The Appellants in C.A.262 of 2003 viz.1. Uthandaraman 2. Anantharaman 3. Raghuraman 4. Muniammal 5.Thenmozhi and 6. Kannan, A2 to A7 were directed to be released on bail in and by the order of this Court dated 17.2.2003 and made in Crl.M.P.No.1533 of 2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.262 of 2003 and Crl.R.C.No.996 of 2003 1. Uthandaraman 2. Anantharaman 3. Reghuraman 4. Muniammal 5. Thenmozhi 6. Kannan .. Appellants in Crl.A.No.262 of 2003(A2 to A7) Vs. State rep. by the Inspector of Police, Panrutti Police Station, Cr.No.869 of 1999. .. Respondent in Crl.A.No.262 of 2003/ Respondents Subramaniam .. Petitioner in Crl.R.C.No.996 of 2003(PW1) Vs. 1. Uthandaraman 2. Anantharaman 3. Raghuraman 4. Muniyammal 5. Thenmozhi 6. Kannan ...Petitioners/ 1 to 6/Accused 2 to 7/ 7th respondent /complainant 7. Inspector of Police, Panruti Police Station, Cuddalore District. Crime No.869/99. .. Respondents in Crl.R.C.No.996 of 2003 Criminal Appeal No.262 of 2003 against the judgment dated 20.1.2003 in S.C.No.44 of 2000 on the file of the Additional District and Sessions Court (Fast Track Court No.2), Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ Criminal Revision Case No.996 of 2003 for enhancement of the conviction and sentence imposed upon the respondents 1 to 6 in the judgment dated 20.1.2003 in S.C.No.44 of 2000 on the file of Additional District and Sessions Court (Fast Track Court No.2), Cuddalore. For appellant in Crl.A.No.262 of 2003 and for respondents 1 to 6 in Crl.R.C.No.996 of 2003: Mrs.Vedavalli Kumar For respondent in Crl.A.No.262 of 2003 and for respondent No.7 in Crl.R.C.No.996 of 2003 : Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) For petitioner in Crl.R.C.No.996 of 2003: Mr.S.Parameswaran for M/s.R.Rajan JUDGMENT The Criminal Appeal and the Criminal Revision Case arise out of the judgment dated 20.1.2003 in S.C.No.44 of 2000 on the file of the Additional District and Sessions Court (Fast Track Court No.2), Cuddalore, whereby A.2 to A.7 were convicted for the offence under Section 147 IPC and they were directed to pay a fine of Rs.500/- each, in default, to undergo three months' simple imprisonment; A.5 and A.6 were convicted for the offence under Section 323 IPC and both were directed to pay a fine of Rs.1,000/- each, in default, to undergo three months' simple imprisonment and A.2 to A.4 and A.7 were convicted for the offence under Section 323 IPC and each sentenced to undergo six months' rigorous imprisonment. 2. The case of the prosecution is as follows: (a) A.1 is Harikrishnan and his sons are A.2 Uthandaraman, A.3 Anantharaman and A.4 Raghuraman. The wife of A.1 is A.5 Muniyammal. A.2's wife is A.6 Thenmozhi. A.7 Kannan is the relative of A.1 to A.6. (b) P.W.1 Subramanian's brother is P.W.2 Kothandapani. Another brother is P.W.4 Chandrasekaran. P.W.3 Deivanayagam alias Anbazhagan is the son of P.W.2. They are the injured eye witnesses. (c) A.1 has taken the electric wire through P.W.1's land which was asked P.W.1 to remove the electric wire through the land. So, there was previous enmity between both families. (d) On 21.8.1999 at 5 p.m., at Iyyanar Koil Street, in front of P.W.1's house at Thattampalayam Village, P.W.1 was chatting with his family members with regard to steps to be taken to remove the wire taken through his land. At that time, adjacent house owner A.1 heard the same. A.1 to A.7 unlawfully assembled and each members A.1 to A.7 took casuarina pole in their hands. A.7 uttered words against P.W.4 https://hcservices.ecourts.gov.in/hcservices/ Chandrasekaran, stating that if he murders P.W.4, then only all the things will be set right and he assaulted P.W.4 with casuarina pole. P.W.4 sustained injury. A.5 and A.6 assaulted P.W.4 on his back and hand, which was prevented by P.W.1. At that time, A.3 Anantharaman assaulted P.W.1 with the casuarina pole by uttering words, @,njhL xHpe;Jngh@/ A.1 assaulted P.W.2 on his head. A.4 assaulted P.W.3 on his cheek and hand. After then, villagers rushed to the place. A.1 to A.7 flew away from the place of occurrence. (e) Immediately, P.Ws.1 to 4 were taken to Government Hospital, Panruti, where P.W.7 Doctor has given first aid to them and he issued Exs.P-8 to P-11 wound certificates. Since P.W.4 has sustained grievous head injury, he was referred to Government Hospital, Cuddalore. P.Ws.1 to 3 were also referred to the Government Hospital, Cuddalore. The following injuries are stated in Exs.P-8 to P-11 wound certificates: Ex.P-8 relating to P.W.1 Subramanian: "1. Lacerated injury Right parietal scalp 6x1x1/2cm. 2. Deffuse contusion right hand." Ex.P-9 relating to P.W.2 Kothandapani: "1. Lacerated injury scalp 8x1x1/2cm right parietal. 2. Deffuse contusion right hand." Ex.P-10 relating to P.W.3 Deivanayagam: "1. Lacerated injury scalp left parietal region 6x1x1/2cm. 2. Lacerated injury left occipital region 2x1/2x1/2cm. 3. Lacerated injury left frontal scalp. 1x1/2x1/2cm. 4. Left forearm lacerated injury 2x1x1/2cm. 5. Abrasion right cheek 1x1cm." Ex.P-11 relating to P.W.4 Chandrasekaran: "1. Contusion 6x4cm right parietal scalp with lacerated injury 4x1x1cm over that Bleeding present. 2. Deffuse contusion right thigh, right leg, left arm." (f) On 21.8.1999 at about 9 pm, P.W.8 Sub-Inspector of Police received a complaint from P.W.1, which is marked as Ex.P-1 and the same was registered in Cr.No.869 of 1999 for the offences under Sections 147, 323, 307 IPC. Ex.P-12 is the F.I.R. Immediately, he despatched the same to higher officials and Court. (g) P.W.9 Inspector of Police took up the matter for investigation and at about 10 p.m., he went to the place of occurrence. In the presence of P.W.5 and P.W.6, he prepared Ex.P-2 observation mahazar and drew Ex.P-13 rough sketch. He also seized M.Os.1 to 7 casuarina poles in the presence of same witnesses under Ex.P-7 mahazar. (h) Then, P.W.9 Inspector of Police went to the Government Hospital, Cuddalore and he seized blood stained clothes and other https://hcservices.ecourts.gov.in/hcservices/ materials from P.Ws.1 to 4, which are marked as M.Os.8 to 16 in the presence of P.W.5 and one B.Chandrasekaran under Exs.P-3 to P-6 seizure mahazars. (i) Then, P.W.9 Inspector of Police examined the witnesses and concluded the investigation and filed the charge sheet against the accused under Sections 147, 323, 325 and 307 read with 149 IPC. 3. The trial Court, after following the formalities, framed necessary charges. The accused denied the charges. After examining P.Ws.1 to 9, marking Exs.P-1 to P-13 and M.Os.1 to 16, the accused were questioned under Section 313 Cr.P.C. about the incriminating evidence against them, to which they denied. During the course of trial, A.1 died and hence, the charges stood abated as against A.1. On a consideration of the oral and documentary evidence, the trial Court has convicted and sentenced the accused as indicated above. 4. Challenging the conviction and sentence passed by the trial Court, learned counsel for the appellants-accused would contend that the earlier complaint alleged to have been given by the third party, has been suppressed, that there is delay in preferring the complaint and despatching the same and that there is contradiction between the ocular evidence and medical evidence. Hence, learned counsel prayed for acquittal of the accused. 5. Learned Government Advocate (Criminal Side) would contend that there is no iota of evidence before Court to show that there was a previous complaint. P.W.8 Sub-Inspector of Police has stated that he obtained Ex.P-1 from P.W.1. In such circumstances, there is no suppression of the earlier complaint. Learned Government Advocate further contended that there is no delay in preferring the complaint or despatching the same to the Court. Since the case is based on injured witnesses, that too, four eye-witnesses, even if there is delay, it will not be fatal to the case of the prosecution. He further contended that there is no contradiction between ocular evidence and medical evidence, even though P.W.4 has sustained grievous head injury, because, the radiologist has not been examined and x-ray has not been marked. The trial Court considered the same in proper perspective and the accused were found guilty of the offence under Section 323 IPC and other offences. There is no infirmity or illegality in the conviction and sentence passed by the trial Court. Hence, he prayed for dismissal of the Criminal Appeal. 6. Learned counsel for the revision petitioner/P.W.1 in Crl.R.C. would submit that P.W.4 has sustained grievous injury and so, the charge has been levelled against the accused for the offence under Section 307 IPC and merely because the prosecution has not examined the radiologist and not marked x-ray, the trial Court has come to the conclusion that the accused are guilty of the offence under Section 323 IPC and the sentence imposed is only six months' rigorous https://hcservices.ecourts.gov.in/hcservices/ imprisonment. It is very lesser punishment, considering the overt act committed by A.7. Hence, the revision petitioner/P.W.1, in Crl.R.C., prayed for enhancement of the sentence imposed by the trial Court. 7. While considering the arguments of both sides, the first limb of argument advanced by learned counsel for the appellants- accused is that the earlier complaint has been suppressed. Learned counsel culled out the evidence of P.Ws.1, 2 and 3. While considering the evidence of P.W.1, he has stated that unknown person who accompanied him has given information to the Police Station. In his evidence in cross examination, P.W.1 has stated as follows: @////// rptuhkd; khiy 6 kzpf;Fs; Ml;nlh vLj;J te;jhh;/ vd;Dld; Tl te;j ngh; bjhpahj egh; rk;gtk; rk;ke;jkhf fhty; epiyaj;jpy; brhd;dhh; /////@ P.W.2 in his evidence in cross examination, has stated as follows: @ //// rk;gt ,lj;jpypUe;J gz;Ul;o muR kUj;Jtkidf;F bry;tjw;F Kd;ghf gz;Ul;o fhty; epiyaj;jpw;F brd;W brhd;ndhk;/ mth;fs; vGjp bfhz;lhh;fs;/ eh';fs; mt;thW brhy;Yk;nghJ cjtp Ma;thsh; kw;Wk; Ma;thsh; ,Ue;jhh;/ fhty; epiyaj;jpy; gz;Ul;o fhty; epiyaj;jpy; vGjp th';fpa gpwF v';fsplk; ifbaGj;J th';fpdhh;fs;/ gz;Ul;o fhty; epiyaj;jpy; ,Ue;J gz;Ul;o muR kUj;Jtkidf;F fl;Lfl;l brhd;dhh;fs;/ ////@ P.W.3 in his evidence in cross examination, has stated as follows: @ ///// jl;lhk;ghisaj;jpypUe;J gz;Ul;o muR M!;gj;jphpf;F bry;Yk; tHpapy;jhd; fhty;epiyak; ,Ue;jJ/ eh';fs; fhty;epiyak; brd;W brhd;ndhk; /////@ 8. At this juncture, it is appropriate to note that as per the evidence of P.W.8 Sub-Inspector of Police, he recorded Ex.P-1 complaint from P.W.1 and registered a case in Cr.No.869 of 1999 for the offences under Sections 147, 323 and 307 IPC. This has to be considered along with the decision relied on by the learned Government Advocate, reported in 2000 Cri.L.J. 1241 (Calcutta High Court) (Ranjit Das Vs. State of W.B), wherein, it was held as follows: "In the case of a delayed FIR or even where the original FIR, if any, is not coming before the Court, that by itself may not in all circumstances be a reason to summarily throw away the prosecution case itself. There may in a given case, still be circumstances and evidence on record capable of giving a clear picture of the core aspect of the case so as to lead the Court to a definite conclusion beyond doubt. But in a case of delayed FIR or in case of any confusion whether there was any earlier FIR, the Court indeed may start with an initial suspicion." 9. Considering the above decision and the entire evidence of P.Ws.1 to 4 and 8, I am of the opinion that there is no such first https://hcservices.ecourts.gov.in/hcservices/ complaint. So, the argument advanced by learned counsel for the appellants-accused that the first complaint has been suppressed, does not merit acceptance. 10. As per the evidence of P.W.8 Sub-Inspector of Police, he has received Ex.P-1 complaint on 21.8.1999 at about 9 p.m. and registered a case and that FIR has been received by the concerned Court at 10.30 a.m. on 23.8.1999. In the complaint, the names of the accused and overt act have been clearly mentioned. Moreover, as per the evidence of P.Ws.1 to 4, only P.W.4 alone was unconscious as soon as he received head injury. But others were conscious and they narrated the incidence. In such circumstances, as per the decision reported in 2000 Cri.L.J. 1241 (cited supra), while considering the entire evidence along with the circumstances of the case, I am of the opinion that the delay in despatching the FIR to the Court is not fatal to the case of the prosecution. 11. Next, it has to be decided whether there is any contradiction between the medical evidence and the ocular evidence. The Doctor was examined as P.W.7. The evidence of P.W.7 is corroborated by the evidence of P.Ws.1 to 4 in respect of injuries sustained by them. In Exs.P-8 to P-11 wound certificates, it was stated that the witnesses were alleged to have been assaulted by six known persons with the casuarina pole on 21.8.1999 at 5 p.m. at the house. The injuries sustained by them are also corroborated by the evidence of P.Ws.1 to 4 and Exs.P-8 to P-11 wound certificates and the evidence of P.W.7 Doctor. So, the argument advanced by learned counsel for the appellants-accused that there is a contradiction between the ocular evidence and medical evidence, does not merit acceptance. 12. A.1 to A.7 have formed unlawful assembly and to execute the common object, they assaulted P.Ws.1 to 4 and caused injuries and hence, the trial Court has come to the correct conclusion that A.2 to A.7 are guilty of the offence under Section 147 IPC. Even though they were armed with casuarina poles, since no charge has been levelled against them under Section 148 IPC, the trial Court came to the correct conclusion that A.2 to A.7 are guilty of the offence under Section 147 IPC and were only directed to pay fine of Rs.500/- each, in respect of the said offence. I do not find any infirmity in the same. So, I am forced to concur with the conviction and fine, imposed on A.2 to A.7 by the trial Court in respect of the offence under Section 147 IPC. Hence, the conviction and fine imposed on A.2 to A.7 for the offence under Section 147 IPC are liable to be confirmed. 13. A.2 and A.4 were charged for the offence under Section 323 IPC for causing simple injury to P.W.3 Deivanayagam @ Anbazhagan. The wound certificate pertaining to P.W.3 has been marked as Ex.P-10. P.W.7 Doctor's evidence proved that A.2 and A.4 are guilty of the https://hcservices.ecourts.gov.in/hcservices/ offence under Section 323 IPC and so, the conviction of A.2 and A.4 for the offence under Section 323 IPC is liable to be confirmed. 14. A.3 was also charged for the offence under Section 323 IPC for causing injury to P.W.1 Subramanian. The evidence of P.W.1 and P.W.7 Doctor and Ex.P-8 wound certificate pertaining to P.W.1, have proved that he was guilty of the offence under Section 323 IPC and hence, the conviction for the offence under Section 323 IPC against A.3 is also liable to be confirmed. 15. A.5 and A.6 have caused injury to P.W.4 Chandrasekaran. That has been proved by way of examining P.W.4 and P.W.7 Doctor and Ex.P- 11 wound certificate pertaining to P.W.4. Hence, A.5 and A.6 are also guilty of the offence under Section 323 IPC. The conviction and fine imposed on A.5 and A.6 for the offence under Section 323 IPC are liable to be confirmed. 16. The charge levelled against A.7 is for the offence under Section 325 IPC for causing injury on P.W.4 Chandrasekaran. That has been corroborated by the evidence of P.W.4 and P.W.7 Doctor and Ex.P- 11 wound certificate pertaining to P.W.4. Even though A.7 was charged for the offence under Section 325 IPC, but radiologist has not been examined and x-ray has not been marked. The trial Court came to the conclusion that he is only guilty of the offence under Section 323 IPC. I concur with the findings of the trial Court that A.7 is guilty of the offence under Section 323 IPC. Hence, the conviction imposed on A.7 for the offence under Section 323 IPC, is liable to be confirmed. 17. Learned counsel for the appellants-accused would contend that A.2 to A.7, even though they were found guilty of the offence under Section 323 IPC, only A.2 to A.4 and A.7 were sentenced to undergo six months' rigorous imprisonment and A.5 and A.6 were only directed to pay fine of Rs.1,000/- each. At this juncture, learned counsel for the revision petitioner/P.W.1 in Crl.R.C. would contend that P.W.4 has sustained head injury and he was admitted in Government Hospital, Cuddalore and subsequently he was referred to Government General Hospital, Chennai and he has taken treatment as in-patient for 11 days. Hence, the sentence imposed by the trial Court is far below and it is lesser punishment and he wanted to enhance the punishment imposed on A.2 to A.7. 18. It is true that P.W.4 has taken treatment for 11 days in Government Hospital, Chennai, but no document has been produced before the trial Court to prove that P.W.4 sustained grievous injury. X-ray was not marked and radiologist has also not been examined to prove that he sustained grievous injury. Moreover, there is no evidence before Court that there is intention to commit murder. So, the trial court is correct in holding that A.2 to A.7 are guilty of the offence under Section 323 IPC. https://hcservices.ecourts.gov.in/hcservices/ 19. As per Section 323 IPC, the imprisonment shall be for one year or with fine upto Rs.1,000/- or with both. Considering the statement of A.2 to A.4 and A.7, who are male members, the trial Court has sentenced them for only for six months' rigorous imprisonment for the offence under Section 323 IPC. Since they were already in prison, learned counsel for the appellants would submit that the period of imprisonment already undergone by them may be treated as punishment. 20. Considering the argument of the learned Government Advocate (Criminal Side) as well as learned counsel for the appellants-accused and the learned counsel for the revision petitioner in Crl.R.C., I am of the view that the occurrence has taken place, in view of taking electric wire through P.W.1's land, which lead to such an incident. But P.Ws.1 to 4 have sustained only simple injury, except P.W.4 who sustained grievous injury. Considering the same, to meet out the ends of justice, for the offence under Section 323 IPC, A.2 to A.4 and A.7 shall be fined at Rs.1,000/- each, instead of sentence of six months' rigorous imprisonment awarded by the trial Court for the offence under Section 323 IPC. The sentence of six months' rigorous imprisonment awarded to A.2 to A.4 and A.7 for the offence under Section 323 IPC, is set aside and instead, A.2 to A.4 and A.7 are now imposed fine of Rs.1,000/- each, totalling Rs.4,000/-, out of which Rs.3,000/- is to be paid as compensation to P.W.1. 21. In fine, (a) The Criminal Appeal and the Crl.R.C., are dismissed. (b) The conviction and fine imposed on A.2 to A.7 for the offence under Section 147 IPC are hereby confirmed. (c) The conviction and fine imposed on A.5 and A.6 for the offence under Section 323 IPC are hereby confirmed. (d) The conviction imposed on A.2 to A.4 and A.7 for the offence under Section 323 IPC is confirmed and the sentence of six months' rigorous imprisonment imposed on them, is set aside and instead, A.2 to A.4 and A.7 are now imposed a fine of Rs.1,000/- each, totalling Rs.4,000/-, out of which Rs.3,000/- is to be paid as compensation to P.W.1. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ cs To 1. The Additional District and Sessions Judge (Fast Track Court No.2), Cuddalore. 2. -Do-Thro The Principal Sessions Judge, Cuddalore 3. The Judicial Magistrate, Panruti 4. -Do-Thro The Chief Judicial Magistrate, Cuddalore 5. The Inspector of Police, Panrutti Police Station, Cuddalore District. 6. The Public Prosecutor, High Court, Madras. 7. The District Collector, Cuddalore. 8. The Director General of Police, Chennai 1 cc To Mr.R.Rajan, Advocate, SR.8040 1 cc To M/s.Vedavalli Kumar, Advocate, SR.8177 Crl.A.No.262 of 2003 and Crl.R.C.No.996 of 2003 SP(CO) sra 25.02.2010 https://hcservices.ecourts.gov.in/hcservices/