BAIL SLIP --- The Appellant/Accused viz Ramesh was directed to be released on bail as per the order of this Court dated 26.6.2003 and made in Crl.M.P.No.5496/2003. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.02.2010 C O R A M THE HONOURABLE Ms. JUSTICE R. MALA Criminal Appeal No.523 of 2003 Ramesh ... Appellant/Accused Vs State rep. by Inspector of Police Vishnu Kanchi Police Station Kancheepuram. ... Respondent/Complainant (Crime No.892/2000) Prayer: Criminal Appeal filed under Section 374 of Code of Criminal Procedure against the judgment dated 27.01.2003 in S.C.No. 276 of 2002 on the file of the Additional District and Sessions Court (Fast Track Court), Kancheepuram. For Appellant : Mr.R.Hariharan For Respondent : Mr.I. Paul Nobel Devakumar Government Advocate (Criminal Side) J U D G M E N T This Criminal Appeal has arisen out of the judgment passed by the Additional District Sessions Judge, Fast Track Court, Kancheepuram, on 27.01.2003 in S.C. No.276 of 2002, acquitting the appellant/accused under Section 307 IPC and convicting the appellant/accused under Section 326 IPC and sentencing him to undergo three years rigorous imprisonment. 2. The case of the prosecution in a nut-shell is as follows:- (i) On 20.12.2000 at 7.30 p.m., when PW1-Sankar/ Complainant was doing the weaving work in PW2-Raji's Handloom Weaving Unit, at Sekupettaisaliyar Street, at that time, the appellant/accused came there and called PW1. PW2-Raji, who is the owner of Handloom Weaving Unit came out of the house. The appellant/accused told him https://hcservices.ecourts.gov.in/hcservices/ to call Ramesh. On being informed by PW2-Raji, PW1 came out of the house. On seeing him, the accused/appellant questioned him regarding, what did they ask in the Court and what had happened to the criminal case pending against PW1 before the Judicial Magistrate Court, Kancheepuram. PW1/Complainant intimated the fact that the case has been adjourned. Suddenly, the appellant/accused took the knife that was kept hidden in his right hand and assaulted PW1/Complainant on his face, left shoulder, stomach, neck, left cheek, leftside back and left the place. On witnessing the same the public made an alarm. After hearing the alarm, PW2 came out of the Handloom Weaving Unit and on seeing the injuries sustained by PW1, he enquired as to what had happened. PW1 informed him that due to previous enmity, appellant/accused had assaulted him. (ii) On being informed, Anandan/PW4 and Naghu came to the place of occurrence and taken PW1/Complainant to hospital, where, PW5-Dr.Senthil has admitted him in the hospital and noted down the following injuries sustained by him and gave Accident Register Copy-Ex.P2 :- "Injuries: 1.Incised wound left side of forehead 6 cm length. 2.Left side of (mandible) face – 8 cm length. 3.Cut neck 6 cm. 4.Left side of chest 10 cm. 5.Left axilla 5 cm. 6.Left shoulder 10 cm. 7.3 incised wounds ove left side of back 8 cm., 4 cm. and 2 cm. All sub-cut, deep." (iii) Then, PW6-Sugumaran, Sub-Inspector of Police, after getting the information had gone to the hospital and recorded the statement-Ex.P1 and preferred a F.I.R.-Ex.P3.PW6 registered a case in Cr.No. 892 of 2000 under Section 324 IPC. Then, PW6 gone to the place of occurrence and he prepared an observation mahazar and draw a plan-Ex.P4, in the presence of witnesses. PW7-Manjula, Sub- Inspector of Police, has taken up further investigation and examined the witnesses and altered the offence under Section 324 IPC into 326 IPC. PW8-Poongavanam, Inspector of Police, altered the case into Section 326 IPC and examined the witnesses and filed the chargesheet under Sections 307 IPC. (iv) The learned Sessions Judge after following the procedure framing the charges against the appellant/accused, who pleaded not guilty. To prove the charges levelled against the accused the prosecution examined the witnesses PWs 1 to 8 and marked Exs. P1 to P5. After the completion of the evidence on the side of prosecution, the accused was questioned under Section 313 Cr.P.C. as to the incriminatory circumstances found in the evidence of the prosecution witnesses and the accused flatly denied them as false. The Sessions Judge after hearing the arguments advanced on both https://hcservices.ecourts.gov.in/hcservices/ sides, acquitted the accused under Section 307 IPC, but convicted him under Section 326 IPC and sentenced him to undergo three years rigorous imprisonment. Against that, the present appeal has been preferred. 3. Challenging the conviction and sentence passed by the Sessions Judge, the learned counsel appearing for the appellant would mainly focus upon the following points, i.There is a delay in preferring the complaint as well as in despatching the FIR to Court; ii.No independent witness has been examined; iii.The weapon used has not been proved; iv.The ingredients of Section 326 IPC is not made out. and prayed for allowing the appeal and acquittal of the appellant. 4. In answer to it, the learned Government Advocate (Criminal Side) would contend that the occurrence has taken place on 20.12.2000 at 7.30 pm and PW1/complainant was immediately admitted in hospital at 7.45 pm. After receiving information only, PW6- Sugumaran, Sub-Inspector of Police, went to the hospital and recorded the statement-Ex.P1 and hence, there is no delay. Since, the case is based on eye witness, the delay in despatching the FIR is not fatal to the case of prosecution. He further submits that even though the independent witness PW3-Saravanan, turned hostile, the evidence of a single injured eye witness, is reliable. The Sessions Court has considered the entire evidence of PW1/ Complainant and came to the conclusion that his evidence is reliable. So, the non-examination of independent witness does not vitiate the conviction of the appellant/accused. He further submits that the weapon used has been proved by PW1/Complainant. The ingredients of Section 326 IPC has been proved by the evidence of PWs 1 and 5. Hence, there is no infirmity or illegality in the judgment passed by the Sessions Court and hence, he prayed for the dismissal of the appeal. 5. There is a delay in preferring the complaint as well as in despatching the FIR to Court :- PW1/Complainant and appellant/accused already knows each other. Admittedly, there is a previous enmity between both of them. Already, there is a criminal case pending against PW1, on the basis of complaint given by appellant/accused. It is well settled that 'motive' is a double-edged weapon. Moreover, the 'motive' does not play a vital role in cases where direct eye witness is available. In such circumstances, the 'motive' is not material for consideration. The occurrence has taken place on 20.12.2000 at 7.30 pm and immediately, PW1/Complainant was admitted in the hospital at 7.45 pm. But, the complaint has been received by PW6-Sugumaran, Sub-Inspector of Police on 21.12.2000 at 15.00 hours and registered a case in Cr.No. 892 of 2000 under Section 324 IPC at 16.30 hours. So, as soon as the incident, he was admitted in hospital at 7.45 pm. In Ex.P2-Accident Register Copy, Dr.A.Sendhil has stated that https://hcservices.ecourts.gov.in/hcservices/ PW1 is alleged to have been assaulted by a known person with knife at 7.30 pm and the injured was admitted in MS II Ward. In such circumstances, the delay in giving the complaint is not fatal and it does not affect the case of the prosecution. The delay has been properly explained. 6. Whether the non-examination of independent witness is fatal or adverse to the case of prosecution :- Here, the case is based on eye witness. PW1/Complainant is an injured person. Admittedly, on the date of incident, a case is pending against PW1/Complainant in Judicial Magistrate Court, Kancheepuram. The appellant/accused came there, which was fortified by PW2-Raji, who is the owner of Handloom Weaving Unit. Considering the evidence of PW2-Raji, the presence of appellant/accused has been proved by prosecution beyond reasonable doubt. As per the evidence of PW1/Complainant, his evidence is natural, cogent, convincing and hence, it is trustworthy and reliable. While considering his evidence along with the evidence of PW2, it is seen on 20.12.2000 at 7.30 p.m., the appellant/accused came to PW2's Handloom Weaving Unit and called PW1. PW2-Raji, who is the owner of Handloom Weaving Unit came out of the house. The appellant/accused told him to call Ramesh. On being informed by PW2-Raji, PW1 came out of the house. On seeing him, the accused/appellant questioned him regarding, what did they ask in the Court and what had happened to the criminal case pending against PW1 before the Judicial Magistrate Court, Kancheepuram. PW1/Complainant intimated the fact that the case has been adjourned. Suddenly, the appellant/accused took the knife that was kept hidden in his right hand and assaulted PW1/Complainant on his face, left shoulder, stomach, neck, left cheek, leftside back and left the place. On witnessing the same the public made an alarm. After hearing the alarm, PW2 came outside of the house and he has also witnessed the same. In such circumstances, even though, PW3- Saravanan was examined as an independent witness, he turned hostile. As already stated, PW1's evidence is trustworthy and reliable. His evidence has clearly proved that the appellant/accused has inflicted the injuries mentioned in Ex.P2- Accident Register Copy. It is also pertinent to note that as soon as the incident, PW4-Anandan had taken him to the hospital and he was admitted on the same day at 7.45 pm. PW5-Dr.Senthil has stated in Ex.P2 that "assault by a known person with "fj;jp" at about 7.30 p.m. today at rhyp bjU. fh";rpg[uk;". So, I am of the opinion that since the evidence of PW1/complainant is reliable, the non- examination of independent witness is not fatal or adverse to the case of prosecution. 7. The weapon used has not been proved:- The learned counsel for the appellant would further submit that the weapon used has not been seized or marked before the Court. There is a different version in respect of the nature of the weapon used. In Exs.P1 and P2, it was stated that the weapon https://hcservices.ecourts.gov.in/hcservices/ wielded is "knife". When PW1 was in the witness box, he has stated the weapon wielded is "Knife used for shaving". But, it is also one type of knife. The argument advanced by the learned counsel for the appellant that there is a major discrepancy between the nature of weapon used, does not merit acceptance. While considering the oral evidence of PWs 1 and 5, there is no contradiction between the ocular and medical evidene. As per Ex.P2-Accident Register Copy, PW1/Complainant has sustained seven injuries, all are cut injuries. PW5-Dr.Senthil has given a certificate stating that the injuries 1 and 2 are grievous in nature and that injuries 3 to 7 are simple in nature. 8. The ingredients of Section 326 IPC is made out or not:- The learned counsel for the appellant would contend that the ingredients of Section 326 IPC, is not made out. The weapon wielded has not been produced before the Court to show that the weapon is dangerous. At this juncture, it is appropriate to incorporate Section 326 IPC, which reads as under:- Section 326 IPC.Voluntarily causing grievous hurt by dangerous weapons or means Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance, or by means of any substance which it is deleterious to the human body inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 9. It is true that as per the evidence of PW5-Dr.Senthil, PW1/Complainant has sustained grievous injury. Now, this Court has to decide, whether the injury has been caused by the dangerous weapon ?. The learned counsel for the appellant would contend that the knife, which is used for the shaving purpose is not a dangerous weapon. But, while considering Section 326 IPC, in that, it was stated that "...voluntarily causes grievous hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence..". Here, the weapon used is a 'knife', which was proved by the examination of PW1/Complainant. In the above said circumstances, I am forced to concur with the findings of the Sessions Court that the appellant/accused is guilty under Section 326 IPC, so, the conviction of the appellant/accused under Section 326 IPC is hereby confirmed. 10. The learned counsel for the appellant would contend that the Sessions Court has sentenced the appellant/accused to undergo https://hcservices.ecourts.gov.in/hcservices/ three years rigorous imprisonment for the offence under Section 326 IPC. The learned counsel further submits that at the time of occurrence, the accused is aged about 25 years and that he is a poor person and therefore, some leniency may be shown to him and he prayed for reduction in the period of imprisonment. Considering the request made by the learned counsel for the appellant/accused, I am of the view that the conviction of three years rigorous imprisonment shall be reduced to three months rigorous imprisonment. 11. In fine, • this Criminal Appeal is partly allowed. • The conviction passed by the Sessions Court under Section 326 IPC is confirmed. • The sentence passed by the Sessions Court to undergo three years rigorous imprisonment is reduced to three months rigorous imprisonment. • Since, the appellant/accused is on bail, the Sessions Court is directed to take steps to secure his custody to undergo the remaining period of sentence. • The period of imprisonment already undergone by the appellant/accused shall be set off under Section 428 Cr.P.C. Sd/- Asst. Registrar //true copy// Sub Asst.Registrar Paa To 1.The Additional District Sessions Judge, Fast Track Court, Kancheepuram. 2. -do- Thro The Principal Sessions Judge, Chengalpattu. 3. The Judicial Magistrate, Kancheepuram. 4.-do- Thro' The Chief Judicial Magistrate, Chengalpattu. 5. The Inspector of Police Vishnu Kanchi Police Station Kancheepuram. 6. The District Collector, Chengalpattu. 7. The Director General of Police, Mylapore, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 8. The Public Prosecutor High Court, Chennai. 9. The Superintendent, Central Prison, Vellore. Criminal Appeal No.523 of 2003 JRG {CO} TP/25.2.2010. https://hcservices.ecourts.gov.in/hcservices/