Madras High Court
K. Malairaj vs The Inspector Of Police on 28 August, 2023
Crl.R.C(MD)No.194 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH Court
DATED: 28.08.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
Crl.R.C(MD)No.194 of 2019
K. Malairaj
... Petitioner
Vs
The Inspector of Police,
Erwardi Dharge Police Station,
Ramanathapuram District.
... Respondent
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 Cr.P.C.,
to call for the records pertaining to the judgment in C.A.No.15 of 2018, on the
file of Principal District and Sessions Court, Ramanathapuram, dated
06.09.2018 in S.C.No.20 of 2014, on the file of Assistant Sessions
Judge/Chief Judicial Magistrate Court, Ramanathapuram, dated 28.11.2018 in
Cr.No.92 of 2008, on the file of the respondent Police Station and set aside
the same.
For Petitioner : Mr. I.Pinaygash
For Respondent : Mr.M.Sakthikumar
Government Advocate
1/23
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Crl.R.C(MD)No.194 of 2019
ORDER
This Criminal Revision Petition has been filed to set aside the
Judgment in C.A.No.15 of 2018, on the file of Principal District and Sessions
Court, Ramanathapuram, dated 06.09.2018 confirming the Judgment passed
in S.C.No.20 of 2014, on the file of Assistant Sessions Judge/Chief Judicial
Magistrate Court, Ramanathapuram, dated 28.11.2018.
2.The prosecution case is that due to enmity between first
accused and the de facto complainant, A1 engaged A2 to A4 to kill the defacto
complainant. On 24.03.2008, A1 along with other accused entered into a
conspiracy to murder the defacto complainant by pouring acid and the first
accused agreed to pay Rs.10,000/- to A2 and A4 and thereby A1 paid a sum of
Rs.5,000/- to A2 to A4 as advance. In pursuance to the conspiracy, A2 and A3
on 25.03.2008, at about 10 p.m., came to the office of the defacto complainant
in a motor cycle bearing registration No.TN 39 AL 7558. When A2 and A3
were taking about the business, A1 suddenly came there and plucked a bottle
from A3 and poured the acid and thereby the victim/defacto complainant
sustained injuries and then the victim was taken to hospital and Police
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obtained a complaint, Ex.P.1 from the victim. Based on the complaint,
statement of victim, PW10 has registered FIR, Ex.P.10 and then the case was
investigated by PW12 and further investigation was done by PW13 and they
filed final report. Thereafter, the records relied on by the prosecution were
furnished to the accused under Section 207 Cr.P.C and then the case was
committed to Principal District Court, Ramnad and the case was made over to
Assistant Sessions Court/Chief Judicial Magistrate Court, Ramnad. The
Chief Judicial Magistrate Court, Ramnad has framed the charges under
Sections 326, 307, 120(B) of IPC as against A1 and A3, charges under
Section 326 r/w 34, 307 r/w 34, 120(B) IPC were framed as against A2. The
charges were read over and explained to the accused and they denied the
charges and then the trial Court examined the witnesses PW1 to PW13 and
marked Ex.P.1 to Ex.P.19 and M.O.1 to M.O.5. After completion of
prosecution witnesses, the accused were examined under Section 313(1)(b) of
Cr.P.C with regard to the incriminating evidences as against the accused and
they denied the same. After analysing the evidence adduced on either side,
the trial Court has found guilty.
3.The trial Court in S.C.No.20 of 2014 the petitioner was
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convicted under Section 326 IPC and imposed a punishment of rigorous
imprisonment for a period of one year and to pay a fine of Rs.25,000/- and in
default, to undergo SI for 3 months. However, the petitioner was acquitted
for the offence under section 120(B), 307, 34 of I.P.C. The other accused were
also acquitted from all the charges levelled against them. Aggrieved by the
said Judgment, the first accused has preferred an appeal before the Principal
District and Sessions Court, Ramanathapuram in Crl.A. No.15 of 2018 and
the same was also dismissed by the appellate Court, confirming the Judgment,
dated 06.09.2018. Aggrieved by the said Judgment passed by the learned
Principal District and Sessions Judge, Ramanathapuram, the petitioner has
preferred the present revision before this Court on the following grounds:
● That the Judgments of the Principal District and Sessions
Court and the Assistant Sessions Judge/Chief Judicial
Magistrate Court, Ramanathapuram are against law,
weight of evidence and probabilities of the case.
● That to attract the offence of Grievous Hurt as
contemplated U/s. 320 of I.P.C and its ingredient mentioned
there in should have been established. In the present case
none of the ingredients are made out to establish that the
injured sustained grievous hurt and much less than the
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certificate of Doctor/ P.W.6.
● Except the wound certificate, no materials including (Case
Sheet, and X Ray Report) are submitted to substantiate the
charge U/s. 326 of IPC against the Petitioner/Accused No.
1. Hence it is liable to be set aside at once.
● According to the prosecution case and deposition of P.W.2,
the M.0.4 and 5 viz., Boost bottle and Carry Bag are kept in
the occurrence place only. And based on that, they arrested
the Appellant. Per contra the P.W.7 who is the witness for
recovery who categorically stated that the M.O.4 and M.0.5
were recovered only from the house of the Appellant. Hence
the arrest and confession and recovery is nothing but stage
managed one.
● That the prosecution has utterly failed to send the M.O.4 to
the chemical analysis lab as to show that the M.O.4
contains the Acid Content. But the very vital point is not at
all considered by Courts below.
● That the statement of the Defacto Complainant is absolutely
per contra between the FIR and the deposition of P.W.1. As
per the FIR the Complainant stated that only 2 unnamed
Accused were involved in the case and the Appellant is not
arrayed as Accused. But as per the P.W.1 deposition there
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are 4 persons were shown as accused including the
appellant. Hence the Judgment is liable to be quashed at
once.
4.1.The learned counsel for the petitioner would contend that the
petitioner/A1 and two others have faced the charges for the offence under
sections 326, 307 read with 34 and 120(B) of IPC. The trial Court has
acquitted A2 and A3 from all the charges and also acquitted the first accused
from the charges under section 120(B), 307, 34 of I.P.C and convicted the
petitioner under section 326 of IPC. As per the complaint given by the
defacto complainant, there is no reference about the name of the petitioner. It
is stated that only two persons went to the place of occurrence and among
them, one person poured the acid on the defacto complainant, thereafter, he
went to hospital. The petitioner has been added as an accused and section of
law was also altered since that the petitioner has engaged other two accused,
due to illegal relationship between the defacto complainant and petitioner’s
wife. Therefore, according to the prosecution case, the second and third
accused have committed the offence.
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4.2.The evidence of PW1 is totally contrary to the prosecution
case. PW1 deposed in his evidence that two persons came to his shop and the
first accused was standing outside and suddenly came to the place of
occurrence and picked up the bottle from one of the accused standing there
and poured the acid on him. Therefore there are major discrepancies between
the evidence of PW1 and the complaint. Further, as per the prosecution case,
the Sub Inspector of police has deposed that after registration of FIR, he went
to the place of occurrence and seized the acid bottle, which was used in the
occurrence. But the Investigation Officer, PW13, in his evidence has stated
that based on the confession statement given by the first accused, he went to
the house of A1, where he handed over the acid bottle, which was used in the
occurrence. Two bottles were recovered from two different places from two
different persons. Therefore, the prosecution case is highly doubtful and the
said discrepancy, which affects the case of prosecution is not considered by
the lower Courts.
4.3.Further, PW1 in his cross-examination admitted that only two
persons were entered into the shop and he did not mention the name of those
persons in the complaint. But his evidence is totally contrary to the complaint
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given by him. Further, he admitted that while he was examined by the Doctor,
he did not mention that Malairaj/petitioner had only poured the acid on him.
Further, he admitted that two persons only came in the motorcycle and they
were entered into the shop of the defacto complainant and he did not know
the second and third accused prior to the date of occurrence. These are all the
major discrepancies which were not considered by the Courts below.
Therefore, the conviction and Judgment passed by the trial Court and
confirmed by the appellate Court, are liable to be set aside.
5.The learned Government Advocate appearing for the
respondent would contend that on the date of occurrence, the second and third
accused entered into the shop of the defacto complainant and poured the acid
on the defacto complainant, thereby, the defacto complainant sustained injury
and went to hospital. There was enmity between the first accused and the
defacto complainant, with regard to the illegal intimacy between the first
accused’s wife and the defacto complainant. Thus, the occurrence was
happened and the acid bottles were recovered and trial Court has correctly
convicted the first accused for the offence under section 326 IPC. The Doctor,
had categorically deposed about the grievous injuries sustained by the victim.
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The trial Court has rightly acquitted the second and third accused and
convicted the first accused only for the offence under section 326IPC.
Therefore, there is no infirmity in the Judgments passed by the Courts below.
Hence the Criminal Revision Petition is liable to be dismissed.
6.Heard both side arguments and perused the Judgments of
Courts below and the grounds.
7.Now the point of consideration is that whether the Judgment
passed in Crl.A.No.15 of 2018, on the file of the learned Principal District &
Sessions Judge, Ramanathapuram, confirming the Judgment and conviction
passed by the trial Court in S.C.No. 20 of 2014, is sustainable in law and
facts?
8.As per the prosecution case, on 24.03.2018, due to enmity
between first accused and the de facto complainant, with regard to illicit
intimacy, all the accused persons had entered into a conspiracy to commit the
murder of the defacto complainant and for that, the first accused has agreed to
pay Rs.10,000/- and paid Rs.5,000/- as advance. In order to execute the
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conspiracy, on 25.03.2008, at about 10 p.m., the first, second and third
accused came in a two wheeler bearing registration No.TN 39 AL 7558 and
went to the shop of the defacto complainant with acid in the bottle. At that
time, the first accused suddenly took up the bottle from the third accused and
poured the acid on the victim, by saying that
“eP jhNd vd; tho;f;ifia nfLj;jtd;. cd;id
thotplkhl;Nld;lh> ,j;NjhL nrj;J njhiylh”
Due to that incident, the victim had sustained injuries on his body. Thereafter,
he went to hospital and gave a complaint before the respondent police.
9.Based on the complaint, the respondent police has investigated
the case and filed final report as against all the accused persons under section
326, 307 read with 34 and 120(B) IPC. Thereafter the case has been
committed to Principal Sessions Court and it was made over to the Chief
Judicial Magistrate Court in S.C.No.20 of 2014.
10.The trial Court has framed charges as against the first accused
under section 326, 307, 120(B) IPC, as against the second accused under
section 326 r/w 34, 307 r/w 34, 120(B) and as against the third accused under
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Section 326, 307, 120(B) IPC. According to prosecution case the accused
conspired to commit murder of PW1, while so, charges would be for 120(B)
r/w 302 IPC, since the conspiracy is distinct offence, but no charge under
Section 120(B)/302 IPC was framed by the trial Court.
11.The main contention of the revision petitioner is that the
respondent police has registered a case as against two accused persons
alleging that they poured acid on 25.03.2018 against the victim. Subsequently,
the respondent has filed the chargesheet against the petitioner and three
others. On perusal of a complaint- Ex.P1 reveals that there is no reference
about the name of petitioner and FIR was registered only against two
unknown persons and this petitioner’s name has been included only during
the course of investigation.
12.According to the prosecution, the motive for the occurrence is
that the first accused assumed that there is an illegal intimacy between the his
wife and the defacto complainant. While so, the defacto complainant is very
well known about the identity of the petitioner and PW1 during the course of
examination admitted that he know the petitioner and he had business
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transaction with him. While so, there is no reference about the name of
petitioner in the FIR. Further in the FIR, it is stated that
“mg;NghJ xU fUg;G Nkhl;lhu; irf;fpspy; Ngz;l;
Nghl;l ,uz;L Ngu;fs; te;J vd; fil Kd;G
tz;bia epWj;jpdhu;fs;. Nkhl;lhu; irf;fpis Xl;b
te;jtd; rptg;G epw B ru;l; Nghl;bUe;jhd;. Gpd;dhy;
cl;fhu;e;J te;j nts;is epw rl;il Nghl;bUe;j
ifapy; xU g+];l; ghl;bYld; ,wq;fp>
filapy; ,Ue;j vd;dplk; te;jhd;. ,UtUf;Fk;
taJ Rkhu; 25f;Fs; ,Uf;Fk;”
Therefore, from the complaint, it reveals that two persons aged about 25 years
came in a black colour motorcycle and one, who worn white shirt had a Boost
Bottle and he has opened the bottle and poured acid. There is no whisper
about the presence of first accused in the FIR.
13.According to the evidence of PW1, two persons came to his
shop and at that time, first accused sitting on the outside of teashop near the
platform. The third accused asked the defacto complainant to take thinner.
At that time, the third accused has a boost bottle in his hand. Immediately,
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the first accused entered into the shop and picked the bottle from the third
accused and poured the acid on the victim. This version has not been found
in the FIR and this creates serious doubt about the evidence of the prosecution
case. When the first accused is very well known to the defacto complainant,
the name of the first accused must found place in the complaint and FIR.
Further, according to the defacto complainant, after the occurrence, the first
accused ran away from the scene of occurrence, by leaving the bottle and the
two other accused went through in their motor cycle. This version was
subsequently developed after the registration of FIR and there was no
reference in the complaint given by PW1.
14.Further, PW1 has admitted that two and three accused are
unknown persons and admitted in his cross-examination that he did not say
about the name of first accused, while he was admitted in the hospital.
Therefore, from the evidence of PW1, it is clear that the first accused was not
present in the scene of crime on the day of occurrence. Further, at the time of
examination, PW1 has denied that he did not say about the persons, who came
to his shop and found one person was having acid in the boost bottle. But in
the complaint he has stated that two persons came to his shop and poured acid
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through boost bottle. Therefore, the evidence of PW1 is highly doubtful and
does not inspire confidence to this Court.
15.The other contentions raised by the petitioner is that when the
trial Court by giving benefit of doubts to the other accused and acquitted
them, the same benefit of doubts also to be extended to the petitioner. As per
the prosecution case, all the accused persons involved in the occurrence and
the petitioner name was not found place in the FIR and complaint. While so,
other accused were acquitted by giving benefit of doubts. Hence, the trial
Court ought to have extended the same benefits of doubts to the petitioner
also.
16.Further, it is contended that according to the prosecution case,
boost bottle was used for storing the acid and according to PW1, after pouring
acid the first accused left the bottle in the place of occurrence and ran away,
the P.W.10 also in his evidence stated that he only registered the FIR and sent
the victim to the hospital. Then he came to the place of occurrence and
prepared the observation mahazar and rough sketch and he specifically stated
that he seized the empty boost bottle, which was used for storing acid. But
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the investigation officer, who was examined as P.W.13 has stated that based
on the confession statement given by the first accused, on 25.03.2018 at about
6:15 AM, they went to Chinnaervadi and the first accused handed over the
Horlicks bottle from his bathroom and the same was seized through Seizure
Mahazar and the Horlicks bottle was marked as M.O.4. Therefore, the
manner in which, the investigation done by the investigation officer and the
evidence of prosecution witnesses are create serious doubts about the
prosecution case. In this case as per prosecution two different bottles were
recovered from two different places through two different persons. It is very
unfortunate and the investigation done by the prosecution is not appreciable.
Therefore, the evidence of prosecution witnesses are not sufficient to prove
the case and it is unsafe to convict the petitioner and the trial Court has failed
to consider the above said aspects.
17.The trial Court in the Judgment discussed about the recovery
of Boost bottle in the place of occurrence and also discussed about the
recovery of Horlicks bottle, based on the confession statement of accused and
failed to note as to how two bottles on two difference place were seized, when
one bottle alone involved in the case. The bottle M.O.1 and the cap of boost
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bottle M.O.3 were recovered in the place of occurrence, the M.O.4 Horlicks
bottle was recovered at the house of A1. How it is possible to recover two
types of bottles for the single occurrence. As per the prosecution the acid
bottle used only in the place of occurrence, while so, how the Investigating
officer seized two bottles has to be explained by the prosecution witnesses.
Without considering the said grave error, the trial Court convicted the
accused. Further the trial Court has failed to discuss about the contradiction
between FIR and the evidence of PW1 with regard to the presence of A1. The
appellate Court also failed to consider the said aspects and sympathetically
written the Judgment without appreciating the evidence in a proper manner.
18.The learned counsel appearing for the accused relied on the
following judgments:
1. Gurusamy Vs State through the Sub Inspector of Police,
Senthamaran Police Station, Tirunelveli District, reported in
2018(1)TNLJ 199 (Criminal).
“8.In this case, PW1 is the complainant. PW1 turned hostile and
did not support the case of the prosecution. PW2 to PW7 are the eye
witnesses to the occurrence. PW1, even though turned hostile, stated in
his evidence that the offending vehicle dashed against the tea shop and
in the accident, PW2 to PW7 sustained injuries. PW2 to PW7 have
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stated during their evidence that the accident had occurred due to rash
and negligent driving of the accused. The Doctor, who gave treatment to
the injured persons was examined as PW10. PW10 stated during his
evidence that some persons sustained simple injury and some sustained
grievous injuries. PW10 categorically stated that for all the injuries
sustained by the injured, X-ray was taken. But neither the X-ray, nor the
X-ray report was produced. Hence, the injury sustained by the injured
persons are treated as simple in nature”.
2. Gopal @ Gopalakrishnan Vs State, Rep. by the Inspector of Police,
Lalgudi Police Station, reported in 2017(4)MLJ 746.
“7.M.O.1 / aruval was identified and marked through P.W.1 in this
case. P.W.8 has not stated during his evidence that blood strained
aruval and shirt were recovered by the police from the accused.
Similarly, P.W.11 / Investigating Officer also has not stated that blood
strained aruval was recovered. Hence, the contents of the seizure
Mahazar were not proved by P.Ws.9 & 11 respectively in their evidence.
P.W.2 / injured has not identified M.O.1 aruval, which is said to be used
by the accused during the occurrence. M.O.1 was also not shown to
P.W.10 / Doctor during his evidence. Hence, the recovery of blood
strained weapons and shirt (M.Os.1 & 2) is not proved by the
prosecution, as contended by the learned counsel for the appellant.
Ex.P9 / admitted portion of the confession of the accused marked
through P.W.11 lead to recovery of material objects, is inadmissible.
8.The trial Court relied on the medical evidence and convicted the
accused for the offence punishable under Section 326 IPC., instead of
the charge framed under Section 307 of IPC. X-rays taken for showing
the bone fracture, as stated by P.W.10, have not been produced and no
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reason is assigned for non-production of x-rays of P.W.2 during
evidence by prosecution. There are certain contradiction in respect of
injuries sustained by P.W.2 in the occurrence between ocular evidence
of P.W.2 and the medical evidence”.
3. M.Prabhakaran Vs State, through Inspector of Police, Devakottai
Taluk Police Station, Sivagangai District reported in 2021(3)MWN
Cr.262.
“10.In this case, the Doctor, who gave treatment to the injured was
examined as PW7. PW7 deposed that PW1 told him that he was
assaulted by one male person with iron rod and the above person
caused injury on his scalp and he found that there is cut injury on
the middle head measuring 5 cm x 1 cm x 1 cm and PW7 further
deposed that after examination, as PW1 told him that he suffered
into the bone fracture on the 4th finger of left hand, he referred the
injured for taking X-ray. PW1 has not stated before the Doctor that
the known person caused injury on his left hand. It was admitted
by PW7 during his cross examination. PW7 found injury only on
the scalp of PW1. Further, PW7 stated that PW1 told him that he
had sustained fracture on the 4th finger of his left hand, hence, he
mentioned in the Wound Certificate that the injuries sustained by
PW1 are grievous in nature. PW7 has not specifically stated that
he found injuries on the left hand of PW1. Hence, the Wound
Certificate given by PW7 is not at all genuine one.
11.Further, in this case, X-ray report was not filed and the
Doctor, who took X-ray for the injured was also not examined. At
this juncture, it is necessary to refer the cross examination of PW7,
which would run thus:-
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“..fhak;gl;l egh; jd;id ,lJ ifapNyh>
tpuy;fspNyh jd;id ahUk; jhf;fpajhf
nrhy;ytpy;iy. NghyPrhh; vd;id kWehs;
tprhhpj;jhh;fs;. mt;thW tprhhpf;Fk; nghJ
fhak;gl;l egUf;F ifapy; fhak; ,Ue;jjhf
nrhy;ytpy;iy.”
PW7 deposed that only on the basis of the statement given by the
injured, he determined the injuries as grievous. Hence, the
evidence of PW7 is not acceptable, since PW7 has not produced
the X-ray report for the injured, but determined the injuries
sustained by the injured as grievous. Further, PW7 stated that PW1
himself came to the hospital. But PW1 during his evidence stated
that he was taken to the Government Hospital by his Uncle. Hence,
this Court is of the considered view that PW7 evidence is not
corroborated with the evidence of PW1.
4. Ramasamy Vs Inspector of Police, Melapalayam Police Station and
another reported in Crl.O.P(MD)No.17146 of 2018.
“6.As per the case of the de-facto complainant, on
19/08/2014 at about 8.30 pm, when he was going near the place of
occurrence, at the instance and abetment of this accused, when he
was nearing the Bye Pass road, three persons waylaid, abused him
in filthy language and one of the accused persons, caused assault
with iron road. He escaped from that, but another person attacked
with wooden log on his back and another person stabbed him and
three accused persons joined together and because of pain in
various parts of the body, he made cry and on hearing the
screaming noise, the neighbours came, all the accused persons, fled
away from the occurrence place. The complainant was admitted in
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the hospital. He has also stated that only at the abetment of the
petitioner, this assault would have been taken place. He was
admitted in the hospital and before the Doctor, who examined him
has stated that he sustained simple injury, due to assault by three
unknown persons. So this shows that there was assault by unknown
persons, on 19/08/2014. But the final report goes opposite direction
and stated that only this petitioner waylaid the de-facto
complainant and abused him in filthy language. During the course
of investigation, such a statement appears to have been given by
him. Based upon which only, the alternation report has been filed
arraying this petitioner as an accused.
7.As mentioned earlier, the de-facto complainant is not a
man of ordinary standing. Such a person is capable of giving
proper information. But what happened to him subsequent to that is
also not clear on record. So this shows that the statement given by
him before the Investigating Officer and the subsequent final report
are nothing, but abuse of process of court and law. Since they are
inherently improbable and mala fide also. The de-facto complainant
appears not to be a genuine person. So continuation of the criminal
proceedings against the petitioner will clearly amount to abuse of
process of court. In the light of the above facts and circumstances,
this need not be taken into account.”
19.On careful reading of the said Judgments, it is clear that in
order to prove the grievous injury, x-ray taken by the Doctor has to be
produced before the Court and failure to mark the x-ray will affect the
prosecution case and the offence under Section 326 IPC would not attract.
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But in this case, no fracture and it is acid attack case. Further the learned
counsel appearing for the accused/petitioner has relied the Judgment in
Marudanal Augusti Vs State of Kerala, reported in 1980 SCC (Cri) 985. On
careful perusal of the said Judgment it is clear that once the FIR is stated to be
fabricated or brought into existence long after the occurrence, the entire
prosecution case would collapse. But in the case on hand no inordinate delay
in sending the FIR to court. There are major contradictions between PW1 and
FIR in respect of presence of A1.
20.Therefore, the Judgment and conviction passed by the trial
Court and the same was confirmed by the appellate Court in appeal are
unsustainable and liable to be set aside. In view of the above facts, the
prosecution has failed to prove the charges levelled against the petitioner/first
accused for the offence under Section 326 IPC beyond reasonable doubts.
21.In the result, this Criminal Revision Case is allowed and the
Judgment and conviction passed by the trial Court in S.C.No.20 of 2014 and
confirmed by the appellate Court in Crl.A.No.15 of 2018 are set aside and the
petitioner is acquitted from the charge under Section 326 of I.P.C and he set
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be at liberty subject to other cases if any. The bail bond executed by the
petitioner if any, shall stands cancelled and fine amount paid, if any, shall be
refunded to the petitioner as per law.
22.Accordingly, this Criminal Original Petition stands allowed.
28.08.2023
NCC : Yes/No
Index : Yes / No
Internet: Yes/ No
PNM
To
1. The Principal District and Sessions Judge, Ramanathapuram
2. The Assistant Sessions Judge/Chief Judicial Magistrate, Ramanathapuram
3. The Inspector of Police,
Erwardi Dharge Police Station,
Ramanathapuram District.
4. The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
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P.DHANABAL, J.
PNM
ORDER IN
Crl.R.C(MD)No.194 of 2019
28.08.2023
https://www.mhc.tn.gov.in/judis
