Madras High Court
Ganesan @ Nolla Kannu Ganesan vs State Rep. on 6 July, 2022
Crl.A.No.97 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :06.07.2022
CORAM:
THE HONOURABLE Dr.JUSTICE G.JAYACHANDRAN
Criminal Appeal No.97 of 2012
Ganesan @ Nolla Kannu Ganesan .. Appellant
/versus/
State Rep., by
The Inspector of Police,
R-10, M.G.R.Nagar Police Station,
Chennai.
Crime No.176 of 2006 .. Respondent
Criminal Appeal has been filed under Section 378 of Criminal
Procedure Code praying to set aside the judgment and conviction dated
28.01.2012 in S.C.No.73 of 2007 on the file of the Sessions Judge,
Chennai-104 (Mahalir Neethimandram at Chennai).
For Appellant : Mr.Dr.G.Krishnamurthy
For Respondent : Mr.S.Udaya Kumar
Government Advocate (crl.Side)
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JUDGMENT
The appeal is preferred by the sole accused in S.C.No.73 of
2007 for the offence under Sections 341, 324, 307 of IPC and Section 4
of Tamil Nadu Prohibition of Harassment of Woman Act.
2. The case of the prosecution is that on 19.02.2006, at about
6.30 p.m., near Soolaipallam, Venkatraman Road, near Manna Fast Food
shop, the accused restrained one Padmavathy and forced her to give
consent for his love. Since she refused and proceeded, the accused
attacked Padmavathy with a blade and caused cut injury over her cheek
and also attacked in her neck uttering that she should not live if she is not
available for him. After the occurrence, the victim has gone to her house,
reported the matter to her sister and thereafter got admitted in the hospital
at about 7.15 p.m. Her father Elumalai has gone to the police station and
given a written complaint, which has been registered in Crime No.176 of
2006. On completion of investigation, a final report filed and based on the
material, the Mahila Court at Chennai has framed charges under Sections
341, 326, 307 of IPC and Section 4 of Tamil Nadu Prohibition of
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Harassment of Woman Act.
3. To prove the charges, the prosecution has examined eleven
(11) witnesses as PW.1 to PW.11 and marked eight (8) documents as
Ex.P1 to Ex.P8 and one material object, which is a blood stained cloth of
PW.2. In defence photograph jointly taken by the accused and the victim
PW.2 was marked as Ex.D1 to suggest that PW.2 and the accused were
in love. But, due to sudden provocation being insulted by PW.2 regarding
his facial appearance, the incident has taken place. However, the trial
Court, after considering the evidence held that the accused is guilty of
offence under Sections 341, 324 and 307 of IPC, convicted and sentenced
him to undergo one month Rigorous Imprisonment with a fine of Rs.250/-
in default to undergo further period of one week Simple Imprisonment for
the offence under Section 341 of IPC; to undergo two years Rigorous
Imprisonment with a fine of Rs.5,000/- in default to undergo further
period of one month Simple Imprisonment for the offence under Section
324 of IPC; to undergo five years Rigorous Imprisonment with a fine of
Rs.10,000/- in default to undergo further period of six months Simple
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Crl.A.No.97 of 2012
Imprisonment for the offence under Section 324 of IPC. The trial Court
held that since the accused is convicted for the offence under Sections
341, 324 and 307 of IPC, no separate sentence is required for the offence
under Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act.
The period of sentences ordered to run concurrently and out of fine
amount, a sum of Rs.15,000/- was ordered to be given as compensation
to PW.2/victim.
4. The learned counsel for the appellant would submit that the
trial Court erred in convicting the accused for the charges framed without
appreciating the fact that the evidence for prosecution is not consistent
and doubtful. In the absence of independent witnesses to corroborate the
statement of PW.2, who in fact interested witness to cover up the
conduct, the Courts below should have accepted Ex.D1 and acquitted the
accused. Taking note of the material contradiction, the Court below ought
not to have convicted the accused for the offence under Section 324 or
307 of IPC, since the evidence for prosecution does not satisfy the
ingredient required for Sections 324 and 307 of IPC.
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5. Per contra, the learned Government Advocate (Crl.Side) for
the respondent would submit that the evidence of PW.2 / victim, PW.5-
Sister of PW.2 and the Accident Register - Ex.P.4 would clearly show
that the grievous injury was sustained by PW.2 at the hands of the
accused and non recovery of weapon or mis-description of weapon is not
fatal to the prosecution. Further pointing out the alleged expression made
by the accused while assaulting PW.2, he would further submit that the
intention to cause death could be inferred from the action and the word of
the accused.
6. This Court while scrutinizing the deposition of PW.2, who is
the victim in this case, she admits that the accused is known to her and he
restrained her on the date of occurrence while she was returning home
and forced her to tell that she love him. When PW.2 did not respond and
proceeded, the accused came and attacked her with a blade causing injury
on either side of her cheek and forehead. He also uttered the word “get
lost” and tried to attack her neck, but she pushed him down and
proceeded to her home.
7. Now the charge against him is something different. It says
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that the accused expressed that if she is not agree to marry PW.2, nobody
else should marry her and then attacked her. There is vast different
between two expressions, what is found in charge sheet and what
deposed by PW.2. No doubt, the Accident Register - Ex.P4 and the
evidence of PW.2 is sufficient to hold that the injury sustained by PW.2
was caused by the accused with the weapon, but that was caused with an
intention to cause death is the question for the Court to appreciate and
decide. Section 307 of IPC mandates the act done must be with an
intention or knowledge that it will cause death from the evidence.
8. This Court finds that the injury sustained by PW.2 are (1)
,lJ fd;dj;jpy; eLtpy; FWf;F thl;oy; 7 x ½ x ½ mst[s;s fpHpe;j
fhak; ,uj;j xGf;Fld; ,Ue;jJ/ (2) ,lJ fd;dj;jpy;
,f;fhaj;jpw;F 2 m';Fyk; nkny 7 x ½ x ½ br/kP mst[s;s fpHpe;j
fhak; ,uj;j xGf;Fld; ,Ue;jJ/ (3) ,lJ fd;dj;jpy; Kjy;
fhaj;jpw;F 2 m';Fyk; fPnH. ,lJ thapypUe;J jhil tiu 8 x ½ x
½ br/kP mst[s;s fpHpe;j fhak; ,uj;j xGf;Fld; ,Ue;jJ/ (4)
tyJ fd;dj;jpy; 4 x ¼ x ¼ br/kP mst[s;s fpHpe;j fhak; ,uj;j
xGf;Fld; ,Ue;jJ/
9. The injuries are grievous in nature as per the opinion given
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by PW.8- Dr.Gunasekaran. There are some contradiction regarding the
weapon used, since in the Accident Register, it is stated that the injury
was caused by a known person with the blade and knife, but the case of
the prosecution is that it was caused by blade. However neither blade nor
knife was recovered in the course of investigation. Hence the question
whether the weapon used is a deadly weapon or not remains opened.
Therefore, the inference has been drawn based on the injury sustained by
PW.2 and place of injury. Though PW.2 says that he tried to attack her in
the neck with a weapon and she pushed the assailant down and moved
on. No sign of injury over the neck.
10. Hence from the evidence available, the Court cannot jump
into the conclusion that the accused had intention to cause death or that
would likely to cause death. If the prosecution version as found in the
First Information Report and the PW.2 is correct. The intention to cause
injury ought to have been to disfigure PW.2, so that nobody will marry
her. Therefore, absence of satisfactory evidence to prove the intention of
the accused for causing the said injury, this Court holds that the
conviction of the appellant for the offence under Section 307 of IPC has
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Crl.A.No.97 of 2012
to be set aside as for want of proof. At the same time, this Court also
finds that the trial Court ought to have given its finding on the charge
under Section 4 of Tamil Nadu Prohibition of Harassment of Woman Act,
which is distinct offence and a charge has also been framed for the said
offence.
11. For the reasons best known, the trial Court has observed
that having convicted the accused for other three charges, no separate
sentence need to be imposed for the offence under Section 4 of Tamil
Nadu Prohibition of Harassment of Woman Act.
12. Since this is an appeal by the accused, this Court is not
inclined to say further on that point except to point out the error. The trial
Court has ordered fine Rs.15,250/- in total. Rs.10,000/- for the offence
under Section 307 of IPC, Rs.5,000/- for the offence under Section 324 of
IPC and Rs.250/- for the offence under Section 341 of IPC. Since this
Court now finds no substantial evidence to convict the accused under
Section 307 of IPC set aside the order of the trial Court. Consequently the
fine amount of Rs.10,000/- ordered for offence under Section 307 of IPC
is to be refunded to the appellant. However considering the nature of the
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case, this Court is of the opinion that the fine amount already been
deposited and probably it has been given to the victim as compensation,
therefore, no modification in that fine part of the order of the trial Court is
required.
13. As a result, this Criminal Appeal is partly allowed.
(i) The conviction and sentence imposed on the appellant /
accused under Section 307 of IPC by the trial Court is set aside. The
conviction and sentence imposed by trial Court for the offences under
Sections 341 and 324 of IPC stands confirmed.
(ii) The period of imprisonment already undergone by the
accused shall be set off.
(iii) The learned trial judge shall take steps to enforce this
judgment.
06.07.2022
Index : yes/no
Speaking order/ Non speaking order
rpl
To
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1.The Sessions Judge, Chennai-104 (Mahalir Neethimandram at
Chennai).
2.The Inspector of Police,
R-10, M.G.R.Nagar Police Station,
Chennai.
3.The Public Prosecutor, High Court, Madras.
Dr.G.JAYACHANDRAN,J.
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rpl
Crl.A.No.97 of 2012
06.07.2022
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