Bail Slip The Appellant/accused namely Selvaraj was directed to be released on bail as per order of this court dated 18.12.2008 in M.P.No.1/08 in Crl.R.C.No.1639/08 on the file of this court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04.2011 CORAM THE HONOURABLE MS. JUSTICE R. MALA Crl.R.C.No.1639 of 2008 Selvaraj .. Petitioner/accused ..Vs.. The State rep. by the Station House Officer Mangalampettai Police Station Cuddalore District .. Respondent/Complainant Cr.No.52/2006 Prayer:This Criminal Revision is filed under Sections 397 and 401 Cr.P.C., to call for the records made in the order dated 24.01.2008 in C.C.No.29/2007, on the file of Judicial Magistrate No.2, Virudhachalam, as confirmed by Order dated 15.12.2008 in C.A.No.9/2008 on the file of Additional District Sessions Court (Fast Track Court No.3, Virudhachalam) set aside the same and allow this revision. For Petitioner : Mr.N.R.Rajagopalan For Respondent : Mr.S.Rajendiran Govt. Advocate (Crl.side) O R D E R This criminal revision arises out of the judgment of conviction and sentence, dated 15.12.2008, in C.A.No.9/2008, on the file of the Additional District and Sessions Court (Fast Track Court No.3) Virudhachalam, whereby the revision petitioner/accused was convicted for the offence under Section 325 I.P.C., sentenced to undergo one year rigourous imprisonment and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for one month, confirming the judgment of conviction and sentence, dated 24.01.2008, in https://hcservices.ecourts.gov.in/hcservices/ C.C.No.29 of 2007, on the file of the Judicial Magistrate No.2, Virudhachalam. 2.The case of the prosecution is as follows: (i)On 05.04.2006, at about 10.30 a.m., when P.W.1-Natarajan had questioned the accused about the damaging of sugar cane in the field, the accused abused him in filthy language and assaulted him on his right ear with his hand. So he sustained loss of vision. Hence he went to the police station and gave a complaint before P.W.6 Chinnasamy, Head Constable, who received Ex.P1-complaint and registered a petition in C.S.R.No.70/2006. (ii)On 06.04.2006, at about 9.45 p.m., P.W.1 was sent to the Government Hospital, Virudhachalam with medical memo, which was issued by P.W.6 and then, he was treated by the Doctor P.W.5., who pointed out the injuries sustained by him and issued Accident Register under Ex.P2. P.W.7-Sub-Inspector of Police, who received the complaint under Ex.P1 and C.S.R.No.70/2006, registered a case in Cr.No.52 of 2006 on 11.04.2006 at 7.00 a.m. under Sections 294 and 323 I.P.C. and prepared a printed F.I.R. under Ex.P3. (iii) P.W.7-Sub-Inspector of Police took up the matter for investigation. He went to the place of occurrence and prepared Ex.P4 observation mahazar in the presence of the witnesses P.W.3- Nedunchezhian and P.W.4-Sekar and he also drew rough sketch under Ex.P5. Then, he enquired the witnesses and recorded their statements. After that, he arrested the accused and remanded him to judicial custody and altered the provisions of offence and forwarded the Section Alteration Report under Ex.P6. After completing the investigation, P.W.7 filed the charge sheet against the accused for the offence under Section 325 I.P.C. 3.The trial Court posed questioning on the accused under Section 313 Cr.P.C. about the incriminating materials, for which, he has stated that a false case has been foisted against him. The trial Court examined the witnesses P.W.1 to P.W.8 and perused the documentary evidence under Exs.P1 to P6 and considering the same, convicted the accused under Section 325 I.P.C. and sentenced him to undergo one year rigourous imprisonment and imposed a fine of Rs.1,000/-, in default in payment, to undergo one month simple imprisonment, against which, the accused preferred an appeal in C.A.No.9/2008, on the file of the Additional District and Sessions Court, Fast Track Court No.3, Virudhachalam. The learned Appellate Judge, after hearing both sides counsel, confirmed the conviction and sentence passed by the trial Court, against which, the revision petitioner/accused has come forward with this revision. 4.Challenging the said conviction and sentence passed by both the Courts below, the learned counsel for the revision petitioner/accused submitted that P.W.5-Dr.Krishnamoorthy, is not a https://hcservices.ecourts.gov.in/hcservices/ competent person to give a certificate for loss of vision. But the trial Court has not considered this aspect and came to the conclusion that the accused is guilty for the offence under Section 325 I.P.C., which is illegal. He further submitted that since P.W.1 is aged person, due to his old age, there is a possibility of suffering loss of vision. If at all, he is guilty for the offence under Section 323 I.P.C. instead of 325 I.P.C. The Ophthalmologist has not been examined to prove that P.W.1 has sustained loss of vision due to the act of the revision petitioner/accused. Hence, he prayed for the said conviction and sentence under Section 325 I.P.C. is to be altered into Section 323 I.P.C. He further submitted that since there is civil dispute between both the parties are pending, he wants some leniency to be shown to the petitioner in the sentence imposed to him. Thus, he prayed for allowing this revision. 5.The learned Government Advocate (crl. side) submitted that the trial Court considered the oral evidence of P.W.1 the victim and P.W.5 Doctor, came to the correct conclusion that the accused is guilty for the offence under Section 325 I.P.C. and the same was confirmed by the Additional District and Sessions Court, Fast Track Court No.3, Virudhachalam. So the conviction and sentence passed by both the Courts below does not warrant any interference and hence, he prayed for the dismissal of the revision. 6.Considered the rival submissions made on both sides and materials available on record. 7.The alleged occurrence was taken place on 05.04.2006, at 10.30 a.m. The complaint under Ex.P1 was given by the victim P.W.1 Natarajan at 3.00 p.m. on the same day, which was taken in C.S.R.No.70/2006. On the basis of the medical memo issued by P.W.6 Head Constable, P.W.1 went to the Government Hospital, Virudhuchalam for treatment, where Doctor P.W.5 treated him and gave Accident Register Copy under Ex.P2, in which, it was specifically mentioned that a contusion on right eye and his vision was diminishing. He opined that the injuries are grievous in nature. It is a well known fact that an Ophthalmologist is a competent person to speak about the loss of vision of P.W.1. It is the duty of the prosecution to prove that P.W.1 has sustained partial loss of vision in right eye. Admittedly, that report has not been filed. While perusing the evidence of P.W.5 Dr.Krishnamoorthy, he stated that he is a Civil Surgeon, but he never stated that he is an Ophthalmologist. In his cross-examination, he fairly conceded that due to his old age, there is a possibility of cataract, which will lead to partial loss of vision. Admittedly, P.W.1 is 65 years old. It is the duty of the prosecution to prove that P.W.1 has sustained partial loss of vision in his right eye, which was caused only due to the injuries https://hcservices.ecourts.gov.in/hcservices/ sustained by the alleged occurrence. Admittedly, the prosecution has miserably failed to examine an Ophthalmologist and filed a report to show the vision power of P.W.1 in his both eyes and also to prove that because of the injuries sustained in the incident, his right eye vision power has been partially lost. In such circumstances, I am of the view that the prosecution has not proved beyond reasonable doubt that the accused is guilty for the offence under Section 325 I.P.C. But, however, the prosecution has proved that the accused caused simple injury to P.W.1. So, I am of the considered view that the revision petitioner/accused is guilty for the offence under Section 323 I.P.C. instead of Section 325 I.P.C. Hence, the accused is guilty for the offence under Section 323 I.P.C. and the fine amount of Rs.1,000/- alone has been confirmed. 8.In fine, • The Criminal Revision is partly allowed. • The conviction and sentence passed under Section 325 I.P.C. by both the Courts below are hereby set aside. • Instead, the revision petitioner/accused is convicted under Section 323 I.P.C. and hereby imposed a fine of Rs.1,000/-, which was already paid by him and hence, he is set free, unless he is required in connection with any other case. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. kj To 1.The Judicial Magistrate No.2 Virudhachalam. 2. Do thro the Chief Judicial Magistrate Cuddalore 3.The Additional District Sessions Judge (Fast Track Court No.3) Virudhachalam. 4. do thro the Principal Sessions Judge Cuddalore https://hcservices.ecourts.gov.in/hcservices/ 5.The Station House Officer Mangalampettai Police Station Cuddalore District. 6.The Superintendent Central Prison, Cuddalore 7.The Public Prosecutor High Court, Madras. 8.The Record Keeper Criminal Section, High Court, Madras. 1 cc to Mr.N.R. Rajagopalan, Advocate, Sr. 24428 Crl.R.C.No.1639 of 2008 KK (CO) kk 2/5 https://hcservices.ecourts.gov.in/hcservices/