IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5 .1.2011 Coram The Hon'ble Mr. Justice A.ARUMUGHASWAMY Criminal Appeal No.1809 of 2003 1.Jayapal 2.Jayasathish 3.Prabha 4.Anandavelu ... Appellants Vs. The State rep. by Inspector of Police,L& O B-2 Esplanade Police Station Chennai .. Respondent Criminal Appeal filed under Section 374 of Cr.P.C. against the judgment of the Additional Sessions Judge (IV Fast Track Court), Chennai in S.C.No.191 of 2002 dated 15.10.2003. For Appellants : Mr.A.Shiv Kumar For Respondent: Mr. N.Kumanan Govt. Advocate (Crl.Side) JUDGMENT
The four appellants stand convicted for the offence under Section 324 I.P.C. and sentenced to undergo imprisonment till the raising of the court and a fine of Rs.10,000/- each out of which a sum of Rs.20,000/- was directed to be paid to the Kaligambal Temple by the judgment of the learned Additional Sessions Judge Chennai in S.C.No.191 of 2002 dated 15.10.2003. Challenging the said conviction and sentence, the appellants have come forward with the present appeal.
2. The case of the prosecution is that on 28.9.1999 at 12.30 a.m. one Karthik, who was the injured received a phone call from one of his friends who asked him to come near a tea stall known as “Bombay Tea Stall”. Responding to the phone call the said Karthik went towards the said tea stall. P.W.1 the father of the said Karthik having suspected some foul play followed his son. When Karthik was reaching the tea stall, suddenly four persons attacked him with wooden logs in which he sustained injuries. On seeing this incident P.W.1 raised alarm which attracted the public to the place of occurrence. Thereafter, all the assailants left the injured and disappeared. Immediately, P.W.1 took the injured and got him admitted in a private hospital known as National Hospital at 1 a.m. The Doctor P.W.5 examined him and gave treatment. He issued Ex.P4 wound certificate. Ex.P5 is the Medico Legal Register. Thereafter, the injured person was discharged on 26.10.1999. To the Doctor the said Karthik had told that he was attacked by unknown persons. Thereafter, P.W.1 preferred a complaint to the Esplanade Police Station. In the complaint he has mentioned the names of the appellants as the assailants. P.W.2 is a person who is also residing in the same street. P.W.2 has been examined to speak about the observation mahazar. P.W.3 has been examined to speak about the confession statement of A2 as well as the seizure mahazar. P.W.3 examined as an eye witness has turned hostile. P.W.6 is the Sub Inspector of Police, who registered the FIR. P.W.7 investigated the case followed by P.W.8. P.W.8 laid the final report. The trial court framed charges under Section 307 read with 34 IPC against the appellants. They denied the charges.
3. Before the trial court on the side of the prosecution P.Ws.1 to 8 were examined Exs.P1 to P10 were exhibited and Mos 1 to were marked. On the side of the defence no witness was examined and no defence exhibit was marked.
4. On consideration of the evidence, the learned Sessions Judge convicted the accused under Section 324 IPC and sentenced them to undergo imprisonment till the raising of the court and directed all the four accused to pay a fine of Rs.10,000/- each out of which a sum of Rs.5,000/- each altogether a total sum of Rs. 20,000/- was directed to be paid to the Kaligambal Temple against which the complainant has filed the present appeal.
5. The learned counsel appearing for the appellants resisted the judgment of the trial court on the following grounds :-
1. The non-examination of the injured is fatal to the case of the prosecution.
2. The injured at the earliest point of time had told the Doctor that he was attacked by unknown persons, whereas, P.W.1 in the complaint itself has mentioned the name of the accused, who are said to be the neighbours of the injured and P.W.1.
3. The court lacks power to award compensation to a third party.
On these grounds he contended that the appeal has to be allowed.
6.The learned Government Advocate (Criminal Side) contended that mere non-examination of the injured person alone will not be a ground for acquittal of the accused. Further compensation has rightly been awarded under Section 357. Hence there is no need to interfere with the judgment of the trial court and hence the appeal has to be dismissed.
7. As regards the first point agitated by the learned counsel for the accused that the injured was not examined the explanation offered by the prosecution is that since the injured is in London, he could not be examined. Thus, the non-examination of the injured has been duly explained away. Further, when the evidence of P.W.1 is cogent and convincing, the mere non-examination of the injured has not in any manner caused any dent in the prosecution case.
8. The next contention of the learned counsel for the appellants is that the injured had told the Doctor at the earliest point of time that he was attacked by four unknown persons. He would further point out that as per the evidence of P.W.1, the appellants are neighbours. If that be so, the learned counsel would contend, the injured would have mentioned the names of the assailants to the Doctor. The very fact that he had told the Doctor that he was attacked by unknown persons would go to show that the assailants were not these appellants. The contention of the learned counsel in my considered opinion, though attractive, the same does not carry any merit.
9. It is needless to point out that the statement made by the injured to the Doctor, though it is earliest in point of time, cannot be considered to be substantive piece of evidence and the same could be used either for contradicting as provided under Section 145 or to corroborate his evidence under Section 157 of the Evidence Act. Since in this case the maker of the statement viz., the injured was not at all examined before the court, his statement given at the earliest point of time to the Doctor could not be used either for corroboration or for contradiction. In other words, the statement made by the injured to the Doctor is not substantive in nature and therefore in the given case the same cannot be considered for any purpose. For this reason I reject the contention of the learned counsel in this regard.
10. The learned counsel also contended that there was no independent witness examined by the prosecution which, in my considered opinion, does not merit acceptance. In a case where the evidences of interested witnesses do not inspire the confidence of the court, as a rule, the court would look for corroboration from independent sources. It is also the rule that in a case where the evidences of the interested witnesses inspire the confidence of the court absolutely there is no need for any other evidence from independent sources to corroborate. In the case on hand, we have already noticed that the evidence of P.W.1 coupled with other evidences would clearly establish the case of the prosecution beyond any iota of doubt. Therefore, the non-examination of any independent witness cannot be held to have caused any doubt much less reasonable doubt in the case of the prosecution.
11. In view of the foregoing discussions, I hold that the prosecution has proved the charges against the accused beyond any doubt that the accused have committed the offence under Section 324 IPC which does not warrant any interference at the hands of this court.
12. Now coming to the question of sentence as we have already noticed, the trial court has imposed a minimum sentence of imprisonment till raising of court and a fine of Rs.10,000/-each. This cannot be stated to be unreasonable in any sense. Therefore, I am inclined to confirm the same .
13. Now coming to the direction issued by the trial court to pay a sum of Rs.20,000/- out of the fine amount as compensation to Kaligambal Temple, I am of the view that the said direction is wholly without jurisdiction. As provided in Section 357 Cr.P.C., compensation can be ordered only in favour of a victim, who has suffered some loss due to the occurrence. In this case “Kaligambal Temple” is in no way connected with the crime and no damage was caused to the temple. The compensation cannot be equated with a donation to be given to a deity. The compensation, in the legal sense, is to make good the loss sustained by the victim in the occurrence. But the trial court has travelled beyond its jurisdiction and has wrongfully directed payment of Rs.20,000/- as compensation to the temple. Therefore, I have no hesitation to interfere with that portion of direction of the trial court and to set aside the same.
14. In the result, these appeal is partly allowed in the following terms.
(i). The conviction and sentence imposed by the trial court is confirmed.
(ii). The order for payment of compensation of Rs.20,000 out of the fine amount to the temple alone is set aside.
Krr/
To
1. The Additional Sessions Judge
(IV Fast Track Court),
Chennai
2. The Public Prosecutor
High Court
Chennai