Madras High Court
P.Mathivanan vs The State Represented By on 2 February, 2022
Crl.R.C.No.245 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.02.2022
CORAM:
THE HON'BLE Ms.JUSTICE R.N.MANJULA
Crl.R.C.No.245 of 2017
1. P.Mathivanan
2. Manga @ Alamelu Mangai
... Petitioners
Vs.
The State Represented by
Inspector of Police,
Chidambaram Town Police Station,
Chidambaram. ...
Respondent
Criminal Revision filed under Sections 397 and 401 Cr.P.C praying to
set aside the conviction and sentence imposed in S.C.No.238/2009 dated
06.04.2009 on the file of the Assistant Sessions Court, Chidambaram
convicting the petitioners under Sections 294(b) in fine Rs.250/- and 341 IPC
in Rs.250/- fine, 307 IPC 7 years Rigorous Imprisonment with fine Rs.1,000/-
(fine paid) and confirming the conviction and sentence in Crl.A.No.34/2016
dated 18.01.2017 on the file of the Second Additional District and Sessions
Court at Chidambaram.
For Petitioners : Mr.R.Sankarasubbu
For Respondent : Mr.A.Gopinath
Government Advocate (Crl. Side)
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ORDER
This Criminal Revision case has been preferred challenging the
judgment of the learned Judicial II Additional Sessions Judge, Chidambaram
dated 18.01.2017 made in C.A.No.34 of 2016 which confirmed the judgment
of the learned Assistant Sessions Judge, Chidambaram dated 06.04.2016 made
in S.C.No.238 of 2009.
2. The revision petitioners are the first and second accused before the
trial Court. The case against the third accused is said to have been split
because of his long abscondence. The case of the prosecution is that on
23.09.2007 at about 6.00 p.m when PW1/Seetharaman was alighting from a
private TMT bus at Arasamarathadi bus stop, East Street, Chidambaram, the
accused also followed him by getting down from the bus and abused him
publicly in filthy language and restrained him from proceeding further. At that
time, the accused Kamalakannan came in a cycle and he had casuarina log in
his hands. He abused PW1 by stating that he would finish him. In order to
execute the common intention of killing PW1, A1 & A2 held PW1 tightly with
their hands and A3-Kamalakannan attacked PW1 on his left eyes, left
eyebrow, left side of his mouth and at the centre of his head and thereby all the
accused have committed the offences punishable under Section 294(b), 341,
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Crl.R.C.No.245 of 2017
325, 307 read with 34 IPC.
3. On the complaint statement given by PW1-Seetharaman at Krishna
Hospital, Cuddalore, PW12-Aranganathan, Special Sub Inspector of Police
had registered the case in Crime No.490 of 2007 of Chidambaram Town
Police Station under Sections 294(b), 341, 323, 307 and 394 IPC and
prepared FIR (Ex.P7), went to the place of occurrence and recovered the blood
stained clothes of PW1 under Form-95. PW14-Ramalingam, Inspector of
Police took up the case for investigation, went to the place of occurrence,
inspected and prepared the observation mahazar and rough sketch. He also
recovered the casuarina stick and the cycle from the place of occurrence. He
sent the Material Objects recovered from the place of occurrence to the Court.
Thereafter, he kept the file for the perusal of his Superior. Subsequently,
PW15-Narendira Nair, Assistant Commissioner of Police had taken up further
investigation as per the order the High Court and continued the same. He once
again examined the witnesses already enquired by the previous Investigation
Officer and did not find any difference in their statements. He examined the
doctor, who gave treatment to the injured and got the wound certificate from
him. Since the properties of the injured was not stolen, PW15 deleted the
charge under Section 394 IPC and prepared the alteration report (Ex.P9) and
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Crl.R.C.No.245 of 2017
sent it to the Court. After completing the investigation, he filed the charge
sheet against the accused for the offences under Sections 294(b), 341, 325,
307 read with 34 IPC. After the case was taken on file by the learned Judicial
Magistrate-II, Chidambaram in PRC.No.6 of 2009 and after the copies were
furnished to the accused and complying all legal mandates, the case was
committed to the file of the learned Principal Sessions Judge, Cuddalore. From
there, the case was assigned to the file of the learned Assistant Sessions Judge,
Chidambaram for trial. On perusal of the records and on being satisfied with
the materials available on record, the learned trial Judge framed the charges
against the accused under Sections 294(b), 341 and 307 read with 34 IPC and
the accused were questioned. Since the accused 1 and 2 pleaded innocence
and claimed to be tried, trial was conducted.
4. During the course of trial on the side of the prosecution, 15 witnesses
were examined as PW1 to PW15 and 9 documents were marked as Exs.P1 to
P9 and 8 Material Objections have been marked as M.O.1 to 8. When the
incriminating materials found from the prosecution evidence were put to the
accused under Section 313 Cr.P.C, they denied the same. On the side of the
defence, two witnesses were examined as DW1 and DW2 and 5 documents
were marked as Exs.D1 to D5.
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5. At the conclusion of the trial and on considering the evidence
available on record, the learned trial Judge found the accused 1 and 2 guilty for
the offences under Sections 294(b), 341 and 307 read with 34 IPC and
convicted and sentenced them as below:-
Rank of the Charges Findings Punishment
Accused framed
(i) To pay a fine of Rs.250/- in
default to undergo one month
Simple Imprisonment for the offence
u/s 294(b) IPC.
(ii) To pay a fine of Rs.250/- in
294(b), 341, default to undergo one month
294(b), 341
325 and 307 Simple Imprisonment for the offence
A1 and 307 read
read with 34 u/s 341 IPC.
with 34 IPC
IPC (iii) To undergo seven years
Rigorous Imprisonment and to pay a
fine of Rs.1,000/- in default to
undergo Six Months Simple
Imprisonment for the offence u/s
307 r/w 34 IPC.
(i) To pay a fine of Rs.250/- in
default to undergo one month
Simple Imprisonment for the offence
u/s 294(b) IPC.
(ii) To pay a fine of Rs.250/- in
294(b), 341, default to undergo one month
294(b), 341
325 and 307 Simple Imprisonment for the offence
A2 and 307 read
read with 34 u/s 341 IPC.
with 34 IPC
IPC (iii) To undergo seven years
Rigorous Imprisonment and to pay a
fine of Rs.1,000/- in default to
undergo Six Months Simple
Imprisonment for the offence u/s
307 r/w 34 IPC.
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6. The Criminal appeal filed by the accused 1 and 2 challenging the
above judgment was also dismissed on 18.01.2017 by confirming the
judgment of the learned Trial Judge. Now the petitioners/A1 and A2 preferred
this revision case challenging the judgment of the Appellate Court.
7. Heard the learned counsel for the revision petitioners and the learned
Government Advocate (Crl. Side) appearing for the respondent. Perused the
entire materials available on record.
8. The learned counsel for the revision petitioners submitted that there is
no common intention between the accused 1 to 3 and the evidence of the
prosecution does not prove the same; even before the doctor, who had treated
PW1, he has stated that he was attacked by one person only; so far as the
offence punishable under Section 307 IPC is concerned, the revision
petitioners did not have any overtact and the occurrence witnesses PW8 &
PW9 have stated in their evidence that one Kamalakannan has attacked PW1.
None of the witnesses excepting PW1 to PW5 have spoken about the presence
of these revision petitioners in the place of occurrence at the relevant point of
time. But the Courts below have omitted to appreciate the evidence in proper
perspective and convicted the accused. Hence, this revision should be allowed.
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9. The learned Government Advocate (Crl. Side) appearing for the
respondent submitted that the evidence of PW1 is clear about the presence of
the revision petitioners in the place of occurrence. The motive between PW1
and the accused was proved by the evidence of the defence themselves. PW1
has stated in his evidence that even while he was travelling in the same bus
along with the revision petitioners, they called their son/A3 through cell phone
and asked him to come; the above evidence of PW1 would show that there was
meeting of minds between A1 to A3 and hence, it is right for the Court to
convict the accused for having the common intention for attempting to murder
PW1; since the evidence on record proved the guilt of the accused beyond
reasonable doubt, it does not require interference.
10. Point for consideration:
Whether the confirmation of the guilt of the accused for
the offences under Sections 294(b), 341 and 307 read with 34
IPC by the learned Appellate Judge is fair and proper?
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11. The fact that the de facto complainant Seetharaman/PW1 and the
accused 1 to 3 are known to each other was not denied. Even according to the
revision petitioners, there was motive between PW1 and the accused in
connection with some property transactions. The civil dispute between the
accused and PW1 was proved from the defendant side evidence itself. PW1
has stated that only because of the previous motive, he was attacked by the
accused. As per the evidence of PW1, on the day of occurrence, he was
travelling in a private bus by name TMT and the accused 1 and 2 were also
travelling along with him. When PW1 alighted at Arasamarathadi bus stop,
the accused 1 and 2 also got down from the bus and followed him. PW1 has
stated that even while A1 and A2 were travelling in the bus, they called their
son/A3 and asked him to come to the bus stop. When PW1 got down from the
bus and proceeded to move further, he was restrained by the accused 1 and 2
and he was abused by them in filthy language.
12. Apart from the evidence of PW1, the evidence of other eye-witnesses
namely PW2 to PW5 also corroborate that the evidence of revision petitioners
were present at the place of occurrence. Other witnesses have also stated that
A1 and A2 held PW1 and he was beaten up by their son/A3. None of the
witnesses have stated that the revision petitioners/A1 and A2 had assaulted
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Crl.R.C.No.245 of 2017
PW1 with any weapon. Even in the evidence of PW1, it has stated that the
accused 1 and 2 called their son/A3 to come to the bus stop. While travelling
in a bus, it is quiet natural for anyone to call their relatives and to receive them
at bus stop for various reasons like, taking them in a vehicle or receiving the
luggages etc. In the case on hand, it is stated by PW1 that A3 was called by
his parents/A1 and A2 just to attack PW1. It cannot be presumed from one
call made by A1 and A2 that A3 was summoned only for attacking PW1.
Neither the call records have been seized by the Investigation Officer to prove
that a call was made by A1 and A2 at the relevant point of time.
13. But A3, who had exactly arrived at the spot when the bus reached
the bus stop, had a Casuarina stick with him. So this might to some extent
probablize that he was called by A1 and A2 to the spot to fetch up some
quarrel with PW1. However, it cannot be presumed that all the accused had a
common intention of either attacking PW1 or attempting to kill him. The
evidence of the prosecution witnesses would prove that the first and second
accused had abused PW1 in filthy language publicly and also restrained him
from moving further. During that time A3 took advantage and attacked PW1
with casuarina stick. It might be possible for A3 to act on his own with
casuarina stick in his hands even without forming a common intention with A1
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Crl.R.C.No.245 of 2017
and A2 for attacking PW1. So the evidence of the prosecution witnesses
would only prove that A1 and A2 have committed the offences of abusing
PW1 with obscene language and unlawfully restraining him from proceeding
on his way. Only because of that reason, when PW1 was examined by the
doctor/PW10, he stated to him that he was attacked by only one person.
14. Apart from his own statement, the other witnesses/ PW8 & PW9
have also stated that PW1 was attacked by one person. PW1 to PW5 who
have stated about the presence of A1 and A2 in their evidence have not stated
that A1 to A3 had common intention between themselves. The evidence of
PW1 would show that after restraining him in his way A3 voluntarily attacked
him. Even when A1 and A2 abused PW1, they have not instructed A3 to
attack PW1. PW2 to PW5 have also not stated that before A3 started to
attack PW1, he was instructed by A1 and A2 to do so. Though PW1 has
stated at the first instance that A3 voluntarily attacked he has stated
subsequently that A1 and A2 asked A3 to attack him. On this aspect alone,
the evidence of PW1 is self-contradictory. None of the other witnesses have
stated that A3 was instructed by A1 and A2 before he started to attack PW1.
Hence, the evidence on record would only prove that A1 and A2 have
committed the offences punishable under Sections 294(b) and 341 IPC alone
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and they did not have any common intention with A3 either to attack PW1 or
to kill him. Since the Courts below have omitted to appreciate the fine-line
difference and held that the accused had acted with the common intention and
punished A1 and A2 also for the offence under Sections 307 read with 34 IPC,
it calls for interference.
15. In the result, this Criminal Revision is partly allowed and the
judgement of the learned Second Additional District and Sessions Judge at
Chidambaram dated 18.01.2017 made in C.A.No.34 of 2016 is modified to the
effect that the accused 1 and 2 are found guilty for the offences under Sections
294(b) and 341 IPC and directed them to pay a fine of Rs.250/- in default to
undergo one month Simple Imprisonment for the offence u/s 294(b) IPC and
to pay a fine of Rs.250/- in default to undergo one month Simple
Imprisonment for the offence u/s 341 IPC and the accused 1 and 2 are not
guilty for the offence under Section 307 read with 34 IPC and they are
acquitted from the said charge.
02.02.2022
Index: Yes/No
Speaking / Non Speaking Order
kmi
R.N.MANJULA, J
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Crl.R.C.No.245 of 2017
kmi
To
1.The II Additional District Sessions Judge,
Chidambaram.
2.The Assistant Sessions Judge,
Chidambaram.
3.The Inspector of Police,
Chidambaram Town Police Station,
Chidambaram.
4.The Public Prosecutor,
High Court of Madras,
Chennai-104.
Crl.R.C.No.245 of 2017
02.02.2022
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