(Prayer: This Criminal appeal is filed under Section 374 (2) of Cr.P.C. 1973, pleased to set aside the judgement and order passed on the appellant/accused by the Principal District and Sessions Judge, Tiruvarur by a judgement dated 21.12.2023 made in S.C.No.66 of 2018 and to acquit the appellant.)
1. The appellant / accused in S.C.No.66 of 2018 convicted by the trial Court by judgment dated 21.12.2023 for offences under Sections 332, 452 and 307 of Indian Penal Code as follows:
a)under Section 332 of I.P.C to undergo 1 year simple imprisonment and fine of Rs.1000/- in default to undergo simple imprisonment of 15 days;
b)under Section 452 of I.P.C to undergo 2 years simple imprisonment and fine of Rs.1000/- in default to undergo simple imprisonment of one month;
c)under Section 307 of I.P.C. to undergo 5 years rigorous imprisonment and fine of Rs.1000/- in default to undergo simple imprisonment of one month.
Against which, the present appeal is filed.
2. i)The case of the prosecution is that the defacto-complainant (P.W.1) Manimaran, is a Grade II Police Constable. On 23.10.2008, while he was on para duty between 08.00 and 10.00 p.m., P.W.2, Karthikeyan, relieved him at the Thillaivilagam check post. At about 11.20 p.m., the appellant came in a motor cycle, stopped in front of the check post, P.W.2 / Karthikeyan questioned the appellant who picked up a quarrel. Consequently, fight arose between them. P.W.1 and P.W.3 who were on rest duty, intervened to pacify the situation and sent the appellant away.
ii)On 24.10.2008, when P.W.1 was on para duty again, appellant along with two of his associates namely Manikandan / A2 and Prabakaran / A3 came in a bike, with iron rod and aruval. They assaulted P.W.1 in his left thigh with the iron rod and on his head using backside of Aruval attacked him; and P.W.1 fell down. They then searched for P.W.2 to murder him and assaulted him with the aruval. Although P.W.2 warded off the attack, he sustained injuries on his shoulder, abdomen, right and left hand wrist. Following the noise and commotion, nearby tea shop persons rushed to rescue the injured persons and on seeing them all three accused persons fled in their bike. P.W.2 was immediately sent to the Thanjavur Government Hospital. In the meanwhile, information received by P.W.12 who came to the check post and enquired.
3. PW13 received the complaint (Ex.P1) from P.W.1, and registered a case in Cr.No.487 of 2008 for the offences under Sections 450, 307, 332 of the I.P.C. On conclusion of investigation, charge sheet filed in P.R.C.No.8 of 2009 before the learned Judicial Magistrate, Thiruthuraipoondi against A1 to A3. A1 alone appeared to defend the case, A2 and A3 absconded. Consequently, the case against A2 and A3 was split up into P.R.C. No. 6 of 2018.
4. The case against A1 split up and committed to the Court of Session as S.C.No.66 of 2018. During the trial, the prosecution examined P.W.1 to P.W.13, marked documents Ex.P1 to Ex.P10 and produced material objects MO1 to MO3. P.W.13, the Inspector of Police, visited the scene of occurrence, examined witnesses P.W.1 to P.W.5, recorded their statements, and prepared the observation mahazar (Ex.P6) and a rough sketch (Ex.P7).
5. Thereafter, on getting secret information on 25.10.2008 at about 10.30 a.m. P.W.13 arrested A1 and A2 near the Ayyappan Temple in Thambikottai Keezhakadu. Based on the confession statement of A1, the Aruval (MO1) was seized under the seizure mahazar (Ex.P8). Both accused subsequently produced for remand. The other accused, A3 (Prasath) who absconded and later obtained anticipatory bail. During the course of the investigation, the motorcycle (M.O.3) used by A1 was seized on 10.12.2008. P.W.10, Dr.Jeyaprakash, treated P.W.2 and issued the Accident Register copy (Ex.P.3) and Wound Certificate (Ex.P4). P.W.12, Veerasekaran, Grade I Police Constable received information regarding the incident and proceeded to the Check Post where he found P.W1 with injuries and P.W.2 had already been sent to the hospital. Upon the conclusion of the trial, the trial court convicted the appellant as stated above.
6. The learned counsel for the appellant submitted that the defactocomplainant in this case is a police constable and he lodged a complaint stating that he was on para duty on 23.10.2008 at Thilaivilagam check post. The appellant came in a motorcycle at about 11.30 p.m., when he was asked to stop for vehicle check the appellant objected for vehicle check by P.W.2 and there was a wordy quarrel and thereafter appellant left the place. On the next day, when P.W1 was on para duty, the appellant is said to have come in motorcycle with aruval along with other accused persons viz., Manikandan and Prabakaran and assaulted P.W.1 and thereafter, they entered the rest area where P.W.2 was taking rest and with intention to cause murder, assaulted P.W.2 with aruval repeatedly and fled from the scene.
7. The learned counsel for appellant submitted that P.W.1 admits that for the first time, he sees the appellant in the dock. In this case, P.W.1 was treated by P.W.8 / Doctor, who had given a report Ex.P2 recorded no injuries and only swelling and P.W.1 complained pain. P.W.1 was treated as outpatient. P.W.10 / Doctor examined P.W2 and gave Accident register Ex.P3 and Wound certificate Ex.P4, and recorded none of the injuries are life threatening. Since, P.W.1 and P.W.2 are from Police Department, the case has been exaggerated, as though inflicted injuries if not treated properly would have caused death. There are contradictions with regard to the place of occurrence. The case projected incident happened near Thilaivilagam check post, but the Police projected incident happened near Thilaivilagam and distance between both places is three kilometers. He further submits that, as per the accident register, P.W.1 informed three persons came and attacked but P.W.2 informs four persons came and attacked them. The petitioner falsely implicated in this case and except for these two witnesses, no other witness deposed about the occurrence proper.
8. He further submitted that in this case, P.W.1, P.W.2 and P.W.3 are all Police constables. Although the occurrence taken place in a public road but no private person examined. Among the examined witnesses P.W.4 to P.W.7, P.W9 and P.W.11 not supported the case of the prosecution. P.W.1 to P.W.3 admit appellant not known to them. The alleged occurrence took place on 24.10.2008, but witnesses identified the appellant for the first time in court on 18.09.2019, after a lapse of nearly eleven years. Hence identification highly doubtful. They further admit that the P.W.1 and P.W.2 not given any physical features or identification details and for the first time the witnesses identified the accused in the docks. The Doctor (P.W.8) who gave treatment to P.W.1 issued the Accident Register (Ex.P2), wherein it is recorded three known persons using an iron pipe and an Aruval attacked him.
9. But P.W.2 informed P.W.10/Doctor that he was attacked by four known persons. Thus, the number of persons involved in the attack are doubtful. The iron pipe not recovered. Doctors P.W.8 and P.W.10 both admit that they were not shown the weapons during investigation. Both P.W.1 and P.W.2 admit that they saw the weapons for the first time in Court. Admittedly, P.W.3 is a hearsay witness to the occurrence proper as he had gone to bank to withdraw cash and was not present near the check post.
10. He further submitted that the place of occurrence is doubtful. Whether it was near the Thillaivilagam check post or Thilaivilgam, both are two different places. P.W.13, the Investigating Officer admit that the distance between the Thilaivilagam and Thillaivilagam Check post is three kilometers away. Thus the scene of occurrence got shifted and occurrence and presence of witnesses becomes doubtful. Since, the injured persons are police personnel, an exaggerated case projected.
11. He further submitted that P.W.1 to P.W.3 admitted that they have a duty roaster, confirming the place, date and time of their posting, P.W.13, Investigating Officer confirms the same. However, no duty roster produced to prove the presence of P.W.1 to P.W.3, at the relevant place and time. Further the injuries sustained by P.W.1 is simple in nature. Although the prosecution claimed that P.W.2’s injuries grievous but no X-ray produced; moreover, the injuries were not on vital parts, which might lead to death. The trial court convicted the accused despite several contradictions, and infirmities, only for the reason injured persons were police personnel. Hence, the conviction not sustainable and to allow the appeal.
12. The learned Additional Public Prosecutor submitted that P.W.1 to P.W.3 are Police personnel who were posted on Check post duty. The appellant came in his bike on 23.10.2008 during late hours, when he was stopped and enquired, he objected and there was a wordy quarrel between P.W.2 and the appellant, hearing the noise P.W.1 and P.W.3 had come out of the tent, warned sent the appellant away. On the next day on 24.10.2008 at about 02.05 p.m. appellant came back to the check post with two associates, A2 and A3. At that time, P.W1 was on duty. Accused (A1) with Aruval MO1 and A2 and A3 carrying iron pipe, got down from the motorbike assaulted P.W.1 on his head with the aruval, Followingly they entered the tent where P.W.2 was having his lunch, he was attacked by Aruval, P.W.2 sustained cut and lacerated injuries.
13. On hearing the commotion, workers from a nearby tea shop and others rushed to the spot, and on seeing them, accused fled the scene. The injured P.W.2 was sent to the hospital, P.W.10 treated the injured P.W.2 and issued Ex.P3 Accident Register and wound certificate Ex.P4 recording the cut injuries on the left shoulder bone, left fore arm and right wrist. P.W.2 was admitted as an inpatient and X-ray taken for the injuries sustained and the same marked as MO2 series. Later P.W.3 had come to the check post, in the meantime, P.W.1 sent information to P.W.12 who reached the scene. P.W.1 was examined by P.W.8 Doctor and gave Ex.P2 Accident Register. P.W.3 spoke about the previous day incident. The witnesses to the observation mahazar, rough sketch, and recovery not supported the prosecution's case, P.W.1 to P.W.3 deposed clearly, and their evidence is corroborated by the medical evidence of doctors P.W.8 and P.W.10, and records Ex.P2, Ex.P3, Ex.P4, and the M.O.2 series. Hence, the trial court rightly convicted the appellant based on the evidence.
14. Considering the submissions and upon a perusal of the materials on record, it is seen that occurrence took place on 23.10.2008 and complaint lodged on 24.10.2008. On completion of investigation, charge sheet filed in P.R.C.No.8 of 2009. Thereafter, accused A2 and A3 absconded and summons could not be served on them, the case against them was split up into P.R.C.No.6 of 2018. Subsequently, P.R.C.No.8 of 2009 was committed to Court of Sessions in S.C.No.66 of 2018. Now, it is reported that A2, Manikandan, S/o. Mariyappan, passed away on 04.06.2022, and his death certificate produced. As regards A3, Non-Bailable Warrant still pending.
15. In this case, P.W.1 and P.W.2, two injured eyewitnesses who were attacked by appellant (A1), A2 and A3 while they were in duty. P.W.1 sustained injuries on his forehead and was treated by P.W.8, and Ex.P2 Accident Register issued. P.W.2 sustained cut injuries, rushed to Government Hospital, where P.W.10 treated him and issued (Ex.P3) Accident Register, (Ex.P.4) Wound Certificate and took MO2 X-ray series. Further, the aruval (M.O.1) recovered on the confession of A1, the motorcycle (M.O.3) used by A1 also recovered.
16. The recovery of these articles all duly recorded under cover of Mahazar and Form 95 and properties produced before the court without delay . P.W.1 and P.W.2 identified the appellant, confirmed the attack on 23.10.2008 and evidence of P.W.3 confirms the previous day fight. Thus, the evidence of P.W1 to P.W.3 are cogent, corroborated with each other and with medical evidence.
17. In this case, admittedly, the injuries not caused to any vital parts. The injuries sustained by P.W.1 simple in nature. As regards injuries sustained by P.W.2 though recorded grievous, it is on non-vital parts and it is not life threatening. Hence, this Court finds the conviction of the appellant under Section 307 is not sustainable and conviction under Section 307 of the I.P.C is hereby altered and modified to conviction under Section 333 of I.P.C. The conviction of the appellant under Section 332 and 452 of the I.P.C. confirmed.
18. It is seen the appellant was in prison for a total period of 309 days. From the records it is seen appellant was remanded on 25.10.2008 and remained in prison as undertrial until 18.11.2008, and following his conviction, he was in prison from 21.12.2023 until 28.10.2024. Thus, the appellant conviction confirmed, but sentence modified to period already undergone. Accordingly, the present Criminal Appeal is partly allowed.
