused but modified the sentence againstA1 and A4 under Section 325 of IPC to one year simple imprisonment insteadof two years simple imprisonment and also imposed a fine of Rs.1000/-each with default sentence . Aggrieved by the findings of the learnedSessions Judge, the accused have preferred this revision.7. Now the point for determination in this revision is whether theconviction and sentence under Section 147 of IPC against A1, A3, A4 and A6and under Section 323 of IPC against A1 , A3 and A6 and under Section 325of IPC against A1 and A4 are liable to be set aside for the reasons statedin the memorandum of revision?8 . Heard Mr. M.Sathyanarayanan, learned Counsel for the revisionpetitioners, Mr. Veera Kathiravan,learned counsel appearing for therespondent and considered their rival submissions.9.The Point:There is no delay in preferring the First Information report by P.W.1 withthe police which is seen from Ex P1 complaint. The police without taking https://hcservices.ecourts.gov.in/hcservices/ any action against the accused , on the basis of Ex P1 complaint which waspreferred on 10.7.1995, they have filed action drop report on 9.8.1996ie., an year later from the date of complaint which made P.W.1 to prefer aprivate complaint before the learned Judicial Magistrate No.2, Mannargudion 16.3.1998. The accused are close relatives. P.W.2, who is the son ofP.W.1(father) and P.W.4(mother) had married the sister of the accusedviz,Jayalakshmi and that there were frequent quarrels between P.W.2 andthe accused in connection with the behaviour of Jayalakshmi, who veryoften used to visit her parents house against the wishes of P.W.2Rajendran and his parents viz., P.W.1 and P.W.4.10. The motive for the occurrence as spoken to by P.W.1 is thatthinking that Jayalakshmi the daughter-in-law of P.W.1 is subject tocruelty at the hands of P.W.1 and P.W.2 and P.W.4, her brothers theaccused herein came in a cycle on the date of occurrence and abusedP.W.1,P.W.2 and P.W.4 and assaulted them with a Bamboo stick , iron rodand aruval. According to P.W.1, A1, A2, A3 have assaulted him with bamboostick, iron rod and aruval respectively and causing injuries on theforearm , right knee and on the left leg. According to P.W.2, A2 hadassaulted him with iron rod on the left wrist and A5 had assaulted himwith a stick on the back and A6 had assaulted him with bamboo stick on thehead causing grievous injuries. According to P.W.4, A2 had assaulted herwith iron rod on the right shoulder , A1 had assaulted her with a stick onthe left wrist causing fracture and A4 had kicked her on the chest causinggrievous injuries.11. The learned trial Judge, after going through the evidence of theinjured witness and after saying that the injuries have been corroboratedwith the medical evidence of P.W.3, P.W.8,P.W.9, P.W.10 and P.W.11, hascome to a correct conclusion that the offence under Section 147 of IPCagainst A1, A3, A4 and A6, under Section 323 of IPC against A1,A3 and A6and under Section 325 IPC against A1 and A4 have been made out andaccordingly convicted them under the charge as indicated above. On appeal,the learned Sessions Judge, while confirming the conviction of the trialJudge against the accused , has modified the sentence against A1 and A4 tothat of one year simple imprisonment instead of two years simpleimprisonment.12. The learned counsel appearing for the revision petitioners wouldcontend that even as per the original complaint Ex P1 ,P.W.1 has statedthat the accused have assaulted him only with stick and there is noallegation that the accused have assaulted with weapons like Aruval orIron rod and so some leniency may be shown on A1 and A4 who have beenconvicted and sentenced under Section 325 of IPC. The overt-actattributed against A1 is that he had assaulted P.W.1 and P.W.4 with bamboosticks on the person of P.W.1 and P.W.4. But P.W.1, according to P.W.3,the doctor, had sustained fracture in the left wrist due to the attack himby A1 with stick on the date of occurrence. 13. The learned counsel would further submit that A1 and A4 were in https://hcservices.ecourts.gov.in/hcservices/ prison for nearly one week during the period of remand and that may beawarded as punishment for them increasing the amount of compensation toRs.5000/-. Taking into consideration the nature of grievous injuriessustained at the hands of A4 by P.W.4 as corroborated by the evidence ofP.W.3 doctor , I am declined to modify the sentence for A4. On the otherhand, I am inclined to modify the sentence under Section 325 of IPC for A1considering the grievous injuries he had caused to P.W.4 only on the wristwith stick. A1 is sentenced under Section 325 of IPC to the period alreadyundergone instead of one year and imposed a fine of Rs.5000/- instead ofRs.1000/- and out of the fine amount of Rs.5,000/- , the entire amount isawarded as compensation under Section 357(1) of Cr.P.C. to P.W.4. 14. The learned counsel appearing for the revision petitioners, atthis juncture represents that A4 may be released on Probation of OffendersAct. But taking into consideration,the plight of P.W.4 and the grievousinjuries, she had sustained at the hands of A4 , I am declined to enlargeA4 on Probation of Offenders Act. The learned counsel for the revisionpetitioner would further submit that the provision under Section 360 ofCr.P.C. may be applied in this case in respect of A4 and in support ofhis contention, he relied on a decision reported in Daljit Singh andothers-v- State of Punjab , through Secretary Home Affairs(2006)2M.L.J.378). A careful reading of Section 360 of Cr.P.C. will go to showthat only in a case of the accused, who is below 21 years of age, theprovision under Section 360 of Cr.P.C. can be applied and not in all thecases. Admittedly , the age of A4 is 38. So A4 cannot take shelter underSection 360 of Cr.P.C.15. In fine, the revision is dismissed with the followingmodifications.The sentence of A1 under Section 325 of IPC is modified to that of theperiod already undergone instead of one year and imposed a fine ofRs.5000/-instead of Rs.1000/- and out of the fine amount of Rs.5000/-,the entire amount is awarded as compensation under Section 357 (1) ofCr.P.C. to P.W.4. The sentence of A1, A3, A6 are modified to that of the period already undergone instead of respective sentence awarded againstthem. In other aspects, the findings of the learned Sessions Judge inC.A.No.37 of 2003 on the file of District and Sessions Judge, Nagapattinamis confirmed. https://hcservices.ecourts.gov.in/hcservices/ sgSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The District and Sessions Judge, Nagapattinam.2. The Judicial Magistrate No.2, Mannargudi3.-d0-through the Chief Judicial Magistrate, Nagapattinam4. The Officer in charge, Sub Jail, Nagapattinam.5. The Superintendent, Central Prison, Cuddalore.6. The Principal Sessions Judge, Nagapattinam7. The Public Prosecutor, High Court, Madras+ One cc to Mr. Veerakathiravan, Advocate SR 40499+ One cc to Mr. M. Sathyanarayanan Advocate sR 40515NSM (co)sg 13/7/07Crl.R.C.No.802/2004