SIVAPRAKASAM Vs. THIRUVENGADAM

JUDGEMENT

(1.) THIS revision has been preferred against the Judgment in C.A.No.37 of 2003 on the file of the District and Sessions Judge, Nagapattinam which had arisen out of the Judgment in C.C.No.121 of 1998 on the file of Judicial Magistrate No.2, Mannargudi.

(2.) IT is the case of the complainant that the occurrence had taken place on 10.7.1995 at about 6.30pm., all the accused came in cycle and picked up quarrel with Thiruvengadam(P.W.1) and immediately he had preferred a complaint with the Kottur Police , Nagapattinam District and on the same day, the complaint was registered under Crime NO.209 of 1995 under Sections 147,148,323,324 and 506 (ii) of IPC. Since the police have not taken any further steps on the complaint preferred by him and the police have closed the First Information Report, after waiting for nearly one year 5 months, from the date of action drop report of the police dated 9.8.1996,the complainant P.W.1 has preferred a private complaint under Section 200 of Cr.P.C. on 23.1.1998 before the Judicial Magistrate No.2, Mannargudi, who after taking cognizance of the case had summoned the accused for their appearance and on their appearance copies under Section 207 of Cr.P.C. were furnished to the accused and when the offence was explained to the accused and questioned the accused pleaded not guilty.

(3.) ON the basis of the above evidence,when incriminating circumstances under Section 313 of Cr.P.C. were put to the accused, A1,A3,A4 and A6 would totally deny their complicity with the crime. A5 died during the trial and A2 was absconding during the trial. 6 After going through the evidence before him, both the oral and documentary, the learned trial Judge has held that A1, A3, A4 and A6 guilty under Section 147 of IPC and convicted and sentenced them to undergo six months simple imprisonment and convicted and sentenced A1, A3, and A6 under Section 323 of IPC to undergo three months simple imprisonment and convicted and sentenced A1 and A4 under Section 325 of IPC to undergo two years simple imprisonment and also imposed a fine of Rs.1000/- each with default sentence. Apart from this, the learned trial Judge has awarded compensation of Rs.4,000/-(Rs.1000/-each) to the P.W.1/ complainant. Aggrieved by the findings of the trial Judge, the accused preferred an appeal in C.A.No.37 of 2003 before the District and Sessions Judge, Nagapattinam. The learned Sessions Judge, after due deliberation on the submissions made by the learned counsels for both sides, had confirmed the conviction against all the accused but modified the sentence against A1 and A4 under Section 325 of IPC to one year simple imprisonment instead of two years simple imprisonment and also imposed a fine of Rs.1000/- each with default sentence . Aggrieved by the findings of the learned Sessions Judge, the accused have preferred this revision. 7. Now the point for determination in this revision is whether the conviction and sentence under Section 147 of IPC against A1, A3, A4 and A6 and under Section 323 of IPC against A1 , A3 and A6 and under Section 325 of IPC against A1 and A4 are liable to be set aside for the reasons stated in the memorandum of revision" 8. Heard Mr. M.Sathyanarayanan, learned Counsel for the revision petitioners, Mr. Veera Kathiravan,learned counsel appearing for the respondent and considered their rival submissions. 9.The Point: There is no delay in preferring the First Information report by P.W.1 with the police which is seen from Ex P1 complaint. The police without taking any action against the accused , on the basis of Ex P1 complaint which was preferred on 10.7.1995, they have filed action drop report on 9.8.1996 ie., an year later from the date of complaint which made P.W.1 to prefer a private complaint before the learned Judicial Magistrate No.2, Mannargudi on 16.3.1998. The accused are close relatives. P.W.2, who is the son of P.W.1(father) and P.W.4(mother) had married the sister of the accused viz,Jayalakshmi and that there were frequent quarrels between P.W.2 and the accused in connection with the behaviour of Jayalakshmi, who very often used to visit her parents house against the wishes of P.W.2 Rajendran and his parents viz., P.W.1 and P.W.4. 10. The motive for the occurrence as spoken to by P.W.1 is that thinking that Jayalakshmi the daughter-in-law of P.W.1 is subject to cruelty at the hands of P.W.1 and P.W.2 and P.W.4, her brothers the accused herein came in a cycle on the date of occurrence and abused P.W.1,P.W.2 and P.W.4 and assaulted them with a Bamboo stick , iron rod and aruval. According to P.W.1, A1, A2, A3 have assaulted him with bamboo stick, iron rod and aruval respectively and causing injuries on the forearm , right knee and on the left leg. According to P.W.2, A2 had assaulted him with iron rod on the left wrist and A5 had assaulted him with a stick on the back and A6 had assaulted him with bamboo stick on the head causing grievous injuries. According to P.W.4, A2 had assaulted her with iron rod on the right shoulder , A1 had assaulted her with a stick on the left wrist causing fracture and A4 had kicked her on the chest causing grievous injuries. 11. The learned trial Judge, after going through the evidence of the injured witness and after saying that the injuries have been corroborated with the medical evidence of P.W.3, P.W.8,P.W.9, P.W.10 and P.W.11, has come to a correct conclusion that the offence under Section 147 of IPC against A1, A3, A4 and A6, under Section 323 of IPC against A1,A3 and A6 and under Section 325 IPC against A1 and A4 have been made out and accordingly convicted them under the charge as indicated above. ON appeal, the learned Sessions Judge, while confirming the conviction of the trial Judge against the accused , has modified the sentence against A1 and A4 to that of one year simple imprisonment instead of two years simple imprisonment. 12. The learned counsel appearing for the revision petitioners would contend that even as per the original complaint Ex P1 ,P.W.1 has stated that the accused have assaulted him only with stick and there is no allegation that the accused have assaulted with weapons like Aruval or Iron rod and so some leniency may be shown on A1 and A4 who have been convicted and sentenced under Section 325 of IPC. The overt-act attributed against A1 is that he had assaulted P.W.1 and P.W.4 with bamboo sticks on the person of P.W.1 and P.W.4. But P.W.1, according to P.W.3, the doctor, had sustained fracture in the left wrist due to the attack him by A1 with stick on the date of occurrence. 13. The learned counsel would further submit that A1 and A4 were in prison for nearly one week during the period of remand and that may be awarded as punishment for them increasing the amount of compensation to Rs.5000/-. Taking into consideration the nature of grievous injuries sustained at the hands of A4 by P.W.4 as corroborated by the evidence of P.W.3 doctor , I am declined to modify the sentence for A4. ON the other hand, I am inclined to modify the sentence under Section 325 of IPC for A1 considering the grievous injuries he had caused to P.W.4 only on the wrist with stick. A1 is sentenced under Section 325 of IPC to the period already undergone instead of one year and imposed a fine of Rs.5000/- instead of Rs.1000/- and out of the fine amount of Rs.5,000/- , the entire amount is awarded as compensation under Section 357(1) of Cr.P.C. to P.W.4. 14. The learned counsel appearing for the revision petitioners, at this juncture represents that A4 may be released on Probation of Offenders Act. But taking into consideration,the plight of P.W.4 and the grievous injuries, she had sustained at the hands of A4 , I am declined to enlarge A4 on Probation of Offenders Act. The learned counsel for the revision petitioner would further submit that the provision under Section 360 of Cr.P.C. may be applied in this case in respect of A4 and in support of his contention, he relied on a decision reported in Daljit Singh and others-v- State of Punjab , through Secretary Home Affairs(2006)2 M.L.J.378). A careful reading of Section 360 of Cr.P.C. will go to show that only in a case of the accused, who is below 21 years of age, the provision under Section 360 of Cr.P.C. can be applied and not in all the cases. Admittedly , the age of A4 is 38. So A4 cannot take shelter under Section 360 of Cr.P.C. 15. In fine, the revision is dismissed with the following modifications. The sentence of A1 under Section 325 of IPC is modified to that of the period already undergone instead of one year and imposed a fine of Rs.5000/-instead of Rs.1000/- and out of the fine amount of Rs.5000/-, the entire amount is awarded as compensation under Section 357 (1) of Cr.P.C. to P.W.4. The sentence of A1, A3, A6 are modified to that of the period already undergone instead of respective sentence awarded against them. In other aspects, the findings of the learned Sessions Judge in C.A.No.37 of 2003 on the file of District and Sessions Judge, Nagapattinam is confirmed.