(Prayer: Criminal Appeal filed under Section 378 of Cr.P.C., to call for the records and set aside the conviction Judgment made in S.C.No.48 of 2013 dated 22.11.2013 passed by the learned Principal Sessions Judge, Ariyalur.)
1. The Appellant / A.1 has preferred the instant Criminal Appeal before this Court, as an aggrieved person, as against the Judgment dated 22.11.2013 in S.C.No.48 of 2013 passed by the Learned Principal Sessions Judge, Ariyalur.
2. The Learned Sessions Judge, Ariyalur while passing the Impugned Judgment in S.C.No.48 of 2013 on 22.11.2013 at Paragraph No.27 had convicted the Appellant / A.1 and A.2 and sentenced them to pay a fine of Rs.500/- each under Section 294(b) of IPC, and in default of payment of fine, directed them to undergo one week Simple Imprisonment. Furthermore under modified Section of 323 of IPC, the Appellant / A.1 and A.2 were convicted and sentenced to pay fine of Rs.1,000/- each and in default of payment of fine, further directed them to undergo two weeks Simple Imprisonment.
3. As a matter of fact, insofar as the Accused Nos.3 and 4 were concerned, they were convicted and sentenced to pay a fine of Rs.1,000/- each in terms of Section 324 of IPC, in default of payment of fine, they were directed to undergo two weeks Simple Imprisonment. However, in respect of the Charge No.1 namely, the offence under Section 294(b) of IPC (obscene language), A.3 was acquitted by the trial court.
4. Assailing correctness, validity, legality of the Impugned Judgment dated 22.11.2013 in S.C.No.48 of 2013 passed by the Learned Principal Sessions Judge, Ariyalur, the Appellant / A.1 has focused the present Criminal Appeal before this Court basically contending that the trial court had miserably failed to appreciate an important fact that the contents of Ex.P.1, complaint (given by P.W.1) were not corroborated by P.W.1 and P.W.2.
5. The Learned Counsel for the Appellant / A.1 urges before this Court that the trial court should have discarded the evidence of P.W.1 solely on the ground that the occurrence took place in the busy area and furthermore, except P.W.1 (maternal uncle of the victim), others were not examined by the Respondent / Prosecution.
6. The Learned Counsel for the Appellant / A.1 projects an argument that the trial court ought to have been acquitted the Appellant / A.1, based on the evidence of P.W.6 (Doctor), who treated the victim and in fact the Doctor had deposed that the brother- in-law, Thangadurai had stated that the victim was assaulted by three unknown persons with hands at nearby Anna Statue, Jayankondam. However, P.W.1 and P.W.5 had deposed (before the trial court) that the victim was assaulted by four known persons and victim was taken to hospital and that the occurrence took place in front of the shop belonging to P.W.1.
7. Advancing his arguments, the Learned Counsel for the Appellant / A.1 contends that the trial court had not properly appreciated the evidence of P.W.6 (Doctor), who in his cross-examination had stated that the injury in the nature of contusion or abrasion might be caused if the victim was dashed against the walls and assaulted with 'wooden logs'. In this connection, the Learned Counsel for the Appellant / A.1 brings it to the notice of this Court that the case of the prosecution is that the Appellant / A.1 and another accused/A.No.2 (Senthil) dashed the victim against the wall and assaulted him with wooden logs.
8. Besides the above, the Learned Counsel for the Appellant / A.1 proceeds to take a plea that the trial court had failed to consider that the fact of non examination of one Rajadurai, who according to P.W.6 (Doctor) brought P.W.2 to the hospital and narrated the occurrence to the Doctor at the time of admission for treatment and the same is very much fatal to the case of prosecution.
9. It is represented on behalf of the Appellant / A.1 that the so called first occurrence took place in the building of Malarkodi, but the said Malarkodi was not examined by the Respondent.
10. The Learned Counsel for the Appellant strenuously submits that the evidence of P.W.1 and P.W.2 are self contradictory in nature, but this prime fact was not taken into account by the trial court at the time of passing the impugned Judgment.
11. Added further, it is the stand of the Appellant / A.1 that the trial court should have discarded the evidence of P.W.1, P.W.5 and P.W.7. That apart, P.W.1 is the maternal uncle of the victim and P.W.5 and P.W.7 are the inhabitants of P.W.1.
12. Lastly, it is the contention of the Learned Counsel for the Appellant / A.1 that the trial court had not taken into account of the essential fact that the evidence of P.W.7 was not corroborated with the evidence of P.W.1 and P.W.6 as to the individual, who took the victim to the hospital.
13. In response, the Learned Government Advocate (Crl.Side) appearing for the Respondent submits that the trial court in S.C.No.48 of 2013, on the side of the Respondent / Prosecution Witnesses P.W.1 to P.W.11 were examined and Exs. P.1 to P.6 were marked. Also on the side of the prosecution, M.O.1 series (Four in Number R.S.Pathy sticks) were marked on the side of the Appellant / A.1 and on the accused side, no one witnesses were examined. However, Ex.D.1, a certified copy of FIR in Crime No.129 of 2012 of Jayankondam Police Station was marked.
14. It is the stand of the Respondent / Prosecution that the trial court had looked into the entire gamut of oral and documentary evidence available on record and ultimately delivered the Judgment by punishing the Appellant / A.1 and others concerned and imposed necessary punishments. Furthermore, in respect of Charge No.1, under Section 294(b) of IPC, A.3 was acquitted by the trial court and in short, the Judgment of the trial court is free from any flaw.
15. For a better and fuller appreciation of the entire gamut of the main case in S.C.No.48 of 2013 on the file of trial court, at this stage, it is useful for this Court to refer to the evidence of the prosecution witnesses.
16. It is the evidence of P.W.1 that on 2.12.2011 when he was in the tailor shop situated at Bazaar street, Jayankondam at about 8.00 p.m.,and that his sister's son Narayanan is running a tailor shop at Sengunthapuram and one Malarkodi is the shop owner and that there was a previous enmity between the said shop owner Malarkodi and the Appellant / A.1 (Raja) and in this regard the case was pending before Jayankondam Court.
17. It is the further evidence of P.W.1 that on 02.12.2011 at about 7.00 p.m., the Appellant (A.1) and along with four other persons had tress-passed into the house of aforesaid Malarkodi and beaten and at that time, his sister's son Narayanan, (after taking bath) came to the shop and when the said Narayanan, who went there to pacify and disperse them, was beaten by the Appellant (A.1) and others and they uttered that whether you are supporting Mudhaliar and by so saying beat him (Narayanan) and also removed the bead (malai) which he had worn around his neck and also they ransacked the articles which were available in the shop.
18. Further, the Narayanasamy and Sivasamy came to his shop and they appraised P.W.1 and took him to the police station for lodging complaint and at that time he was purchasing articles required in connection with stitching from the eastern portion of his shop and at that time when P.W.1 who received the papers and was about to write a complaint, the accused (who were present) came in bikes and they attacked Narayanan near his shop and Senthil (A.2) by holding the body of Narayanasamy dashed his head against the wall and Narayanasamy sat down and they dispersed the quarrel by asking the people to move out from that place and that the persons had assembled and after seeing the crowd, the accused persons threatened by saying if intervention was made in their acts, then the same fate would follow.
19. P.W.1 in his evidence proceeds to add that already the said Narayanasamy, who sat after (falling down) was kicked by Raja with his leg and Basker and Senthil (A.3 and A.2 respectively) brought the R.S.pathy sticks from the hotel and beaten Narayanan. Continuing further, the Accused, Basker (A.3) raised a sound when he dashed head of Narayanasamy against the wall and uttered now you are finished and because of the incident, the injured, Narayanasamy came to the level of unconscious stage and some one from the crowd phoned up 108 Ambulance which came to the spot and the said injured, Narayansamy was taken to the Jayankondan Government Hospital for treatment and he was admitted, by then, since the said Narayanasamy was lying in that Jayankondam Government Hospital without any consciousness, an advise was tendered to take him to Tanjavur and he (P.W.1) took him to Kumbakonam Sugam Hospital wherein he was admitted as inpatient and on the next day, he lodged a complaint Ex.P.1 before the Jayamkondam Police Station.
20. P.W.1 (in his cross-examination) had deposed that immediately after the occurrence 108 Ambulance came to the spot and in the Ambulance, he along with Sivasamy took Narayanasamy to the hospital and at that time of occurrence, in the occurrence place, nearly 100 people had assembled and further he had also proceeded to state in his evidence that the police station was situated at a approximate place of 350 feet from the place of occurrence. P.W.1 also (in his crossexamination) had candidly stated that on either side of the occurrence place there are shops and the movement of people will be on higher side and immediately after the occurrence he had not informed the police.
21. P.W.2 (Narayanasamy Injured / Victim) in his evidence had deposed that on 02.12.2011 when he was in the tailor shop situated in a place belonging to Malarkodi at Sengunthapuram main road, the Appellant / A.1 and together with him 2, 3 persons went to the house of Malarkodi and thereafter there was a heavy noise and he went and saw, at that time, Malarkodi raised a cry by saying help help and he asked the Appellant / A.1 as to what was happening and he dispersed the quarrel and at that time, the Appellant uttered prostitute's son and by so saying beaten him and since at that time he was wearing the bead (Malai) he got palpitation and the Appellant had broken the tube light which was there and also took the cutting player and by so dashing, scolded him (P.W.1) by asking him (P.W.2) to come out immediately took the vehicle and went to the shop of P.W.1 to lodge a complaint.
22. Moreover, he narrated the incident to his uncle, who was standing down below and at that time accused Sathish (A.4) scolded in obscene language by stating that Narayanan is standing and later Raja and Senthil also spoke in vulgar / obscene language and further suddenly Raja (A.No.1) caught hold of him and pushed him down and he made an enquiry with Senthil as to why they were beating him, and as he informed that he when he beat him he would give a complaint, at that time, Raja by uttering the words 'kuchikari son' beat him and the said Raja (A.1) and Senthil (A.2) beat him with the aid of R.S.Pathy Sticks and when he resisted and enquired about the same with them he was lifted and near the book shop of victory they dashed him against the wall and he fell down and since he lost his conscious he had not known as to what had happened to him and when he regained his consciousness he came to know that he was admitted at the Kumbakonam Sugam Hospital and P.W.1 in connection with the incident had given a complaint before the police and he took treatment at the said Sugam Hospital for nearly 7 days and got discharged and he was subsequently advised to see Psychiatrist Doctor and based on that he took treatment at Kumbakonam Vijaya Hospital and that he was enquired by the police.
23. P.W.2 (in his cross-examination) had clearly deposed that he was enquired by the police at Sugam Hospital at one time and that the police station is situated at a distance of 100 feet from the place of occurrence and from the place of occurrence, if one goes to Government hospital it will take 15 minutes and the Government hospital was situated at a distance of 1 1/2 or 2 kilometers from the place of occurrence.
24. P.W.3 in his evidence had stated he does not know anything about the police incident and that he was not examined by the police. In fact P.W.3 was treated as an hostile witness.
25. P.W.4 in his evidence had stated that on 02.12.2011 he went to the Karunanithi Tailor Shop for receiving the stitched cloth at about 7.00 p.m. and when he was indulging in talking in the down below, he heard a noise and Karunanidhi went downwards and he also went to that place and he went and saw Narayanan in unconscious stage and when he saw from the top of the Karunanithi Tailor Shop, Narayanan was beaten by 4 or 5 persons he had not known their names and further that he could not identify them. Furthermore it is the evidence of P.W.4 that the injured P.W.2 was taken to hospital by P.W.1 and he had returned to his house and next day he was examined by the police. Significantly P.W.4 was also treated as hostile witness.
26. P.W.5 in his evidence had stated that 10 months before when he went to Jayankondam in connection with his personal job and when he passed the place, Narayanan (P.W.2) was talking with Karunanithi, Raja, Samidurai's son, Senthil, Basker, Sathish and at that time, the Appellant informed P.W.2 (Narayanan) as to whether he had got the guts to give a petition and by so saying beat him and later (P.W.2) (Narayanan) was dashed against the wall by said Raja and Senthil (A.1 and A.2 respectively) and subsequently Sathish and Basker (A.4 and A.3 respectively) with the R.S.Pathy Wooden logs beat P.W.2 and later Ambulance arrived and that P.W.2 was taken by Karunanithi in the 108 Ambulance and these incidents took place in front of his eyes and next day he was enquired by the police and he informed them the same thing and the occurrence had taken place at 8.00 p.m.
27. It is the evidence of P.W.5 (in cross examination) that immediately after the incident, he went to his house straight away and at that day he came in a cycle and from the place of occurrence the police station was situated on the eastern side at the distance of 100 meters and there were about 25 persons at the place of occurrence and he does not know any one except P.W.2 ((Narayanan) and Karunanidhi).
28. P.W.6 (Doctor) in his evidence had deposed that personally he is serving as Assistant Doctor at the Jayankondam Government Hospital and on 02.12.2012 at about 9.30 p.m. in the night Narayanan aged 40 son of Rajamanickam, Mella Street, Mellur came for treatment before him based on his wife's brother Rajadurai's information, the said Narayanasamy was beaten with a hand by three unknown persons on 02.12.2012 about 8.00 p.m. near Jayamkondan, Annasalai and he examined P.W.2 and at that time he was conscious but he could not talk and he informed that he had a pain in his chest and also he informed that he had a headache and he was admitted as inpatient at Kumbakonam Sugam hospital for further treatment. Later, he was examined by the Inspector and the discharge certificate is Ex.P.2 issued in favour of P.W.2 by him.
29. Really speaking, P.W.6 (Doctor) who examined P.W.2 (Narayanasamy) had found the following simple injuries:-
1. Pain over the chest (by shaking the head)
2. Pain over the head.
It transpires from Ex.P.2 discharge summary that P.W.2 was admitted on 03.12.2011 and the date of discharge was on 09.12.2011, the Inpatient Number was 33331 and the X ray taken on the Chest AP/PA showed no bony injury and the opinion tendered was 'simple'. In short, P.W.6, Doctor had opined that as per evidence injuries found in Ex.P.2 were simple in nature, in the manner and time.
30. It is the evidence of P.W.7 that on 02.11.2011 at Senkunthapuram he was talking along with Karunanidhi and Narayanan about the quarrel which took place and when they were talking to lodge a complaint in regard to the occurrence of quarrel at that time, the accused who were present came there to beat Narayanan and the said Narayanan was beaten by the accused, who were present and the four accused caught hold of the shirt of Narayanan who fell down and dashed him against a wall and later Narayanan fell down after becoming unconscious and later the four accused took R.S.Pathy from the floor and beat Narayanan and when they went to them, the four accused informed them, that if they come with a view to disperse they would finish them and the injured Narayanan was taken to Jayankondam Government Hospital by himself and Karunanidhi and since the treatment was not proper at the Government Hospital, for further treatment, they took Narayanan to Kumbakonam Sugam Hospital and that he was examined by the police.
31. It is the clear cut evidence of P.W.7 (in his cross examination) that when the problem erupted at Malarkodi's house at that time he was not there and from the Malarkodi's house, the place of occurrence was at the distance of 2 Kms and that he came to the place of occurrence in a bike and within 10 minutes after the occurrence P.W.2, Narayanasamy was taken in a Ambulance and he along with Karunanithi went to the hospital in connection with the injured (P.W.2) and he informed the Doctor as to the place of the body in which the injured had sustained injury.
32. P.W.7 had proceeded to state in his evidence that Narayanan is his uncle's son and that he was examined by the police at the hospital at 11.00 a.m.
33. P.W.8 in his evidence had stated that the police came to his house situated near by the book shop on 13.12.2011 and asked him to affix his signature as evidence for happening of occurrence. The police had also prepared a map and his signature was found in Ex.P.3, observation mahazar and seizure mahazar was Ex.P.4 in relation to R.S.Pathy sticks (series 4) (M.O.1 series)
34. P.W.8 in his cross examination had also stated that M.O.1, four sticks were shown to him and he affixed his signature in two papers in out of portion of his house.
35. P.W.9 in his evidence had stated that personally he was working as Special Assistant Inspector, Jayankondam Police Station on 03.12.2011, Karunanithi son of Manickam, Senkunthapuram came to the police station and he received the said complaint from him and registered a case in police station Crime No.366 of 2011 under Sections 294(b), 307, 323, 324, 355 and 506(ii) of IPC and that Ex.P.5 is the printed copy of FIR registered by him. Further he handed over the case file for the purpose of further investigation to the Inspector of Police and concerned higher officials.
36. P.W.10, served as in-charge Inspector of Jayankondam Police Station in his evidence had stated that after taking up the investigation, he listed the scene of occurrence, examination witnesses, Ayyappan, Govarthan and in their presence prepared observation mahajar, rough plan and also received statement from Karunanidhi, Narayanasamy, Ramachandran and Rajendran from the occurrence place and recorded the same. Later he seized R.S.Pathy sticks four in numbers (3 feet length) under Mahajar which was identified by complainant Karunanithi at the place of occurrence and later he arrested the accused Satish (A.4) at Suriya sand bus stop on 04.12.2011 and brought him to the police station and sent him for judicial custody. Ex.P.5 was a rough plan prepared by him and also proceeded to state that P.W.3 and 4 had given statement at the time of his enquiry and later on had given a contradictory evidence.
37. As far as the present case is concerned, so far as the Appellant / A.1 and A.2 and A.3 are concerned, the first charge that levelled against him before the trial court was that they had used vulgar / obscene language as against the victim at the time of commission of occurrence. A perusal of contents of Ex.P.1, First Information Report indicates latently and patently that the obscene language was employed at the time of occurrence by P.W.1 and P.W.2 and in fact P.W.2, injured Narayansamy had clearly stated that the Appellant (Raja) had scolded him as son of prostitute and subsequently the Appellant / A.1 (Raja) and the 2nd Accused, Senthil used abusive filthy and foul language and attacked him. In fact, the evidence of P.W.2 (Narayanasamy, injured / victim) is a cogent, coherent, trust worthy one in the considered opinion of this Court.
38. Therefore, this Court unhesitatingly comes to an irresistible and inevitable conclusion that the prosecution established case against the Appellant / A.1 and A.2. In this connection, it is to be borne in mind that the Appellant / A.1 alone had preferred the instant Criminal Appeal and hence this Court confines only with him and not further stating anything about other accused. Notwithstanding the fact that before the trial court, there was no evidence let in by any of the prosecution witness against the Accused no.3.
39. In so far as the Charge No.2 is concerned under Section 307 of IPC attempt to murder levelled against the Appellant / A.1 and A.2 to the effect that the Appellant / A.1 and A.2 holding the head of P.W.2, Narayanasamy dashed his head over or against wall. It is to be relevantly pointed out that P.W.1 (Karunanithi / complainant) in his evidence had stated that by then, the accused came in bikes and attacked Naraynanasamy, Senthil held the body of Narayanasamy and dashed his head against the wall. Narayanasamy had fell down and they intervened and pacify them and then crowd throng there and accused seeing the thronging crowd uttered that if any one pocks their nose in their affairs this would be the result and left the place. As a matter of fact, the Appellant / A.1 had kicked Narayanasamy (P.W.2 injured / victim) Baskar and Senthil (A.3 and A.2) took out R.S.pathy sticks / logs from the near by shop and struck him with its assistance and when Baskar (A.3) dashed head of Narayanasamy, (P.W.2) he shouted to the effect that 'with this he is finished'. Moreover Narayanasamy, P.W.2 was lying in unconscious stage and some one in the crowd telephoned the 108 Ambulance, which rushed to the spot.
40. It is the evidence of P.W.2 (injured) that accused came there and Sathish (A.4) pointed out him to other accused and that Senthil (A.2) used filthy language and attacked him. In fact the Appellant / A.1 Raja pushed him back and abused in vulgar language and attacked him. Thereafter the Appellant/Raja/A.1 and A.2, Senthil attacked with R.S.Pathy with wooden logs and when he challenged the same, accused simply lifted and dashed him against the wall and fell in unconscious. After regaining conscious he found himself in the Subam hospital at Kumbakonam.
41. The evidence of P.W.2 in the present case was corroborated by P.W.5 who had stated that 19 months while he was crossing place of occurrence he found that Narayanan was talking with Raja (A.1) Senthil (A.2) Basker (A.3) and Sathish (A.4) and by then, Appellant / A.1 Raja attacked P.W.2 challenging as to whether he had enough courage to lodge a complaint against him. Subsequently, the Appellant / A.1 and Senthil/A.2 held P.W.2 vulgur and dashed him against the wall. In fact A.4, Sathish and Basker(A.3) gave a blow with R.S.Pathy wooden logs to P.W.2 and after the happening of occurrence P.W.2 was carried to the hospital in 108 Ambulance. From the evidence of P.W.1 and P.W.2 as coupled with the evidence of corroborative evidence of P.W.5, it is candidly clear that the Appellant / A.1 and A.2 had caught hold of P.W.2 dashed his head over the wall. But in the instant case, no external injury was caused to P.W.2 and in this regard, the evidence of P.W.6 Doctor assumes significance.
42. At the risk of repetition P.W.6, Doctor had stated in his evidence that there were no injuries but had deposed that P.W.2 was admitted as inpatient and P.W.2 complained chest and head pain through signal and he referred to Subam Hospital, Kumbakonam and discharged from the hospital (Ex.P.2). In fact the act of the Appellant / A.1 and A.2 in hitting the head of P.W.2 (victim) over the wall and causing simple injuries to him would certainly attract the ingredients of Section 323 of IPC and viewed in that perspective, the act of causing simple injuries by the Appellant / A.1 clearly comes within the domain of Sections 323 of Indian Penal Code and he was rightly found guilty by the trial court, in the considered opinion of this Court. 43. Since the Charge No.3 under Section 324 of IPC against A.3 and A.4 and Charge No.4 against A.3 and A.4 in respect of an offence under Section 506(ii) of IPC were not related to the Appellant / Accused No.1, this Court is not traversing upon the same in the present Appeal.
44. It cannot be forgotten that to prove an offence in respect of Section 294(b) of IPC, it is for the prosecution to establish that the accused did any obscene act in any place or sang, recited or uttered any obscene songs, ballad, or words in or near any public place and the aforesaid act or acts caused annoyance of others.
45. Coming to the aspect of the ingredients the Section 323 of Indian Penal Code to prove an offence under Section 323 of IPC, the onus is on the prosecution to prove that
(i) victim suffered bodily pain, disease or infirmity
(ii) that accused caused the aforesaid bodily pain etc.
(iii) that the accused did so intentionally or with knowledge that in the process hurt would be caused. In the case evidence on record established, that the appellant was one of the purpotaters / miscreants and he took part in the attack / assault of the victim / complainant as the case may be.
46. In fact in a given case, the Appellant's act ought to be a one not covered in terms of ingredients of Section 324 of IPC.
47. Be that as it may, in the upshot of detailed discussions and also this Court taking note of the facts and circumstances of the instant case in a cumulative fashion comes to a resultant conclusion that the Appellant / A.1 was rightly found guilty by the trial court and was directed to pay a fine of Rs.500/- in respect of offence under Section 294(b) of IPC. In fact the trial court had rightly found the Appellant guilty in terms of Section 323 of IPC. In short, the trial court while finding the Appellant guilty under Section 294(b) of IPC had imposed fine of Rs.500/- to him in default of payment of fine, further directed him to undergo one week Simple Imprisonment. Like wise it found the Appellant guilty in respect of offence under Section 323 of IPC and imposed fine of Rs.1,000/- 48. In so far as the imposition of fine of Rs.500/- and fine of Rs.1,000/- in respect of an offence under Sections 294(b) and 323 of IPC, in respect of the same, in the considered opinion of this Court, is slightly on the higher side. Therefore, this Court, exercising its Judicial discretion while upholding the judgment of the trial court in finding the Appellant / A.1 guilty in respect of offence under Sections 294(b) and 323 of IPC reduces the fine of Rs.500/- in respect of offence under Section 294(b) of IPC to that of Rs.250/- and in respect of offence under Section 323 of IPC, the fine is reduced by this Court from Rs.1,000/- to Rs.500/-, which in the considered opinion would meet the ends of justice, (of course based on the facts and circumstances which float on the surface). Consequently, the Appeal succeeds in part.
In fine the Criminal Appeal is allowed in part stated in above terms. Since this Court has reduced the fine amount from Rs.500/- to Rs.250/- in respect of offence under Section 294(b) and reduced fine amount of Rs.1,000/- to an extent of Rs.500/- in respect of an offence under Section 323 of IPC, the trial court is directed to refund the said sum of Rs.250/- and Rs.500/- respectively to the Appellant in S.C.No.48 of 2013.
In this regard, the Appellant / A.1 is at liberty to file necessary Criminal Miscellaneous Petition for payment out. If an Application / Petition is filed by the Appellant / A.1 before the trial court (As per Criminal Rules of Practice) for refund of the excess fine amount paid, then, the trial court shall dispose of the said Miscellaneous Petition within a period of one week thereafter.