ORDER
1. The petitioner is the second accused in C.C.No.191 of 1995 on the file of the learned District Munsif-cum-Judicial Magistrate, Thirukazhukkundaram, Chengelpet District. He was tried along with two others for offences punishable under Sections 443,448, 323 and 326, IPC. The learned Magistrate, on the evidence adduced, acquitted A1 and A3, but convicted the petitioner under section 326, IPC and sentenced him to suffer rigorous imprisonment for a period of six months and also directed him to pay a fine of Rs 1000 with a default sentence of rigorous imprisonment for a further period of six months. Aggrieved by the said order of conviction and sentence, he preferred an appeal and the appellate court confirmed the conviction and sentence. Hence, the present revision.
2. The case of the prosecution is that at 3.30 a.m. on 19.6.1994, the petitioner accompanied by A1 and A3 in the case went to the house of PW1
and called out PW3 and when PW1 came out and questioned them, the petitioner picked a quarrel with her and with an iron ring which he had in his hand, fisted PW1 on her mouth. The occurrence was witnessed by P.W.2 and 3, the children of PW1. PW1 was taken to the police station and a complaint. Ex.P.1 was given to PW8, the head constable. PW1 was examined by PW5, the doctor attached to Government Hospital, Mathuranthakam. PW1 was admitted as an in- patient and thereafter, she was treated by PW7, the dentist, who has found dislocation of two teeth. After the treatment, PW.1 was discharged on 22.6.1994. The complaint Ex.P1, which was given on 19.6.1994, was later registered as a Crime by PW.8 in crime No.300 of 1994 for offence under sections 446,323, and 324 IPC on 15.7.1994. After investigation, the final report was filed against the accused.
3. The learned counsel appealing for the petitioner contends that the first information statement in this case cannot be the real first information statement and there is inordinate delay in registering the complaint. Though, according to the prosecution, the occurrence took place on 19.6.1994, the first information statement was registered as a crime only on 15.7.1994 i.e nearly a month after the incident. It is his further contention that the statement given by PW.1 at the earliest opportunity when she was produced before the doctor is different from the statement which is now given in the Court. Per contra, I heard Mr.S. Anbalagan, the learned Additional Public Prosecutor on behalf of the respondent- State on the contentions raised by the counsel for the petitioner. I also perused the materials including the original records.
4. It is an admitted case that an occurrence took place on 19.6.1994 at 3.30 a.m. It is stated by the prosecution that a complaint was given by PW.1 on that day itself and that the said complaint was treated as a petition and an entry was made in the General Diary of the police station. It is also an admitted case that the first information statement was registered on 15.7.1994 on the basis of Ex.P-1 which according to the prosecution was given on 19.6.1994. The police officer thought it fit to register the complaint for offences under sections 448, 323, and 324, IPC. This shows, that the officer, on the allegations found in Ex.P-1 came to the conclusion that a congnizable offence had been committed by the accused. If so, it escapes my comprehension as to why the police officer did not think it necessary to register the crime even on 19.6.1994 if there had been a complaint given by PW1. It is also strange that the prosecution, which claims that the complaint was given on 19.6.1994, had no explanation to offer as to why it was treated as a petition and an entry in the General diary was made. Even here, it is to be noted that though the prosecution has come out with a present version that the police officer had made an entry in the General Diary on 19.6.1994, the said General Diary was not produced in the court and was not marked as a document. The production of the said document would have substantiated the version of the prosecution that PW1 had gone to the police station and laid a complaint on 19.6.1994, which was treated only as a petition and the non-production of the said General Diary in the court creates a suspicion in the
mind of this court as to whether there was any complaint at all on 19.6.1994 as claimed by the prosecution. In my view, the General Diary is an important document on the facts of this case, production of which alone would have substantiated the prosecution version that a compliant was given on 19.6.1994 by PW1 and the same was treated as a petition. The non-production of the General Diary is fatal to the prosecution.
5. In the above background, when we look at the evidence of PW1 it also creates a suspicion in the mind of this court whether the occurrence could have taken place in the manner alleged now. Though, according to PW1 the occurrence took place at about 3.30.a.m. and she was fisted with an iron ring by the petitioner. She did not come out with such a statement to the doctor. P.W.6 when she questioned her as to the cause of injuries. PW1 informed the doctor PW6 that she was beaten by ten persons with hands and sticks and also was kicked with legs. She did not mention iron rings as the weapon of offence with which she was beaten. An iron ring being a unusual weapon, a person suffering an injury on account of fisting with that weapon will definitely mention the nature of weapon to the doctor. The fact that the doctor was informed by PW1 that she was beaten by 10 persons is not found mentioned in Ex.P1 and further, the fact that PW1 did not mention iron ring as the weapon of offence, when viewed in the background of the delay in registering the complaint, show that the prosecution version cannot be accepted to hold that the petitioner caused the injuries with an iron ring.
6. It is also to be remembered that though PW1 was admitted as an in-patient on 19.6.1994. She was discharged on 22.6.1994 and if so, there is no reason as to why we investigating officer waited till 15.7.1994 to register the complaint. Even if it is to be assumed that there was a complaint on 19.6.1994, in the absence of any explanation for the delay in registering the complaint and in view of the non-production of the General Diary, the present explanation that it was treated as a petition and an entry in the General Diary was made, cannot be accepted.
7. On the evidence on which the other two accused were acquitted, I feel that the petitioner is entitled to an acquittal. The petitioner is acquitted and the conviction and sentence imposed upon him are set aside. The revision is allowed. The fine amount, if any, paid by the petitioner shall be refunded to him.
