Appu @ Suresh vs State Rep By
2021 Latest Caselaw 14863 Mad

                                                                             CRL.RC.No.22 of 2019


                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              DATED : 26.07.2021

                                                   CORAM:

                                   THE HON'BLE MR.JUSTICE P.VELMURUGAN

                                            CRL.RC.No. 22 of 2019

                     1. Appu @ Suresh
                        S/o, Arumugam

                     2.Vinayagam
                       S/o, Arumugam                                           ... Petitioners


                                                    Versus


                     State Rep by
                     The Sub Inspector of Police (L & O),
                     H-6, R.K.Nagar Police Station,
                     Chennai – 600 021.                                       ... Respondent

                     PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of
                     the Code of Criminal Procedure, to set aside the judgment in
                     Crl.A.No.136/2015 dated 16.10.2018 on the file of 1st Additional
                     Sessions Judge, City Civil Court, Chennai confirmed the judgment of the
                     trial court in CC.No.212 of 2014 dated 12.06.2015 on the file of learned
                     XV Metropolitan Magistrate, George Town, Chennai.


                     Page No.1 of 14


https://www.mhc.tn.gov.in/judis/
                                                                                CRL.RC.No.22 of 2019


                                       For Petitioners   : Mr.K.Thenrajan

                                       For Respondent    : Mr.S.Sugendran
                                                           Government Advocate, (Criminal Side)
                                                          ORDER

This Criminal Revision Petition has been filed by the petitioners

to set aside the judgment in Crl.A.No.136/2015 dated 16.10.2018 on the

file of 1st Additional Sessions Judge, City Civil Court, Chennai

confirming the judgment of the trial court in C.C.No.212 of 2014 dated

12.06.2015 on the file of learned XV Metropolitan Magistrate, George

Town, Chennai.

2. The respondent police registered the case in Crime No.1112 of

2013 against the petitioners for the offences under sections 341, 294(b),

323, 326, 506(ii) r/w 34 of IPC. After the investigation, laid a charge

sheet before the XV Metropolitan Magistrate, George Town, Chennai.

The learned Magistrate taken the charge sheet on file in C.C.No.212 of

2014 after taking cognizance of the case and framed the charges against

petitioners for the offences under sections 341, 294(b), 323 and 326 of

IPC and also 506(ii) r/w 34 of IPC.

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

3. In order to prove the case of the prosecution on the side of the

prosecution before the Magistrate, 8 witnesses were examined as P.Ws.1

to 8 and 10 documents were marked as Exs.P1 to P10 and one material

object was also exhibited.

4. On completion of trial and hearing of the arguments of either

side and perused the records, the first petitioner was found guilty for the

offences under sections 294(b), 323, 326 r/w 34 and 506(ii) of IPC and as

against the second petitioner for the offences under sections 294(b), 323,

326 r/w34 and 506(ii) of IPC and

(i) The accused 1 and 2 were found guilty u/s.294(b) of IPC and

were convicted and sentenced to undergo rigorous imprisonment for one

month each.

(ii) The first accused was found guilty u/s 323 r/w34 of IPC and

the 2nd accused was found guilty u/s.323 and the both of them were

convicted and sentenced to undergo rigorous imprisonment for one

month each for the offences u/s.323 r/w 34 and 323 of IPC respectively.

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

(iii) the 1st accused was found guilty u/s326 of IPC and the 2nd

accused was found guilty u/s.326 r/w 34 and accused 1 and 2 were

convicted and sentenced to undergo rigorous imprisonment for one year

each for the offences u/s. 326 and 326 r/w 34 of IPC respectively and to

pay a fine of Rs.5,000/- each (total Rs.10,000/-) in default to undergo

simple imprisonment for two months.

(iv) the accused 1 and 2 were found guilty u/s.506(ii) of IPC and

were convicted and sentenced to undergo simple imprisonment for six

months each.

(v) The sentence of the accused 1 and 2 were to run concurrently

and further directed to pay the abovesaid fine amount of Rs.10,000/- to

P.W.1 as compensation for his fracture u/s.357 of Cr.P.C.

5. Challenging the said judgment of conviction and sentence, the

petitioners filed the appeal before the Principal Sessions Judge, Chennai.

The learned Principal Sessions Judge taken the appeal on file in Criminal

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

Appeal No.135 of 2015 and made over the appeal to the I Additional

Sessions Judge, City Civil Court, Chennai for disposal. The learned

Sessions Judge after hearing the arguments and perused the materials,

dismissed the appeal, confirming the judgment of the learned Magistrate.

Challenging the judgment of the dismissal order passed by the learned

I Additional Sessions Judge, Chennai the petitioners have filed the

present Revision Petition before this Court.

6. The learned counsel for the petitioners would submit that the

occurrence would not have taken place as projected by the respondent

police. There are material contradictions between the eye witnesses

P.Ws.1 and 2. Though P.Ws.1 and 2 are said to have the injured

witnesses, there are material contradictions between them in the manner

of the occurrence and also in the manner of the injuries sustained by

them. Though P.W.1 is the complainant as well as the injured witness

and P.W.2 is also one of the eye witness and he is also working under

P.W.1 and both of them are having the shop and where as the petitioners'

shop is closed at 4 'o clock itself P.W.1's shop run only during night

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

hours and no necessity to present in the place of occurrence at the time

of occurrence. Further he would submit that regarding the material

contradictions ie., using of the weapon and also the caused injuries,

where as the doctor has not stated that there is a cut injury which

grievous in nature and before the doctor, they have not named the

petitioners but having stated only the named persons. Both the injured

witnesses have admitted that there is a TASMAC Shop nearby and the

customers used to come to TASMAC Shop and at the time, some of the

drunkers used to create a problem. The trial court as well as the appellate

court failed to appreciate the same.

7. Further the learned counsel for the petitioners would submit that

according to P.W.8, the Investigating Officer, himself admitted that they

received the information at night itself, whereas in the morning only he

went and obtained the statement and registered the F.I.R. But P.Ws.1 and

2, injured witnesses stated that even in the night itself informed to the

police and also the police officials came and enquired about the

occurrence and obtained the statement. The police has suppressed the

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

first information which received over phone and they have not registered

the F.I.R. and reduced into writing in CD file.

8. Further the learned counsel for the petitioners would submit

that even before registering the FIR, they already started the investigation

which is also against law and barred the criminal procedure and the

prosecution failed to prove its case that the appellants only caused the

injuries to the victims and the evidence of P.Ws.1 and 2 itself contain a

bundle of material contradictions which itself create doubts and the cross

examination of the Investigating Officer itself proves that the occurrence

could not have taken place as projected by the prosecution and the

injured witnesses could not have sustained injuries as projected by the

prosecution. Even though during the cross examination, P.W.2 stated that

both the accused are having the weapons Aruval and knife whereas in

this case, only knife alone recovered and no aruval was recovered. The

recovery witness, Mahazar witness and the Confession witness are turned

hostile. The prosecution failed to prove the recovery of the weapons

which is a material contradiction.

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

9. Further he would submit that both the trial court and the

appellate court failed to appreciate the evidence and wrongly convicted

the appellants. The trial Magistrate wrongly convicted the petitioners

whereas the Appellate Court, is a fact finding court, it should have re-

appreciated the entire evidence independently and should have allowed

the appeal, whereas the Appellate Court has also failed to appreciate the

evidence but simply endorsed the views of the Magistrate without

applying its mind. Therefore, the petitioners approached this Court.

Since there are material contradictions and both the trial court and the

appellate court failed to appreciate the evidence in the right perspective

and there are perversity in appreciation of the evidence, therefore this

Court has to interfere with it and setaside the judgment of both the Courts

below and the revision could be allowed and the conviction and sentence

passed by the courts below are liable to be setaside.

10. The learned Government Advocate appearing for the official

respondent has submitted that P.W.1 is the complainant and based on the

complaint, the case was registered and completed the investigation.

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

P.W.1 is the injured witness who has clearly stated that the petitioners

came together to create a problem and attacked with weapons. One of

the injured witnesses P.W.1 has clearly stated that P.W.2 is also the eye

witness he corroborated evidence of P.W.1. The medical evidence of the

doctors P.Ws.6 and 7 are also corroborated the same that P.W.1 sustained

cut injury which is grievous in nature. Even though they received the

information, in order to ascertain the truthness of the fact and

subsequently they went and obtained the statement and registered the

same and there is no bar even before registering the F.I.R the injured

witness or the complainant has not come out to the police station and

give the complaint and if any phone call received and the duty of the I.O

is to ascertain whether the message received through phone call is true or

not. Therefore the non registering the F.I.R based on the phone call

received is not a fatal to the case of the prosecution and further he would

submit that P.Ws.1 and 2 have clearly stated the above incident. Further

the medical evidence corroborated the same. The contradictions pointed

by the learned counsel for the petitioners are not material contradictions

which would go to the root of the case of the prosecution. Therefore

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

both the trial court as well as the appellate court rightly appreciated the

evidence and found guilt of the petitioners and there is no merit in the

criminal revision petition and the Criminal Revision Petition is liable to

be dismissed.

11. Heard the learned counsel on both sides and perused the

records.

12. The case of the prosecution is that the defacto complainant and

the accused running neighbouring shops and due to business

competition, there had been pre-enmity between them. On the date of

occurrence, the accused come to the shop of the defacto complainant had

attacked him with knife. Hence the complaint.

13. Since this Court is only a revisional court, the jurisdiction of

the revisional court is very very limited and it cannot sit in the arm chair

of the appellate court and re-appreciate each and every evidence and the

revisional court while exercising the revisional jurisdiction, to see that

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

any perversity in appreciation of the evidence will go to the root of the

prosecution. However, in this case, P.W.1 is an injured witness who

sustained injury which is grievous in nature and the wound certificate

itself proved the same and though the learned counsel for the petitioners

pointed out that P.W.1 has not stated anything about the happening to

P.W.2, but in this case admittedly P.W.1 sustained injury grievous in

nature and is an injured witness who sustained multiple injuries. At the

time of receiving the injuries, it cannot be expected that a person would

observe the incident against the other person. Therefore the contention

raised by the learned counsel for the petitioners is not acceptable and the

facts remains that due to motive, the petitioners attacked the

victims/injured witnesses and they sustained injuries and also

immediately admitted in the hospital. The doctor evidence clearly shows

that P.W.1 sustained injuries and the X-ray report shows that there is a

fracture and therefore the doctor certified that the injuries sustained by

P.W.1 is grievous in nature and the injury sustained by P.W.2 is simple in

nature. The trial court appreciated the evidence and the contradictions

pointed by the defence counsel are immaterial contradictions which are

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

not material contradictions, it would go to the root of the case of the

prosecution. Therefore the trial court also appreciated the same and as

already stated, in this Court, scope of revision is very very limited, it

cannot go deep and appreciate each and every evidence and it can see

only the perversity in appreciation of the evidence of P.W.1, P.W.2, P.W6

and P.W7 and Ex.P.4, copy of the accident register, Ex.P5 wound

certificate. This Court does not find any perversity in the appreciation of

the evidence by both the Courts below and there is no merit in the

Revision and is liable to be dismissed. Accordingly, the Revision

Petition is dismissed. The trial court is directed to secure the revision

petitioner/accused to undergo the remaining period of imprisonment, if

any.

26.07.2021

Index: Yes/No Internet: Yes/No mfa

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

To

1.The First Additional Sessions Judge, City Civil Court, Chennai

2. The XV Metropolitan Magistrate, George Town, Chennai

3. The Public Prosecutor, High Court, Madras.

https://www.mhc.tn.gov.in/judis/ CRL.RC.No.22 of 2019

P.VELMURUGAN, J.

mfa

CRL.RC.No. 22 of 2019

26.07.2021

https://www.mhc.tn.gov.in/judis/