VEERAN ALIAS VEERASAMY Vs. STATE

JUDGEMENT

(1.) THIS Criminal Appeal has been filed under Section 374 of CODE OF Criminal PROCEDURE, 1973 as against the judgment and sentence of imprisonment dated 27.05.2002 made in S.C.No,40 of 2001 on the file of the Additional District Sessions Court (Fast Track Court), Ariyalur to set aside the same.)The accused 1 and 2 who were charged and tried for an offence punishable under Section 307 IPC before the Additional District and Sessions Judge (Fast Track Court), Ariyalur in S.C.No,40/2001 and found not guilty of the said offence, have come forward with the present appeal under Section 374 Cr.P.C. as the first appellant (first accused) was found guilty of an offence punishable under Section 326 IPC, convicted and sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs.1,000/- with a default sentence of three months simple imprisonment in case of default in payment of fine, whereas the second appellant (second accused) was found guilty and convicted for an offence punishable under 323 IPC and sentenced to pay a fine of Rs.500/- with a default sentence of one month simple imprisonment in case of default in payment of fine.The case of the prosecution, in brief, can be stated as follows:-i) PW-1 - Subramani is a native of Siruvachur village. PW-2 - Malarkodi is the wife of PW-1. During the relevant period, PW-1 and PW-2 were residing at Pallakrishnapuram, the place of the father-in-law of PW-1. The appellants 1 and 2 (accused 1 and 2) are brothers. PW-9 - Vasantha is the wife of first appellant (first accused), Veeran @ Veerasamy. As PW-1 and PW-9, the wife of the first appellant were in talking terms, the first appellant (first accused) took it in the wrong sense due to suspicion and on an earlier occasion at the instigation of the first appellant/first accused, his brother, namely the second appellant (second accused) had warned PW-1 and advised him not to have any talk with PW-9. ii) On 24.12.2008, PW-1 returned to Pallakrishnapuram, after paying a visit to his native place and at about 3.00 p.m he proceeded towards Marudhai river to take bath. On his way to Marudhai river, he came across PW-9 - Vasantha, who was irrigating their land and PW-9 - Vasantha asked him when he returned from his native place, for which PW-1's reply was "today". On seeing PW-1 and PW-9 talking to each other, the first appellant (first accused) who was in the other side of his field, approached PW-1 with an Aruval and cut him with the said Aruval on the right leg above the ankle, right and left forehands, asking him how dared he talked with PW-9? At the same time, the second appellant (second accused), using bamboo reaper, attacked him on the parietal region of the head and thus caused a bleeding injury.iii) After the occurrence, PW-1 was taken to the Government hospital, Ariyalur, where first aid treatment was given by PW-5 - Dr.Prema Sakunthala at 5.45 p.m. At the time of admission in the said hospital, PW-1 informed PW-5 that he was attacked by known persons with Aruval and bamboo stick at about 3.00 p.m near Marudhai river on 24.12.1998. An intimation was sent to the police, whereupon PW-11, the then head constable attached to Ariyalur police station, went to the hospital and recorded the statement of PW-1, marked as Ex.P1. Based on the said statement, he prepared Ex.P5 - First Information Report in the printed format and registered a case on this file of Ariyalur Police Station in Crime No,657/1998 for offences punishable under Sections 324 and 323 IPC. He took up the initial investigation of the case, went to the place of occurrence, prepared Ex.P6 - Observation Mahazar and Ex.P7 - rough sketch. He also examined the witnesses and recorded their statements under Section 161 Cr.P.C. On 25.12.1998 at about 11.00 a.m, he arrested the first appellant (first accused) and sent him for judicial custody on the sameday.iv) On 28.12.1998 PW-10 - Syed Mohammed, the then Inspector of police, Ariyalur circle, took up the further investigation of the case and altered the case into one for an offence punishable under Section 307 IPC. Ex.P4 is the alteration report sent to the Judicial Magistrate concerned for the said alteration of the case. As PW-10 was transferred from the said place on 29.12.1998, thereafter PW-12 - Balaguru, the then Inspector of Police, Ariyalur Police station, took up further investigation, completed the same and submitted a final report.

(2.) AFTER the case was committed by the learned Judicial Magistrate, Ariyalur the same was taken on file by the learned Principal Sessions Judge (Fast Track Court), Ariyalur as S.C.No,40/1999. The same was made over by the said court to the learned Additional District and Sessions Judge for disposal according to the law. Necessary charges were framed in the trial court and the appellants herein/accused pleaded not guilty. In order to substantiate the charges made against the appellants 1 and 2 (accused 1 and 2), the prosecution examined twelve witnesses as PW-1 to PW-12, marked six documents as Ex.P1 to P6 and produced M.O.1 series of five X Rays. AFTER completion of examination of the prosecution witnesses, the accused were questioned under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. The appellants herein (accused 1 and 2) denied them to be false and once again reiterated their contention that they were innocent. No witness was examined and no document was marked on the side of the accused.

(3.) ADVANCING arguments on behalf of the appellants, Mr.M.Deivanandam, learned counsel for the appellant submitted that the court below committed a grave error in accepting the evidence of the so-called eye witness of PW-2 to corroborate the evidence of PW-1 when there was a material contradiction in her own evidence suggesting that she could not have seen the occurrence that the court below committed a grave error in offering an explanation as to why the other eye witnesses not supporting the case of the prosecution when no such explanation is forthcoming from the witnesses examined on the side of the prosecution that the fact of PW-1 whose statement was the basis of the FIR affixing his thumb impression whereas admittedly he used to sign, was overlooked by the court below in accepting the explanation offered by PW-1 and that in the light of the fact that the other eye witnesses turned hostile and that PW-2's evidence also is capable of suggesting that she could not have seen the occurrence, the only reliable evidence turn out to be the interested testimony of PW-1 that in the said circumstances, the contradictions, the evidence of PW-1 viz-a-viz his statement recorded under Section 161 Cr.P.C. should have been taken as factors impeaching upon the reliability of his evidence and that if all these aspects were taken into account in proper perspective by the trial court, it ought to have held that the occurrence as projected by the prosecution was not proved beyond reasonable doubt and it should have acquitted the appellants/accused holding them not guilty of any offence.