PONNUSWAMY Vs. VENKATAHCHALAM

JUDGEMENT

(1.) ACCUSED 1 and 2 in C. C. 41 of 1974 on the file of the Judicial I Class Magistrate No. II, Salem have preferred this revision petition, canvassing the correctness and propriety of the judgment of the learned Sessions Judge, Salem dated 13-3-1975, in C. A. 11 of 1975, confirming the judgment of the trial Magistrate dated 27-12-1974 convicting the first petitioner (accused-1) for offences under Sections 326 and 324, Indian Penal Code, and the second petitioner (accused2] under Section 324, Indian Penal Code, and sentencing the first petitioner to suffer rigorous imprisonment for six months under Section 326, Indian Penal Code (no separate sentence being passed under Section 324, Indian Penal Code) and the second petitioner to suffer rigorous imprisonment for two months under Section 324, Indian Penal Code.

(2.) THE crux of the indictment against these two petitioners and one Chinna Ponnu (who was accused-3 before the trial Court), based on the private complaint preferred by the complainant (first respondent herein) is as follows : On 5-3-1973, at about 7. 30 A. M. when the complainant was on his way to Mettur from his house, accused-1 armed with a crow-bar, accused-2 armed with a koduval and accused-3 armed with a stick, obstructed him and beat and cut him with their respective weapons. As a result of the attack made, the complainant (P. W. 1) sustained as many as ten injuries, of which injuries 6 and 7 were grievous in nature vide Ex. P-4, the wound certificate issued by P. W. 5. When P. W. 2 intervened, he was also beaten by accused-3 and sustained three injuries as described in Ex. P-5 issued by P. W. 5. P. Ws. 2 to 4 are the eye-witnesses to the occurrence. As the village Munsif was not available in his house, P. W. 1 went to the police station, Salem Camp, and laid a complaint Ex. P-2 before the Head Constable. According to P. W. 1, this report Ex. P-2 was not read over to him, but his signature alone was obtained. Thereupon, P. Ws. 1 and 2 were sent to the Government Hospital, Mettur, for treatment. As no action was taken by the police, P. W. 1 sent a petition under Ex. P-1 to the Superintendent of Police and other officials. Subsequently, he also sent a complaint under Ex. P-3 dated 27-4-1973 before the trial court, which complaint was sent to the Sub-Inspector of Police, Salem Camp, for investigation under Section 156 (3), Criminal Procedure Code with a direction that if the Sub-Inspector had laid a charge-sheet against the complainant also under Section 160, I. P. Code this complaint need not be registered, and the Sub-Inspector was also directed to return the complaint to the court with a suitable endorsement. It is found from the evidence of D. W. 2, the then Sub-Inspector of Police, Salem that a charge-sheet as against P. W. 1 and others was filed in Petty Cases Nos. 119 to 124 of 1973 under Section 160, Indian Penal Code, on 63-1973. Ex. D-4 is the charge-sheet in those petty oases. Subsequently, on the instructions of the Assistant Superintendent of Police, D. W. 2 withdrew the petty cases and registered a case on the basis of Ex. P-2 in Crime No. 69 of 1973 of the said police station for offences under Sections 323 and 325, Indian Penal Code, against the same three accused. After completing the investigation, a charge-sheet was laid before the Judicial II Class Magistrate and it was pending before the said court in C. C. 2080 of 1973. Meanwhile, the private complaint Ex. P-3 was taken on file by the Judicial I Class Magistrate No. II, Salem in C. C. 212 of 1973. Then, this case C. C. 212 of 1973 was transferred to the file of the Executive I Class Magistrate, Mettur, before whom it was pending trial. Subsequently, C. C. 2080 of 1973 was also transferred to the file of the same Executive I Class Magistrate, and this was numbered as C. C. 15 of 1973 on his file. The said Magistrate, instead of disposing of both the cases simultaneously, tried C. C. 15 of 1973 and acquitted all the three accused. Thereafter, the case on the private complaint was retransferred to the file of the Judicial First Class Magistrate, Salem, and re-numbered as C. C. 41 of 1974. This ended in the conviction before the trial Magistrate and the same was confirmed by the lower appellate court as mentioned above.

(3.) IT may be noted that the facts both in the police charge-sheeted case which ended in acquittal and in the case on the private complaint, which is the subject-matter of this revision petition, are one and the same and based on the same occurrence between the same parties. Both the Courts below have concluded that the principle of autrefois convict and autrrfois acquit, as adumbrated under Section 403, Cri. P. C. corresponding to Section 300 of the new Code, will not be applicable to the facts of this case, as the trial of both the cases were simultaneously pending. At the time of the hearing of the appeal, these two petitioners-appellants filed a petition in Cr. M. P. 155 of 1975 with the prayer to receive a certified copy of the judgment made in C. C. 15 of 1973 by the Executive I Class Magistrate, Mettur, acquitting all the accused, and the said petition was allowed and the document received and marked as Ex. D-5. Though the petitioners raised a contention that by the application of the principle of issue estoppel or res judicata, the conviction by the trial court cannot be sustained, the lower appellate court without properly appreciating that contention, has totally rejected this plea on the ground that the principle autrefois acquit will not be applicable to this case and confirmed the conviction.