{"id":128828,"date":"2011-01-05T00:00:00","date_gmt":"2011-01-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jayapal-vs-the-state-rep-by-on-5-january-2011"},"modified":"2016-03-02T01:00:31","modified_gmt":"2016-03-01T19:30:31","slug":"jayapal-vs-the-state-rep-by-on-5-january-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jayapal-vs-the-state-rep-by-on-5-january-2011","title":{"rendered":"Jayapal vs The State Rep. By on 5 January, 2011"},"content":{"rendered":"<div class=\"docsource_main\">Madras High Court<\/div>\n<div class=\"doc_title\">Jayapal vs The State Rep. By on 5 January, 2011<\/div>\n<pre>       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED :   5 .1.2011\n\nCoram\n\nThe Hon'ble Mr. Justice A.ARUMUGHASWAMY \n\n Criminal Appeal  No.1809 of 2003 \n\n1.Jayapal\n2.Jayasathish\n3.Prabha\n4.Anandavelu\t\t\t\t\t... Appellants\n\n Vs.\n\nThe State rep.  by \nInspector of  Police,L&amp; O\nB-2 Esplanade Police Station\nChennai \t\t\t\t\t\t\t.. Respondent\n\n\n\tCriminal 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.\n\t\t\t  For Appellants :  Mr.A.Shiv Kumar\n\n\t\t\t\t\n\t\t\t  For Respondent: Mr. N.Kumanan\n\t\t\t\t\t\t  Govt. Advocate (Crl.Side)\n\nJUDGMENT\n<\/pre>\n<p>\tThe 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.\n<\/p>\n<p>\t2. 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 &#8220;Bombay  Tea Stall&#8221;. 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\tagainst the appellants. They denied the charges.\n<\/p>\n<p>\t 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.\n<\/p>\n<p>\t4.  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.\n<\/p>\n<p>\t5. The learned  counsel appearing for the appellants  resisted the  judgment of the trial court  on the following grounds :-\n<\/p>\n<p>\t      1. The non-examination of the  injured is fatal to the case of the prosecution.\n<\/p>\n<p>         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.\n<\/p>\n<p>\t3. The court lacks power to award compensation to a third party.\n<\/p>\n<p>On these grounds  he contended that the appeal has to be allowed.\n<\/p>\n<p>    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.\n<\/p>\n<p>\t7. 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.\n<\/p>\n<p>\t8.  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.\n<\/p>\n<p>\t9. 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.\n<\/p>\n<p>\t  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.\n<\/p>\n<p>\t11.  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.\n<\/p>\n<p>\t12. 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 .\n<\/p>\n<p>\t 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 &#8220;Kaligambal Temple&#8221;  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.\n<\/p>\n<p>\t\t14. In the result, these appeal is  partly allowed in the following terms.\n<\/p>\n<p>\t (i). The conviction and sentence imposed by the trial court  is  confirmed.\n<\/p>\n<p>\t (ii).  The order for payment of compensation  of Rs.20,000 out of the fine  amount  to the temple alone is set aside.\n<\/p>\n<p>Krr\/<\/p>\n<p>To\n<\/p>\n<p>1. The Additional Sessions Judge<br \/>\n(IV Fast Track Court),<br \/>\nChennai <\/p>\n<p>2. The Public Prosecutor<br \/>\nHigh Court<br \/>\nChennai<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madras High Court Jayapal vs The State Rep. By on 5 January, 2011 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 5 .1.2011 Coram The Hon&#8217;ble Mr. Justice A.ARUMUGHASWAMY Criminal Appeal No.1809 of 2003 1.Jayapal 2.Jayasathish 3.Prabha 4.Anandavelu &#8230; Appellants Vs. The State rep. by Inspector of Police,L&amp; O B-2 Esplanade Police Station [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-128828","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Jayapal vs The State Rep. 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