Bail Slip The first Petitioner/Accused namely Dhananjayan(A1) was directed to be released on bail as per order of this Court dated 16.4.2009 made in MP 1 of 2009 in Crl.RC No.352 of 2009. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.4.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.352 of 2009 1. Dhananjayan 2. Sivaji 3. Soundararajan 4. Balaraman .. Petitioners/ Accused 1 to 4 Vs. State represented by its Inspector of Police, Paradarami Police Station, Vellore District. (Cr.No.264 of 2005) .. Respondent/ Complainant Criminal Revision Case filed U/s 397 R/W 401 Cr.PC against the judgment dated 7.7.2008 in Crl.A.No.26 of 2008 on the file of the Additional District and Sessions Court/Fast Track Court, Vellore, against the order dated 16.2.2008 in C.C.No.512 of 2005 on the file of the Judicial Magistrate's Court, Gudiyattam. For petitioners : Mr.R.Karthikeyan For respondent: Mr.S.Rajendiran, Govt. Advocate (Crl. Side) ORDER The Crl.R.C. is filed against the judgment dated 7.7.2008 in Crl.A.No.26 of 2008 on the file of the Additional District and Sessions Court/Fast Track Court, Vellore, confirming the order dated 16.2.2008 in C.C.No.512 of 2005 on the file of the Judicial Magistrate's Court, Gudiyattam, whereby, the first revision petitioner/A1 was convicted for the offence under Section 324 IPC (2 counts) and sentenced for each count to undergo six months' rigorous imprisonment and the revision petitioners/A1 to A4 were convicted for the offence under Section 323 IPC and to pay fine of Rs.500/- each , in default, two weeks' simple https://hcservices.ecourts.gov.in/hcservices/ imprisonment. The sentences of imprisonment imposed on A-1 was ordered to run concurrently. 2. The case of the prosecution is as follows: P.W.1 and the accused were neighbours, and on 7.10.2005 at about 7.30 a.m., when P.W.1 was standing in front of the compound wall, at that time, A1 abused him in filthy language in respect of the complaint given by him and A1 assaulted P.W.1 on his left shoulder with wooden pole; A2 assaulted him on his left hand. When P.W.2 Ravi and P.W.3 Govindaraj rushed to the place of occurrence, A3 assaulted P.W.2 on his left back with cricket bat and he also assaulted P.W.3 on his left back and A1 also attacked P.W.2 with knife on his left index finger. A1 assaulted P.W.3 on his head with knife. Immediately, P.Ws.1 to 3 went to hospital, where P.W.6 Dr.Prem Kumari treated them and pointed out the injuries sustained by them and issued the respective accident registers Exs.P-4,5 and 6. P.W.1 went to the Police Station and gave Ex.P-1 complaint. P.W.8 Head Constable recorded the statement from the complainant and that has been received by P.W.9 Sub-Inspector of Police and he registered a case in Crime No.264 of 2005 for the offences under Sections 294(b), 324, 323 and 427 IPC and he prepared Ex.P-9 FIR. He went to the place of occurrence and prepared Ex.P-11 observation mahazar in the presence of P.W.5 Ilayaraja and P.W.7 Gnanasekar and their signatures in the observation mahazar, are marked as Exs.P-2, 3, 7 and 8. P.W.7 turned hostile. P.W.9 Sub-Inspector of Police drew Ex.P- 10 rough sketch and he seized the window glass panes used under Ex.P-12 mahazar in the presence of the witnesses P.Ws.5 and 7. He sent the material objects under Form 95 – Ex.P-13. He concluded his investigation and filed the charge sheet against the accused for the offences under Sections 294(b), 323, 324, 427 IPC. 3. The trial Court, considering the oral and documentary evidence, convicted and sentenced the accused as stated above, against which, the accused preferred appeal and the first appellate Court, after considering the arguments of both sides, confirmed the judgment of conviction and sentence passed by the trial Court, against which, the present Crl.R.C. is filed by the revision petitioners/accused. 4. Challenging the conviction and sentence passed by both the Courts below, learned counsel appearing for the revision petitioners/accused submitted that the trial Court has not followed the procedures laid down under Order 588-A of the Police Standing Orders, since it is a case and counter. P.Ws.1 and 9 have fairly conceded that the above incident occurred on the basis of the complaint given by A1's father, on the basis of which, a case was registered and so, not following the Order 588-A of the Police Standing Orders, is fatal to the case of the prosecution. He further submitted that the injuries sustained by the accused were not properly explained by the prosecution and so, it is fatal to the case of the prosecution and that factum has https://hcservices.ecourts.gov.in/hcservices/ not been considered by both the Courts below. He further submitted that there is a contradiction between ocular evidence and medical evidence. He further submitted that the investigating agency has not followed the procedures laid down under Order 588-A of the Police Standing Orders and filed the charge sheet against the accused, which was taken on file in C.C.No.512 of 2005; likewise, on the basis of the complaint given by A1's father, the investigating agency filed the charge sheet which was taken as P.R.C. and committed to Sessions Court in S.C.No.162 of 2006, which also ended in conviction and the appeal is pending. Therefore, both the Courts below have committed error in considering the above aspects. He prayed for acquittal of the revision petitioners/accused. To substantiate his contentions, learned counsel for the revision petitioners/accused relied upon the decision of this Court reported in 2010 (4) MLJ (Crl) 550 (M.V.P.Maharaja Vs. State). 5. Repudiating the said contentions, learned Government Advocate (Crl. Side) appearing for the respondent-Police submitted that Order 588-A of the Police Standing Orders, is not mandatory and not following the same in case and counter during investigation, will not be fatal to the case of the prosecution and prayed for dismissal of the Crl.R.C. To substantiate his contention, he relied on the decision of this Court reported in 1992 L.W. (Crl.) 74 (Karthikeyan & 4 others Vs. State by S.I. of Police and 11 others). He further submitted that even though a case and counter have been registered, but proper investigation has been down and the charge sheet has been filed and both the cases ended in conviction and the appeal against S.C.No.162 of 2006 is pending before the Fast Track Court, Vellore. There is no irregularity or illegality in the impugned judgments of both the Courts below and prayed for dismissal of Crl.R.C. 6. Considering the rival submissions made by both sides and the materials available on record, as per the decision relied on by learned counsel appearing for the revision petitioners/accused, reported in 2010 (4) MLJ (Crl) 550 (M.V.P.Maharaja Vs. State), it is true that when there is a complaint and counter complaint, the investigating agency should enquire both the complaints and register the cases and thereafter, investigate the cases. But in the present case, admittedly, both the cases have been registered and even though the investigating agency has not followed the procedures laid down under Order 588-A of the Police Standing Orders, the investigation has been completed and charge sheet has been filed and the present case was taken on file in C.C.No.5 12 of 2005 and the other case was taken on file in S.C.No.162 of 2005, for causing damage to the public property and also for the injuries caused to the prosecution witnesses in S.C.No.162 of 2006. In such circumstances, the said decision relied on by learned counsel appearing for the revision petitioners/accused is not relevant to the facts of the present case, since in that case, the investigating agency has registered the case and investigated the case and filed the charge sheet. https://hcservices.ecourts.gov.in/hcservices/ 7. In the decision relied on by learned Government Advocate (Crl. Side), reported in 1992 L.W. (Crl) 74 (Karthikeyan & 4 others Vs. State by S.I. of Police & 11 others), it was held by this Court there was non-observance of Order 588-A of the Police Standing Orders, will not constitute illegality and it has no statutory force and the provision is only directory and not mandatory and it is only administrative instruction, and therefore, the argument advanced by learned counsel appearing for the revision petitioners/accused, regarding not following Order 588-A of the Police Standing Orders, fails. 8. Now, this Court has to decide the second limb of argument advanced by learned counsel appearing for the revision petitioners/accused that the accused also sustained injuries, and the said factum has not been explained by the prosecution and it is the duty of the prosecution to prove and explain as to how the accused sustained injuries. But it is seen that no document was filed with regard to the injuries sustained by the accused. Even though the learned counsel appearing for the revision petitioners/accused advanced his argument that the prosecution has failed to prove and explain the injuries sustained by the accused, in the evidence of P.W.9 investigating officer, he has categorically admitted in cross- examination that A1's father preferred the complaint, as per which Padmavathy, Gopal and Kousalya were attacked. But admittedly, the revision petitioners/accused did not sustain any injury in the incident and so, the second limb of argument advanced by learned counsel appearing for the revision petitioners/accused fails. 9. Now, this Court has to decide as to whether both the Courts are correct in holding that the prosecution has proved the guilt of A1 for the offence under Section 324 (2 counts) IPC for causing simple injuries on P.W.2 and P.W.3 using the weapon-knife and whether A1 to A4 are guilty of the offence under Section 323 IPC for causing simple injury on the witnesses. 10. At this juncture, it is appropriate to consider the oral evidence of P.Ws.1 to 3. P.W.1 in his evidence stated that he was assaulted by A1 by wooden pole. Immediately, he also assaulted P.W.2 with knife. In this regard, it is appropriate to consider Exs.P-4 and P-5 accident registers. In Ex.P-4 accident register, it is stated that P.W.1 complained of pain on his left shoulder, abrasion on the left upper arm and contusion 3 cm x 2 cm on the left hand and even though x- ray was taken, the injuries are simple. In Ex.P-4 accident register, it was specifically mentioned that P.W.1 was alleged to have been assaulted by group of persons with bat and wooden pole on 7.10.2005 at about 7.30 a.m. and P.W.6 Doctor treated P.W.1 at 10.25 a.m. and P.W.2 was treated at 8.30 a.m. on 7.10.2005 and in Ex.P-5 accident register, it was specifically mentioned that P.W.2 was alleged to have been assaulted by group of persons with bat, knife and wooden pole. In Ex.P-6 accident register, it is stated that P.W.3 Govindaraj was https://hcservices.ecourts.gov.in/hcservices/ alleged to have been assaulted by group of persons with wooden pole and knife. Admittedly, no witness sustained cut injury or incised wound. As already stated, P.W.1 complained of pain and he sustained abrasion and contusion. When P.W.6 Doctor was in the witness box, she stated that if any person contacts with rough surface, there is a chance for second and third injuries stated in the accident registers. Her evidence is that if a person contracts with rough surface, abrasion and contusions are possible. 11. P.W.6 in her evidence fairly conceded that laceration injury is possible if any person contacts with the sharp edged rough surface; abrasion is possible if any person contacts with rough surface and contusion is possible if any person contacts with fine surface. As already stated, P.Ws.1 to 3 have deposed that P.Ws.2 and 3 were assaulted by A1 with knife, but there is no cut injury or stab injury or incised wound. 12. Learned counsel appearing for the petitioner submitted that in Exs.P-4 to P-6 accident registers, it was mentioned that a group of persons assaulted P.Ws.1 to 3, whereas, the charge sheet has been filed only against four persons. 13. At this juncture, it is appropriate to peruse the FIR, in which names of only four accused were mentioned and the complaint was received at 1 p.m. on the same day of occurrence. In such circumstances, the said argument of the learned counsel appearing for the revision petitioners/accused does not merit acceptance. 14. Admittedly, the knife was not recovered and produced before Court. Even though the accused were arrested on the same day of occurrence, there is no evidence to show that P.Ws.2 and 3 sustained injury with knife. Hence, the prosecution has not proved that A1 caused simple injury with deadly weapon, beyond reasonable doubt. Hence, the first petitioner/A1 is entitled to be given the benefit of doubt. However,P.Ws.2 and 3 sustained simple injuries and so, A1 is guilty of the offence under Section 323 IPC (2 counts) for causing injuries to P.Ws.2 and 3, instead of Section 324 IPC (2 counts). 15. Considering the evidence of P.Ws.1 to 4, it is clearly proved that they have caused simple injuries to P.Ws.1 to 3. Hence, the trial Court is correct in holding that A-1 to A-4 are guilty of the offence under Section 323 IPC. So, the conviction and sentence imposed on A-1 to A-4 for the offence under Section 323 IPC, for causing injuries on P.Ws.1 to 3, are hereby confirmed. The conviction and sentence imposed on A-1 for causing injuries to P.Ws.2 and 3 for the offence under Section 324 IPC, are set aside. Instead, A1 is guilty of the offence under Section 323 IPC (2 counts) and he has already undergone imprisonment for four days and the same be treated as the sentence. https://hcservices.ecourts.gov.in/hcservices/ 16. In the result: (a) Crl.R.C. is disposed of. (b) The conviction and sentence imposed on A-1 for the offence under Section 324 IPC (2 counts), are set aside. Instead, he is convicted for the offence under Section 323 IPC (2 counts) and the fine amount imposed by the trial Court is confirmed. The period of imprisonment already undergone by A-1 is treated as sentence. (c) The conviction and fine imposed on A-2 to A-4 for the offence under Section 323 IPC, are confirmed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. The Additional District and Sessions Court/Fast Track Court, Vellore. 2. Judicial Magistrate, Gudiyattham. 3.The Chief Judicial Magistrate,Vellore (for information) 4. Inspector of Police, Paradarami Police Station, Vellore District. (Cr.No.264 of 2005) 5. The Public Prosecutor, High Court, Madras. 6. The Record Keeper, Criminal Section, High Court, Madras. +1cc to Mr.R.Karthikeyan, Advocate Sr 28539 RS(CO) km/17.5. Crl.R.C.No.352 of 2009 https://hcservices.ecourts.gov.in/hcservices/