Madras High Court
R.Rajesh vs State Rep. By on 27 March, 2023
Crl.R.C(MD)No.641 of 2016
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED : 27.03.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.R.C(MD)No.641 of 2016
and
Crl.M.P.(MD)No.8603 of 2016
1.R.Rajesh
2.R.Rajarajan ... Petitioners/Appellants/A1 & A2
Vs.
State Rep. by
The Inspector of Police,
Boothapandi Police Station,
Kanyakumari District. ... Respondent/Respondent/Complainant
PRAYER: Criminal Revision Case filed under Section 397 r/w 401 of
the Code of Criminal Procedure, to call for the records and set aside the
judgment made in C.A.No.81 of 2011 dated 19.07.2016 on the file of
Principal District and Sessions Court, Kanyakumari District at Nagercoil
reversing the judgment made in S.C.No.13 of 2010 on the file of the
learned Assistant Sessions Judge cum Chief Judicial Magistrate,
Nagercoil, dated 07.09.2011.
For Petitioners : Mr.C.Muthusaravanan
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Criminal Side)
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Crl.R.C(MD)No.641 of 2016
ORDER
This Criminal Revision Petition has been filed to set aside the
Judgment passed in Criminal Appeal No.81 of 2011, dated 19.07.2016,
on the file of the learned Principal District and Sessions Court,
Kanyakumari District at Nagercoil, reversing the judgment made in
S.C.No.13 of 2010 on the file of the learned Assistant Sessions Judge
cum Chief Judicial Magistrate, Nagercoil, dated 07.09.2011.
2.The case of the prosecution is that on 26.10.2008 at about 07.30
p.m., when the victim along with his brother was proceeding in their
motorcycle bearing Reg. No.TN-74-J-8831, received phone call and as
such, they stopped their bike near Kesavanputhur Junction at Balamoor
Road and attended the phone call. While he was attending the phone call,
due to previous enmity, all the accused persons came there with aruval
and iron rod and they attacked him by aruval. The first accused attacked
him with aruval and partially amputated the index finger and the second
accused attacked him with another aruval and caused a fracture on the
eye lid and the other accused attacked him on his back with iron rod.
Immediately, he was taken to hospital and on the complaint, the
respondent police registered the First Information Report in Crime No.
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Crl.R.C(MD)No.641 of 2016
450 of 2008 for the offences punishable under Section 307 IPC r/w 34
IPC.
3.After taking cognizance by the trial Court, the prosecution had
examined 11 witnesses as P.W.1 to P.W.11 and exhibited 12 documents as
Ex.P.1 to Ex.P.12 and also produced five material objects as M.O.1 to
M.O.5. On the side of the accused, no one was examined and no
document was marked.
4.On perusal of the oral and documentary evidence, the trial Court
found the petitioners guilty for the offence under Section 326 IPC and
they were sentenced to undergo five years Rigorous Imprisonment and
imposed a fine of Rs.3,000/- in default to undergo six months Rigorous
Imprisonment. Aggrieved by the same, the petitioners preferred an appeal
in C.A.No.81 of 2011 on the file of the learned Principal District and
Sessions Court, Kanyakumari District at Nagercoil and the Appellate
Court also confirmed the conviction for the offence under Section 326
IPC and reduced the sentence from 5 years R.I to 2 years R.I. Hence, the
present revision.
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Crl.R.C(MD)No.641 of 2016
5.The learned counsel for the revision petitioners would submit
that there are contradictions between P.W.5 to P.W.7. The victim was
examined as P.W.6 and his brother was examined as P.W.5. Another eye
witness was examined as P.W.7. All are interested witnesses and except
P.W.5 to P.W.7, no one has spoken about the occurrence. P.W.1 to P.W.3
happened to be witnesses, they were turned hostile and failed to support
the case of the prosecution. That apart, while pending the revision, it was
referred for the mediation and they afforded some compensation to the
victim. However, they did not agree for the same. Now, the petitioners
are also ready and willing to pay some compensation instead of surviving
the remaining period of sentence. So far, the petitioners had undergone
imprisonment for more than three months.
6.The learned Government Advocate (Crl. side) would submit that
in order to prove the case of the prosecution, he had examined 11
witnesses as P.W.1 to P.W.11. Though P.W.1 to P.W.4 turned hostile. P.W.
5 to P.W.7 categorically deposed and proved the case of the prosecution.
The Doctor, who treated P.W.6 was examined as P.W.9. He also issued
wound certificate. It was marked as Ex.P.4. In fact, P.W.5 sustained
grievous injuries on his right index finger and as such, the Courts below
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Crl.R.C(MD)No.641 of 2016
rightly convicted and sentenced the petitioners for the offence under
Section 326 IPC. Therefore, it does not warrant any interference by this
Court and prayed for dismissal of the revision.
7.Heard the learned counsel on either side and perused the
materials placed on record.
8.On 26.10.2008, at about 07.30 p.m., when P.W.5 and P.W.6 were
proceeding in their motorcycle, P.W.6 received a phone call. Therefore,
he stopped the vehicle to attend the phone. At that time, the accused
persons came there and attacked them. This is unbelievable story of the
prosecution, since P.W.5 and P.W.6 stopped their motorcycle in order to
attend the phone call. According to P.W.5, the accused persons were
standing there and immediately due to previous enmity, they started
attacking P.W.5 by aruval and iron rod. Further case of the prosecution is
that there are four accused standing there in the place of the occurrence.
However, P.W.7, who happens to be the witness to the occurrence,
deposed that all the accused persons came from two motorcycles and
stopped there and attacked P.W.6. It is not the case of the prosecution that
the accused persons had chased the victim in order to do away his life.
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Crl.R.C(MD)No.641 of 2016
Even the case of the prosecution is true, they had come there with two
motorcycles with deadly weapons and they did not know that P.W.5
stopped his motorcycle at the place of crime to attend the phone call.
Therefore, the entire story of the prosecution is not believable one.
However, P.W.5 was attacked on his right index finger and partially
amputated and it is turned as grievous one. Immediately, he was taken to
hospital and he was treated by the Doctor. However, the Doctor who had
treated P.W.6 was not there and as such, the Doctor who was in-charge,
examined as P.W.9. Further, P.W.5 and P.W.6 did not even whisper that
the accused persons came there by their motorcycles. However, two
motorcycles were seized from the accused and marked as M.O.4 and
M.O.5 herein. Admittedly, P.W.6 was acquitted in criminal case and he
came out from the prison. The previous enmity was that when the sister
of P.W.5 was taking bath, the three accused namely, one of the brother of
the petitioners herein, had seen that bathing. It is also not believable that
they had previous enmity. If at all they had previous enmity, the scene of
crime and the way in which, they drafted FIR is not believable one.
9.Considering the above facts and circumstances of the
incriminating evidence, though this Court is not inclined to set aside the
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Crl.R.C(MD)No.641 of 2016
conviction, this Court is inclined to reduce the sentence as offered by the
learned counsel for the petitioners.
10.Accordingly, the sentence imposed on the petitioners for the
offence under Section 326 IPC in C.A.No.81 of 2011 passed by the
learned Principal District and Sessions Court, Kanyakumari District at
Nagercoil, dated 19.07.2016, is hereby confirmed and on condition that
the petitioners shall pay a sum of Rs.15,000/- each (totally Rs.30,000/-)
as compensation to the victim/P.W.6 by way of Demand Draft. If the
victim/P.W.6 refuses to receive the same, the petitioners shall deposit the
said sum to the credit of S.C.No.13 of 2010 on the file of the learned
Assistant Sessions Judge cum Chief Judicial Magistrate, Nagercoil, on or
before 28.04.2023.
11.On such deposit, the victim/P.W.6 is permitted to withdraw the
same. If the petitioners fail to comply with the condition, the sentence
imposed on them for the offence under Section 326 IPC is hereby
restored without any further reference to this Court and the respondent
shall secure the petitioners to survive the remaining period of sentence as
imposed by the Courts below.
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Crl.R.C(MD)No.641 of 2016
12.Accordingly, this Criminal Revision Case is partly allowed.
Consequently, connected miscellaneous petition is closed.
27.03.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes
sji
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Crl.R.C(MD)No.641 of 2016
To
1.The Assistant Sessions Judge cum Chief Judicial Magistrate,
Nagercoil.
2.The Principal District and Sessions Court,
Kanyakumari District at Nagercoil.
3.The Inspector of Police,
Boothapandi Police Station,
Kanyakumari District
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.R.C(MD)No.641 of 2016
G.K.ILANTHIRAIYAN, J.
sji
Order made in
Crl.R.C(MD)No.641 of 2016
27.03.2023
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