Madras High Court
Ramanathan vs The State on 25 June, 2024
Author: M.Dhandapani
Bench: M.Dhandapani
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CRL. A. Nos.116-858/2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Pronounced on
25.06.2024
& 04.07.2024
03.07.2024
CORAM
THE HONOURABLE MR. JUSTICE M.DHANDAPANI
CRL. A. NOS. 116 & 858 OF 2022
C.A. NO. 116 OF 2022
1. Ramanathan
2. Kolanji
3. Karpagavalli .. Appellants
- Vs -
The State, rep. by
The Inspector of Police
All Women Police Station
Vridhachalam. .. Respondent
C.A. NO.858 OF 2022
C.Bhavani .. Appellant
- Vs -
1. The State, rep. By
The Inspector of Police
1
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CRL. A. Nos.116-858/2022
All Women Police Station
Vridhachalam.
2. Velmurugan
3. Suresh .. Respondents
C.A. No.116 of 2002 filed u/s 374 Cr.P.C. praying to set aside the judgment
of conviction imposed in S.C. No.49/2021 dated 10.12.2021 by the learned
Sessions Judge, Mahila Court, Cuddalore, insofar as Charge Nos.4 & 5 are
concerned.
C.A. No.858 of 2002 filed u/s 372 Cr.P.C. praying to set aside the judgment
of acquittal passed by the learned Principal District & Sessions Court, Cuddalore,
in Sessions Case No.49/2021 dated 10.12.2021 and convict the 1 st accused/2nd
respondent for the offence u/s 341, 366,376 and 294 (b) IPC and also convict the
2nd accused/3rd respondent u/s 341 and 366 IPC and allow this appeal.
For Appellants : Mr. R.Sankarasubbu in CA 116/2022
Mr. S.Saravanakumar in CA 858/2022
For Respondents : Mrs. G.V.Kasthuri, APP for sole
respondent in CA 116/2022 & for R-1
in CA 858/2022
No Appearance for RR-2 & 3 in
2
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CRL. A. Nos.116-858/2022
COMMON JUDGMENT
While the conviction and sentence imposed on the appellants herein, who
were arrayed as A-3, A-4 and A-5 by the learned Sessions Judge, Mahila Court,
Cuddalore, is put in issue before this Court by filing C.A. No.116/2022, as against
the acquittal recorded against A-2 in toto and against A-1 for the offences u/s
341, 366, 376, 294 (b) IPC, the defacto complainant/P.W.1 has filed C.A. No.858/2022.
2. The 1st accused/2nd appellant in C.A. No.858/2022 had also filed appeal in C.A.
No.137/2022, but pending the appeal, as the said appellant passed away, this Court,
vide judgment dated 18.06.2024, had dismissed the said appeal as abated. However, as
the facts in present appeals and the appeal in C.A. No.137/2022 are intrinsically
connected, being common, for the purpose of arriving at a just decision, the case of A-
1, who is the appellant in C.A. No.137/2022, which has since been dismissed as abated,
is also discussed.
3. Since both the appeals arise out of the same transaction, which
culminated in S.C. No.49/2021, both the appeals, though listed on two different
dates and heard separately, are being disposed of by this common judgment.
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4. The appellants, along with two other accused, who were arrayed as A-1
and A-2, were charged for the following offences :-
S. No. Array of Accused Section of Offence Charged
1 A-1 U/s 341, 366, 376, 294 (b) & 323 IPC
U/s 4 of TN Prohibition of Harassment
of Woman Act
2 A-2 341 & 366 IPC
3 A-3 to A-5 294 (b) & 323 IPC
5. After trial, the trial court, while acquitted A-2 of all the charges framed
against him, however, found A-1 and A-3 to A-5 guilty of the following offences
and they were convicted and sentenced as under :-
S. No. Array of Accused Section of Offence Charged
1 A-1 Convicted u/s 323 IPC & sentenced to
simple imprisonment for a period of
four months together with a fine of
Rs.1,000/-, in default to undergo simple
imprisonment for a period of two
weeks.
Convicted u/s 4 of the Tamil Nadu
Prohibition of Harassment of Woman
Act and sentenced to simple
imprisonment for a period of two years
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CRL. A. Nos.116-858/2022
and six months together with a fine of
Rs.15,000/-, in default to undergo
simple imprisonment for a period of six
months.
2 A-3 to A-5 Convicted u/s 323 IPC & sentenced to
simple imprisonment for a period of
four months together with a fine of
Rs.1,000/- each, in default to undergo
simple imprisonment for a period of
two weeks.
Convicted u/s 294 (b) IPC & sentenced
to simple imprisonment for a period of
three months together with a fine of
Rs.2,000/- each, in default to undergo
simple imprisonment for a period of
two weeks.
6. The sentences were directed to run concurrently and the period of
incarceration already undergone by the accused were directed to be set off u/s
428 Cr.P.C. Aggrieved by the said conviction and sentence imposed on A-1 and
A-3 to A-5, the present appeal has been filed.
7. For brevity, in this judgment, the accused will be referred to in the
same order as they were arrayed before the trial court.
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8. Shorn of unnecessary details, the case as put forth by the prosecution is
as under :-
P.W.1 is the prosecutrix. P.W.s 2 and 3 are the father and mother of the
victim. A-3 and A-4 are the parents of A-1 and A-5 is the sister of A-1. A-1 is
alleged to have married P.W.1 forcibly through the help of A-2.
9. It is the case of the prosecution that during the year 2009, when P.W.1
was taking training for attending the VAO exam under A-1, A-1 had physically
abused P.W.1 and had sent love letter to P.W.1 through A-2. Thereafter, P.W.1
discontinued her training and, thereafter, she had been working at a Banian
factory at Tiruppur. For celebrating Diwali with P.W.s 2 and 3, P.W.1 had come
to Ko.Poovanur, during the year 2011. On 6.11.2011 P.W.1 had started from
Ko.Poovanur and was seen off by P.W.2 from her village at Ko.Poovanur to
Ulundurpet for further travel to Tiruppur, she boarded a bus at Ko.Poovanur and
got down at Ulundurpet from where she boarded a bus to Salem. When she got
down at Salem, A-1 and A-2, who were waiting for her there, forcibly abducted
her from Salem and took her to Tirupathi, where A-1 on 7.11.2011 had tied the
nuptial knot and, thereafter, A-1 along with P.W.1 and A-2 had stayed in BANC
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Lodge where against the wishes of P.W.1, A-1 had sexual intercourse with her at
about 9.00 a.m. on 7.11.2011. thereafter, at about 9.00 p.m., A-1, A-2 and P.W.1
boarded the bus for return to Ko.Poovanur and reached Ko.Poovanur at about
5.30 a.m. on 8.11.2011 and P.W.1 was staying at the house of A-1.
10. It is the further case of the prosecution that at about 5.30 p.m. on
9.11.2011, A-23 to A-5 abused P.W.1 verbally using obscene words and they also
attacked P.W.1 with sticks/wooden logs scolding her that she had not brought
any stridhana while marrying A-1 and pushed her out of the house. During the
said act of physical and verbal abuse, A-1 also participated in the same and had
uttered that he had married P.W.1 only to dishonour her. P.W.1 felt dizzy and
fainted. On hearing the noise, P.W.s 2 and 3 the parents of P.W.1 and P.W.4,
who was a resident of the same village and was passing by the place, came to
the scene of occurrence and finding the fainted P.W.1, took her in an auto to the
Government Hospital where she was given treatment by P.W.9, the Civil
Assistant Surgeon, Government Headquarters Hospital, Vridhachalam, and
issued Ex.P5 the accident register, in which the doctor found the following :-
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“Alleged to have been assaulted by three known persons at
5.30 p.m. on 9.11.11 at her mother-in-laws garden with sticks.
1) 2 x 2 cms contusion on the right parietal region;
2) 1 x 1 cm abrasion on the left leg
11. P.W.1, upon discharge, on 11.11.2011 went to Mangalampettai Police
Station and lodged a complaint on which no action was taken and, therefore, she
had preferred the private complaint, Ex.P-1, before the Judicial Magistrate,
Vridhachalam, which was directed to be registered and investigated.
12. Upon receipt of the complaint from the Court of Judicial Magistrate
No.2, Vridhachalam on 12.12.2011, P.W.10, Grade I Police Constable attached to
the All Women Police Station, Vridhachalam, registered the case in Crime
No.18/2011 for the offences u/s 366, 376 and 323 IPC and Section 4 of the Tamil
Nadu Prohibition of Harassment of Women Act and prepared FIR, which were
forwarded to the jurisdictional court and also placed before the higher
authorities for investigation.
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13. On receipt of Ex.P-6, P.W.11, the Inspector of Police, Vridhachalam
Circle, who was in-charge of the All Women Police Station, Vridhachalam, took
up investigation on 13.12.2011 at about 7.00 a.m., and went to the scene of
occurrence, where he prepared observation mahazar, Ex.P-7 and drew rough
sketch, Ex.P-8. He examined P.W.s 2 to 5 and recorded their statements. P.W.1
was sent through a police constable for medical examination.
14. P.W.1, on being produced before P.W.7, the Doctor, was subjected to
medical examination and upon examination, P.W.9 issued Ex.P-3, report in
respect of P.W.1, wherein the following opinion has been given :-
“PA : Soft PV Vagina admits little finger with difficulty &
admits tip of index finger with difficulty. Vagine smear taken with
little finger sent for analysis for the presence of semen. Exact size
of the uterus not able to be made out with the help of little finger.
Hymen partially torn. Advised : USG Pelvis.
Examination :
Opinion:
1. Her age approximately 21 to 23 years. Exact
age estimation to be confirmed by Radiologist
with X-rays 10/7077-11/15.12.2011
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2. Hymen partially torn. She might have had
sexual intercourse.
3. She might have had sexual intercourse. No
marks of external injury.
4. She is not pregnant. Advised USG (Ultra
sonogram)
5. Hymen partially torn. Since vagina admits little
easily and tip of index finger. No signs of
external injuries.”
15. P.W.11 gave requisition to the Judicial Magistrate to conduct medical
examination on A-1 and on orders, A-1 was sent for medical examination. Upon
being produced, P.W.8, the doctor, subjected A-1 for medical examination and
issued Ex.P-4, opinion.
16. On 15.12.2011, P.W.11 examined the doctors, P.W.s 7 to 9 and
recorded their statements. Upon completion of investigation P.W.11 filed the
final report against the accused for the offences aforesaid.
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17. To establish the charges levelled against the accused, the prosecution
examined P.W.s 1 to 11 and marked Exs.P-1 to P-8.
18. On completion of the evidence on the side of the prosecution, the
accused were questioned under Section 313 Cr.P.C. on the incriminating
circumstances appearing against them in the evidence tendered by the
prosecution witnesses. They denied all the incriminating circumstances. On the
side of the defence, neither any oral evidence was adduced nor any documents
were marked.
19. The trial court, on consideration of oral and documentary evidence,
while acquitted A-2 of the offences charged, however convicted A-1 and A-3 to
A-5 as aforesaid. Aggrieved by the said conviction and sentence, C.A.
No.116/2022 has been filed by the accused. Being dissatisfied with the acquittal
recorded against A-2 in toto and also against A-1 for the offences u/s 341, 366,
376, 294 (b), the defacto complainant/P.W.1 has filed C.A. No.858/2022.
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20. Learned counsel appearing for the appellants/A-3, A-4 and A-5 in C.A.
No.116/2022 submitted that the evidence of P.W.1 bristles with very many
contradictions and discrepancies, which has been recorded by the court below.
However, after rendering such a finding, the court below has erred in convicting the
appellants, which is wholly unsustainable.
21. It is the further submission of the learned counsel that none of the
prosecution witnesses, viz., P.W.s 1 to 5, who have spoken about seeing the occurrence
have stated as to who uttered the obscene words. All the witnesses in unison have
spoken that A-1, A-3 to A-5 had uttered the obscene words and had convicted A-1 u/s 4
of the Tamil Nadu Prohibition of Harassment of Women Act and A-3 to A-5 u/s 294 (b)
IPC. It is the submission of the learned counsel that the ingredients as spelt out u/s 294
(b) IPC have not been established and in the absence of the same being fulfilled, no
conviction can be recorded u/s 294 (b) IPC.
22. It is the further submission of the learned counsel that even according to the
evidence of P.W.1, though A-1 and P.W.1 had come to the house of A-1 on 8.11.2011 at
about 5.00 a.m., however, none of the other accused, viz., A-3 to A-5 had spoken
harshly with P.W.1. However, out of blue, A-3 to A-5 are alleged to have castigated
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P.W.1 at about 5.30 p.m. on 9.11.2011. It is the further submission of the learned
counsel that during the said occurrence, A-3 to A-5 are alleged to have beaten P.W.1
with sticks. Yet the said sticks have not been seized by the prosecution.
23. It is the further submission of the learned counsel that though A-3 to A-5 are
alleged to have attacked P.W.1 with sticks, yet Ex.P-5, the accident register, issued by
P.W.9 clearly specifies that there is only one contusion on the right parietal region of
P.W.1 which would go to show that the attack alleged to have been made upon P.W.1
could not have been carried out by A-3 to A-5. However, without properly appreciating
the aforesaid evidence, the court below had convicted A-3 to A-5 of the offence u/s 294
(b) and 323 IPC, which requires interference at the hands of this Court.
24. Learned counsel appearing for the appellant/defacto complainant in C.A.
No.858/2022 submitted that P.W.s 1 to 5 have clearly spoken about the abduction
caused by A-1 and A-2 and the resultant acts meted out to P.W.1 by A-1 and a-2 with
respect to the offences u/s 341, 366, 294 (b) and 376 IPC insofar as A-1 is concerned
and u/s 341 and 366 insofar as A-2 is concerned.
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25. It is the further submission of the learned counsel that the evidence of the
doctor, P.W.7, coupled with Ex.P-5, the opinion, clearly establish that rape was
committed on P.W.1 after P.W.1 was abducted and married forcibly by A-1 with the
help of A-2, however, without properly appreciating the same, the court below had
erroneously acquitted A-1 of the offences u/s 341, 366, 376 and 294 (b) IPC and A-2 of
the offences u/s 341 and 366 IPC, which requires interference at the hands of this
Court.
26. It is also submitted by the learned counsel appearing for the appellant in
C.A. No.858/2022 that the conviction and sentence recorded as against the appellants
in C.A. No.116/2022 does not suffer any infirmity as they are passed based on
appreciation of evidence, which is cogent and conclusive and the same also does not
require any interference at the hands of this Court.
27. This Court gave its careful consideration to the submissions advanced by the
learned counsel appearing for the respective appellants and perused the materials
available on record.
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28. When the matter is taken up for hearing, learned Addl. Public Prosecutor
appearing for the 1st respondent/State submitted that pending the appeals, A-1 died
and, therefore, the appeal as against A-1 stands abated. The said statement of the
learned Addl. Public Prosecutor has not been controverted by the learned counsel
appearing for the defacto complainant/appellant in C.A. No.858/2022. Accordingly, the
appeal in C.A. No.858//2022 insofar as the 1st respondent therein/A-1 and the
conviction and sentence recorded as against A-1, stands abated.
29. Now this Court is left with the task of considering the acquittal of A-2
for the offences u/s 341 and 366 IPC and also the conviction and sentence
recorded in respect of A-3 to A-5 for the offences u/s 294 (b) and 323 IPC. This
Court will first deal with the acquittal of A-2 for the offences u/s 341 and 366
IPC.
30. It is the specific case of the prosecution that upon P.W.2 seeing off
P.W.1 at Ko.Poovanur Village in the bus, P.W.1 alighted at Ulundurpet from
where she boarded a bus to Salem to go to Tiruppur. Upon getting down at
Salem, it is the case of P.W.1 that she was kidnapped by force and threatening
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that she will be killed by A-1 and A-2 and taken to Tirupathi, where A-1 tied the
nuptial knot to P.W.1 and had sexual intercourse with her against her consent
and all along that time, A-2 had aided A-1 in committing the aforesaid offences.
31. Even a bare perusal of the deposition of P.W.1 in cross reveals that at
Salem bus stand A-1 and A-2 are alleged to have kidnapped her. She has also
further deposed that she was threatened not to raise her voice by A-2 as
otherwise they would kill her. However, it is not the deposition of P.W.1 that
either A-1 or A-2 were in possession of any weapons. It is merely the deposition
of P.W.1 that A-2 threatened her that they would kill her. It is the deposition of
P.W.1 that Salem bus stand was crowded with passengers and such being the
case, how P.W.1 was kidnapped by A-1 and A-2 is beyond one’s comprehension.
It should not be lost sight of, as could be evidenced through the deposition of
P.W.1 in cross as also the findings recorded by the court below that though
P.W.1 had ample opportunities between Salem and Tirupathi, where even at two
places, police were present, who had searched each and every individual, more
particularly at Tirupathi, P.W.1 did not inform them about she being kidnapped
by A-1 and A-2. Though the mobile phone, which P.W.1 had was alleged to have
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been taken over by A-1, it should not be forgotten that she had ample
opportunity in which she could have raised her voice and called for help.
However, P.W.1 had, at no point of time, raised her voice and called for help. In
fact, from Salem to Tirupathi, A-1 P.W.1 and A-2 are alleged to have travelled by
Government bus, in which case, P.W.1 could very well have raised her voice, but
she seldom raised her voice, which leads to the only inference that she had
volunteered along with A-1 and A-2, if really the incident of marriage, as alleged
is said to have taken place.
32. Further, one other stand out aspect, which requires to be pointed out
is that P.W.s 2 and 3 are the father and mother of P.W.1 and their house is
alleged to be situated diagonally opposite the house of the accused at a distance
of about 50 mtrs. It is the specific case of the prosecution, as evidenced through
the deposition of P.W.s 1 to 3 that after P.W.1 was seen off by P.W.2 in the bus
from Ko.Poovanur, P.W.s 2 and 3 did not take any effort to contact her as to
whether she had safely reached Tiruppur. In fact, neither P.W.1 nor P.W.s 2 and
3 had made any effort to contact each other till the time when P.W.s 2 and 3 had
alleged to have heard commotion from the house of the accused.
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33. It is the specific case of the prosecution that P.W.s and A-1 returned at
about 5.00 a.m. on 8.11.2011. Inspite of the fact that P.W.1 is the daughter of
P.W.s 2 and 3 and that her parental house is situate just 50 mtrs. away from the
house of the accused, however, she has not made any attempt to contact P.W.s 2
and 3 inspite of the specific allegation that she was kidnapped, forcefully
married and raped. What is more striking is that though P.W.1 had come back to
the house of the accused on 8.11.2011 at about 5.00 a.m., till 5.30 p.m. on
9.11.2011, P.W.s 2 and 3 claim that they have not seen their daughter at the
house of the accused. The said deposition of P.W.s 2 and 3 is far from
acceptance and even a layman, bereft of any understanding, would not be
carried away by such a submission. Therefore, the deposition of P.W.s 2 and 3
does not inspire the confidence of this Court for accepting their evidence as
necessary corroboration for the purpose of finding A-1 and A-2 guilty of the
offence u/s 341, 366 and 376 IPC.
34. Once the evidence of P.W.1 is held to be not acceptable, barring the
above evidence, the other evidence of P.W.s 2 to 5 in no way furthers the case of
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the prosecution as the said evidence do not speak about the offences u/s 341,
366 and 376 IPC. In the absence of any corroboration and substantiation, the
offence u/s 341 nor 366 against A-1 and A-2 does not stand made out and rightly
the court below had acquitted A-1 and A-2 of the said offence.
35. Insofar as the offence against A-1 u/s 376 IPC is concerned, once it is
conclusively held that the movement of P.W.1 with A-1 and A-2 was her own
voluntary act, the ingredients of Section 375 IPC, which alone would constitute
an offence u/s 376 IPC would not stand made out as her any act in furtherance of
her consent would not fall within the circumference of rape and, therefore, the
act of A-1 with P.W.1 in a physical relationship cannot be termed to be rape and,
therefore, would not attract the offence u/s 376 IPC. The said aspect has also
been rightly appreciated by the court below in acquitting A-1 and, therefore, the
said findings does not require any interference.
36. Insofar as the findings recorded with respect of the offence u/s 4 of
the Tamil Nadu Prohibition of Harassment against Women Act against A-1 is
concerned, in view of the fact that A-1 has since deceased, no occasion arises for
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deciding the same, as, as already stated above, the appeal as against A-1 stands
abated. The findings rendered insofar as Sections 341, 366 and 376 IPC were
warranted for discussion as appeal was filed against the acquittal of A-2, which
findings, have been affirmed by this Court in the paragraphs above and only for
the limited purpose of deciding the acquittal of A-2, the evidence was discussed
above.
37. Insofar as the offence u/s 294 (b) IPC against A-3 to A-5 is concerned,
the allegation against the accused is that they used profane and obscene
language against P.W.1. Section 294(b) of the IPC talks about the obscene acts
and songs. Section 294 of the IPC as a whole reads thus :-
"294.Obscene acts and songs - Whoever, to the
annoyance of others –
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene song, ballad or
words, in or near any public place, shall be punished with
imprisonment of either description for a term which may
extend to three months, or with fine, or with both."
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38. The manner in which an act, which is alleged to be obscene so as to
attract the rigours of Section 294(b) IPC, has been considered by the Apex Court
in the decision in N.S.Madhanagopal & Anr. – Vs – K.Lalitha (2022 Live Law (SC)
844), wherein the Apex Court held as under :-
“It is to be noted that the test of obscenity under Section
294(b) of the I.P.C. is whether the tendency of the matter
charged as obscenity is to deprave and corrupt 4 those whose
minds are open to such immoral influences. The following
passage from the judgment authored by Justice K.K. Mathew
(as his Lordship then was) reported in P.T. Chacko v. Nainan
(1967 KLT 799) explains as follows:
“The only point argued was that the 1st accused
has not committed an offence punishable under Section
294(b) IPC., by uttering the words above-mentioned.
The courts below have held that the words uttered
were obscene and the utterance caused annoyance to
the public. I am not inclined to take this view. In the
Queen v. Hicklin, [L.R.] 3 Q.B. 360 at 371 Cockburn C.J.
Laid down the test of ‘obscenity’ in these words: “…….
the test of obscenity is this, whether the tendency of
the matter charged as obscenity is to deprave and
corrupt those whose minds are open to such immoral
influences” This test has been uniformly followed in
India. The Supreme Court has accepted the correctness
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of the test in Ranjit D. Udeshi v. State of Maharashtra,
AIR 1965 SC 881. In Samuel Roth v. U.S.A., 354 US 476
(1957), Chief Justice Warren said that the test of
‘obscenity’ is the “substantial tendency to corrupt by
arousing lustful desires”. Mr. Justice Harlan observed
that in order to be ‘obscene’ the matter must “tend to
sexually impure thoughts”.
I do not think that the words uttered in this case have such
a tendency. It may be that the words are defamatory of the
complainant, but I do not think that the words are ‘obscene’
and the utterance would constitute an offence punishable
under S. 294(b) IPC”. 5 It has to be noted that in the instance
case, the absence of words which will involve some lascivious
elements arousing sexual thoughts or feelings or words cannot
attract the offence under Section 294(b). None of the records
disclose the alleged words used by the accused. It may not be
the requirement of law to reproduce in all cases the entire
obscene words if it is lengthy, but in the instant case, there is
hardly anything on record. Mere abusive, humiliating or
defamative words by itself cannot attract an offence under
Section 294(b) IPC. To prove the offence under Section 294 of
IPC mere utterance of obscence words are not sufficient but
there must be a further proof to establish that it was to the
annoyance of others, which is lacking in the case. No one has
spoken about the obscene words, they felt annoyed and in the
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absence of legal evidence to show that the words uttered by
the appellants accused annoyed others, it cannot be said that
the ingredients of the offence under Section 294 (b) of IPC is
made out.”
39. In the case on hand, the words as spoken to by A-3 to A-5 though
could be brought within the periphery of defamatory, but by no stretch could
they be termed to be obscene. Further, what is to be borne in mind is the fact
that such obscene words should have been uttered in or near any public place.
However, in the case on hand, it is the categorical deposition of P.W.1 that the
act had taken place in the garden of her mother-in-law, as could be seen from
Ex.P-5, the accident register, issued by P.W.9, which is the earliest document, in
which P.W.1 had clearly spoken to the said effect. The place, being a private
garden belonging to the mother-in-law of P.W.1, could not be construed to be a
public place or near a public place to attract Section 294 (b) IPC. Further, the
utterances, even without admitting had taken place in the vicinity of a public
place, yet would not be attract Section 294 (b) IPC as there is no deposition to
the effect that such acts of A-3 to A-5 had caused annoyance to the public. In the
absence of any evidence to the said effect, the offence u/s 294 (b) as against A-3
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to A-5 has not been made out and the findings to the contrary rendered by the
court below deserve to be set aside.
40. Now the only issue that is left for consideration is with regard to the
offence u/s 323 IPC, which is alleged against A-1 and A-3 to A-5. A-1 and A-3 to
A-5 are alleged to have beaten P.W.1 with sticks causing injuries on P.W.1. In
this regard, the evidence of P.W.9 the doctor, coupled with Ex.P-5 accident
register issued by P.W.9 assumes significance. In Ex.P-5, P.W.9 has clearly stated
that P.W.1 has suffered one contusion. It is to be pointed out that one contusion
injury of 2 x 2 cm, which is opined to be simple in nature, could not be caused by
three persons, beating P.W.1 with sticks. Further it is the specific case of the
prosecution that A-1 and A-3 to A-5 had caused injuries on P.W.1. However, in
Ex.P-5, P.W.1 has stated that she was beaten by three known persons.
41. In this regard, the evidence of P.W.4 assumes significance. P.W.4 is an
independent witness, who as a resident of the same village and a passer-by, had
witnessed the occurrence and had accompanied P.W.1 to the hospital. In the
deposition of P.W.4 in chief, P.W.4 had deposed that A-1 beat P.W.1 four times
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and A-3 to A-5 had beat P.W.1 and pushed her out of the house. There is no
specific overt act attributed to A-3 to A-4. There is only a mere generalised
statement that A-3 to A-5 beat and pushed P.W.1 out of the house. Ex.P-5, the
accident register, which has been issued by P.W.9 does not in any manner
support the deposition of P.W.4, as Ex.P-5 only reveals that there was a single
contusion on the right parietal region of the head of P.W.1. In the backdrop of
the above material, though P.W.4 had stated that A-3 to A-5 had beaten and
pushed P.W.1 out of the house, the said fact having not been established and the
same does not find corroboration through Ex.P-5, the only inference that could
be drawn is that there is no evidence to show that P.W.1 was beaten by A-3 to A-
5. There is no iota of evidence to suggest the presence of A-5 at the scene of
occurrence and equally there is no material to infer that A-5 had also partaken in
the said act. However, out of blue, A-5 had been roped into the offence. In fact,
there is no evidence through any of the witnesses to suggest that A-5 was
residing in the house along with A-3 and A-4. In the absence of any specific
evidence to point out that A-5 was residing along with A-3 and A-4 and there
being specific overt act attributed to A-5, roping in of A-5 into the crime is only
for the purpose of bringing all the family members and there is no specific
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evidence which supports the said case. Further, it is to be pointed out that while
in one place, the witnesses have deposed that wooden log was used, however in
another place, they have stated that sticks were used. However, the said sticks
or wooden logs have not been seized by the prosecution. The court below had
brushed aside the same on the ground that sticks or wooden logs are
interchangeable and their seizure would not alter the case as the witnesses have
deposed that A-3 to A-5 have attacked P.W.1. However, in the light of Ex.P-5,
throwing a different vision with regard to the injuries found on the body of
P.W.1, without attributing specific overt act, A-5 cannot be said to have
committed an offence u/s 323 IPC. The non-seizure of the sticks/wooden logs
materially alters the deposition in favour of A-5 and the findings of the court
below that non-seizure of material objects would not affect the prosecution case
is wholly flawed.
42. However, insofar as the attack by A-1 on P.W.1 is substantiated
through the evidence of P.W.1 as also Ex.P-5, the accident register and the said
evidence of P.W.1 finds corroboration through the evidence of P.W.4. In Ex.P-5,
P.W.1 has clearly stated that three known persons had attacked her and the said
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three known persons could only be A-1, A-3 and A-4 as P.W.1 has specifically
stated before P.W.9 that she was attacked in her mother-in-laws’s garden by
three known persons. In the absence of any evidence clearly pointing out the
presence of A-5 at the scene of crime and partaking in the act of beating P.W.1
and causing injuries on P.W.1, it would not be in the interest of justice to convict
A-5 and, accordingly, for the reasons aforesaid, the conviction and sentence
imposed on A-5 for the offence u/s 323 IPC also deserves to be set aside.
43. However, insofar as the conviction of A-3 and A-4 for the offence u/s
323 IPC, though the same stands established through the evidence of P.W.1
coupled with corroboration through the evidence of P.W.4 and Ex.P-5, wherein,
in Ex.P-5, P.W.1 has clearly deposed that three known persons had attacked her.
However, a careful perusal of Ex.P-5 reveals that the injuries suffered by P.W.1
are simple in nature. The punishment u/s 323 IPC stands warranted only where
the injuries caused are grievous in nature. In the present case, the injuries
caused by A-3 and A-4 on P.W.1 are simple in nature. The nature of injuries
being simple, the conviction and sentence of A-3 and A-4 for a period of four
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months along with fine for the offence u/s 323 IPC, in the considered opinion of
this Court is a bit harsh.
44. On a holistic consideration of the entire case, it transpires that no
specific overt act has been attributed to A-3 and A-4 by using the stick on P.W.1.
It is the generalised deposition that A-3 and A-4 beat P.W.1 and pushed her. So
long as the prosecution has not established that the attack by A-3 and A-4 on
P.W.1 had caused grievous injuries on the body of P.W.1, the single injury found
on P.W.1 cannot be attributed to be on account of the attack of A-3 and A-4.
However, the deposition of the P.W.s 2 to 4 reveal that there was a high decibel
quarrel coming from the house of the accused, which prompted P.W.s 2 and 3 to
rush out to see the reason for the sound. From the above, it could be concluded
that on account of some wordy quarrel, as could be evidenced through the
deposition of P.W.s 2 and 3, there being no grievous injuries, which were found
on the body of P.W.1, as is evident from Ex.P-5, the attack on P.W.1 by A-3 and A-
4, could not be construed to be a grievous attack, but an instantaneous attack on
account of some quarrel and as aforesaid, the injuries not being grievous in
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nature, but is simple, necessarily, the sentence imposed on A-3 and A-4 deserves
to be modified, also keeping in mind the age of A-3 and A-4.
45. For the reasons aforesaid, while the appeal in C.A. No.858/2022 filed
by the defacto complainant against the acquittal of A-1 and A-2 stands
dismissed, the appeal filed by the appellants/A-3 to A-5 in C.A. No.116/2022
stands allowed in part by acquitting A-3 to A-5 of the offence u/s 294 (b) IPC and
also acquitting A-5 of the offence u/s 323 IPC while confirming the conviction of
A-3 and A-4 for the offence u/s 323 IPC. However, the sentence imposed on A-3
and A-4 by the trial court for the offence u/s 323 IPC is modified and they are
sentenced to undergo simple imprisonment for a period of one day before this
Court, for the offence u/s 323 IPC, which is to be undergone on 18.07.2024 from
the time of the sitting of this Court till the raising of this Court on the said day.
The appellants/A-2 & A-3 shall appear before the Registrar (Judicial) at 09.45
a.m. on 18.07.2024 to mark their presence and, thereafter, appear before the
Court to undergo the sentence imposed on them. If the appellants/A-3 and A-4
fails to appear before the Registrar (Judicial) on 18.07.2024 at 9.45 a.m., their
absence shall be marked and necessary steps shall be taken to secure the
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presence of the appellants/A-3 and A-4 to serve the sentence imposed on them.
The fine amount imposed on A-3 and A-4 stands confirmed.
04.07.2024
Index : Yes / No
GLN
To
1. The Sessions Judge
Mahila Court, Cuddalore.
2. The Inspector of Police
All Women Police Station
Vridhachalam.
3. The Public Prosecutor
High Court, Madras.
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M.DHANDAPANI, J.
GLN
PRE-DELIVERY JUDGMENT IN
CRL. A. NOS. 116 & 858 OF 2022
Pronounced on
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CRL. A. Nos.116-858/2022
04.07.2024
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