Madras High Court
T.Elakkuvan vs Munusamy on 13 October, 2022
Crl.A.No.515 of 2015
IN THE HIGH Court OF JUDICATURE AT MADRAS
DATED: 13.10.2022
CORAM
THE HON'BLE Dr.JUSTICE G.JAYACHANDRAN
Crl.A.No.515 of 2015
T.Elakkuvan
... Appellant
-Vs.-
1.Munusamy
2.Lokesh
3.The Inspector of Police,
H-1, Washermenpet Police Station,
Chennai 600 021
Crime No.645 of 2009
.. Respondent
Criminal Appeal filed under Section 372 of Code of Criminal
Procedure to set aside the order dated 10.11.2014 made in C.C.No.2313 of
2011 on the file of the XV Metropolitan Magistrate Court at George Town
and treated the accused persons in accordance with law.
For Appellant : Mr.G.Anbayachozhan
For Respondent : No appearance for R1 and R2
Mr.R.Kishore Kumar,
Government Advocate (Criminal side)
for R3
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Crl.A.No.515 of 2015
JUDGMENT
This Criminal Appeal, against the acquittal, has been filed by the de
facto complainant.
2. According to the FIR, since the appellant herein had an estranged
relationship with his wife, she got separated and living with her parents.
On 05.09.2009, at about 02:00 P.M., the appellant had gone to the house
of his wife at Washermenpet and when he asked her to join him, there was
a wordy quarrel between the appellant and the accused persons, A1 and
A2, who are father-in-law and brother-in-law of the appellant. A1 and A2
had hit the appellant on his face by hands causing bleeding injury in the
nose and fracture of his right hand ring finger. The appellant went to Sri
Balaji Hospital for first aid and thereafter, his friends took him to Sri
Kamatchi Hospital at Pallikaranai for treatment.
3. The police from Pallikaranai Police Station came to enquire him
on the receipt of the memo from the hospital. After considering that the
occurrence has took place in different police station limit, the Pallikaranai
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Crl.A.No.515 of 2015
police asked the appellant to approach Washermenpet Police Station.
Accordingly, he went to the Washermenpet Police Station to report the
matter. But they did not acted upon his complaint and hence, he had
approached the Hon'ble High Court by filing Crl.O.P.No.20595 of 2009 for
a direction to register his complaint. Thereafter, the third respondent police
has registered FIR in Crime No.645 of 2009 dated 05.10.2009. On
completion of the investigation, the final report was filed and based on the
materials, the trial Court has framed the charges under Sections 341, 323,
325 and 506(i) read with Section 34 IPC against A1 and A2.
4. To prove the charges, the prosecution has examined 9 witnesses
and marked 6 exhibits. The trial Court on considering the evidence, has
acquitted the accused from all the charges holding that the prosecution has
failed to prove the guilt beyond reasonable doubt.
5. In this appeal petition, being aggrieved by the order of acquittal,
the de facto complainant submitted that PW1 is the wife of the appellant,
PW2 is the mother-in-law of the appellant and PW3 is the sister-in-law of
the appellant. A1 and A2 are father and brother of PW1 and PW3, they
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Crl.A.No.515 of 2015
are the husband and son of PW2 being related so, all these three witnesses
are interested witnesses to favour the accused persons. Therefore, it cannot
be expected that they will incriminate their own family members. In such
circumstances, the medical evidence, as spoken by the PW6 and PW7,
along with accident report/Ex.P2 and wound certificate/Ex.P3 ought to
have been considered in right perspective.
6. It is further contended by the learned counsel for the appellant
that the trial Court had not considered the fact that the incident took place
inside the house, where the witnesses PW1 to PW3 and accused A1 and
A2 are residing and it is not fair to expect the family members to
incriminate the accused persons. The inaction of the police for not
examining Prabhu, who took the appellant to Sri Kamatchi Hospital,
cannot be a reason for disbelieving the case of the appellant and therefore,
he states that the trial Court judgment has to be set aside and the accused,
who are respondents 1 and 2 should be convicted for the offences.
7. The learned Government Advocate (Criminal side) would submit
that the trial Court has suspected the case of the prosecution since the de
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Crl.A.No.515 of 2015
facto complainant has not cogently explained for his delay in getting
himself admitted in the Sri Kamatchi Hospital and also not stated the
reason for traveling nearly 20 km from the site of the occurrence to the
hospital where he got treatment. In the cross examination of PW4, it has
been elucidated that from the place of occurrence at Washermenpet to Sri
Kamatchi Hospital at Pallikaranai, there are several hospitals like Stanley
medical college hospital and Rajiv Gandhi General Hospital. But instead
of taking treatment in these hospitals, he has gone to a private hospital by
name Sri Balaji Hospital. However, there is no evidence to show that he
took first aid at Sri Balaji Hospital. Further considering that the de facto
complainant, being an executive in Pharma Company, has a possibility of
getting medical evidence with exaggerated facts, the accused persons were
acquitted by the trial Court.
8. This Court on perusing the evidence and documents finds that the
de facto complaint has proved, by his medical evidence and ocular
evidence of PW6 and PW7, that he had sustained injury on his nose and
right hand ring finger. Though he contents that the injuries sustained by the
appellant was caused by first and second respondent when there was a
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Crl.A.No.515 of 2015
quarrel inside the house of the first respondent, there is lack of evidence
for the said fact to believe the case of the appellant. The appellant should
have cogently marshal the evidence regarding his treatment at Sri Balaji
hospital, where the hospital is located and who treated him and also he
should have examined his two friends, who had took him to the Sri
Kamatchi Hospital at Pallikaranai.
9. The learned counsel appearing for the appellant submitted that the
omission to record the statement of Prabhu and non examination of Prabhu
is the fault of the Investigating Officer and for that purpose, he cannot be
left without redressal.
10. In normal circumstances, this Court would have given due
consideration to these submissions, if the de facto complainant is not
aware of the law. Having approached the High Court to register the
complaint, if at all there was any lapse in the investigation and the
Investigating Officer has not included two important witnesses who had
taken him to hospital, he could have intervene by filing the necessary
application by examining them. The non-production of documents and
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Crl.A.No.515 of 2015
information about Sri Balaji Hospital in which he has taken first aid is also
fatal to his complaint, for which he cannot attribute any motive on the
Investigating Officer.
11. For the said reasons, this Court finds that though there may be
different view regarding appreciation of the witnesses, but the rights enure
to the accused by way of an order of acquittal need not to be interfered,
since no perversity found in the trial Court order and accordingly, this
Criminal Appeal is dismissed.
13.10.2022
Speaking/Non-speaking order
Index: Yes/No
Internet : Yes/No
nsa
To
1.The XV Metropolitan Magistrate Court,
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Crl.A.No.515 of 2015
George Town.
2.The Inspector of Police,
H-1, Washermenpet Police Station,
Chennai 600 021
Crime No.645 of 2009
3.The Public Prosecutor,
High Court of Madras,
Chennai.
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Crl.A.No.515 of 2015
Dr.G.JAYACHANDRAN.J.,
nsa
Crl.A.No.515 of 2015
13.10.2022
https://www.mhc.tn.gov.in/judis
