(Prayer: Criminal Appeal filed under Section 374 Cr.P.C., to call for the records in Spl.S.C.No.38 of 2013, dated 11.07.2018, on the file of the Principal District and Sessions Court, Ramanathapuram and set aside the same.

Criminal Appeal filed under Section 374 Cr.P.C., to call for the records in Spl.S.C.No.38 of 2013, dated 11.07.2018, on the file of the Principal District and Sessions Court, Ramanathapuram and set aside the same.)

Common Judgment:

1. These Criminal Appeals are directed against the judgment of conviction made in Spl.S.C.No.38 of 2013, dated 11.07.2018, on the file of the Principal District and Sessions Court, Ramanathapuram.

2. The appellants are the accused 1 and 2 in Spl.S.C.No.38 of 2013, on the file of the Principal Sessions Court, Ramanathapuram.

3. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status/ranking in the trial Court.

4. The Deputy Superintendent of Police, Muthukulathur Sub Division laid a final report against the accused alleging that the defacto complainant belongs to Hindu Pallar Community, whereas the accused belongs to Hindu Maravar Community and there existed enmity between the first accused and the defacto complainant, as the defacto complainant demanded the return of the amount lent to the first accused for construction of a house. On 05.09.2011 at about 06.30p.m., when the complainant along with the witnesses Chandrasekar and Murugan were chatting near Gandhi Statute, Muthukulathur, the accused 1 and 2 came to that place and the first accused abused the complainant in filthy language using caste name and caught him and the second accused stabbed him on his left chin, shoulder and abdomen and thereafter fled away from the scene of occurrence and that thereby the first accused had committed the offences under Sections 294(b), 342, 307 I.P.C., r/w 3(1)(x) of SC/ST (POA) Act and the second accused under Sections 294(b), 324, 326, 307 I.P.C., r/w 3(1)(x) and under Section 3(2)(v) of SC/ST (POA) Act.

5. The learned Judicial Magistrate, Muthukulathur had taken the charge sheet on file in P.R.C.NO.2/2012 and furnished the copies of records under Section 207 Cr.P.C., on free of costs. The learned Magistrate finding that the offences under Section 307 I.P.C., and the offences under sections SC/ST (POA) Act are triable by the Court of Sessions, after compliance under Sections 208 and 209 Cr.P.c., had committed the case to the file of the Principal Sessions Court, Ramanathapuram.

6. After appearance of the accused, the learned Sessions Judge, on hearing both sides and on perusal of records, being satisfied that there existed a prima facie case against the accused, framed charges under Sections 294(b), 307, 342, 326 r/w 34 I.P.C., and Sections 3(1)(x) and 3(2) (v) of SC/ST (POA) Act against the first accused and under Section 326 I.P.C., and under Sections 3(2)(v) of SC/ST (POA) Act against the second accused and the same were read over and explained to them and on being questioned, they denied the charges and pleaded not guilty.

7. The prosecution, to prove its case, examined 10 witnesses as P.W. 1 to P.W.10 and exhibited 14 documents as Exs.P.1 to P.14.

8. The case of the prosecution emerging from the evidence adduced by the prosecution, in brief, is as follows:

               (a) P.W.5 – Vairavaraj, the defacto complainant is now in abroad, was residing at Ettacheri Village. He belongs to Hindu Pallar Community. Both the accused belong to Hindu Thevar Community. On 05.09.2011, P.W.5 along with P.W.1 – Chandrasekar and P.W.8 – Murugan were chatting near Gandhi Statute, Muthukulathur. Both the accused came to that place and scolded in filthy words. P.W.1 advanced a loan of Rs.30,000/- out of which, Rs.20,000/- was repaid. When the balace of Rs.10,000/- was demanded, the first accused abused him in filthy language using caste name. When the first accused caught hold of his hand, the second accused stabbed on his left shoulder with a knife and thereafter stabbed on his left abdomen and pushed the complainant down. As a result, he sustained injuries on his knees. Immediately P.W.1 and P.W.2 had taken him in the bike to the Government Hospital, Muthukulathur.

               (b) P.W.3 – Dr.Tamil Selvi was on duty at Government Hospital, Muthukulathur on 05.09.2011. P.W.5 came to the Hospital for treatment.P.W.5 informed that he was attacked by two known persons and other unknown persons near Gandhi Statute, Muthukulathur. P.W.3 noticed three cut injuries ie., i) 2x2x0.5x0.5cm on left abdomen, ii) 3x3x0.5x0.5cm on left chin and iii) 5x5x1x1cm on left shoulder. He was admitted as inpatient and on 06.09.2011, he was referred to Government Rajaji Hospital for further treatment. On the basis of the report received from the Government Rajaji Hospital, P.W.3 issued an accident register extract under Ex.P.2 stating that the injuries suffered by P.W.5 are grievous in nature.

               (c) When P.W.4 – Dr.Karunakaran was on duty at about 12.50 mid night on 06.09.2011, P.W.5 was brought for further treatment. He noticed two sutured wounds on his left shoulder and on his left chin and another cut injury on his left abdomen. P.W.5 had undergone surgery and the Doctor noticed blood clot on recoperidinium. P.W.4 issued a certificate under Ex.P.3 stating that the injuries are all grievous in nature.

               (d) P.W.7 – then Sub-Inspector of Police attached to Muthukulathur Police Station, upon the receipt of information from Government Hospital, Muthukulathur, visited the hospital at about 07.45 a.m., on 05.09.2011 and recorded the complaint statement under Ex.P.4 from P.W.5, who was taking treatment therein. P.W.7, on the basis of the complaint statement, registered a case in Cr.No.121 of 2011, under Sections 294(b), 307 I.P.C., and under Sections 3(2)(v) of SC/ST (POA) Act and prepared the F.I.R., under Ex.P.6. He sent the original complaint and the F.I.R., to the jurisdictional Court and submitted the file to the Deputy Superintendent of Police, Muthukulathur for investigation.

               (e) P.W.9 – Thiru.Mathavan, the then Deputy Superintendent of Police, Muthukulathur Sub Division, upon the receipt of the proceedings of the Superintendent of Police, dated 05.09.2011, nominated him as the Investigating Officer under Ex.P.7, took up the investigation and visited the occurrence place at about 09.30p.m, and prepared the observation mahazar under Ex.P5 in the presence of P.W.6-Dharmalingam and one Parameswaran and drew a rough sketch under Ex.P.8. He recorded the statement of the complainant – P.W.5 and other witnesses and recorded their statement. He arrested the second accused on 06.09.2011 and sent him to remand. Since the third accused was not identified, he submitted a deletion report under Ex.P.9. Since P.W.9 was transferred, P.W.10, upon the receipt of the proceedings of the Deputy Superintendent of Police, Ramanathapuram dated 17.11.2011 under Ex.P.10, took up the case for further investigation. He sent a request to the concerned Tahsildars for getting the community certificate of the complainant and the accused. He received the community certificate of the complainant on 12.12.2011 from the Tahsildar, Muthukulathur under Ex.P.11, wherein it was stated that the complainant belongs to Hindu Pallar community. He received the community certificate of the accused under Exs.P.12 and P.13 wherein it was certified that they belong to Hindu Maravar Community. P.W.10 then altered the offences under Sections 294(b), 342, 326, 307 I.P.C., r/w Sections 3(1)(x) and 3(2)(v) of SC/ST (POA) Act and submitted an alteration report dated 23.12.2011 under Ex.P.14. He examined the medical officers, who treated P.W.5 and received the medical certificates. After completion of investigation, he filed a final report against the accused on 24.11.2011. With the examination of P.W.10, the prosecution closed their side evidence.

9. When the accused was examined under Section 313(1) (b) of Cr.P.C., with regard to incriminating aspects found against them in the evidence adduced by the prosecution, they denied the same as false and further stated that a false case has been foisted against them. The defence examined four witnesses as D.W.1 to D.W.4 and exhibited one document as Ex.D.1. D.W.1 – Ponniah , D.W.2 – Govindan and D.W.3 – Ramapandi were working as salesmen in TASMAC shop No.6853, Ramanathapuram in the year 2011 and the first accused was working as Supervisor in the said shop. They used to open the shop by 10.00a.m., and close it by 10.00p.m. The first accused alone was in charge of the shop. When the District Manager of TASMAC was summoned, due to condolence in his house, his assistant was examined as D.W.4 and he produced the certificate under Ex.D.1 stating that the first accused was on duty on 05.09.2011 in TASMAC shop.

10. The learned Sessions Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both sides, passed the impugned judgment dated 11.07.2018, convicting the first accused for the offence under Sections 342 and 325 r/w 34 I.P.C., and sentenced him to undergo one year Simple Imprisonment and to pay a fine of Rs.500/-, in default to undergo one month Simple Imprisonment for the offence under Section 342 I.P.C., and sentenced him to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.5000/- in default to undergo one year Rigorous Imprisonment for the offence under Section 325 r/w 34 I.P.C., and convicted the second accused for the offence under Section 325 I.P.C., and sentenced him to undergo 7 years Rigorous Imprisonment and to pay a fine of Rs.5,000/- in default to undergo one year Rigorous Imprisonment. The learned Sessions Judge, by holding that the prosecution failed to prove the charges under Sections 294(b), 307 I.P.C., and Section 3(1)(x) and 3(2) (v) of SC/ST (POA) Act as againt the first accused and the charges under Section 3(2)(v) of SC/ST (POA) Act as against the second accused, acquitted them under Section 235(1) Cr.P.C. Challenging the judgment of conviction and sentence, the accused 1 and 2 have preferred the present Criminal Appeals.

11. Heard the learned Counsel for the appellants and the learned Government Advocate (Crl.Side) appearing for the State and perused the materials available on record.

12. The case of the prosecution is that the complainant advanced a loan of Rs.30,000/- to the first accused for construction of a house, that the first accused repaid Rs.20,000/- and when the balance amount of Rs. 10,000/- was demanded, there arose disputes between them and consequently, there existed enmity between them and that on 05.09.2011 at about 06.30p.m,., when P.W.5 – complainant along with his friends P.W.1 and P.W.8 were chatting near Gandhi statute, Muthukulathur, the accused came to that place and the first accused abused P.W.5 in filthy language in using caste name and caught hold of his hand, the second accused stabbed P.W.5 on his left abdomen, left shoulder and left chin with knife and caused injuries.

13. As already pointed out, the Sessions Court framed the charges for the offenes under Sections 294(b), 307, 342 I.P.C., and Sections 3(1)(x) and 3(2)(v) of SC/ST (POA) Act as against the first accused and for the offences under Section 326 I.P.C., and under Sections 3(2)(v) of SC/ST(POA) Act. The learned trial Judge, by observing that the weapon used for the attack was not recovered, modified the offence under Section 326 into the offence under Section 325 I.P.C., and thereby convicted the second accused for the offence under Section 325 I.P.C., and the first accused for the offence under Sections 342 and 325 r/w 34 I.P.C., and acquitted them from the remaining offences. Admittedly, neither the State nor the complainant has filed any appeal challenging the acquittal of the accused for the remaining offences.

14. The learned Counsel for the appellants would submit that P.W.1 and P.W.8 were shown as eye-witnesses to the occurrence, whereas P.W.1  did not support the case of the prosecution and P.W.8 had contradicted the evidence of P.W.5 and he did not depose that he witnessed the occurrence, that P.W.8 stated that himself and P.W.5 went to Thevar Mahal and at that time, P.W.5 informed that he is going for a smoke and after a few minutes, P.W.5 returned and informed that he was attacked by Kattai Murugan and as per the above evidence of P.W.8 the occurrence place alleged by the prosecution is incorrect, that P.W.5 while taking initial treatment from P.W.3 – Medical Officer stated that he was assaulted by two known and two unknown persons, but before P.W.4 -Medical Officer at Government Rajaji Hospital, Madurai, P.W.5 stated that he was assaulted by two known persons, that P.W.5, the sole injured witness was not corroborated by other eye-witnesses or medical witnesses; that P.W.5's evidence was self-contradictory and that in view of the material contradictions, it is highly unsafe to rely on P.W.5's evidence.

15. The learned Counsel would further submit that though the prosecution has alleged that there existed enmity due to money dispute between the first accused and the defacto complainant, the prosecution has not adduced any evidence to prove the alleged motice, as they did not collect any evidence to show the alleged money transaction and moreover, P.W.5 admitted that there was cordial relationship with the first accused before the occurrence. The learned Counsel would further submit that the first accused was working as a supervisor in a TASMAC shop No.6552 at Ramanathapuram on the date and time of occurrence, that D.W.1 to D.W.3 salesmen of the said shop deposed about the presence of the first accused in the TASMAC shop at the relevant time and that the office of the District Manager, TASMAC produced the certificate under Ex.D.1 to show that the first accused was present in the shop on 05.09.2011.

16. The learned Counsel would further submit that according to the prosecution, the second accused had stabbed P.W.5 by using knife. But admittedly the knife was not at all recovered and the prosecution has not offered any reason or explanation for the same and as such, the nonrecovery of the weapon is fatal to the prosecution. The learned Counsel would further submit that though the prosecution has filed the charge sheet for the offence under Sections 307 and 326 I.P.C., they have not produced X-ray and X-ray reports to show that P.W.5 sustained grievous injuries, that though the first accused was charged with aid of Section 34 I.P.C., the prosecution has not produced any iota of evidence to show that there existed common intention between the accused and the prior meeting of minds, prearranged plan / pre-supposes prior concert are completely absent and that therefore, the question of invoking vicarious liability on the first accused does not arise and that the learned trial Judge, without considering the above material aspects has proceeded to convict the accused in a mechanical fashion and that therefore, the judgment of conviction is liable to be interfered with.

17. The learned Government Advocate (Crl.Side) would submit that though P.W.1 had turned hostile, P.W.8 had supported the case of the prosecution to some extent, that even assuming that there are no occurrence witnesses, the evidence of sole injured witness is sufficient enough to prove the occurrence, that P.W.5 has given cogent evidence with regard to the attack made on him and sustaining of injuries, that nonrecovery of the weapon cannot be considered as fatal, that the contradictions elicited by the defence are not material, but are of trivial in nature and that the learned trial Judge, considering the evidence available on record, has rightly convicted the accused.

18. It is pertinent to mention that the prosecution has cited two witnesses – P.W.1 and P.W.8 as occurrence witnesses and according to the prosecution, both the witnesses were present at the time of alleged occurrence. But P.W.1 in his evidence would say that when he was in Muthukulathur Thevar Marriage Hall at about 06.00 or 06.30p.m., P.W.5 came to that place with blood injury on his stomach and he along with P.W.8 had taken P.W.5 to Government Hospital, Muthukulathur. P.W.1 in his evidence would specifically say that he was not aware of the occurrence and except taking the injured P.W.5 to the hospital, he does not know as to how P.W.5 sustained injuries and that he did not witness any occurrence. Though P.W.1, who was was treated as hostile, was subjected to cross-examination, nothing was elicited by the prosecution in their favour. P.W.8 in his evidence would say that P.W.5 met him at Muthukulathur on 05.09.2011 and informed that Kattai Murugan agreed to pay the amount and hence, both of them went to Thevar Mahal, that P.W.5 went outside informing that he is going for smoke and subsequently he returned stating that he was stabbed by Kattai Murugan and that he along with P.W.1 had taken P.W.5, in his two wheeler to Government Hospital, Muthukulathur. During cross-examinaiton made by the defence, he denied the suggestion that he was not aware of the occurrence, but would only add that he alone had taken P.W.5 to the hospital. P.W.8 would say that he was not at all examined by the police, but P.W.5 alone was examined.

19. As rightly pointed out by the learned Counsel for the accused, P.W.8 before the trial Court has nowhere whispered that he witnessed the occurrence. No doubt, it is settled law that the evidence of injured witness has greater evidentiary value and the same cannot be discarded due to minor contradictions or embellishments that are considered natural during testimony. P.W.5 in his evidence would say “05.09.2011

              

20. As rightly pointed out by the learned Counsel for the accused, P.W.5 would admit that he was moving with the first accused cordially before the occurrence and that he has not produced any material or documents to show that the first accused obtained loan from him and repaid the part of the amount. P.W.5 in complaint statement under Ex.P.4 has stated that along with the two accused, one other identifiable, but unknown boy came to the occurrence place and all the three had abused him in filthy language by using caste name and that the first accused and the unknown boy caught hold of his hands and at that time, the second accused stabbed him on his left abdomen, shoulder and chin and that since he fell down, he sustained abrasion injuries on both his knees. When P.W. 5 was taken to Government Hospital, Muthukulathur, he informed P.W.3 – Medical Officer that he was attacked by two known persons and two unknown persons, but before P.W.4 – Medical Officer at Government Rajaji Hospial, Madurai, he informed that he was attacked by two known persons.

21. As already pointed out, P.W.8 would say that P.W.5 informed him that he was stabbed by Kattai Murugan – first accused and there was no reference to the second accused or any other person allegedly involved. P.W.9 – Investigating Officer would say that since the third accused, claimed by P.W.5 in his complaint, was not identified, he was deleted through the report under Ex.P.9. P.W.9 would admit that the occurrence place of Gandhi Statue is a busy area and is situated in Muthukulathur main road, abutting taluk office, SBI ATM and other establishments shown in the rough sketch. He would admit that he did not examine any one from Ramachandra Press, Saravanan STD, J.K.Studio, Moulana milk shop, Arjunan Tea stall, Seruvar milks shop and no one was cited as witness.

22. As rightly pointed out by the learned Counsel for the accused, though P.W.5 alleged to have sustained three injuries, he did not depose about the alleged cut injury on his left chin. Moreover, though P.W.5 in his complaint as well as in his chief examination evidence would say that he fell down and sustained injuries on his knees, no such injuries were found by the medical officers.

23. No doubt, the first accused examined four witnesses to show that he was working in TASMAC shop at the time of alleged occurrence and he was not at all available at the occurrence place. But there is no specific evidence to prove that he was available in the TASMAC shop at the relevant point of time. Though the witnesses have stated that they used to open the shop at 10.00a.m, and close it by 10.00 p.m., no one has stated that P.W.5 was present at the shop on the evening of 05.09.2011. No doubt, P.W.9 would say that he came to know that the first accused was working in TASMAC shop at Rameshwaram, but would admit that he did not examine any witness to ascertain whether the first accused was available at Rameshwaram at the relevant point of time.

24. As rightly pointed out by the learned Counsel for the accused, though motive was attributed, there is absolutely no evidence available to substantiate the same. As already pointed out, P.W.9 would say that he has not recovered any documents showing the money transaction between the first accused and P.W.5 and P.W.5 has not produced any such documents. As already pointed out, P.W.5 would admit that he has not produced any documents or materials to show that the first accused obtained loan from him and repaid the part of the loan amount. As rightly contended by the learned Government Advocate (Crl.Side), no doubt, the non-recovery of weapon is not always fatal. However, that principle cannot be applied uniformly to all the cases. As already pointed out, the learned trial Judge downgraded the offence under Section 326 I.P.C., to the offence under Section 325 I.P.C., due to the non-recovery. Admittedly, the prosecution has not offered any reason or explanation why the knife-weapon was not recovered.

25. Moreover, regarding the grievous injuries, it is for the prosecution to prove the injuries suffered by P.W.5 fit Section 320 I.P.C., catagorise. Since there is no bone injury, X-ray or X-ray report is not relevant. Clause-8 of Section 320 I.P.C., contemplates that any hurt which endangers life or which causes bodily pain or unable to follow his ordinary pursuits for 20 days, be considered as grievous. As rightly contended by the defence, there is no medical evidence so as to bring the injury under Clause-8 of Section 320 I.P.C.

26. At this juncture, it is necessary to refer a judgment of this Court in Ramamurthy and another Vs State of Tamil Nadu represented by the Inspector of Police, S.H.O.Kumaratchi Police Station, Cuddalore District in Crl.R.C.No.1326 of 2017, dated 21.12.2017 relied on by the learned Counsel for the accused, wherein this Court has observed as follows:

                “8. In respect of proof of offence under Section 324/325 IPC, the victim who survives the injury would be the best witness and as the victim is unlikely to screen the real offender, weight is given to the evidence adduced by the injured. This would be the position under normal circumstances. But, here is a case where the earliest version of the injured before the Doctor is that some unknown persons caused injury to him. It is not necessary that the injured must know the names of the assailants. There may be circumstances, where, the injured later could have made enquires and to find out who was responsible for the occurrence. Then, it is for the injured to explain the circumstsances, under which he was able to gather the information regarding the details of assailants. But, in this case, there is no explanation as to how the injured was able to say the names of the accused persons and how they were able to identify the accused persons before the Court. The earliest version by the injured before the Doctor assumes much importance as at that point of time, the version would be pure without contamination.

               12. The origin of occurrence as spoken to by prosecution creates suspicion regarding genuineness of the prosecution case.

               13. The Evidence Act speaks of three set of proof: i.e. Cases proved, not proved and disproved. Here is a case where the involvement of the accused persons in the occurrence itself is not made clear on account of the cloud raised by the prosecution by adducing mutually contradictary evidence.

               14. When the case of the prosecution is abundant in contradictions than in consistency, then, the prosecution case cannot be accepted. The conviction and sentence passed is based on no legally acceptable evidence. When the evidence produced do not establish the ingredients necessary to be proved as extracted above, then, the findings are perverse. When the findings are shown to be perserve, the conviction and sentence are liable to be set aside.”

27. The learned Counsel for the accused would submit that according to the prosecution, the first accused was said to have caught hold the hands of P.W.5 and the second accused alleged to have inflicted injury on him, but in the complaint, in Ex.P.4, P.W.5 mentioned that his hands were caught hold by the first accused and by another person. As rightly pointed out by the learned Counsel for the accused, P.W.5 in his evidence before the trial Court would only say that the first accused caught hold of his hands. Even according to P.W.1, as rightly pointed out by the learned Counsel for the accused, there were disputes between himself and the first accused and he did not say that he was having enmity or any other dispute with the second accused. P.W.8, friend of P.W.5 would admit that there was no previous enmity betweent the second accused and P.W.5 and he did not see the second accused at the occurrence place. P.W.5 did not state why he was stabbed by the second accused.

28. No doubt, P.W.5 sustained three injuries, but that by itself is not sufficient enough to prove the case canvassed by him. The Investigating Officers did not explain why they did not examine any other independent witnesses despite nearby establishments. As already pointed out, the friends of P.W.5 who were allegedly present along with P.W.5 at the time of occurrence did not support the case of the prosecution.

29. Considering the evidence available on record and contradictions in P.W.5's evidence, complaint statement and the informations furnished before the Medical Officers and taking note of the evidence of P.W.1 and P.W.8, the alleged occurrence witnesses, the very genesis of the prosecution's case appears doubtful. Hence the testimony of the sole injured witness – P.W.5 being uncorroborated and inconsistent, is highly unsafe to base the conviction. But the learned trial Judge, did not properly appreciate evidence and material contradictions, so the conviction for the offences under Sections 342, 325 r/w 34 I.P.C., is liable to be set aside.

30. In the result, the Criminal Appeal is allowed and the impugned judgment of conviction and sentence imposed by the learned Principal District Sessions Judge, Ramathapuram in Spl.S.C.No.38 of 2013, dated 11.07.2018, is set aside and the accused are acquitted from the charges levelled against them. Fine amount if any paid, shall be refunded to them. Bail bond, if any, shall stand cancelled.