(Prayer: Criminal Appeal filed under Section 374(2) Cr.P.C., against the judgment, dated 12.08.2009 in S.C.No.28 of 2009 on the file of the Additional District and Sessions Court-cum-Fast Track Court-I, Tindivanam.)
1. This Criminal Appeal is filed against the judgment dated 12.08.2009 in S.C.No.28 of 2009 on the file of the Additional District and Sessions Court-cum-Fast Track Court-I, Tindivanam, in and by which, the appellants/A6 and A7 stood for trial along with the 12 other accused persons; A1 to A5 and A8 to A14 were acquitted of the charges by the trial Court and the appellants herein (A6 and A7) alone were convicted and sentenced as tabulated hereunder :
|Sl.No.||Rank of the accused||Conviction under Section||Sentence of imprisonment||Fine|
|1||A6||Section 148 IPC||six months imprisonment||-|
|2||A6||Section 341 IPC||one month imprisonment||-|
|3||A6||Section 307 IPC||seven years imprisonment||Rs.1,000/-, in default to undergo three months imprisonment|
|4||A7||Section 148 IPC||six months imprisonment||-|
|5||A7||Section 341 IPC||one month imprisonment||-|
|6||A7||Section 326 IPC||five years imprisonment||Rs.1,000/-, in default, to undergo three months imprisonment|
2. P.W.1 is the de-facto complainant in this case. It is the case of the prosecution leading to the conviction of the appellants/A6 and A7, that there was a land dispute between the prosecution witnesses and the accused persons. While so, on 27.03.2007 at about 10.30 p.m., P.W.1 and other witnesses were returning after attending the wedding reception of one Sankar, in two-wheelers in groups. P.W.1 and P.W.8 were travelling in one motor-cycle and others were following in different motor-cycles. While they were proceeding on the main road near Chettikuppam, the accused persons assembled with deadly weapons like knife, wooden logs, iron pipe and veecharuval, way-laid P.W.1 and others and assaulted them. The first appellant herein (A6) assaulted P.W.2 on his head and the second appellant herein (A7) assaulted P.W.2 with an iron pipe. All the other accused attacked with their respective weapons, which were in their possession, indiscriminately on the prosecution witnesses and caused grievous injuries. Thereafter, the accused persons ran away from the spot. Subsequently, the injured-victims-prosecution witnesses, were admitted in PIMS Hospital, Kalapet, Pondicherry. On 28.03.2007 (i.e. next day to the date of occurrence), P.W.1 went to Police Station and lodged Ex.P-1 complaint with P.W.13 Inspector of Police, on receipt of which, P.W.13 registered a case in Crime No.98 of 2007 for the offences under Sections 147, 148, 324 and 307 IPC. Ex.P-12 is the FIR. Thereafter, P.W.13 went to the scene of occurrence, recorded the statement of the witnesses, prepared Ex.P-2 observation mahazar and Ex.P-13 rough sketch. Subsequently, on 29.03.2007, P.W.13 arrested A6 (first appellant herein) and A8 (acquitted accused) near Anumathai Bus Stand and recorded their confession statements in the presence of P.Ws.10 and 11, based on which, he recovered M.O.1 veecharuval near a poultry farm under a cover of mahazar Ex.P-15. The admitted portion of the confession statement of the appellants is Ex.P-14. Thereafter, P.W.13 could not arrest the other accused persons, as they were out on anticipatory bail. P.W.13 took steps for remanding the accused persons to judicial custody. P.W.13 obtained the medical certificates of the injured-victims and examined the Doctor concerned and recorded the Doctor's statements. After completing the investigation and all the other formalities, P.W.13 filed charge sheet against the accused persons including the appellants herein. The case was taken on file by the trial Court in S.C.No.28 of 2009. During the course of trial, on the side of prosecution, P.Ws.1 to 13 were examined, Exs.P-1 to P-15 were marked and M.O.1 was produced. When the appellants/accused persons were questioned under Section 313 Cr.P.C., they denied their complicity in the crime. On the side of defence, D.W.1 was examined and Exs.D-1 to D-3 were marked. Upon hearing the submissions of both sides and considering the oral and documentary evidence available on record, the appellants/A6 and A7 were convicted by the trial Court as tabulated above and other accused persons were acquitted. Challenging the said conviction and sentence, the appellants/A6 and A7 have filed this appeal.
3. Learned Senior Counsel appearing for the appellants/A6 and A7 submitted that the Accident Register pertaining to the injured-victims had not been marked by the prosecution, and the same had been suppressed. He further submitted by drawing the attention of this Court to Ex.P-8 discharge summary issued by Apollo Speciality Hospital, Chennai, in respect of P.W.2 and submitted that in Ex.P-8, it has been stated that "this 27 year old gentleman is a known case of RTA with right frontal depressed fracture; he had undergone right frontal craniectomy and excision of fracture fragment on 11.04.2007; he was then discharged in a stable condition; he has now come for further management." Thus, learned Senior Counsel submitted that in Ex.P-8 discharge summary pertaining to P.W.2, it is stated that he is a known case of RTA (Road Traffic Accident). He further invited the attention of this Court to the evidence of P.W.12 Doctor, who has admitted in his cross-examination that in the discharge summary, he has mentioned as "RTA", but this crucial document was not properly considered by the trial Court and had Ex.P-8 discharge summary been considered by the trial Court in proper perspective, the case of the prosecution would have been thrown away, more particularly, with regard to the fact that P.W.2 sustained injuries only due to assault by the appellants/A6 and A7. That apart, learned Senior Counsel further submitted that the occurrence took place on 27.03.2007, but the complaint Ex.P-1 was lodged only on 28.03.2007 after about 11 hours, and this delay of nearly 11 hours, will vitiate the case of the prosecution, as the same has not been properly explained by the prosecution. Learned Senior Counsel further submitted that though M.O.1 Veecharuval was marked through the investigating officer, none of the witnesses identified M.O.1's usage by the accused persons in the occurrence. Therefore, learned Senior Counsel appearing for the appellants submitted that there are lots of infirmities in the case of the prosecution, which has not proved its case beyond reasonable doubt. For these reasons, learned Senior Counsel prayed for setting aside the judgment of conviction and sentence passed by the trial Court against the appellants and to allow the appeal.
4. Countering the above submissions, learned Additional Public Prosecutor appearing for the respondent-Police submitted that the evidence of P.W.1/de-facto complainant is cogent and convincing and he has spoken in clear terms about the injuries caused by the accused persons. Moreover, the evidence of P.W.12 Doctor shows that the injuries sustained by the prosecution witnesses (victims) tally with the weapon M.O.1 Veecharuval used by the accused persons. Therefore, according to the learned Additional Public Prosecutor, the prosecution has proved its case beyond reasonable doubt by convincing, cogent and clinching evidence and he prayed for dismissing the appeal, as no interference is called for in the impugned judgment of the trial Court.
5. Keeping in mind the above submissions made on both sides, I have given my anxious consideration to the same and perused the materials available on record.
6. It is the main submission of the learned Senior Counsel appearing for the appellants/A6 and A7 that in Ex.P-8 discharge summary pertaining to P.W.2, the reason for the injury was shown as "RTA", and hence, according to the learned Senior Counsel, the injuries would not have been caused by the appellants/A6 and A7 with M.O.1. In this regard, learned Senior Counsel appearing for the appellants invited the attention of this Court to the evidence of P.W.12 Doctor, who has stated in his cross-examination that he has mentioned the cause of injuries in Ex.P-8 discharge summary as "RTA" and he also stated clearly that there is also possibility for the victim (P.W.2) to have sustained injuries in a road accident. But, I find that it is a categorical evidence of prosecution witnesses that they have sustained injuries only due to the indiscriminate attack made by the appellants with the material objects and hence, just because in Ex.P-8 discharge summary, it is mentioned as "RTA" being the cause of the injuries, it cannot be said that the injuries were caused only due to road accident, and hence, I am not inclined to accept the submission of the learned Senior Counsel appearing for the petitioner that since it was referred as "RTA", the victim/P.W.1 sustained injuries only due to road accident, when the evidence on record is crystal clear that the prosecution witnesses sustained injuries only due to the usage of M.O.1 Veecharuval and other deadly weapons.
7. Moreover, if the medical evidence and oral evidence are contradicting/conflicting with each other, only the oral evidence will prevail over the medical evidence. In this context, it is useful to refer a decision of this Court reported in 2015 (2) LW (Crl) 368 (in Crl.A.No.459 of 2008, dated 10.07.2015 (Periyasamy and another Vs. State, rep. by DSP), wherein, it was held when there is conflict between the oral evidence and the medical evidence, the oral evidence will prevail; medical evidence has been pressed into service in a criminal case for the purpose of corroboration and medical evidence cannot be elevated to the status of a substantive piece of evidence.
8. Therefore, when P.W.1 clearly stated in his evidence and also in his complaint that the other prosecution witnesses and himself, sustained injuries only on the attack made by the accused persons with M.O.1 Veecharuval, no significance could be attached to the evidence of P.W.12 Doctor, who had mentioned the reason for the injuries as "RTA" in Ex.P-8 discharge summary and in his evidence, P.W.12 Doctor has stated that there is possibility for sustaining the nature of injuries in a road accident. Therefore, as observed earlier, no significance could be attached to the word "RTA" found in Ex.P-8. Thus, it is clearly established by the prosecution that the injuries were caused on the prosecution witnesses, only by the appellants/A6 and A7 with M.O.1 Veecharuval and other deadly weapons.
9. So far as the delay aspect in lodging the FIR is concerned, P.W.1 in his evidence has stated that as all of them (including the other prosecution witnesses) were admitted/treated in the hospital immediately after the occurrence, only on the next day to the occurrence, i.e. on 28.03.2007, P.W.1 gave Ex.P-1 complaint, which is an acceptable reason for the belated lodging of complaint. Thus, it has to be inferred that the prosecution has properly explained the delay in lodging the complaint Ex.P-1.
10. Moreover, with regard to non-marking of Accident Register, as contended by the learned Senior Counsel appearing for the appellants, it is suffice that Ex.P-8 discharge summary had been marked to prove the case of the prosecution, and non-marking of Accident Register by the prosecution will not seriously affect the case of the prosecution.
11. For all the above reasons, it has to be concluded that the prosecution has proved its case beyond reasonable doubt. Hence, I do not find any infirmity in the impugned judgment of the trial Court finding the appellants/A6 and A7 guilty of the offences and there is no reason warranting interference by this Court. Accordingly, the conviction imposed on the appellants/A6 and A7 is confirmed.
12. Coming to the sentences imposed on the appellants/A6 and A7, it has to be mentioned at this juncture that the occurrence took place in the year 2007, now, almost nine years had lapsed and hence, at this distant point of time, this Court is of the view that the sentences imposed on the appellants/A6 and A7 could be reduced. Accordingly, it is observed as follows:
(i) The sentence of six months imprisonment imposed on A6 for the offence under Section 148 IPC is confirmed.
(ii) The sentence of one month imprisonment imposed on A6 for the offence under Section 341 IPC is confirmed.
(iii) The sentence of seven years imprisonment imposed on A6 for the offence under Section 307 IPC is reduced to one year.
(iv) The sentence of six months imprisonment imposed on A7 for the offence under Section 148 IPC is confirmed.
(v) The sentence of one month imprisonment imposed on A7 for the offence under Section 341 IPC is confirmed.
(vi) The sentence of five years imprisonment imposed on A7 for the offence under Section 326 IPC is reduced to one year.
The above sentences of imprisonment imposed on A6 and A7 shall run concurrently.
13. With the above reduction in the period of sentences of imprisonment, the appeal is partly allowed. Since the appellants/A6 and A7 are on bail, the trial Court is directed to take steps to secure their custody, to undergo the remaining period of sentence, if any.