(Prayer: Criminal Appeal is filed under Section 374(2) of Code of Criminal Procedure, to allow the criminal appeal by setting aside the judgment made in Sessions Case No.22 of 2018 on the file of the Additional District and Sessions Judge, Mayiladuthurai dated 30.09.2022.)
1. Challenging the impugned judgment dated 30.09.2022 in S.C.No.22 of 2018 passed by the learned Additional District and Sessions Judge, Mayiladuthurai (Trial Court), this Criminal Appeal is filed.
2. Conviction and Sentence imposed against A1 to A7 are as follows:
| S.No. | Rank of the Accused | Conviction and Sentence |
| 1 | A1 to A7 | Convicted and Sentenced to undergo two years Rigorous Imprisonment each for offence under Section 148 IPC. |
| 2 | A1 to A7 | Convicted and Sentenced to undergo three years Rigorous Imprisonment each for offence under Section 294(b) IPC. |
| 3 | A1 to A7 | Convicted and Sentenced to undergo three years Rigorous Imprisonment each for offence under Section 506(2) IPC. |
| 4 | A1 to A7 | Convicted and Sentenced to undergo four years Rigorous Imprisonment each with fine of Rs.2,000/- each in default to undergo one month Rigorous Imprisonment each for offence under Section 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. |
| 5 | A2 to A4, A6 & A7 | Convicted and Sentenced to undergo one year Rigorous Imprisonment each for offence under Section 323 IPC. |
| 6 | A1 | Convicted and Sentenced to undergo two years Rigorous Imprisonment for offence under Section 324 IPC. |
| 7 | A5 | Convicted and Sentenced to undergo seven years Rigorous Imprisonment and to pay a fine of Rs.5,000/- in default to undergo two months Rigorous Imprisonment for offence under Section 326 IPC. |
4. Learned counsel for the appellants submitted that in this case, the 1st appellant/A1 was residing in the opposite house of PW1 and neighbour of PW3. Regularly PW3's son Uthirapathi and her husband Thavachandran used to fight and assault each other. The 1st appellant used to intervene and separate them. The 1st appellant is a mason and he along with PW1 and PW5 used to go for work. It is projected that A1 had some grouse over PW3's daughter's engagement and he had picked up a quarrel earlier, and they were not on talking terms. PW3 admits that on the day prior to the occurrence, there was fight between her husband and son, they exchanged blows and she sustained injuries. She went to the Police Station and lodged a complaint, but thereafter, the Police not taken any action. In this case, A2 to A7 all belong to different villages but are known to A1. Since they are friends of A1, they are also implicated. There are vital contradictions in the evidence of PW1 to PW3 regarding the injuries sustained by them during the incident. It is specifically suggested that the fight was between PW3's husband and son and PW1 to PW3 as well as the 1st appellant intervened. At that time, there was push and pull, fell down and roll over. The injuries sustained at that time now projected against the appellants due to previous animosity.
5. He further submitted that PW1's evidence is that when he was taking treatment at Mayiladuthurai Government Hospital, PW7/Special Sub-Inspector of Police came to the hospital, recorded his statement taken as complaint (Ex.P1). The evidence of PW1 is that after the attack, PW1 and his mother/PW2 went to the hospital by bus, and the complaint received at the hospital. PW2's evidence is that she and her son/PW1 went to the Police Station by two-wheeler, lodged the complaint and thereafter went to the hospital. PW3's evidence is that she was taken to the hospital by her son by two-wheeler and took treatment. PW8, the Doctor from Mayiladuthurai Government Hospital, confirms that PW3 came to the hospital along with her husband Thavachandran and her son Uthirapathi. Neither Thavachandran nor Uthirapathi examined in this case. Further, PW2 and PW3 state that they had given complaints individually, but not produced. PW3 admits about the constant fights between her son and husband, the occurrence on the previous day on 17.09.2016 and lodging of complaint. Though the attack took place in public, no independent witness examined. In this case, A2 and A4 arrested on the same day and MO1, MO2, wooden log and iron pipe seized and sent to the Court through Form-95 (Ex.P11). In this case, except broken chair (MO1) and broken glass pieces (MO2), no weapon (wooden log and iron pipe) alleged to have used duirng the attack produced.
6. He further submitted that PW9 and PW10 admitted that for the damage of Rs.2,000/- fixed to the chairs and glass windows, no witness examined to establish the actual damage. Further, there is also a contradiction with regard to number of chairs broken during the occurrence. Further, there are vital contradictions in the evidence of PW1 to PW3 and the manner in which the investigation conducted. Added to it, the only independent witness, PW4, not supported the case of the prosecution. PW6 and PW8, the Doctors, confirmed that PW1 to PW3 gave contradictory statements with regard to the time and the manner of the attack. The trial Court failed to consider all these aspects and mechanically convicted the appellants. In view of the above, the judgment of the trial Court is liable to be set aside and the appeal deserves to be allowed.
7. Learned Government Advocate (Crl. Side) appearing for the respondent Police submitted that, on receipt of information from Mayiladuthurai Government Hospital, PW7/Special Sub-Inspector of Police went to the hospital, enquired PW1, who was taking treatment as inpatient, recorded his statement and registered FIR in Crime No.424 of 2016 for the offences under Sections 147, 148, 294(b), 323, 324 & 506(2) IPC and Section 3(1) of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. As per the complaint (Ex.P1), on 18.09.2016 at about 15.30 hours, PW3's husband Thavachandran and son Uthirapathi, all residing in the opposite house of PW1, had fight between them. At that time, A1 claimed that Uthirapathi's sister, Savitha, who was recently engaged, will not be allowed to get married, and there was a quarrel between A1 and Uthirapathi. On 17.09.2016 at about 11.00 p.m., A1 along with two others, threatened his neighbours. Thereafter, on 18.09.2016 at about 3.30 p.m., A1 assumed that PW1 instigated and helped PW3 to lodge the complaint against him for the previous day fight, hence, picked up quarrel, abused PW1 along with his friends, and assaulted him. When PW1's mother/PW2 intervened, she was also assaulted. PW3, the neighbour, was assaulted using a stick and iron pipe, causing blood injuries and thereafter the appellants threatened them. They also damaged the window panes and plastic chairs.
8. He further submitted that PW7/Special Sub-Inspector of Police received the complaint from PW1 at Mayiladuthurai Government Hospital and registered the FIR (Ex.P7) on 18.09.2016. PW9 took up investigation on the same day and at about 19.00 hours, in the presence of witnesses prepared the Observation Mahazar (Ex.P3) and Rough Sketch (Ex.P10), seized broken glass pieces, broken chairs, iron rod and wooden log, arrested A1, A2 and A4, recorded the statements of PW1, PW2 and PW3, sent the seized articles to the Court under the cover of Form-95, examined PW6 and PW8/Doctors, recorded their statements, collected the Wound Certificates (Exs.P5 & P6) from PW6, and collected the Accident Registers (Exs.P8 & P9) from PW8. On the transfer of PW9, PW10 took up investigation and filed the charge sheet. During the trial, on the side of the prosecution, PW1 to PW10 examined, Exs.P1 to P11 marked and M.O.1 and M.O.2 produced. The trial Court, on the basis of the evidence of three injured witnesses/PW1 to PW3, the medical evidence of PW6 and PW8, the medical records (Exs.P5, P6, P8 & P9), the Observation Mahazar (Ex.P3), and Rough Sketch (Ex.P10), found prosecution proved the case beyond all reasonable doubt and rightly convicted the appellants. Hence, the appeal is liable to be dismissed.
9. Considering the submissions and on perusal of the materials, it is seen that A1 was residing opposite the house of PW1. A1 along with his friends A2 to A7 questioned PW1 with regard to the complaint given against him in connection with the previous day's incident, when A1 picked up a quarrel with Uthirapathi, the son of PW3, and abused and threatened them. PW3 went to the Police Station and lodged the complaint. The appellant assuming that the complaint was lodged at the instigation of PW1, on 18.09.2016 at about 15.30 hours, A1 picked up quarrel, abused, and assaulted PW1, his mother/PW2 and also assaulted PW3, a neighbour.
10. PW1 stated that after the occurrence, he and his mother/PW2, went to the Government Hospital, Mayiladuthurai by bus where PW8/Doctor examined them and issued Accident Registers (Exs.P8 & P9). It is shown that PW7/Special Sub-Inspector of Police on information from the hospital, went there, recorded the statement of PW1, which is Ex.P1. The evidence of PW2 is that she along with her son PW1, went to the Police Station by two-wheeler, lodged the complaint (Ex.P1) and thereafter went to the hospital. PW3's evidence is that she along with her son, Uthirapathi went to the hospital by two-wheeler. Thus, the evidence of PW1, PW2, and PW3 is contradictory and the origination of the case becomes doubtful. Further PW1 confirms that he alone signed the complaint (Ex.P1). PW7's evidence is that he had written down oral complaint and obtained the signature of PW1. On perusal of the complaint (Ex.P1), it is seen that nowhere it is recorded that the oral statement written down, read over to PW1, admitted by him to be true, and thereafter PW1 signed. In this case, the 1st appellant and PW1 to PW3 are neighbours residing in the same locality, and there seems to be animosity between them prior to the incident. A1 and his friends picked up a quarrel with PW1 a day prior to the incident, i.e., on 17.09.2016. The evidence of PW2 and PW3 is that they gave individual complaints to PW7, but no such complaints produced. In this case, the time of attack informed to the Doctors (PW6 & PW8) are in variance causing serious doubt on the occurrence proper. Though the occurrence took place in a public place, no independent witness examined. The only independent witness to the Observation Mahazar (Ex.P3) and Rough Sketch (Ex.P10), namely PW4, not supported the case of the prosecution.
11. In this case, PW5 is another son of PW2 and the brother of PW1. PW5's evidence is that three plastic chairs broken and the same recorded in the Seizure Mahazar (Ex.P4). However, PW5 confirmed that he signed only the Observation Mahazar (Ex.P2). In the Seizure Mahazar (Ex.P4), four items shown to be seized viz., two plastic chairs (MO1), broken glass articles (MO2), iron rod, and wooden log. Except MO1 and MO2, the weapons, viz., iron rod and wooden log, not produced/marked as Material Objects. Further, Form-95 marked as Ex.P11 is with corrections.
12. PW1 and PW2 admitted that they intervened the fight between the husband and son of PW3. PW1, PW2 and PW3 admitted that there was constant fight between PW3's husband and son and that they would intervene. Even a day prior to the incident, there was a fight and intervention, at that time, hurt caused. PW1 confirmed that he is not aware of the contents of the complaint (Ex.P1). Thus, the foundational facts of the case becomes doubtful. Added to it, PW3 admitted that on 17.09.2016, she called the Police, the Police came to the spot, and the accused ran away. The evidence of PW6 confirms that one Dr.Kapil Raja of Thiruvarur Government Hospital examined PW1 and issued the Wound Certificate (Ex.P5). PW2 was brought to Thiruvarur Government Hospital on 19.09.2016, where it was found that she sustained injuries and the Wound Certificate issued to her is Ex.P6. PW3 had no external injuries. PW8/Doctor at Mayiladuthurai Government Hospital states that at about 5.00 p.m., PW3 was brought by her son, Uthirapathi, and she was referred to Thiruvarur Government Hospital. In this case, admittedly, neither X-ray, scan report nor weapon produced. In the evidence of PW1 to PW3, there are vital contradictions with regard to manner in which they sustained injuries and goint to hospital for treatment at Mayiladuthurai Government Hospital and Thiruvarur Government Hospital. In this case, the Investigating Officer admitted the contradictions in the evidence of PW1 to PW3 and further admitted that the damage to the plastic chairs and glass window was fixed at Rs.2,000/-, but no witness examined to confirm the same.
13. In this case, A1, A3 & A5 had undergone 102 days of imprisonment each and A2, A4, A6 & A7 had undergone 75 days of imprisonment each.
14. In view of the above, the findings of this Court are as follows:
(i)The conviction under Section 294(b) IPC is not sustainable since the prosecution not established the obscene words uttered. The conviction under Section 506(ii) IPC is also unsustainable since there is no evidence for criminal intimidation. With regard to the conviction under Section 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, there is no evidence to establish the actual damage caused to the plastic chairs and window panes. The Investigating Officer himself admitted that no material collected to substantiate the assessment of damage at Rs.2,000/-. Hence, the conviction and sentence against A1 to A7 for offence under Sections 294(b), 506(2) of IPC and Section 3(1) of Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 are set aside.
(ii)Insofar as the conviction under Section 148 IPC against A1 to A7 is concerned, the prosecution failed to establish that the appellants armed with deadly weapons to attract offence under Section 148 IPC. The weapons, namely the iron rod and wooden log, not produced as Material Objects before the Court. Hence, the conviction under Section 148 IPC against A1 to A7 is altered to Section 147 IPC. The sentence is modified to the period already undergone.
(iii)In respect of A1, though the prosecution projected A1 assaulted PW1 using iron rod and wooden log, the weapons not produced and marked as Material Object. The medical evidence does not conclusively establish the injuries caused by the said weapons. Hence, the conviction under Section 324 IPC against A1 is altered to Section 323 IPC. The sentence is modified to the period already undergone.
(iv)Likewise, in respect of A5, admittedly, no X-ray or scan report produced by the prosecution to substantiate the injury. Hence, the conviction under Section 326 IPC against A5 is altered to Section 325 IPC. The sentence is modified to the period already undergone.
(v)Insofar as the conviction under Section 323 IPC against A2 to A4, A6 and A7 is concerned, this Court is not inclined to interfere with the conviction under Section 323 IPC. According the conviction is confirmed, but the sentence is modified to the period already undergone.
15. In the result, this Criminal Appeal is Partly-Allowed.