Full Judgment
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:
11. 12.2014 CORAM THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.(MD)No.410 of 2008 Sakthivel : Petitioner/Accused Vs. State through the Inspector of Police, V-3 Perunkudi Police Station, Madurai District, In Cr.No.81/05. : Respondent/Complainant Prayer : Criminal Revision Case is filed under Section 397 r/w 401 of the Code of Criminal Procedure, praying to call for the records from the learned Additional District and Sessions Judge -cum- F.T.C.No.III, Madurai, in C.A.No.124 of 2007, dated 02.04.2008, confirming the conviction and sentence passed by the learned First Additional Assistant Sessions Judge, Madurai, passed in S.C.No.365 of 2006, dated 04.10.2007 and set aside the same. For Petitioner :: Mr.N.Anantha Padmanaban For Respondent :: Mrs.S.Prabha, Government Advocate (Crl. Side) :ORDER
This Revision is directed against the judgment passed by the learned Additional District and Sessions Judge -cum- F.T.C.No.III, Madurai, in C.A.No.124 of 2007, dated 02.04.2008, confirming the conviction and sentence imposed on the revision petitioner by the learned First Additional Assistant Sessions Judge, Madurai, passed in S.C.No.365 of 2006, dated 04.10.2007.
2. The case of the prosecution, in a nutshell, is as follows: (i) On 09.04.2005 at 10.00 a.m., P.W.1 and P.W.2 went to Perunkudi to see the Village Administrative Officer. They returned back, since the Village Administrative Officer was not available. While they were standing at the bus stop, P.W.3 came there. At that time, the accused stabbed P.W.1 by saying 'Vz;lh jhBahHp, vd; brhj;ij tpw;W jpA;f Kaw;rp bra;jhah?.". When he prevented the same, it was turned on his left hand. The accused also stabbed him on the left side chest and right and left stomach and back side of P.W.1. P.W.2 and P.W.3 took P.W.1 to Government Rajaji Hospital, Madurai, where P.W.7 Dr.Murugalakshmi gave treatment to P.W.1 and on examining him, she found as many as five injuries on P.W.1 and gave an opinion that the injury sustained on his stomach is grievous in nature. She also issued Ex.P.6-wound certificate. (ii) On intimation, P.W.6 Peer Mohammed, Sub-Inspector of Police went to the hospital and received the complaint Ex.P.1 from P.W.1 and registered a case in Crime No.81 of 2005 for the offences punishable under Sections 307 and 506(2) IPC. He prepared First Information Report Ex.P.5. He sent the case diary to the Inspector of Police for further investigation. (iii) On receipt of copy of F.I.R., P.W.8 Vivekanandan, Inspector of Police took up the case for further investigation. He went to the place of occurrence on 09.04.2005 at 03.00 p.m., and prepared an observation mahazar Ex.P.2 and rough sketch Ex.P.7 in the presence of witnesses. On enquiry, he came to know the whereabouts of the accused and arrested him at Poonga Nagar bus stop and he recorded the confession statement of the accused and recovered the knife which was hidden by him, under Athatchi Ex.P.4. The admissible portion of the confession statement was marked as Ex.P.3. He remanded the accused to judicial custody. After recording the statement of witnesses, he laid the final report against the accused. (iv) The learned trial Judge, after following the procedures, framed necessary charges against the accused. Since the accused denied the same in toto and pleaded not guilty, to prove the charges, P.Ws.1 to 8 were examined and Exs.P.1 to P.7 were marked, besides marking M.O.1 knife, on the side of the prosecution. On completion of the examination of the witnesses on the side of the prosecution, the accused was questioned under Section 313 Cr.P.C., as to the incriminating circumstances found in the evidence of the prosecution witnesses and he denied the same as false. On behalf of the defence, neither the witness was examined nor document was marked. (v) On consideration of evidence available on record, the learned First Additional Assistant Sessions Judge, Madurai, found the accused guilty under Sections 307 and 506(2) IPC and sentenced him to undergo seven years rigorous imprisonment for the offence punishable under Section 307 IPC and sentenced him to undergo three years rigorous imprisonment, to pay a fine of Rs.500/-, in default, to undergo three months simple imprisonment for the offence punishable under Section 506(2) IPC. Aggrieved by the Judgment of the Trial Court, an appeal has been preferred by the accused in C.A.No.124 of 2007, before the learned Additional District and Sessions Judge -cum- F.T.C.No.III, Madurai, and the same was dismissed, confirming the judgment of the Trial Court.
3. Challenging the conviction and sentence under Sections 307 and 506(2) IPC, which was confirmed by the first appellate Court, the petitioner has come forward with the present revision.
4. Heard both sides.
5. Assailing the judgment of conviction and sentence, the learned counsel for the petitioner would submit that F.I.R. is not genuine and P.W.2 and P.W.3 are not eye witnesses. Ex.P.2-observation mahazar and Ex.P.7-rough sketch have been falsified the presence of P.W.2. Non-recovery of bloodstained clothes from the injured is fatal to the case of the prosecution. Medical evidence and ocular evidence has been contradicted with each other. To prove that the injured sustained grievous injury, neither X- ray nor scan report was filed. Hence, the prosecution has not proved the guilt of the accused beyond all reasonable doubt. That factum was not considered by the trial Court and also the first appellate Court. In support of his contention, he also relied upon the decision reported in 2007(2) MLJ (Crl) 1737 [Mahadevan @ Kalathi Chennavarthanan v. State]. and prayed for setting aside the conviction and sentence.
6. Resisting the same, the learned Government Advocate (Criminal side) would submit that the motive has been proved by the prosecution. P.W.1 is an eye witness. Even the evidence of a single injured eye witness is reliable, provided his evidence is trustworthy. The presence of P.W.2 and P.W.3 has been spoken to by P.W.1. As such, there is no reason for discarding their evidence.
7. She would further submit that in the explanation offered under Section 313 Cr.P.C., the accused has plainly stated as false for all the questions posed to him. Non-recovery of bloodstained clothes is not fatal to the case of the prosecution as well as defective investigation is not a reason for acquittal.
8. In support of her contention, she relied upon a decision of the Supreme Court in Criminal Appeal No.31 of 2013 (Arising out of S.L.P.(Crl.)No.9190 of 2011) [Hema vs. State, thr. Inspector of Police, Madras]. and Appeal (Crl.)No.1334 of 2004 [State of Madhya Pradesh v. Kedar Yadav]. and Criminal Appeal No.1517 of 2008 [Pudhu Raja & Anr. vs. State Tr. Inspector of Police]., wherein it was held that it is obligatory on the part of the accused while being examined under Section 313 Cr.P.C., to furnish some explanation with respect to the incriminating circumstances associated with him and prayed for dismissal of the revision.
9. Considering the rival submissions made by both sides and on perusal of the typed-set of papers, the first point to be decided is whether the F.I.R. is genuine?..
10. It is true that the revision petitioner is none other than the brother's son of the complainant P.W.1. There is a property dispute between the parties. The petitioner herein has questioned P.W.1 as to why you sold the ancestral property and assaulted him with M.O.1 knife. He sustained as many as five injuries. The injuries are grievous in nature. That has been proved by the evidence of P.W.7 Dr.Murugalakshmi. In her evidence, she has mentioned five injuries and stated that the occurrence is said to be taken place at 11.00 a.m. on 09.04.2005 and the complainant was assaulted by a known person with knife. He was taken by one Thotthan @ Veeranan P.W.3. Therefore, it is clear that there was an incident taken place. However, the learned counsel would submit that P.W.3 is not a person named Thotthan and his name is Veeranan. Impersonation has been made while examining him. On perusal of the cross-examination of P.W.3, it is seen that no suggestion has been posed to him that he is not a person who took him to the hospital. In villages, there is one name and also one nick name is available. In such circumstances, the argument advanced by the learned counsel that P.W.3 is not an eye witness is unacceptable, because he is the person who took him to P.W.1 to the hospital. A perusal of the evidence of P.W.1, P.W.2 and P.W.3 would go to show that each evidence has been corroborated with one another. Their evidence has clearly proved the injuries caused by the accused. The doctor has examined P.W.1 at 12 noon. The complaint has been recorded at 01.00 p.m., and reached the Court at 07.15 p.m. The distance is 7 kilometres. The case is based on the eye witness. As per the evidence of P.W.7, one known person assaulted the complainant with knife. The argument advanced by the learned counsel for the petitioner that FIR is not genuine is unacceptable one.
11. As already stated, the evidence of P.W.2 and P.W.3 has clearly proved their presence in the place of occurrence and hence, their evidence is reliable. Their evidence has been corroborated by the evidence of P.W.1. In such circumstances, the argument advanced by the learned counsel for the petitioner that P.W.2 and P.W.3 are not eye witnesses does not merit acceptance.
12. Continuing his arguments, the learned counsel for the petitioner would submit that scene of occurrence is entirely different. He has taken me through Ex.P.2-observation mahazar and Ex.P.7 rough sketch. P.W.2 is the son of P.W.1. He has stated that he is going to have a cup of tea and at that time, his father was sitting in the bus stop. It is true that the alleged occurrence is said to be taken place at bus stop. Merely because the investigating officer has not mentioned the tea stall, it will not falsify the case of the prosecution, since convincing, natural and cogent evidence is available before the Court.
13. At this juncture, it is appropriate to consider the decision relied upon by the learned Government Advocate (Criminal side) in Criminal Appeal No.31 of 2013 (Arising out of S.L.P.(Crl.)No.9190 of 2011) [Hema vs. State, thr. Inspector of Police, Madras]., wherein it was held that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal. It is appropriate to incorporate paragraph No.13 of the said judgment, which reads thus:
"3. It is clear that merely because of some defect in the investigation, lapse on the part of the I.O., it cannot be a ground for acquittal..............."
14. Applying the said decision to the case on hand, I am of the view that merely because the Investigating Officer has not mentioned the tea stall, it will not be a ground for acquittal.
15. It is true that non-recovery of bloodstained clothes from the injured will not be a fatal to the case of the prosecution. Admittedly, P.W.1 has sustained injury. He was treated by the doctor. Hence, the argument advanced by the learned counsel for the petitioner that non-recovery of bloodstained clothes from the injured P.W.1 is fatal to the case of the prosecution does not merit acceptance. It is true that neither scan report nor x-ray has been filed to prove that the injury is grievous in nature and the period of treatment was also not mentioned. P.W.7, in her evidence, had stated that the injury on his stomach is grievous in nature. In her cross, she had clearly stated that if it is asked as to whether P.W.1, who is aged about 60, fell down on the glass pieces and due to that, if there is any possible for the injuries which he had, she denied the same stating that it is not possible. In such circumstances, I am of the view that the prosecution has proved that the injury has been caused by the accused beyond all reasonable doubt. That has been considered by both the Courts below and came to the correct conclusion. Therefore, I do not find any reason to interfere with the said finding.
16. However, now, this Court has to decide whether the ingredients of the offence under Section 307 IPC have been made out?.
17. It is appropriate to consider the decision in Appeal (Crl.)No.1334 of 2004 [State of Madhya Pradesh v. Kedar Yadav]., wherein it was held that to justify a conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. It is appropriate to incorporate the relevant observation, which reads thus: "It is to be noted that the alleged offence was of very serious nature. Section 307 relates to attempt to murder. It reads as follows: "Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to (imprisonment for life), or to such punishment as is hereinbefore mentioned."
To justify a conviction under this Section, it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
18. Considering the above dictum along with the facts of the present case, the evidence of P.W.7 Dr.Murugalakshmi shows that the complainant sustained five injuries and the injury on his stomach is grievous in nature. The learned counsel for the petitioner would further submit that it is true that to prove that the injury sustained by the complainant is grievous in nature, neither scan report nor x-ray has been marked and the period of treatment was also not marked. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the petitioner reported in 2007(2) MLJ (Crl) 1737 [Mahadevan @ Kalathi Chennavarthanan v. State]., wherein it was held that for the injury to come under the definition of Section 320 Indian Penal Code, 1860, it shall be legally grievous and not merely medically grievous. The mere protruding out of the intestine from the stomach will not be concluded as grievous one since it is not falling under the definition of 'grievous hurt' as under Section 320 Indian Penal Code.
19. On going through the above citation, I am of the view that because of non-filing of treatment records, the prosecution has failed to prove the ingredients of Section 307 IPC. Due to property dispute, complaint has been given. In the absence of intention to murder, the offence under Section 307 IPC is not made out. However, P.W.1 has sustained injury, according to P.W.7, which is grievous in nature. It is appropriate to incorporate Section 320 IPC, which reads thus: "320.Grievous hurt.- The following kinds of hurt only are designated as "grievous".- First ?. Emasculation. Secondly ?. Permanent privation of the sight of either eye. Thirdly-Permanent privation of the hearing of either ear. Fourthly- Privation of any member or joint. Fifthly-Destruction or permanent impairing of the powers of any member or joint. Sixthly-Permanent disfiguration of the head or face. Seventhly-Fracture or dislocation of a bone or tooth. Eighthly-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
20. P.W.7-Dr.Murugalakshmi, in her evidence, had stated that the injury sustained by P.W.1 on his stomach is grievous in nature. There is no evidence to show that he was treated as inpatient for more than 20 days. In such circumstances, I am of the view that the injury sustained by P.W.1 attracts the provision of Section 324 IPC, causing simple injury by using deadly weapon. Therefore, instead of convicting him under Section 307 IPC, I am inclined to convict him under Section 324 IPC.
21. The learned counsel would further submit that there is no evidence to show that there was criminal intimidation. However, on perusal of the evidence of P.W.1 to P.W.3, I am of the view that the evidence adduced by them is not sufficient to convict him under Section 506(2) IPC as if he made criminal intimidation. But, as per the evidence of P.W.1, he was stabbed by the accused. In such circumstances, I am of the view that the Trial Court has committed an error in convicting the accused under Section 506(2) IPC and hence, the conviction and sentence imposed under the said provision is, hereby, set aside.
22. Insofar as the offence under Section 324 IPC is concerned, sentence is imposed on the petitioner to undergo 6 months rigorous imprisonment, to pay a fine of Rs.5,000/-, out of which, Rs.4,000/- has to be paid to the injured as compensation. The petitioner is directed to deposit the said sum of Rs.4,000/- to the credit of S.C.No.365 of 2006, on the file of the learned First Additional Assistant Sessions Judge, Madurai, within a period of 30 days from the date of receipt of a copy of this order, failing which, the default sentence of 3 months simple imprisonment will be executed against him. On such deposit being made, the lower Court is directed to pay the said amount to P.W.1 as compensation. The learned trial Judge is directed to take steps to secure the presence of accused and commit him in jail to undergo the remaining period of sentence, if any. The period of sentence already undergone shall be given set off.
23. The Criminal Revision Case is disposed of with the above modification. 11.12.2014 Index:Yes/No Internet:Yes/No SML R.MALA, J.
SML To 1.The Additional District and Sessions Judge -cum- F.T.C.No.III, Madurai. 2.The First Additional Assistant Sessions Judge, Madurai, 3.The Inspector of Police, V-3 Perunkudi Police Station, Madurai District. 4.The Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Order made in Crl.R.C.(MD)No.410 of 2008 Dated:
11. 12.2014