IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.10.2011 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.R.C.No.1228 of 2009 1. Mr.Paul Raj. 2. Mr.Srinivasan 3. Mrs. Varalakshmi .. Petitioners/Accused Vs State by The Inspector of Police, D-5, Kundrathur Police Station, Chennai. .. Respondent/Complianant. Criminal Revision filed under sections 397(1) and 401 of Criminal Procedure Code to set aside the order the Hon'ble Additional Sessions Judge, Fast Track Court-II, Kancheepuram passed in C.A.No.198 of 2008 dated 09.12.2009 confirming the order dated 05.11.2008 of the learned District Munsif cum Judicial Magistrate, Sriperumbudur in C.C.No.126 of 2008 and consequently acquit the petitioners of the charges under Section 341, 323 and 324 IPC. For Petitioners : Mr.M.Murali For Respondent : Mr.A.N.Thambi Durai Additional Public Prosecutor O R D E R This revision arises against two concurrent judgments of the Courts below convicting the petitioners herein for offences under Section 341, 324 and 323 IPC. 2. The prosecution case was that the accused pointed out the property of the brother of PW1 as for sale to an intending purchaser and when they were questioned about it, 2nd petitioner/A2 punched PW1 on her mouth, 1st petitioner/A1 beat PW2 with a wooden leg on her head and 3rd petitioner/A3 hit PW3 with a stone on her right hand. PW1 went to the police station and preferred Ex.P1, complaint. A case was registered in Cr.No.144 of 2003 on the file of the respondent police and pursuant to investigation, a final report was laid informing commission of offences under Sections 341, 324 and 323 IPC. https://hcservices.ecourts.gov.in/hcservices/ 3. Before the trial Court, the prosecution examined 7 witnesses and marked 5 exhibits and two Material Objects. None were examined on behalf of the defendants and no exhibits were marked . On appreciation of evidence, the trial Court convicted all the petitioners and sentenced them to undergo one month simple imprisonment and to pay a fine of Rs.250/- each in default to undergo two weeks imprisonment for offence under Section 341 IPC; sentenced the 1st and 2nd petitioners /A1 and A2 to undergo six months simple imprisonment and to pay a fine of Rs.500/- each and in default undergo one month imprisonment for offence under Section 324 IPC and sentenced the 3rd petitioner /A3 to undergo simple imprisonment for four months and to pay a fine of Rs.500/- in default undergo one month imprisonment for offence under Section 323 IPC. The appeal of the petitioners in C.A.No.198 of 2008 came to be dismissed by the learned Additional Sessions Judge, Fast Track Court No.II, Kancheepuram under judgment dated 09.12.2009. Hence, this revision. 4. Heard Mr.M.Murali, learned counsel for the petitioners and Mr.A.N.Thambidurai, learned Additional Public Prosecutor appearing for the respondent. 5. Learned counsel for the petitioners submit that the present is an admitted case of 'case and counter'. A case stood registered against the prosecution party in Cr.No.145 of 2003 on the file of the respondent police and pursuant to charge sheet therein, the rival party also faced prosecution under Sections 341, 324 and 323 IPC. Under judgment of the Judicial Magistrate No.1, Poonamallee, in C.C.No.213 of 2003 dated 17.02.2005, the prosecution party herein stand acquitted. 6. The procedure adopted by the respondent in filing the final reports informing commission of offences in respect of both cases preferred by the petitioners as also the rival / prosecution party, is erroneous. It is further urged that the evidence of PW4, witness to the Observation Mahazar and Seizure Mahazar points to the conduct of investigation even before the registration of the FIR. According to PW4, he had gone to the place of occurrence at about 2.00 pm on 23.02.2003 and had seen the accused and the prosecution party quarreling. He has attested the Observation Mahazar and Recovery Mahazar prepared by the respondent. He has deposed as if he was an eyewitness to the occurrence. But his evidence is only to the effect that there was a quarrel. He had not deposed to any assault by either party. The same contradicts the case of the prosecution. While reading of the evidence of PW4 would show that he had attested the Observation Mahazar and Recovery Mahazar at about 2.00pm., the very FIR had come to be registered only at 3.00 pm, as could be seen from the evidence of PW7, the investigating officer. Though it was the evidence of PW1 that she suffered a bleeding https://hcservices.ecourts.gov.in/hcservices/ injury, the evidence of PW6, Doctor discloses that the same was only an abrasion. It was quite possible that the injury on PW1 could have been caused when the accused were defending themselves. 7. Heard the learned Government Advocate on the above submissions. 8. This Court is to inform that the respondent has fallen into error in submitting charge sheets informing commission of offences in both, the present case as well as the counter case. As indicated in Police Standing Order 588(A) and as repeatedly held by this Court in a case of 'case and counter', the procedure to be adopted is to register both cases, conduct investigation thereon and file a positive charge sheet upon one and referred charge sheet in the other. Further, in an appropriate circumstance, a charge sheet may be filed in one and a charge of exceeding the right of private defence may be made in the other. The reasons therefor is that it is only then, the Court would be in a position to appreciate who or which party was the aggressor in a case of case and counter. 9. Taking into considering the above aspects and also the nature of injuries suffered by the prosecution party, I find that though the FIR in the counter case has been marked as Ex.P5, the medical certificates of the accused herein have not been so marked and there is nothing to inform the nature of injuries suffered by the petitioners herein nor is there any explanation therefor. Hence, this Court would allow this petition and accordingly, the Criminal Revision Case stands allowed and the order of the Courts below are set aside. The petitioners shall stand acquitted of the charges. The fine, if any paid, shall stand refunded to the petitioners. Sd/- Asst. Registrar /true copy/ Sub Asst. Registrar. ars https://hcservices.ecourts.gov.in/hcservices/ To 1. The Additional Sessions Judge, Fast Track Court-II, Kancheepuram. 2. The District Munsif cum Judicial Magistrate, Sriperumbudur . 3. The Inspector of Police, D-5, Kundrathur Police Station, Chennai. 4. The Section Officer, Criminal section, High Court, Madras 104. 1 cc To Mr.M.Murali, Advocate Sr 65964 Crl.R.C.No.1228 of 2009 bky[co] gp/11.11. https://hcservices.ecourts.gov.in/hcservices/