BAIL SLIP The Petitioner/Accused viz., R.Balachandran,was directed to be released on bail as per the order of the Court dated.26.3.2003 and made in Crl.M.P.No.2832 of 2003 in Crl.A.No.507/03. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.02.2010 Coram: THE HONOURABLE MS. JUSTICE R.MALA Criminal Appeal No. 507 of 2003 R. Balachandran .. Appellant/Accused vs. State Rep. by Inspector of Police M-1 Peria Naickenpalayam Police Station Coimbatore. (Crime No. 57 of 1999) .. Respondent/Complainant Prayer: Criminal Appeal is filed under Section 374 of Cr. P.C. praying against the Judgment of conviction and sentence imposed on the appellant by the learned Additional Sessions Judge (Fast Track Court No.III) Coimbatore, dated 13.03.2003 made in S.C. No. 40 of 2003. For Appellant : Mr. A. Sasidharan For Respondent : Mr. I. Paul Noble Devakumar Government Advocate (Crl.side) J U D G M E N T This criminal appeal has been arising out of the conviction and sentence passed by the learned Additional Sessions Judge, Coimbatore (Fast Track Court No.3) on 13.03.2003 in S.C. No. 40 of 2003 convicting the first accused under Section 323 I.P.C. and sentencing him for three years' rigorous imprisonment and acquitting the second accused. 2. The case of the prosecution is as follows: The first accused is husband of P.W.1 Dhanalakshmi. She is working as a teacher at Government Higher Secondary School, Vellalur. The marriage between the first accused and P.W.1 had taken place on 16.02.1979, and out of lawful wedlock, they are blessed with two children. The first accused had illicit intimacy with the second accused. So, P.W.1 came out of the matrimonial home. https://hcservices.ecourts.gov.in/hcservices/ Therefore, P.W.1 has given a complaint and the first accused was convicted. She also gave a complaint against accused under Section 494 I.P.C. Since she wanted to get address of the second accused, she made a search and enquiry. On 15.02.1999, at 1.00 p.m., on information she had gone to Narasimmanaikenpalayam, Balaji Nagar. At that time, A1 and A2 along with a female child were found in their house. On seeing P.W.1, the first accused came out of his house and assaulted P.W.1 in both her shoulders, right ear with thorny pole. Then, he assaulted her with an iron rod on her head and her right palm and kicked her with boots because of which she sustained grievous injury and also loss of teeth. Then, she was admitted in the hospital. P.W.1 was treated by P.W.9 Dr.Paramasivam and he gave Ex.P4 Accident Register in which the following injuries were noticed: "Alleged to have been assaulted by her husband with big sticks 1.00 p.m. at Narasimmanaiken palayam (1) Abrasion Right Cheek, Chin, Nose, Right knee, Left Knee, (2) Laceration Right Palm 3cm. (3) Tenderness Left Sholder. (4) Complaint of Back pain with Chest pain. Treatment given. Admitted in Tr. Ward. Soft Tissues injury, simple injury." When she was at hospital, the complaint has been received by P.W.10 Chenniappan, Head Constable and he registered a case in Crime No. 57 of 1999 under Section 307 I.P.C. and prepared Ex.P5 F.I.R. P.W.2 Madusudhanan is son of P.W.1. and P.W.3 Selvaraj is an eye witness. Then, P.W.11 Singaravelan, Inspector of Police had taken up the matter for investigation and gone to the place of occurrence and prepared Ex.P2 observation mahazar in the presence of P.W.7 Marisamy and P.W.8 Mariappan and he also drew Ex.P6 rough sketch. In the place of occurrence, he seized M.O.1 thorny pole, M.O.4 Blood stained sand, M.O.5 ordinary stone, M.O.6 broken teeth, M.O.7 broken glass bangles in the presence of P.W.8 who turned hostile. P.W.11 has examined the other witnesses and recorded his statement. P.W.12 Shanmugaiah, Inspector of Police has taken up the matter for investigation. He has examined the doctor and obtained a wound certificate. He sent M.O.2 Jacket, M.O.3 blood stained saree of P.W.1 for chemical examination through the requisition given by concerned Judicial Magistrate and it was received as Ex.P8 Chemical Analysis Report. He concluded the investigation and filed the charge sheet against the accused under Section 307 read with 109 I.P.C. 3. After completing formalities, the learned Sessions Judge framed the charge against the first accused under Section 307 I.P.C. and the second accused under Section 307 read with 109 I.P.C. On examination, P.W.1 to P.W.12, Exs. P1 to P8 and M.O.1 to M.O.7, A1 and A2 were questioned under Section 313 Cr.P.C. basing on the incriminating evidence against them and they denied the same. The Trial Court acquitted the second accused under Section 307 read with 109 I.P.C. and also acquitted the first accused under Section 307 I.P.C., but however, convicting the https://hcservices.ecourts.gov.in/hcservices/ first accused under Section 323 I.P.C. and sentencing him for six months' rigorous imprisonment. 4. Challenging the conviction and sentence, the learned counsel for the appellant would contend that there is a matrimonial dispute between the appellant-first accused and P.W.1. Since she was living away from the matrimonial home, she filed serious complaints against the appellant and a false case has been foisted against him. Hence, he prayed for the acquittal. He further submitted that if he is found guilty and he is convicted and since he is working as a driver in the Cheran Transport Corporation, he will lose his job. Hence, he prayed for the leniency in sentence. 5. The learned Government Advocate (Criminal Side) would submit that both P.W.1 and P.W.3's oral evidence has clearly proved that the accused is guilty of offence under Section 323 I.P.C. Even though P.W.4 to P.W.6 and P.W.8 also turned hostile, but an injured eye witness P.W.1's evidence has been corroborated by P.W.3. Hence, the conviction under Section 323 is sustainable. The sentence imposed by the Trial Court is fair and it does not warrant any interference. Hence, he prayed for the dismissal of this appeal. 6. Considering the evidence of P.W.1 and P.W.2, since P.W.2 is a school boy, he is a chance witness and there is no evidence for discarding the evidence of P.W.3. P.W.2 is none other than the son of P.W.1. He is not an eye witness. P.W.1's evidence, even though she is wife of the appellant-first accused. It is admittedly that there are several legal proceedings pending between them, since A1 has been living with A2. At this juncture, it is appropriate to consider the evidence of P.W.9 Dr. Paramasivam and Ex.P4 Accident Register which would show that she was admitted in hospital at 3.55 p.m. on 15.02.1999. In that , she has stated, "alleged to have been assaulted by her husband with big sticks 1.00 p.m. today at Narasimmanaiken palayam, she has sustained (1) Abrasion right cheek, chin, nose, right knee, left knee (2) Laceration right palm 3cm (3) Tenderness left shoulder (4)Complaint of back pain with chest pain. She was admitted in trauma ward in that it was stated soft tissues injury, simple injury." P.W.9 has deposed that she sustained only simple injury, the second injury is possible for one person assaulted with iron rod. In cross-examination, a suggestion was posed to him that lacerated injury has been possible, even when a person falls down on the ground and when a person contacts with sharp edged stone. While perusing the evidence of P.W.1, P.W.2 and P.W.9 and Ex.P4, https://hcservices.ecourts.gov.in/hcservices/ it is clear that the occurrence had taken place at 1.00 p.m. on 15.02.1999. Immediately, she was admitted in the hospital at 3.55 p.m where she was treated by P.W.9 Dr.Paramasivam. So, the prosecution has proved that the appellant-first accused alone caused such an injury to P.W.1. The complaint has been registered by P.W.10 at 22.00 hours. So, the prosecution has proved that the appellant is guilty of offence under Section 323 I.P.C. beyond reasonable doubt. So, I concur with the findings of the Trial Court that the appellant is guilty of offence under Section 323 I.P.C. 7. The learned counsel for the appellant would contend that since the appellant is a government servant working as a driver in Cheran Transport Corporation, if he is sentenced to imprisonment, he will lose his job and he will be left into lurch. Hence, he prayed for leniency. At this juncture, it is appropriate that instead of sentencing him to imprisonment, he can be imposed fine of Rs.1,000/-, in default in payment, sentencing him for three months' simple imprisonment. 8. In fine, * The criminal appeal is dismissed. * The conviction passed by the Trial Court is confirmed. * The sentence passed by the Trial Court is modified as under: Instead of 3 months' rigorous imprisonment, fine of Rs.1,000/- is imposed, in default in payment to undergo 3 months' simple imprisonment. Sd/- Asst. Registrar /true copy / Sub Asst.Registrar kj To 1.Additional Sessions Judge Fast Track Court No.III Coimbatore. 2.-do- Through The Principal Sessions Judge, Coimbatore. 3.The Judicial Magistrate No.VI, Coimbatore. 4.-do- Thro' The Chief Judicial Magistrate, Coimbatore. 5.The Inspector of Police M-1 Peria Naickenpalayam Police Station Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ 6. The Public Prosecutor, High Court, Madras. 7. The Section Officer, Criminal Section, High Court, Madras. 8. The Director General of Police, Madras. 9. The District Collector, Coimbatore. + 1 cc to Mr.A.Sasidharan,Advocate,SR.8855 Crl. A. No. 507 of 2003 SP(CO) EM/24.2.10 https://hcservices.ecourts.gov.in/hcservices/