Allowed

Santhosh @ Muthuprabhakar, v. the Sub Inspector of Police

Madras HC3 Jan 2014CRL RC(MD)/262/2013

Case brief

AI extract

What is this about?

The Madras High Court allowed a criminal revision petition, setting aside the conviction and sentence of the petitioner for affray and causing hurt, finding the prosecution evidence unreliable due to contradictions with medical testimony and unexplained injuries to the victim.

What did the court decide?

Conviction and sentence in C.A.No.14 of 2011 set aside; fine amount if paid to be refunded.

Santhosh @ Muthuprabhakar, Vs the Sub Inspector of… — Criminal Trial and Appeal | Madras HC (2014)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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DATED: 03.01.2014

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THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN

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CRL.R.C.(MD) No.262 of 2013

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... Petitioner/Appellant/A2

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Santosh @ Muthuprabhakar

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Vs.

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State thro'the S.I. Of Police, Karaikudi South Police Station, (In Crime No. 253 of 2007) ... Respondent/Respondent/Complainant

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Prayer: Criminal revision petition filed under Section 397 and 401 of Criminal Procedure Code to call for the records pertaining to the case in C.A.No.14 of 2011 on the file of the Session Judge, Sivagangai and C.C.No.444 of 2007 on the file of Principal District Munsif cum Judicial Magistrate, Karaikudi and set aside the conviction and sentence passed in C.A.No.14 of 2011 on the file of the Sessions Judge, Sivagangai, dated 11.12.2012 in confirming the judgment made in C.C.No.444 of 2007 on the file of the Principal District Munsif cum Judicial Magistrate, Karaikudi dated 18.01.2011.

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For Petitioner : Mr.N.Dilip Kumar For Respondent : Mr.K.Anbarasan Government Advocate[Crl side]

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O R D E R

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This revision is preferred against the judgment passed in C.A.No. 14 of 2011 dated 11.12.2012 by the learned Sessions Judge, Sivagangai confirming the judgment made in C.C.No. 444 of 2007 dated 18.01.2011 passed by the learned Judicial Magistrate, Karaikudi.

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The petitioner, who arrayed as the second accused, was tried for the offence punishable under Sections 294(B), 506(ii) and 323 IPC along with three accused. The trial court, after analyzing oral and documentary evidence, acquitted the first, third and fourth accused of all the charges but however, found the second accused/the petitioner guilty under Section 323 IPC. He was sentenced to pay a fine of Rs.1,000/- in default to undergo two months rigorous imprisonment. Aggrieved against the said conviction, the petitioner preferred an appeal and the Appellate Court confirmed the conviction and sentence passed by the trial court. Hence, the present revision.

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3.The learned counsel for the petitioner would submit that the courts below found the second accused/petitioner guilty on the sole ground that he had caused simple injury to P.W.1 placing reliance on the testimony of P.W. 1 to 3 and he further contended that the testimony of P.W.1 to 3 are unreliable and the courts below having acquitted the https://hcservices.ecourts.gov.in/hcservices/ petitioner in respect of offence under Sections 294(b) and 506(ii) IPC ought to have disbelieved the testimony of those witnesses even in

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respect of the offence under Section 323 IPC against which the petitioner is convicted.

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On a perusal of entire records, it is seen that in FIR it is stated by P.W.1 that he was assaulted by the second accused/ petitioner and the second accused pulled his hand and caused lacerated injury with some weapon. Even in his evidence before the court he has reiterated the same. P.W.3, the father P.W.1 however has stated that when his son entered into the house of the accused he shut the door in which his son's left hand got entangled and further, on seeing it the second accused hit his left hand with a stick. This fact is not spoken to by P.W.1. He has neither stated that his hand got entangled in the door nor by using the said situation the second accused hit his hand with a stick.

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Quite contrary to the evidence of P.W.1 and 3, P.W.2 the Doctor has stated that he found an abrasion on the left hand of the complaint/P.W.1. So, as per the Doctor's evidence, PW.1 sustained only abrasion whereas the evidence of P.W.1 and 3 indicated that lacerated injury was caused by the second accused with a stick whereas as per the evidence of P.W.1 it was caused by some weapon.

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Therefore, the oral testimony of the above said witnesses is totally contrary to the medical evidence. In such circumstances, it cannot be conclusively said that the injury said to have been sustained by P.W. 1 was caused by the second accused in the manner and with such weapon as alleged by the prosecution.

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The trial court has failed to see the material contradiction in the evidence of P.W.1 to 3 as stated above and therefore, the conviction based on the aforesaid unreliable testimony of P.W. 1 to 3 which is totally contradictory to the medical evidence cannot be sustained.

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The learned counsel for the petitioner assailed the conviction and sentence passed by the courts below on the other ground that the prosecution party was an aggressor and in fact, the first accused was attacked by the prosecution party as a result of which he was admitted in hospital as in-patient and took treatment for nearly five days. In support of the above, the defense had produced the treatment particulars of the first accused which shows that he was admitted in the hospital with a history of injury sustained by him at the hands of known persons. It appears that he sustained those injuries in the same course of incident and he was taken to Karaikudi Government Hospital and from there he had been referred to Government Rajaji Hospital, Madurai for further treatment. There is no explanation from the prosecution as to how the accused more particularly the first accused sustained the said grievous injury. In fact, P.W.1 has admitted in his evidence that he had come to know that the first accused was admitted in the hospital. However, he denied knowledge about the cause for such admission of the first accused in the hospital.

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Strangely, the Investigating Officer has not conducted any investigation with regard to injuries sustained by the first accused and P.W.5 the Sub Inspector of Police has conveniently stated before the https://hcservices.ecourts.gov.in/hcservices/ court that he does not remember whether he received any complaint from the first accused for having been assaulted by the prosecution witnesses.

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The failure of the prosecution to offer any explanation in that regard showed that the evidence of the witnesses relating to the incident was not true or at any rate not wholly true.

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In the instant case, the prosecution witnesses had completely suppressed the mention of any injury to the first accused. In the absence of any explanation on the part of the prosecution as to how the injuries came to be sustained by the first accused, it would be legitimate to conclude not only from the evidence of P.W.1 to 3 but also from all the other circumstances of the case that the occurrence had taken place not in the manner as put forth by the prosecution.

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In this case, there is contradictory statement even with regard to place of incident. In the evidence of witnesses, it is indicated that entire occurrence took place in front of PW.1's house whereas as per plan and observation mahazar place of incident is shown to be in front of godown. Therefore, all the above said circumstances makes the prosecution version of the occurrence doubtful and the charge against the petitioner cannot be held to have been proved beyond reasonable doubt.

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Though this Court under revision cannot dwell at length upon the facts and evidence of the case but however this Court can exercise jurisdiction to consider the correctness, legality or propriety of any finding, sentence or order passed by the lower court. To consider the legality, propriety or correctness of finding this court can consider the materials in order to satisfy itself about the correctness of sentence passed by the trial court. In the present case, the trial court has erred in appreciating the evidence in a right perspective manner and therefore, the findings of the court below cannot be sustained.

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In the result, this revision is allowed and the judgment of conviction and sentence passed by the lower Appellate Court in C.A.No.14 of 2011 dated 11.12.2012 on the file of the learned Session Judge, Sivagangai is set aside. The fine amount if paid shall be refunded to the petitioner.

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ses

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Sd/-

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Assistant Registrar[Writs]

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/True copy/

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Sub Assistant Registrar

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1.The Sessions Judge, Sivagangai.

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The Principal District Munsif cum Judicial Magistrate, Karaikudi.

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The Additional Public Prosecutor,

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Madurai Bench of Madras High Court, Madurai.

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The Section Officer, Criminal Section,

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Madurai Bench of Madras High Court, Madurai.

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+1 cc to Mr.N.Dilip Kumar, Advocate SR.No.477.

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Crl.R.C.(MD)No.262 of 2013 Dated:03.01.2014

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RPB 21.01.2014

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https://hcservices.ecourts.gov.in/hcservices/ 2P/6C

Santhosh @ Muthuprabhakar, v. the Sub Inspector of Police

Case brief

What is this about?

What did the court decide?

Santhosh @ Muthuprabhakar, v. the Sub Inspector of Police

Case brief

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What did the court decide?

What the court decided

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