Bail Slip The Appellant / Accused viz.1.Hemanath, S/o.Parthasarathy (2) Gopinath, S/o.Parthasarathy was directed to be released on bail as per order of this Court dated 3.4.2003 and made in Crl.M.P.No.3050 of 2003 in Crl.A.No.556 of 2003 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.03.2011 CORAM THE HONOURABLE MR.JUSTICE S. NAGAMUTHU Crl.A.No.556 of 2003 1. Hemanath 2. Gopinath .. . Appellants/Accused 1 & 2 VS State by Inspector of Police, V2,Virugambakkam Police Station, Virugambakkam, Chennai.92 ... Respondent/Complainant Crime No.420 of 2000 . . . PRAYER: Appeal filed under Section 374 Cr.P.C against the order of conviction and sentence imposed in S.C.No.156 of 2002 dated 13.03.2003 on the file of V Additional Sessions Judge, Chennai. . . . For Appellant : Mr.N.F.J.Ponnudurai For Respondent : Mr.R.Muniyappa Raj Govt.Advocate (Crl.Side) . . . J U D G M E N T The appellants are accused 1 and 2 in S.C.No.156 of 2003 on the file of the V Additional Sessions Court, Chennai. Totally there were three accused. The appellants have been convicted under Sections 326 ad 341 I.P.C and sentenced to undergo R.I for one year and to pay a fine of Rs.1,000/- in default to undergo R.I for one month for the offence under Section 326 I.P.C and to undergo R.I for one month for the offence under Section 341 I.P.C.m The sentences have been ordered to run concurrently. The third accused has been https://hcservices.ecourts.gov.in/hcservices/ acquitted. Challenging the said conviction and sentence, the accused 1 and 2 are before this Court with this appeal. 2. The case of the prosecution in brief is as follows: i) The appellants are the sons of the third accused (since acquitted). There was some dispute between the family of the accused and the prosecution party in respect of a property. Indisputably, there was a civil suit also pending. There was an attempt made by advocates for either side to compromise the said civil dispute. But the same could not fructify. Thereafter, on 22.04.200 at about 7.30 pm. P.W.1 and P.W.3 were standing in front of the house of P.W.1. At that time, all the three accused emerged and the first accused shouted that so long as P.W.1 was alive, they could not succeed in the civil dispute. With such shouting, A.1 attempted to attack P.W.1 with Aruval, which he was holding. P.W.1 tried to escape. At that time, P.W.2, who came rushing to the place of occurrence, attempted to prevent A.1 from cutting P.W.1. But A.1 cut P.W.2 on his left wrist. The second accused took out an Aruval and attempted to cut P.W.1 on his head. P.W.1, warded off with his left hand. Therefore, the cut fell on his left wrist. He sustained injury. Then the people who were present at the scene of occurrence raised alarm. A.1 and A.2 cut P.Ws 1 and 2 as stated above at the instigation of A.3. After the alarm raised by others, A.1 and A.3 disappeared from the place of occurrence. Thereafter, P.W.s.1 and 2 were taken to a private hospital known as Suriya Hospital by one Muthu. They were admitted as in patient in the said Hospital. While taking treatment, at about 8.45 p.m on receiving information from the hospital, P.W.9, Inspector of Police attached to Virugambakkam police Station came to the spot and recorded the statement of P.W1. Based on the same, he registered a case in Crime No.420 of 2000 under Sections 341, 324, 307 and 506(ii) I.P.C. In the hospital, P.W.8, Dr.Vekatramanan examined P.Ws 1 and 2 at 8.00 p.m on 22.04.2000 . He was told by both the injured that they were attacked by known persons with knife. On examination, he found that the tendon at the left wrist of P.W.1 was cut and there was also fracture of bone. He conducted surgery on P.W.1 to correct the same. P.W.1 under went treatment as in patient for four days. According to P.W.8, Dr.Venkataramanan, the injuries sustained by P.W.1 were grievous. He issued Ex.P.4, the wound certificate. On the same day, when he examined P.W.2, Ravi, he found a cut injury on the left wrist and also the tendon was found cut. He was treated as in patient for four days. According to him, the injuries sustained by P.W.2 is also grievous. He issued Ex.P.5, the wound certificate. ii) Coming back to the investigation, P.W.9 proceeded to the place of occurrence at about 10.15 p.m. He prepared the observation mahazar in the presence of P.W.6 and one Ramalingam and also he prepared a sketch. He examined P.Ws 3, to 6 and recorded their statements. P.Ws 3 to 6 were also eye witnesses to the occurrence. https://hcservices.ecourts.gov.in/hcservices/ He proceeded to the hospital and recovered the blood stained clothes worn by P.Ws.1 and 2 under Mahazar. On 23.04.2000, he arrested the accused near Sinmaya Nagar Bridge. The first accused gave a confession voluntarily and P.W.9 recorded the same in the presence of two witnesses. Based on the said confession, he took the police and witnesses to his house and produced M.os.1 and 2, the weapons said to have been used in the occurrence. M.O.1 was the Aruval used by A.1 and M.O.2 was the one used by A.2. Then he examined P.W.8 Doctor and collected medical records. Thereafter, he handed over the investigation to P.W.10, as he was transferred. On perusing the records, P.W.10 laid charge sheet for offences under Sections 341, 307, and 506 (ii) I.P.C r/w 109 and 34 I.P.C. iii) Based on the above materials, the learned Sessions Judge framed as many as 4 charges. The first charge is under Section 341 I.P.C against all the three accused. The second charge is under Section 307 I.P.C against A.1 and A.2. The third charge is under Section 307 r/w 109 I.P.C against the third accused and the fourth charge is under Section 506 (ii) I.P.C against all the three accused. Since the accused denied the charges, they were put on trial. During the course of trial, on the side of the prosecution as many as ten witnesses have been examined and 13 documents were exhibited. Mos.1 to 4 were marked. iv. When the accused were questioned in respect of the incriminating evidence, they denied the same. On their side, they did not examine any defence witness but they have marked as many as 11 documents as Exs.D1 to D.11. v. Having considered the above materials, the trial Court acquitted the third accused of all the charges and found the accused 1 and 2 guilty of offences under Sections 326 and 341 alone. The appellants are aggrieved by the same and that is how, they are now before this Court with this appeal. 3. The learned counsel for the appellants would submit that the accused have been falsely implicated in this case because of the civil dispute pending between the two families. His contention is that the accused had no motive against P.Ws 1 to 3 and instead P.W.1 alone had motive against the accused. Thus, according to the learned counsel, the motive propounded by the prosecution has not been established against the accused. 4. The next ground of attack is that the trial Court itself has disbelieved the evidence of P.W.1 as against A.3 and has acquitted him. When that be so, it is very obvious that P.Ws 1 to 7 are capable of falsely implicating anyone in the case. Therefore, the evidence of P.Ws 1 to 7 ought to have been rejected as against these accused also. https://hcservices.ecourts.gov.in/hcservices/ 5. Nextly, the learned counsel would submit that there is material contradiction in respect of the weapon said to have been used by these accused. According to him, in the First Information Report, it has been stated that these two accused pulled out knife from their waist, which they were hiding to attack P.Ws 1 and 2. But the learned counsel would point out that P.Ws 1 and 2, in their evidence have stated that they were attacked by Aruval and that is how M.Os 1 and 2 which are Aruvals have been exhibited in evidence. Thus, the learned counsel would submit that the prosecution has not come forward with truth. 6. Lastly, the learned counsel would submit that in order to prove that the injuries are grievous in nature, it is absolutely necessary that X-ray reports should have been produced in evidence. In the absence of production of X-ray reports, according to the learned counsel, the injurious should have been held to be only simple. 7. The learned counsel has also pointed out certain other contradictions. The learned counsel would therefore, conclude his argument saying that the prosecution has failed to prove the case beyond reasonable doubts and therefore, the appellants are entitled for acquittal. 8. The learned Government Advocate would vehemently oppose this appeal. According to him, the contradictions pointed out by the the learned counsel for appellants, are very minor in nature and they would not go to the root of the prosecution case itself. He would further submit that from the evidence of P.Ws 1 to 3, the motive as against the appellants has been very strongly proved by the prosecution. He would further submit that though there appears to be some contradictions in respect of weapons, the same was not put to the accused by way of cross examination when the weapons were marked in evidence through P.Ws 1 to 3. Therefore, when the evidence regarding the weapons were not contradicted by the accused and without disputing the weapons, it is not open for the accused at this length of time to say that there are contractions with regard to the weapons, the learned Government Advocate contended. He would further submit that though the trial Court disbelieving the evidence of P.Ws 1 to 6, has acquitted the third accused, on that score their evidence cannot be completely brushed aside so as to acquit the accused Nos.1 and 2 also. For all these reasons, the learned Government Advocate would pray for sustaining the conviction as well as the sentence. 9. I have considered the above submissions and also perused the records carefully. https://hcservices.ecourts.gov.in/hcservices/ 10. In respect of motive, I have to state that the motive assumes importance in a case where there are no eye witnesses or to know the intention of the assailants. Here, in this case, admittedly, there was a civil dispute pending between the parties. They were also in inimical terms. This aspect has not been disputed during the cross examination of P.Ws 1 to 3. The motive, of course, is a double edged weapon. I am not for a moment to say that simply because there was motive, the prosecution case should be held to be proved. It is the settled law that the motive is one piece of evidence to be considered while considering the prosecution case in its entirety. I only hold that the motive on the part of the accused has been established. 11. Now, coming to the occurrence, P.Ws. 1 and 2 are the injured eye witnesses. The presence of P.Ws 3 to 6 has been spoken to by P.Ws 1 and 2 . As a matter of fact, according to P.W1, P.W3 was standing by the side of P.W1 at the time of occurrence. According to him, it was only at that time, the accused emerged at the place of occurrence. Though these witnesses have been subjected to cross examination at length, the learned counsel for the appellants is not able to point out any infirmity in the evidence or improbability so as to brush aside their evidence. A perusal of the evidence of P.Ws 1 to 6 would go to show that their evidences are cogent, convincing and so they are acceptable. 12. Now, coming to the First Information Report, the occurrence in this case was at 7.00 p.m. P.Ws 1 and 2 were examined by P.W.8 Dr.Venkataramanan at 8.00 p.m. While they were in the hospital, P.W.9 came to the hospital and obtained a complaint from P.W.1 registered a case soon thereafter. Absolutely, there is no delay even to doubt the case of prosecution in any manner. The learned counsel for the appellants has not made any argument in respect of any delay either in preferring the complaint or in registering the case. 13. The main argument advanced by the learned counsel for the appellants is that though it is stated in the complaint (Ex.P.1) that these accused attacked P.Ws 1 and 2 with knife, in evidence, they have stated that they were attacked by M.Os 1 and 2 Aruvals. The learned counsel would submit that this is a major contradiction to improbabilise the case of prosecution. In order to appreciate this argument, I have carefully gone through the evidence of P.Ws 1 to 6. Absolutely, I find no cross examination in respect of this contraction pointed out by the learned counsel. Under Section 145 of the Evidence Act, unless the witness is contradicted by using the former statement, namely, the first Information Report, so as to afford an opportunity to explain if possible, this Court on its own, can not compare the Fist Information Report and the present https://hcservices.ecourts.gov.in/hcservices/ evidence given before the Court to hold that there are contradictions. The said course is not possible because the same would defeat the very object of Section 145 of the Evidence Act. Whether in the perception of P.Ws 1 and 2 , M.Os 1 and 2 can also be called as knife or be called only as Aruvals, is a matter to be explained by P.Ws 1 and 2. Since P.W 1 was not called upon to explain the same by bringing the contradiction which is said to have occurred in his evidence, to his notice, it is not open for the learned counsel now to argue that there has been contradiction. Therefore, this argument deserves only to be rejected. 14. The learned counsel would nextly contend that because A.3 has been acquitted disbelieving the evidence of P.Ws. 1 to 6, the entire case of the prosecution should have been brushed aside. Though attractive, this argument has no force. Simply because the Court has found that the prosecution has failed to prove the case as against A.3, it cannot be automatically held that the prosecution has failed to prove the case as against A.1 and A.2 also. As it has been repeatedly held by the Hon'ble Supreme Court, if it is possible to separate the grain from the chaff, based on the grain, the Court can conclude that the accused are guilty. In this case, the trial Court has found that the evidence of P.Ws 1 to 6 are believable to prove the guilt of these two appellants. I do not find any infirmity in the same. 15. Lastly, the learned counsel would submit that the non production of X-rays taken on P.Ws 1 and 2 is fatal to the prosecution case. He would submit that in the absence of production of x-Rays it should be held that the injuries are only simple in nature. Of course, it is true that in a case where the prosecution alleges that the victim had suffered fracture, normally, the Court would expect x-ray report to be marked in evidence. But the question is whether on that score, i.e. X-rays taken on P.Ws 1 and 2 have not been produced before the Court, it is necessary in the given case to hold that the injuries are simple in nature. In my considered opinion, the answer would be no. The reason is that according to P.W.8, the fracture as well as the cutting of tendon were so visible which could be seen even with naked eyes. It is only when the fracture could not be noticed by naked eyes, X ray would be required to prove the same. But in the case where fracture is so visible, for example, if the fractured bone has protruded out of the muscle which could be seen by the naked eyes, insisting for production of X-ray report is only unnecessary. Here, in this case, according to P.W.8, the injuries were grievous because he found them even with naked eyes. According to him, the tendons were cut and there was fracture of bone for P.W.1 also. Therefore,the last argument of the learned counsel for the appellant is also liable to be rejected. https://hcservices.ecourts.gov.in/hcservices/ 16. For these reasons, I do not find any infirmity warranting interference of this Court in respect of the conviction imposed by the lower Court on the appellants both under Section 326 as well as 341 I.P.C. 17. In respect of quantum of punishment, I am of the view that the punishment imposed on the appellants is on the higher side. This court is also informed that both the accused had undergone imprisonment for about two months. The appellants are brothers and they are young men. They have got big family to look after also, as stated by the learned counsel. From the evidence of P.Ws 1 and 2 it can be seen that after treatment, they have become alright and they have not suffered any permanent disability. Having regard to all the above facts and all the other attending circumstances, I am of the view that it is a fit case where the the sentence of imprisonment imposed on the appellants may be reduced to two months. 18. In the result, the appeal is partly allowed in the following terms: i. The conviction of the appellants under Section 326 and 341 I.P.C is confirmed. ii. In respect of sentence, for the offence under Section 326 I.P.C, the substantive sentence of imprisonment of R.I for one year imposed by the trial Court is reduced to R.I for two months and the fine of Rs.1000/- is enhanced to Rs.2000/- in default to undergo R.I for two months. The substantive sentence of imprisonment of one month RI imposed for the offence under Section 341 I.P.C is confirmed. In all other respects, the appeal stands dismissed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar pal To 1. The V Additional Sessions Judge, Chennai 2. The Principal Sessions Judge, Chennai 3. The IX Metropolitan Magistrate, Saidapet, Chennai. 4. The Chief Metropolitan Magistrate, Egmore, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 5. The Superintendent, Central Prison, Puzhal, Chennai. 6. The Inspector of Police, V2, Virugambakkam Police Station, Virugambakkam, Chennai - 92. 7. The Public Prosecutor, High Court, Chennai. 1 cc To Mr.N.F.J.Ponnu Durai, Advocate, SR.17129 Crl.A.No.556 of 2003 PKB(CO) sra 07/04/2011 https://hcservices.ecourts.gov.in/hcservices/