BAIL SLIP The Appellant herein (viz.) Velu @ Veluthevar Accused in SC.No.232/2005 dated 31.10.2006 on the file of the Additional District Sessions Judge (Fast Track Court No.V) Coimbatore at Tiruppur was directed to be released on Bail as per order of this Court dated 5.1.2007 and made in Crl.M.P.No.1 of 2006 in Crl.A.No.1065 of 2006. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.06.2008 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARAN AND THE HONOURABLE MR.JUSTICE K.N.BASHA Criminal Appeal No.1065 of 2006 Velu @ Veluthevar ... Appellant/Accused S/o. Ganapathy Thevar. vs. State, Rep. by The Inspector of Police, Tiruppur Rural Circle, Coimbatore District. (Cr.No.522/2005). ... Respondent/Complainant Appeal against the judgment of the learned Additional District and Sessions Judge, Fast Track Court No.V, Coimbatore at Tiruppur dated 31.10.2006 made in S.C.No.232 of 2006. For Appellant : Mr.Samuel Rajapandian For Respondent : Mr.N.R.Elango Additional Public Prosecutor J U D G M E N T (Delivered by P.D.DINAKARAN,J.) Aggrieved against the conviction under Sections 307 and 324 IPC and sentence of life imprisonment and to pay a fine of Rs.5,000/- with a default sentence of nine months rigorous respectively respectively, imposed by the Additional District and Sessions Judge, [Fast Track Court No.V], Coimbatore at Tiruppur in S.C.No.232/2006, the appellant has filed this appeal. https://hcservices.ecourts.gov.in/hcservices/ 2. The substance of the charge against the appellant is that on 24.04.2005 at about 8.45 p.m., with an intention of slaying Vasantha, he had cut the said Vasantha on her head, left shoulder, left index finger and in the same course, he cut his own son, by name Vadivel, who came to the rescue of Vasantha. 3. The brief facts of the prosecution is as follows:- (a) P.W.6 - Vasantha, the victim in this case, and her husband are native of Cuddalore District. They have come to Tiruppur for eking out their livelihood by finding some work. As such, P.W.6 and her husband P.W.7 were staying in a rented house. The house of P.Ws.1 and 2, who are the main cause of the problem, is sandwiched between the houses of P.W.6 and the accused. (b)On 22.04.2005 at about 7.00 p.m., P.W.6 hammered a nail in her house for the purpose of hanging mirror. The noise from hammering disturbed P.W.2, her immediate neighbour, and she raised objections. There arose a wordy quarrel and the accused took sides with P.Ws.1 and 2 and warned P.W.6 not to continue her act, for which P.W.6 aggressively reacted and the accused cautioned her that she would be complained to her husband. On the arrival of P.W.7, husband of P.W.6, to home, the matter was disclosed to him and he asked the accused to mind his own business. Thus the accused was hurt and he had grudge against P.Ws.6 and 7. (c) On 24.04.2005 at about 8.45 p.m., with an intention of slaying P.W.6, the accused brought an aruval from his house and rushed towards the house of P.W.6. P.W.3, son of the accused, alerted P.W.6 and P.W.7 to run away from the place. But, the accused attacked PW-3 and went towards house of P.W.6. However, before they could escape, the accused caught hold of the tuft of P.W.6 and inflicted cuts on her head. P.W.6 lost her balance and fell down. The accused again took aim at her and swirled the aruval and hit her left shoulder. In the said course, P.W.6 got injured on her index finger. Then, the accused fled the scene. (d) P.W.7 took his wife in an ambulance and rushed to Tiruppur Government Hospital where P.W.6 was given first aid by P.W.4, Doctor. PW-4 treated her and referred her to Coimbatore Government College Hospital. PW-4 issued Ex.P-1 – Wound Certificate, wherein he has opined that the wounds sustained by P.W.6 are simple in nature. Intimation was sent to police from Tiruppur Government Hospital about the incident. https://hcservices.ecourts.gov.in/hcservices/ (e) On receipt of information, P.W.5, the Sub Inspector of Police of Tiruppur Circle Police Station, went to the hospital and recorded a statement from P.W.6, which is Ex.P-3. P.W.3, son of the accused, was also admitted in the same hospital and was treated by P.W.4. P.W.5 recorded a statement from P.W.3 also. Later, P.W.6 was inquired in Coimbatore Government College Hospital also. On the same day, P.W.5 registered a case in Cr.No.522/2005 under Sections 307 and 324 IPC, which is Ex.P-4. He caused printed FIR to be sent to Court and copies thereof to higher officers. (f) P.W.11, Inspector of Police, on receipt of information, went to the scene of occurrence and enquired the witnesses and recorded their statements. He seized the weapon under a mahazar. Later, P.W.11 went to the hospital and recorded the statements of P.Ws. 3 and 6. On completion of formalities, he filed the charge sheet for the offences mentioned above. (g) P.W.8 is a resident of the same locality and he has turned hostile. His evidence is in no way helpful to the prosecution. P.W.9 is also a hostile witness and he has deposed that he attested the recovery mahazar, under which aruval was recovered. P.W.10 is an attesting witness who has attested the mahazar under which the apparel of P.W.7 was recovered. (h) The accused denied his complicity in the crime when he was questioned initially before the Court of Magistrate and hence, the case was committed to Court of Sessions, where again he denied his involvement and wanted for trial. In order to prove the guilt of the accused, the prosecution has examined 10 witnesses, marked 11 exhibits and produced 3 material objects, referred to above. The accused was examined under 313 Cr.P.C with reference to the incriminating materials found against him and he denied having committed any offence and his complicity in the incident. (i) The trial Judge on appreciation of evidence and the materials placed before him as well as on hearing the arguments advanced on both sides, convicted the accused and sentenced as mentioned above. Challenging his conviction and sentence, the accused has filed this appeal. 4. Assailing the judgment of the trial Court, the learned counsel for the appellant has raised the following contentions :- (i) The main witnesses who were the root cause for the problem, viz. P.Ws.1 and 2, turned hostile and when the accused has nothing to do with the https://hcservices.ecourts.gov.in/hcservices/ scuffle between P.W.6 and P.Ws.1 and 2, his interference on behalf of P.Ws. 1 and 2 is doubtful and there is absolutely no evidence for motive part of the occurrence; (ii) Another witness, viz. P.W.3, son of the accused, who according to the prosecution, went to the rescue of the victim P.W.6 and suffered injuries at the hands of the accused, also turned hostile; (iii)The evidence of P.W.5 Doctor, raises strong suspicion, since he having issued wound certificate certifying the wounds to be simple, there is no reason for him to refer P.W.6 and P.W.3 to Coimbatore Medical College Hospital for better treatment; and (iv) In any event, since even as per the evidence of the doctor, P.W.5 and the wound certificate, Ex.P.1, issued by him, the injuries on the victim P.W.6 are only simple in nature and hence, the act committed by the accused would attract only lesser offence. 5. Per contra, the learned Additional Public Prosecutor submits that though majority of the witnesses have turned hostile, the injured witness, viz., P.W.6 is very much present to depose about the overt act of the accused and she being injured at the hands of the accused, would not allow the real culprit to escape and point her fingers towards an innocent who has no axe to grind against her and hence, the judgment of conviction and sentence warrants no interference at the hands of this Court. 6. We have given our consideration to the submissions made on both sides and perused the entire materials placed before us. 7. The points that arise for consideration are: (i) Whether the prosecution has made out a case against the accused beyond reasonable doubt that it was he, who caused injuries on P.W.6 and P.W.3 ? ; (ii) Whether the act committed by the accused attracts only lesser offence? https://hcservices.ecourts.gov.in/hcservices/ 8. It is true that majority of the witnesses have turned hostile. Excepting for P.W.6, the injured, and her husband P.W.7 and the police officers, P.Ws.5 and 11, no other witness has supported the prosecution theory. P.Ws. 6 and 7 have come from Cuddalore to find fortune in Tiruppur. Hammering of a small nail by P.W.6 on her wall has led to many repercussions. P.Ws.1 and 2, who are supposed to be the real affected party, have let the accused to take the centre stage and the accused is in no way connected with the quarrel between P.W.6 and P.Ws.1 and 2. He has unnecessarily interfered to show his one-upmanship. 9. As rightly pointed out by the learned Additional Public Prosecutor, P.W.6 is none other than the person who sustained injuries and the occurrence having taken place in an illuminated place and the witnesses and the accused being neighbours, there would be no difficulty for the victim P.W.6 in identifying the accused. There is no reason as to why the evidence of P.W.6 should be disbelieved and there is also no reason why P.W.6 should leave out the real assailants and implicate another falsely. There is no surprise in P.W.3 turning hostile, since he being the son of the accused would naturally support only his father and would not implicate his father in such a grave offence. But, the fact remains that P.W.3 interfered in the course of transaction when the accused attacked P.W.6, as evident from the evidence of P.Ws.6 and 7. We are, therefore, of the opinion that the wounds found on the person of P.W.6 and P.W.3 were only caused by the accused alone and none else. 10. The question that is now to be decided is whether the offence committed by the accused would attract the penal provision of 307 IPC or lesser offence. As already observed, the accused is in no way connected with the impugned quarrel between P.W.6 and P.Ws.1 and 2 and thus, absolutely he has no motive to attack the victim, P.W.6. But, it is to be noted that even though the accused had used a deadly weapon, the wounds caused by the overt act of the accused, as noted by the doctor in Ex.P.1, wound certificate, were only simple in nature. Therefore, we are inclined to modify the conviction under Section 307 IPC to one under Section 324 IPC. 11. As regards sentence, the learned Counsel for the appellant submits that after the incident, P.Ws. 6 and 7 have left Tiruppur and have gone back to Cuddalore. The learned Counsel https://hcservices.ecourts.gov.in/hcservices/ further submits that the appellant is aged about 65 years now and he is also an asthmatic patient. Hence, the learned Counsel prays that some leniency may be shown with regard to sentence. 12. Considering the facts and circumstances of the case, we feel that ends of justice would be met if the sentence of imprisonment is reduced to one of period already undergone. However, since the victim P.W.6 has suffered number of injuries, we are of the view that she should be compensated. Hence, the appellant is directed to pay a further sum of Rs.10,000/- [Rupees Ten Thousand only] as compensation directly to the victim P.W.6 in the form of a Demand Draft drawn in favour of P.W.6. In result, (i) the conviction of the appellant/accused under Section 307 I.P.C. is modified to one under Section 324 I.P.C.; (ii) for the said conviction, he is sentenced to the period of imprisonment already undergone and is also directed to pay a further sum of Rs.10,000/- (Rupees ten thousand only) as compensation directly to P.W.6, Vasantha, in the form of Demand Draft drawn in her name; (iii)the conviction and sentence of fine imposed for the offence under Section 324 I.P.C. for causing injuries to P.W.3 is confirmed; (iv) the appeal is, accordingly, disposed of. sra Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To 1. The Additional District and Sessions Judge, Fast Track Court-V, Coimbatore at Tiruppur. https://hcservices.ecourts.gov.in/hcservices/ 2. -do- Thro' The Principal Sessions Judge, Coimbatore. 3. The District Collector, Coimbatore. 4. The Director General of Police, Chennai. 5. The Inspector of Police, Tiruppur Rural Circle, Coimbatore District. 6. The Superintendent, Central Prison, Coimbatore. 7. The Public Prosecutor, High Court, Madras. 8. The Judicial Magistrate No.II, Tiruppur. 9. -do- Through The Chief Judicial Magistrate, Coimbatore. 1 cc to Mr.S.Samuvel Rajapandian, Advocate, SR.30264 tm (co) dv/11.7. Crl.A.No.1065 of 2006 https://hcservices.ecourts.gov.in/hcservices/