ARUNACHALAM Vs. STATE REP

JUDGEMENT

(1.) - The revision petitioners are the accused in S.C. No. 369/90 on the file of the Principal Assistant Sessions Judge, Tirunelveli and the appellants in C.A.No.6/94 on the file of the First Additional Sessions Judge, Tirunelveli. In the sessions case. AT was found guilty for the offence punishable under Sections 341, 324 and 307 of the I.P.C. and sentenced to undergo rigorous imprisonment for one year for offences punishable under sections 341 & 324 of the I.P.C. and five years for the offence punishable under section 307 of the I.P.C. together with a fine of Rs. 1,000/-, carrying a default sentence. A2 was convicted for offences punishable under sections 341, and 307 of the I.P.C. and sentenced to undergo rigorous imprisonment for one year and seven years respectively together with a fine of Rs. 1,000/-, carrying a default sentence A3 was convicted for offences punishable under sections 341 and 307 of the I.P.C. and sentenced to undergo rigorous imprisonment for one year and seven years respectively together with a fine of Rs. 1,000/-, carrying a default sentence. The appeal filed by them was also dismissed on merits. However the learned Appellate Judge was inclined to reduce the period of imprisonment of all the three accused from one year to one month simple imprisonment for the offence punishable under section 341 of the I.P.C. and reduce the period of imprisonment from seven years to five years, as far as A2 is concerned, for the offence punishable under section 307 of the I.P.C. In all other aspects, the judgment of the trial court was affirmed. It is the correctness of the said judgment that is being questioned in this revision before this court.

(2.) Heard the learned counsel on either side. The learned counsel for the petitioners would contend that the evidence let in by the prosecution throws a considerable doubt on Ex. P.1 inasmuch as it appears that there is an earlier information given well ahead the time at which Ex. P.1 was given. The learned counsel would also contend that in Ex. P.1 there are material corrections regarding the time of occurrence and the name of Al had been brought in by way of a correction. Therefore these two material corrections would go to the root of the matter, which would affect the case of the prosecution. It is next contended by the learned counsel for the petitioners that the evidence of the prosecution witnesses are highly interested and therefore they cannot be accepted at its face value. There are inherent materials in the evidence of the prosecution itself, which creates a suspicion in the mind of the court regarding the verasity of the evidence of the prosecution witnesses. The next submission of the learned counsel for the petitioners is that, conviction under section 307 of the I.P.C. is, not made out against all the accused and in any event, the conviction for the said offences as far as Al and A3 are concerned, cannot be maintained at all. Even for the offence punishable under section 326 of the I.P.C., the prosecution had not established that P.W. 1 suffered grievous injuries, which injuries are attributed to A2 & A3. Therefore even assuming for a moment without admitting that the entire, prosecution case is true, yet the conviction of the revision petitioners cannot be maintained under section 307 of the I.P.C. but it can be maintained either under section 324 or under section 325 of the I.P.C. The prosecution had failed to establish the radiologist report or to even mark the X-ray relating to the fracture stated to have been sustained by P.W.1. In the absence of the above materials, it cannot be said that the prosecution had established that P.W. 1 had sustained grievous injuries.

(3.) Contending contra, Mr. R. Karthikeyan learned Government Advocate would state that the injury attributed to A2 had been explained by P.W. 8, the Doctor, as an injury, which would result in the death of the injured, if no proper treatment is given to him. The weapon used and the force with which it is used on the vital part of the human anatomy would show that all the ingredients of section 307 of the I.P.C. are made out. He would also add that the, conviction of Al & A3 for the offence punishable under section 307 of the I.P.C. can be sustained in view of the overwhelming materials available on record. The non-examination of the radiologist or the non-marking of the Xray relating to P.W. 1 cannot affect the prosecution case in toto. The report of the radiologist is marked as Ex. p. 8 in this case. P.W.S had proved that report. P.W. 8s oral evidence is also that, Ex. P.8 shows that P.W. 1 had suffered a grievous injury. In summing up, the argument of the learned Government Advocate is that, there are overwhelming materials against the accused in this case, which have been properly appreciated by the courts below in arriving at the conclusion of guilt against the accused and therefore no interference is called for at the hands of this court.