Bail Slip The Appellant A1 names Annamalai is directed to the released on bail by the order of this Court dated 26.4.2002 in Crl.Mp.No.3773/02 in Crl. Ap.No.525/2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 09.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.525/2002 Crl.RC.No.1067/2002 1.Annamalai Appellant in Cr.A 1.Rukumani 2.Chinnadurai Petitioners in Cr.RC Vs State by Inspector of Police Mahudanchavadi Police Station Salem District R1 in Cr.A 1.State by Inspector of Police Macdonald choultry police station, Salem District. Respondent Crl. R.C 2.Annamalai 3.Muthu 4.Palani 5.Appavoo 6.Ayyavoo 7.Sumsayi @ Ravi RR2to7 in Cr.RC Prayer:- This Criminal Appeal is filed against the judgement dated 20.3.2002 passed in SC.No.273/2000 by the learned Additional District and Sessions Judge (FTC-II) Salem, convicting and sentencing the appellant for the offence under Section 326 of IPC to undergo three years Rigorous Imprisonment and to pay a find of Rs.5000/-, in default to pay the fine amount to undergo one year Rigorous Imprisonment. https://hcservices.ecourts.gov.in/hcservices/ This criminal revision petition is filed against the order of acquittal made in judgement dated 20.3.2002 in SC.No.273/2000 by the learned Additional District and Sessions Judge (FTC-II) Salem. For Appellant/ : Mr.L.Mahendran-Appellant Petitioner Mr.N.Manokaran-Petitioner For Respondent : Mr.Hasan Mohammed Jinnah, APP 1st Respondent/State ORDER This Criminal Appeal is filed against the judgement dated 20.3.2002 passed in SC.No.273/2000 by the learned Additional District and Sessions Judge (FTC-II) Salem, convicting and sentencing the appellant for the offence under Section 326 of IPC to undergo three years Rigorous Imprisonment and to pay a find of Rs.5000/-, in default to pay the fine amount to undergo one year Rigorous Imprisonment. 2. This criminal revision petition is filed by the defacto complainants/Pws.1 and 2 against the order of acquittal made in judgement dated 20.3.2002 in SC.No.273/2000 by the learned Additional District and Sessions Judge (FTC-II) Salem, acquitting the Appellant/A1 and the 2nd accused under Section 302 read with 34 of IPC, A3 to A6 under Section 302 read with 149 of IPC and A3 and A4 under Section 324 of IPC, A2, A5 and A6 under Section 323 (2 counts). 3. The back ground facts in a nutshell are as follows:- a. PW.1 is the wife of the deceased. Pws.1 to 5 hail from the Village Peruma Goundanpatti. There was prior enmity between the Prosecution party and the accused party with regard to taking of a girl in marriage from the other party. On the previous day to the occurrence, a dispute arose between them with regard to the auction of Koil fund and the demand made by the son of the deceased to the accused persons to furnish security if the chit amount has to be paid to them and A1 wanted them to disburse the amount without any security and refused to furnish any security and kicked the son of the deceased. They were pacified by the deceased, but the accused left the place not before warning the deceased and his son that they would not leave them alive. b. The next day i.e. 25.4.1998, when the deceased was about to have his breakfast, all the accused came in front of his house and shouted at the deceased to come out and when the deceased came out, he told them not to quarrel with him. But the accused did not listen to him. A1 attacked the deceased with a stic [[KisFr;rp], A2 attacked him with a granite stone MO.5[fU';fy;],at the back of his head and A3 assaulted him with a stem of thorny plant on his right hand and A5 attacked him with a brick on his right knee and when PW.2 intervened, he was attacked by A3 with verkattai https://hcservices.ecourts.gov.in/hcservices/ MO.2 on his right hand and when PW.3 intervened, he was attacked with koduval MO.3 on his head and A3 stabbed him on his back. On seeing it, PW.4 Raja and Muthu came to the rescue of the deceased and PW.1. A2, A4 and A6 attacked them with brick stones Mos.6 and 7 and fled away from the said place. The deceased was taken to Vembadithalam Government Hospital, where he was pronounced dead. c. PW.10 Doctor Vallinayagam found the following injuries on the deceased: "(1) Abrasions over (a) right knee, 2cms x 1cms-Dark brown (b) right wrist, 1cm x 0.5cm-Dark brown (2)A contusion over right front temporal region of scalp, 8cms 5cms x 0.5cms-dark red (3) Communited fracture over right temporal bone, present. (4)Subdural and subarachnoid haemorrhage over both cerebran hemisphers The above injuries are antemortem in nature." Ex.P15 is the postmortem certificate wherein it is opined that the deceased died of head injuries d. PW.11 Jaikrishnan, Head Constable received a telephonic information from the said hospital and went to the hospital and received the complaint Ex.P1 from the wife of the deceased and registered a case in Cr.No.379/1`998 for the offences under Section 147, 148, 336, 324 and 302 of IPC and prepared Ex.P17 printed FIR and the Inspector of Police filed the final report after investigation. 3. The case was taken on file in SC.No.273/2000 on the file of the learned Additional District and Sessions Judge (FTC-II) Salem and necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 13 witnesses and also relied on Exs.P1 to P19 and 6 Material Objects. 4. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 5. The court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal and criminal revision petition. https://hcservices.ecourts.gov.in/hcservices/ 6. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 7. As per the case of the Prosecution, the genesis for the occurrence is the incident that is said to have occurred on 24.4.1999 wherein the son of the deceased by name Ponnusamy demanded the accused to give security for disbursement of fund amount to him, which was objected to by the accused and they refused to give security. In the course of said quarrel, he is said to have kicked Ponnusamy the deceased and other persons present in the said place have pacified them. However, the accused persons is said to have vowed against them that they would kill the deceased and his sons. The said Ponnusamy is the main witness to speak about the previous day occurrence, but he has not been examined. 8. The learned counsel for the Appellants contended raising a serious doubt regarding the existence of prior motive as to whether the prior occurrence really occurred as projected by the Prosecution. Ponnusamy is the main witness who can speak about the earlier incident and his non examination has really caused a dent in the case of the Prosecution regarding the motive alleged by the Prosecution. 9. There are much contradictions and inconsistencies even in the overtact attributed to each of the accused. According to PW.1, A2 hit the deceased with MO.1 Kisf;Fr;rp on her head, A2 hit the deceased with granite stone on his back of the head, A3 hit the deceased with Ks;fl;il nth;bro on his hand. A5 with a brick stone on his right knee. PW.2 to Pw.4 also have stated so in their evidence. But, there is no corresponding injuries on the deceased. The following are the injuries found on the deceased, which is disclosed from Ex.P15:- 1.Abrasion over the right knee and right wrist 2.A contusion over right front temporal region of scalp, 8cms 5cms x 0.5cms On dissection of the 2nd injury communited fracture over right temporal bone with subdural and subarachnoid haemorrhage over both cerebral hemisphere." 10. Only three injuries had been found on the body of the deceased. It is the version of the Pws.1 to 5 that the deceased was attacked by A1 and A2 with Kisf;Fr;rp and granite stones at the back side of the head, but there is no corresponding injury on the back of the head. That apart, even with regard to the attack made by the accused on other witnesses viz. PW.2 to 5, these witnesses contradicted each other. More importantly in the complaint Ex.P1 lodged by PW.1, it is stated that PW.6 gHdp was attacked by A4 and https://hcservices.ecourts.gov.in/hcservices/ A3, whereas the Prosecution case is that PW.3 was attacked by A3 and A4 and not PW.6. 11. Taking into consideration the material contradictions and discrepancies in the testimonies of the above said witnesses in regard to the attack made by the accused on these witnesses, the trial judge acquitted all the accused with regard to the charges made against them under Sections 323 and 324 of IPC and also 302 read with 149 of IPC. 12. There is no positive evidence in this case to show that the head injury found on the deceased was only caused by the 1st accused as all the witnesses PW.1 to 5 alleged that A1 had attacked him with Kisf;Fr;rp and A2 with a stone. In view of the material discrepancies as pointed out earlier, it is unsafe to place reliance on the Prosecution witnesses to hold that the head injury was caused only by the Appellant. The evidence of Pws.1 to 5 about the manner of assault attributed to the various accused persons was too hollow to have any credence. That being the position, I am unable to subscribe to the conclusion arrived at by the learned trial judge that the Appellant is liable to be convicted under Section 326 of IPC. 13. In so far as the offences relatable to Section 148 as against A1, A2, A5 and A6, Section 147 as against A1 and A2, Section 302 read with 34 as against A3 to A6, Section 302 read with 149 as against A3 to A6, Section 323 as against A2, A5, A6 (2 counts) are concerned, I do not find any scope for interference with the order of acquittal passed by the learned trial judge and hence, the criminal revision petition is liable to be dismissed and accordingly, it is dismissed. 14. In the light of the discussions made above, the Criminal Appeal stands allowed and the conviction and the sentence imposed by the court below on the Appellant under Section 326 of the IPC is set aside and he is acquitted of the charge levelled against him. The bail bond if any executed by the appellant shall stand terminated and the fine amount if any paid is ordered to be refunded to him. Srcm Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To: 1.The Judicial Magistrate No.2 Sankari Salem District. https://hcservices.ecourts.gov.in/hcservices/ 2. -Do- through the Chief Judicial Magistrate Salem. 3. The Additional District Session Judge Salem (Fast Track Court No.2) 4. -do- Through The Principal Sessions Judge Salem 5. The Public Prosecutor High Court Madras Salem. 6. The Inspector of Police, Mahudanchavadi Police Station Salem. 7. The Inspector of Police Salem Town Police Station Salem. 8. The Inspector of Police Macdonald Choultry Police Station, Salem District. 9. The Section Officer, Criminal Section, High Court, Madras. + 1 cc to Mr. L. Mahendran, Advocate SR.60382. Crl.A.No.525/2002 and Crl.RC.No.1067/2002 MBS(CO) EU 26.11.2009. https://hcservices.ecourts.gov.in/hcservices/