IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.402 of 2003 1.Dakshina @ Dakshinamoorthy, 2.Moorthy 3.Rajai @ Rajali .. Appellants Vs. State:by Inspector of Police, P-4 Basin Bridge Police Station .. Respondent Prayer: This criminal appeal filed against the conviction and sentence passed by Additional District Sessions Judge (Fast Track Court IV, Chennai) in S.C.No.205 of 2002 on 28.2.2003 For Appellants:Mr. K. Kannan For respondent:Mr. I. Paul Noble Devakumar Advocate (Criminal side) JUDGMENT
This Criminal Appeal arises out of the judgment of conviction and sentence passed by Additional District Sessions Judge (Fast Track Court IV, Chennai) in S.C.No.205 of 2002 on 28.2.2003 convicting accused A1 to A3 under Section 326 r/w.34 IPC and sentencing them 3 years rigorous imprisonment and a fine of Rs.5000/-, in default to undergo rigorous imprisonment for a period of 6 months.
2. The case of the prosecution is as follows:
(a) On 27.2.2001 at 10.30 a.m. near under the Basin Bridge, adjacent to Tamilnadu Electricity Board compound wall, at Basin Bridge Railway Station, when P.W.1-Vasanthi handed over the ground nut to his sister and proceeding to see his mother, the accused were alighted from an auto and the first accused assaulted P.W.1’s mother Angammal P.W.3 on her right hand side of her head with Aruval . When the 1st accused Dakshinamoorthy attempted to assault P.W.3 again, immediately it was prevented by P.W.3 with her right hand and out of that she sustained injury on her right hand.
(b) The second accused Murthy assaulted P.W.3 on left side of her neck by Aruval. The 3rd accused Rajali inflicted injury below the chest of P.W.3. After sustaining grievous injuries , P.W.3 fell down . A4-Arjunan and A5-Jalamurthy assaulted P.W.3 on her back side. Since P.W.1 made an alaram, P.W.2 Indira-sister of P.W.1 rushed to the scene of occurrence and took P.W.2 to Government Stanley Hospital. Then P.W.1 went to police station and lodged complaint Ex.P.1.
(c)Immediately P.W.10-Dr.Manivel at 3.30 p.m. has examined P.W.3 and mentioned the injuries sustained by her and gave Accident Register copy Ex.P.12. In which the following injuries sustained by P.W.3 was mentioned.
“i) 10 cm sutured wound right parietal region
ii)Injury on the neck
iii)Injury near the right
iv)Injury on right hand
v)Injury on left shoulder
vi)Injury on back”
P.W.8 Dr.Jayavel Rajkumar after giving treatment to P.W.3 issued wound certificate Ex.P.11 in which it is stated as follows:…
“X-Ray Right hand AP Lat
X-Ray Skull AP Lat
X-Ray occipital spine AP Lat
X-Ray Lumbar spine AP Lat
No fracture.
Opinion:- Grievous ”
P.W.12 Rajeswari-Sub Inspector of Police, Basin Bridge received complaint from P.W.1 at 11.15 a.m. and registered a case in crime No.95/01 under Section 307 r/w.34 IPC and prepared First Information Report Ex.P.15.
(d) P.W.13 Senthil Kumar, Inspector of Police has taken up the matter for investigation and went to the place of occurrence at 12.45 p.m. He inspected the place of occurrence in the presence of witnesses Elangovan and Kalaivanan and prepared observation Mahazar Ex.P.16 and drew rough sketch plan Ex.P.17. He examined the witnesses P.W.1 and P.W.2, Ramu, Kanniappan, Elangovan and Dr. Manivel (P.W.10) and recorded their statements.
(e) On 28.2.2001 he examined P.W.3 who was injured. P.W.11-Judicial Magistrate Mr. Karunanidhi has received the information for recording the dying declaration of P.W.3. P.W.11 recorded her dying declaration on the basis of the requisition Ex.P.13 received from the investigation officer after following formalities under Ex.P.14. P.W.13 examined other witnesses and after examining the victim,he altered the case from the offence under Section 307 r/w. 34 IPC to Sec.147, 148, 307,r/w.34 IPC. Then he prepared express report Ex.P.19 and then he examined witnesses Thangaraj and Murugesan and recorded their statements.
(f) On 1.3.2001 at 10.30 am. he arrested A5 near Salt quarters main gate. At that time, he gave a confession which was recorded in the presence of Elumalai-P.W.6 and Thanikachalam. In the confession statement he has stated that he is ready to hand over the weapon, that portion is marked as Ex.P.20. In pursuance of that he handed over the weapon which was seized under Ex.p.21.
(g)On 5.3.2001 at 11.30 A.M. he arrested A1-Dakshinamoorthy and A4-Arjunan near Moolakothram bus stand. At that time 1st accused gave confession and the admitted portion of the confession statement of A1 is marked as Ex.P.7. In pursuance of that, he handed over the weapon i.e. Aruval which was seized under Ex.P.9. On 7.3.2001 he arrested 2nd accused Moorthy near Basin bridge Railway station bus stand. At that time he gave his confession statement and the admitted portion of the confession statement is marked as Ex.P.8. In pursuance of that he handed over the weapon which was seized under Ex.P.21.
(h) On 8.3.2001 he arrested Rajali-A3. He gave his confession statement and in pursuance of that he handed over the weapon which was seized under Ex.A.22.
(i) Then he examined the other witnesses and concluded his investigation and filed charge sheet against the accused under Section 147, 148, 341, 307, 326 I.P.C.
3. The learned Sessions Judge has framed charges against these accused. They pleaded not guilty. On examination of witnesses P.W.1 to P.W.13, Ex.P.1 to Ex.P.22 and M.O.1 to 4, he questioned the accused Under Section 313 Cr.P.C and placed the incriminating evidence against the accused. They denied the same.
4. On considering the oral and documentary evidence the learned Sessions Judge acquitted A4 and A5 for the offence under Section 307 IPC but convicted A1 to A3 only under Section 326 r/w.34 IPC and sentencing them to undergo 3 years of rigorous imprisonment and imposed a fine of Rs.5000, in default to undergo rigorous imprisonment for a period of 6 months.
5. Challenging the conviction and sentence passed by the Trial Court against A1 and A3 the present Criminal appeal has been preferred by the appellants. The learned counsel for the appellants would contend that due to previous enmity, a false complaint has been foisted against these accused A1 and A3. They are innocent. Even if the Court came to the conclusion they are guilty for the offence under Section 326 IPC, since A1 is now employed in Railways, leniency may be shown to him.
6. The learned Government Advocate(criminal side) would submit that the learned Sessions Judge after considering the oral evidence of P.W.1 to P.W.3, that too P.W.3 is injured eye witness and evidence of doctor had came to this correct conclusion that A1 and A3 are guilty under Section 326 r/w 34 IPC. Hence he prayed for dismissal of this appeal and confirmation of the conviction and sentence passed by the Trial Court.
7. While considering the arguments of both the Counsel it is true P.W.1 and P.W.2 are daughters of P.W.3. P.W.4, P.W.5 and P.W.6 are the independent witnesses who turned hostile. But it is a well settled principle of law that the evidence of a single, interested, related eyewitness is reliable provided, it must be natural, cogent, convincing and trust worthy. It is pertinent to note that P.W.3 is an injured eye witness. While considering the evidence of P.W.3, no reason for discarding her evidence since her evidence is natural, cogent, convincing and trust worthy. Hence it is reliable. Further more, the main factor to be considered is that since her condition was critical, dying declaration has been recorded by this P.W.11 on the basis of Ex.P.13. Dying Declaration has been marked as Ex.P.14. But it is not considered as dying declaration since the victim is alive. That P.W.1 who is the person set law in motion had given-Ex.P.1 which was at earlier point of time and in that she has mentioned the names of the accused. So even though they are the daughters of the P.W.3 there evidence is cogent, natural and trust worthy, hence it is reliable. Therefore the evidence of P.W.1 to P.W.3 has clearly proved that A.1 to A.3 have inflicted injuries to P.W.3.
8. At this juncture it is appropriate to consider the evidence of P.W.8 Doctor Rajkumar and P.W.10 doctor Manivel. P.W.10 doctor Manivel has stated in Ex.P.12, that P.W.3 had sustained the following injuries :-
i)10 cm sutured wound right parietal region
ii)Injury on the neck.
iii)Injury near the right
iv)Injury on right hand.
v)Injury on left shoulder.
vi)Injury on back.
so there is no contradiction between medical evidence and ocular evidence. Besides this there is a Section 27 of Indian Evidence Act recovery. On the basis of confession statement only, recovery has been made which was marked as M.O.4 series i.e. lethal weapons. As per P.W.8 Doctor’s evidence, since P.W.3 has not submitted herself for further examination, he has given his opinion that the injuries sustained by her are grievous in nature. But as per evidence of P.Ws.8 and 10 and Exs.P.11 and P.12 there is no clinching evidence to show that the victim P.W.3 has sustained grievous injury.
9. As per Ex.P.12 she was admitted only in the hospital on 27.2.2001 and she was discharged on 7.3.2001, but admittedly as per the statement of P.W.8, no fracture was deducted as per Ex.P.11.
10.In such circumstances as per Section 320 of IPC that prosecution has miserably failed to prove that the injuries sustained by P.W.3 are given under the purview of Section 320 IPC. So the trial Court has been committed an error in convicting the accused under Section 326 IPC. Further the appellants/accused are armed with lethal weapons and assaulted P.W.3 and caused injury. So they are guilty under Section 324 IPC instead of Section 326 IPC. Since P.W.1 to P.W.3 who are having common intention have committed such an offence, they are guilty under Section 324 r/w.34 IPC. Therefore the conviction and sentence under Section 326 r/w.34 IPC has been modified into 324 r/w.34 IPC.
11. The learned counsel for the appellants would contend that the appellant is employed in Railways and prayed that leniency in punishment may be given. While considering Section 324 IPC, since the appellants are guilty under Section 324 IPC, the fine already imposed is hereby confirmed and the period of imprisonment already under gone by them is sufficient to meet out the ends of justice. Hence, the sentence is modified accordingly.
12. In fine,
The appeal is partly allowed.
The conviction and sentence imposed on Appellants/A1 to A3 under Section 326 r/w.34 IPC are set aside.
But they are convicted under Section 324 r/w.IPC.
The period of imprisonment already undergone by the appellants are sufficient.
It is stated that a fine of Rs.5,000/- imposed by the trial court has been paid by the appellants and the same is confirmed.
So the appellants are set at liberty.
msr
To
1. Addl.Dist. Sessions Judge,
Fast Track Court,
Chennai.
2.Inspector of Police,
P-4 Basin Bridge Police Station.
3.The Public Prosecutor,
High Court,
Chennai