Madras High Court
Chinnamal vs State Rep. By The on 25 September, 2023
Crl.A.(MD)No.356 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated : 25.09.2023
CORAM
THE HONOURABLE MR. JUSTICE P. DHANABAL
Crl. A.(MD)No.356 of 2017
Chinnamal .. Appellant
Vs.
1.State rep. by the
Inspector of Police,
Ponnamaravathi Police Station,
Pudukkottai District.
(Crime No.202 of 2013).
2.Thangaraj
3.Chelladurai @ Karthikeyan .. Respondent
Prayer : This Criminal Appeal is filed under Sections 374 of Cr.P.C., to set aside the
judgment made in S.C.No.132 of 2014 on the file of the learned Sessions Judge,
Mahalir Neethimandram, Pudukottai, Pudukottai District and set aside the judgment
dated 20.06.2017 and punish the respondents 2 and 3/accused no.1 and 2 in
accordance with law.
For Appellant : Mr.N.Subramani
For 1st Respondent : Mr.M.Sakthi Kumar
Government Advocate (Crl. Side)
For Respondents 2 and 3: Mr.N.A.Palaniyandi
JUDGMENT
This appeal has been filed by the appellant to to set aside the judgment and
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conviction passed by the learned Sessions Judge, Mahalir Neethimandram,
Pudukottai, Pudukottai District in S.C.No.132 of 2014 dated 20.06.2017 wherein the
trial Court acquitted A1 from the charges under Sections 452, 326, 294(b) and 307 of
IPC and A2 from the charges under Sections 452, 294(b) and 323 of IPC. As against
the acquittal judgment passed by the trial Court, the victim P.W.1 has preferred this
appeal.
2.The prosecution case is that on 09.10.2013 at about 08.00 a.m., both the
accused criminally trespassed into the house of the appellant and when the same was
questioned by the appellant, A1 abused in filthy language and assaulted with bill
book (aruval) towards neck and the same was restrained by the second respondent.
Thereby, she sustained injury at her right hand and left hand. A2 also abused obscene
words and assaulted her below the right eye. Already there was a civil dispute
pending between the parties and thereby, the accused developed the enmity with the
appellant and assaulted them. Thereafter, the appellant went to the Government
hospital through ambulance. Thereafter, the police went to the hospital and obtained
complaint, Ex.P1 and thereafter P.W.6 registered FIR, Ex.P7 and thereafter, P.W.7
has taken the case for investigation and examined the witnesses and collected
documents. Thereafter, P.W.8 investigated the case and filed final report for the
offence under Sections 452, 294(b), 307 of IPC as against A1 and Sections 452,
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Crl.A.(MD)No.356 of 2017
294(b), 323, 307 r/w. 34 of IPC as against A2. Thereafter, the learned District
Munsif cum Judicial Magistrate, Thirumayam furnished the copies to the accused
under Section 207 of Cr.P.C., and then committed the case to the Principal District
Court, Pudukottai. The Principal District Judge, Pudukottai made over the case to the
learned Sessions Judge, Mahalir Neethimandram, Pudukottai. The trial Court has
framed the charges for the offence under Sections 452, 294(b), 307 of IPC as against
A1 and under Sections 452, 294(b), 323, 307 r/w. 34 of IPC as against A2. After
framing charges, the charges were read over and explained to the accused but the
accused denied the charges.
3.The prosecution had examined P.W.1 to P.W.8 and marked Exs.P.1 to
P.8 and marked M.O.1. On the side of the accused, no one was examined and no
document was marked. After examination of prosecution witnesses, the accused was
examined under Section 313(1)(b) of Cr.P.C., in respect of incriminating evidence as
against them and they denied the evidences.
4.Upon perusing the oral and documentary evidences, the trial Court
acquitted A1 from the charges under Sections 452, 326, 294(b) and 307 of IPC and
A2 from the charges under Sections 452, 294(b) and 323 of IPC. As against the
acquittal judgment passed by the trial Court, the victim P.W.1 has preferred this
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appeal.
5.Aggrieved by the said judgment of acquittal, the appellant has preferred
this present appeal on the following grounds:-
The judgment of the trial Court is against law, weight of evidence and the
probabilities of the case. The trial Court is erred in discarding the case of the
prosecution in total by concluding that the evidence of P.W.1 and P.W.2 suffers from
various contradictions and improvements. The trial Court failed to take note of the
medical evidence and P.W.1 and P.W.2 have deposed about the injuries sustained by
the victims and the medical evidence also corroborated the evidence of victim with
regard to injuries but the trial Court failed to consider the same. The trial Court failed
to note that P.W.1 and P.W.2 are residing in the disputed property and the accused
have trespassed into the property and committed the offence. The trial Court has
wrongly came to the conclusion that mere wrong mention of the name of the
witnesses in the Observation Mahazer could not be the sole reason to discard the
entire evidence of the Mahazer witnesses. The trial Court has given much reliance to
the minor contradiction which does not affect the material aspect of the case. The
trial Court without assigning any valid reason discarded the evidence of P.W.1 and
P.W.2 and wrongly acquitted the accused.
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6.The learned counsel appearing for the appellant would contend that the
prosecution has examined P.W.1 to P.W.8 and marked documents Ex.P1 to Ex.P8.
P.W.1 is the injured witness and she only gave complaint Ex.P1. The Doctor P.W.5
who gave treatment to the victim also in his evidence categorically deposed about the
admission of P.W.1 in the hospital and the treatment given to her. P.W.2 also
deposed about the occurrence and P.W.1, who is injured witness deposed about the
assault made by both the accused and she identified the M.O.1 before the trial Court
and thereby, the prosecution has proved the case. The Investigating Officer also
deposed about the fair investigation. But the trial Court failed to consider the
aforesaid aspects and wrongly acquitted the accused for minor discrepancies.
Therefore, the judgment of the trial Court is liable to be set aside by allowing this
appeal and the accused are liable to be punished in accordance with law.
7.The learned counsel appearing for the respondents 2 and 3 has contended
that there is a civil dispute pending between the parties with regard to the house.
Thereby, false complaint has been lodged against the respondents 2 and 3. The
evidence of P.W.1 and P.W. 2 are not trust worthy and the medical evidence is
totally contra to the evidences of P.W.1 and P.W.2. The trial Court has correctly
analyzed the evidences of the prosecution side and correctly came to conclusion that
the prosecution failed to prove the charges and acquitted the accused from all the
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charges. Thereby, the appeal is liable to be dismissed.
8.The learned Government Advocate appearing for the first respondent
would contend that the accused due to enmity with regard to civil dispute on the date
of occurrence entered into the place of occurrence and assaulted the victims with bill
hook (aruval) and caused injuries. Thereafter, the victims went to hospital, where the
police obtained the complaint statement and then registered FIR and then
investigated the case and filed final report. The prosecution have examined P.W.1 to
P.W.8 and marked Ex.P1 to Ex.P8 and M.O.1. The injured witnesses have
categorically deposed about the injuries sustained by them and P.W.5 Doctor also
corroborated the evidences of P.W.1 and P.W.2 with regard to the injuries. The
Investigating Officer also stated about the fair investigation and thereby, the
prosecution proved the case as against the accused, but the trial Court failed to
consider the evidence adduced by the prosecution and wrongly acquitted the
accused, hence, this appeal is liable to be allowed by setting aside the judgment of
trial Court.
9.Upon hearing both sides and perusing the records, judgment and
grounds, the points for determination in this appeal are whether the prosecution has
proved the charges against A1 under Sections 452, 326, 294(b) and 307 of IPC and
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against A2 under Sections 452, 294(b) and 323 of IPC beyond reasonable doubt and
the judgment passed by the trial Court are sustainable or not.
Point:-
10.The prosecution case is that due to previous enmity between them with
regard to house on 09.10.2013 at about 08.00 a.m., both the accused entered into
house one Rajeshwari and A1 attempted to cause death of said Rajeshwari by
assaulting her with bill hook. At that time, the said assault was blocked by P.W.1 and
thereby, she got injures on her both hands. If the assault was not blocked by P.W.1,
the said Rajeshwari would died due to the assault made by A1. Further both the
accused abused obscene words and A2 assaulted Rajeshwari on her below eye and
caused simple injury. A1 was charged for the offence under Section 452, 326, 294(b)
and 307 of IPC and A2 was charged for the offence under Sections 452, 294(b) and
323 of IPC .
11.In order to prove the charges levelled against the accused, the
prosecution has examined P.W.1 to P.W.8 and marked Ex.P1 to Ex.P8. In this case,
P.W.1 is victim and she deposed that Rajeshwari is her sister and there is a civil
dispute pending between the sisters and sister husband's brother with regard to land
and house. While so on 09.10.2013, at about 08.00 a.m., when she was in the house
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of her sister, the accused came there. At that time, her sister Rajeshwari reprimanded
them. For which, the accused Thanjaraj assaulted with bill hook by saying that until
you alive the problem would not solve. At that time, P.W.1 restricted and blocked the
said assault and thereby, she sustained injuries on her hand. Thereafter, A2 punched
on her sisters face. A1 also abused obscene words. On seeing the occurrence, the
witness Sujatha came there and called 108 ambulance and they were taken to
hospital through the ambulance. Thereafter, since there was crowd, the accused left
from the place of occurrence. When she was at hospital for taking treatment at about
09.00 a.m., the police came there and obtained complaint statement and also she
identified M.O.1 bill hook and complaint was marked as Ex.P1.
12.On perusal of complaint, Ex.P1, it appears that on the date of
occurrence, A1 attempted to assault P.W.2 Rajeshwari and the same was blocked by
P.W.1 and thereby, she sustained injury on her both hands and also A2 assaulted the
P.W.2 on her face. But the evidence of P.W.1 shows that on the date of occurrence,
she sustained injuries on her right hand only. In this context, P.W.5 Doctor deposed
before this Court that on 09.10.2013 at about 09.00 a.m,. when he was on duty on
Government hospital, one Chinnammal appeared before him for taking treatment and
on examination, he found the following injuries:-
(I)9x3x1 cm cut injury on right hand palm
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(ii)1 cm abrasion on the left hand index finger
13.He referred her to Pudukottai government hospital but she had taken
treatment in the private hospital and as per opinion given by the private doctor, there
was fracture on the right hand palm and he gave a AR, Ex.P5 stating that the injuries
are grave in nature. On the same date at about 09.15 a.m., one Rajeshwari appeared
before him for taking treatment and she sustained injuries on 3x 2 cm swelling on the
right side below eye. The AR copy is marked as Ex.P6. Therefore, from the evidence
P.W.5 and Ex.P5, the victim P.W.1 sustained grievous injuries. P.W.2 sustained
simple injury. But the prosecution has failed to examine the Doctor who has given
treatment for the injuries sustained by P.W.1 and P.W.2. The P.W.5 only admitted
the victims in the hospital and had given first aid and main treatment was given by
another Doctor who was not examined as witness. Medical records also have not
been produced before the trial Court with regard to injuries sustained by P.W.1. As
per the evidence of P.W.5, there was a fracture on the right hand palm of P.W.1. But
no X ray was produced before the trial Court. To prove that the injuries sustained by
the victim are grievous in nature, no medical records were produced by the
prosecution. In this context, the trial Court also in its judgment clearly observed that
there is chance to sustain such injuries by falling in the tin sheet and X ray and
medical records were not produced.
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14.According to the prosecution case, there is a dispute pending between
the parties with regard to house and in that house only, the occurrence was happened.
It is admitted fact that there was tin sheet door for the aforesaid house and was
scuffle between the parties. Therefore, the reasonable doubt arise over the injuries
sustained by the victim as to whether injury was sustained as alleged by the
prosecution. Therefore, the prosecution has failed to prove the grievous injury
sustained by P.W.1.
15.As far as offence committed towards P.W.2 is concerned, P.W.2 during
her cross examination admitted that there is civil dispute between the parties and she
admitted that when the accused went to the disputed house, P.W.1 and P.W.2
restrained them and thereby, the occurrence was happened and also admitted that
there was scuffle between them. Further there is no reference as about weapon
whether the accused had brought the weapon or the weapon was found in the place
of occurrence. P.W.2 who is also another injured witness has stated that on
09.10.2013, at about 08.00 a.m., when the accused had assaulted her with bill hook
M.O.1. At that time, her sister PW.1 blocked the said assault and thereby, she
sustained injury at her hand. A2 assaulted her with his hands on her hands. Ex.P5
also stated about the injury sustained by P.W.2 but the evidence of P.W.2 is
contradicted to medical evidence and it creates serious doubt over the evidence of
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P.W.2. Further P.W.1 and P.W.2 have identified M.O.1 bill hook before the trial
Court but there is no reference in the evidence of P.W.1 and P.W.2 with regard to
M.O.1 bill hook whether it was taken by the accused or left in the place of
occurrence.
16.In this context, according to the prosecution, the bill hook M.O.1
recovered through the accused based on the confession statement given by him. P.W.
7 Investigating Officer in his evidence stated that on 09.10.2013, at about 15.00
hours, he arrested A1 in the presence of Arulmozhi and Silambarasan and he gave
confession statement. Based on the confession statement of accused, he seized the
bill hook M.O.1. But the aforesaid attesting witness of recovery Mahazer of the bill
hook has been examined as P.W.4. He also deposed about the recovery of material
objects M.O.1 from A1. But there is no blood strains found in the M.O.1 and the
same was not sent to the forensic lab. P.W.1 and P.W.2 also have not stated about the
nature of bill hook. Further there is no reference in the evidence of P.W.4 from
where the M.O.1 was recovered. It is vaguely stated that from the house of accused.
Therefore, the reasonable doubt would arise about the recovery of M.O.1 as alleged
by the prosecution. As far as M.O.1 bill hook is concerned, it is not shown to the
Doctor at the time of investigation as to whether the injuries could be happened by
using that bill hook.
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17.Though P.W.1 sustained injuries on palm, there is no medical records
was produced to show that the injuries is grievous injury. Further it is admitted fact
that there is civil dispute pending between the parties on the date of occurrence.
There was scuffle between the parties. In the place of occurrence, tin sheet door was
fixed in the house and the P.W.5 Doctor also admitted that there is a chance to cause
such injuries by falling on the tin sheet. Therefore, the prosecution has failed to
prove the charges levelled against the accused beyond reasonable doubt.
18.As far as the offence under Section 452 of IPC is concerned, it is
admitted that there is dispute pending between the parties with regard to the disputed
house and there is nothing to show that the accused made preparation to commit the
offence and entered into the house and no evidence that the property exclusively
belongs to victims. As far as the offence under Section 294(b) of IPC is concerned,
there is no evidence that the accused abused obscene words and the same was caused
annoyance. As far as offence under Section 326 of IPC is concerned, the prosecution
has failed to produce the medical records from whom the P.W.1 got treatment and X
ray was not produced. The evidences of prosecution witnesses were highly doubtful.
Thereby, the prosecution failed to prove the offence under Section 326 of IPC. As far
as the offence under Section 307 of IPC is concerned, there is no sufficient evidence
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adduced by the prosecution that the A1 attempted to commit murder of P.W.2.
19.The learned counsel appearing for the petitioner would rely upon the
judgment of the Hon'ble Supreme Court in the case of Abdul Sayeed v. State of
Madhya Pradesh reported in (2010) 10 Supreme Court Cases 259, wherein this
Court in para nos.28 and 31 reads as follows:-
“28.The question of the weight to be attached to the evidence of
a witness that was himself injured in the course of the occurrence has
been extensively discussed by this Court. Where a witness to the
occurrence has himself been injured in the incident, the testimony of such
a witness is generally considered to be very reliable, as he is a witness
that comes with a built-in guarantee of his presence at the scene of the
crime and is unlikely to spare his actual assailant(s) in order to falsely
implicate someone. "Convincing evidence is required to discredit an
injured witness". (Vide Ramlagan Singh & Ors. v. State of Bihar, AIR
1972 SC 2593; Malkhan Singh & Anr. v. State of Uttar Pradesh, AIR
1975 SC 12; Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC
957; Appabhai & Anr. v. State of Gujarat, AIR 1988 SC 696; Bonkya
alias Bharat Shivaji Mane & Ors. v. State of Maharashtra, (1995) 6 SCC
447; Bhag Singh & Ors. (supra); Mohar & Anr. v. State of Uttar Pradesh,
(2002) 7 SCC 606; Dinesh Kumar v. State of Rajasthan, (2008) 8 SCC
270; Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477; Annareddy
Sambasiva Reddy & Ors. v. State of Andhra Pradesh, AIR 2009 SC 2261;
Balraje alias Trimbak v. State of Maharashtra, (2010) 6 SCC 673).
31.Ashfaq (PW.2) had given graphic description of the entire
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incident. His presence on the spot cannot be doubted as he was injured in
the incident. His deposition must be given due weightage. His deposition
also stood fully corroborated by the evidence of Anees (PW.1) and Usmal
Ali (PW.4). The depositions so made cannot be brushed aside merely
because there have been some trivial contradictions or omissions.“
20.On careful perusal of the aforesaid judgment, it is clear that it will not
be applicable to the present facts of the case because in this case, the prosecution
failed to produce the medical records and to examine the Doctor who gave treatment
to the victim.
21.The learned counsel appearing for the petitioner would rely upon the
judgment of the Hon'ble Supreme Court in the case of Vijay Mohan Singh v. State
of Karnataka reported in (2019) 2 Supreme Court Cases (Cri) 586, wherein this
Court in para nos.32 and 33 reads as follows:-
“12.Considering the aforesaid decisions, it emerges that
even in the case where the High Court in an appeal against the order
of acquittal interfered with the order of acquittal without specifically
considering the reasons arrived at by the learned trial court and
without specifically observing that the reasons are perverse, this
Court can still maintain the order of conviction passed by the High
Court, if this Court is satisfied itself that the approach of the trial
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court in dealing with the evidence was patently illegal or the
conclusions arrived at by it are demonstrably unsustainable and the
judgment of the appellate court is free from those infirmities. This
Court is entitled to reappreciate the entire evidence independently
and come to its own conclusion, however, the High Court would not
be justified in interfering with the order of acquittal solely on the
ground on reappreciation of the entire evidence that two views are
possible.
13.On reappreciation of the entire evidence on record and
the findings recorded by the learned trial court while acquitting the
accused, we are of the opinion that the approach of the trial court was
patently erroneous and the conclusions arrived at by it were wholly
untenable. Case where two reasonable views on examination of the
evidence are possible and so the one which supports the accused
should be adopted. The view taken by the trial court can hardly be
said 26 to be a view on proper consideration of evidence, much less a
reasonable view. The learned trial court, as observed hereinabove,
declaration and the other material evidence, discussed hereinabove.
Therefore, the interference by the High Court in the appeal against
the acquittal of the appellant and recording the finding of his
conviction for the offence under Section 302 of the IPC, on
consideration of the evidence, is justified. The judgment under appeal
does not warrant any interference.“
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22.On careful perusal of the aforesaid judgment, it is clear that it will not
be applicable to the present facts of the case. In the case of hand also, there is no
dying declaration and the evidence of P.W.1 and P.W.2 are highly doubtful. The
prosecution has failed to produce the medical records and thereby, the aforesaid facts
and law is not applicable to the present facts and law.
23.As far as the offence under Section 323 of IPC as against A2 is
concerned, though P.W.2 deposed about the injury sustained to her. The evidence of
P.W.2 is highly doubtful and already there is civil dispute pending between the
parties, and scuffle was made between the parties and thereby, the evidence is not
sufficient to prove the charges levelled against the accused. The prosecution failed to
prove the recovery of M.O.1 through sufficient evidence. Therefore, the trial Court
after taking into consideration of all these aspects and after analyzing the evidence
correctly came to the conclusion and acquitted the accused from the charges levelled
against them. Therefore, there is no any infirmity found in the judgment of the trial
Court and thereby the appeal has no merits and deserves to be dismissed.
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24.In the result, the Criminal Appeal is dismissed and the judgment and the
conviction passed in S.C.No.132 of 2014 dated 20.06.2017 by the learned Sessions
Judge, Mahalir Neethimandram, Pudukottai, Pudukottai District is confirmed.
25.09.2023
NCC : Yes/No
Index : Yes/No
Internet : Yes/No
Mrn
To
1.The Sessions Judge, Mahalir Neethimandram, Pudukottai District.
2.The Inspector of Police,
Ponnamaravathi Police Station,
Pudukkottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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P.DHANABAL, J.
Mrn
Crl.A.(MD)No.356 of 2017
25.09.2023
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