BAIL SLIP CRL.R.C.NO.365/2009 The Appellant/Accused viz., Ubanu @ Sundaraavelu was directed to be released on bail as per the order of this Court dated 17.4.2009 and made in M.P.No.1/2009 in Crl.R.C.No.365/09. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.3.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.365 of 2009 Ubanu @ Sundaravelu .. Petitioner/appellant/accused Vs. State rep. by Inspector of Police, Kottakuppam, Auroville Police Station (Crime No.162 of 2005) .. Respondent/respondent/complainant Criminal Revision Case u/s.397 r/w 401 Cr.P.C. against the judgment dated 6.4.2009 in Crl.A.No.69 of 2008 on the file of the Additional District and Sessions Court (Fast Track Court No.1), Tindivanam, against the judgment dated 12.11.2008 in C.C.No.141 of 2005 on the file of the Judicial Magistrate, Vanur, Villupuram District. For petitioner : Mr.V.Gopinath, Senior Counsel for Mr.L.Mahendran For respondent : Mr.S.Rajakumar, Govt. Advocate (Crl. Side) ORDER Criminal Revision Case is filed against the judgment dated 6.4.2009 in Crl.A.No.69 of 2008 on the file of the Additional District and Sessions Court (Fast Track Court No.1), Tindivanam, modifying the conviction and sentence, imposed by judgment dated 12.11.2008 in C.C.No.141 of 2005 on the file of the Judicial Magistrate, Vanur, Villupuram District. https://hcservices.ecourts.gov.in/hcservices/ 2. The skeleton of the case of the prosecution is as follows: On 30.4.2005 at 11 am, due to the land dispute, the revision petitioner/accused caught hold of the complainant P.W.1 Geetha and assaulted her by wooden log and also her mother Radha P.W.2 and caused grievous injuries and abused them with filthy language and so, P.Ws.1 and 2 locked their house. Next day, i.e. on 1.5.2005, P.W.1 gave a complaint Ex.P-1 and immediately, she was sent to P.W.6 Dr.Padmavathi, who treated P.W.1 Geetha and issued Ex.P-3 Accident Register and P.W.6 Doctor also treated P.W.2 Radha and issued Ex.P-4 wound certificate. P.W.7 Kaliyaperumal, Sub-Inspector of Police registered a case and prepared Ex.P-5 FIR and went to the place of occurrence and prepared Ex.P-6 rough sketch and Ex.P-2 observation mahazar in the presence of P.Ws.4 and 5, the attestors, and concluded the investigation and filed the charge sheet against the revision petitioner/accused for the offences under Sections 323, 325 IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. 3. The trial Court, after following the procedures, examined P.Ws.1 to 7, marked Exs.P-1 to P-6 and convicted the revision petitioner/accused for the offence under Section 323 IPC and sentenced him to undergo simple imprisonment for three months; also convicted him for the offence under Section 325 IPC and sentenced him to undergo simple imprisonment for three years and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for six months and also convicted him under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and sentenced him to undergo simple imprisonment for three years and to pay a fine of Rs.3,000/-, in default, to undergo simple imprisonment for six months. The sentences imposed on the revision petitioner/accused were directed to run concurrently. 4. As against the said conviction and sentence imposed by the trial Court, the revision petitioner/accused preferred Criminal Appeal in Crl.A.No.69 of 2008 before the Additional District and Sessions Court (Fast Track Court No.1), Tindivanam, and the learned appellate Judge, after considering the arguments of both sides, confirmed the conviction and the sentence imposed by the trial Court was modified as follows: (i) In respect of the offence under Section 323 IPC, the conviction and sentence were confirmed. (ii) In respect of the offence under Section 325 IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, the conviction was confirmed and sentence was modified from three years to one year simple imprisonment. 5. Learned counsel appearing for the revision petitioner/accused https://hcservices.ecourts.gov.in/hcservices/ made the following submissions: (a) Due to land dispute, a false complaint has been foisted against the revision petitioner/accused. (b) In Ex.P-3 accident register, the alleged occurrence was stated to have been occurred on 30.4.2005 at 11 am, and in Ex.P-4 wound certificate, the alleged occurrence was stated to have been occurred on 30.4.2005 at 11 pm, but the complaint has been given only on 1.5.2005 at 11 am, with a delay of one day and no explanation has been given by the prosecution for the said discrepancy in the time of occurrence. (c) P.W.3 who is the grandmother of P.W.1, and mother-in-law of P.W.2, was examined and she is not an eye-witness. The trial Court has not considered the said aspect. (d) There is a material contradiction between the evidence of P.Ws.1 and 2 relating to their presence at the time of occurrence. In the evidence of P.W.1, it is stated that she was cleaning the house and P.W.2 stated that she was cooking. (e) The evidence of the prosecution is that P.Ws.1 and 2 were sent to the Hospital with a Medical Memo, but in Ex.P-3 accident register and Ex.P-4 would certificate, it is not stated as to whether they were sent with medical memo or not and the same is fatal to the case of the prosecution. He prayed for allowing the Crl.R.C.,and to set aside the conviction and sentence passed by both the Courts below. 6. Learned Government Advocate (Criminal Side) appearing for the respondent-Police/complainant submitted that the trial Court and the first appellate Court clearly considered the reasons for delay in preferring the complaint and the same has been properly explained. Learned Government Advocate further submitted that the Courts below did not accept that P.W.3 is an eye-witness and P.W.3's evidence has not been considered by the Courts below. The evidence of P.Ws.1 and 2 who are the eye-witnesses, who are the victims, corroborate with each other. The Courts below considered the above aspects in proper circumspection and hence, he prayed for dismissal of the Crl.R.C. 7. Considering the rival submissions made by both sides and while analysing the first branch of argument, namely the delay in preferring the complaint, and as to whether the evidence of P.Ws.1 and 2 is trustworthy and reliable, it is seen that P.Ws.1 and 2 are the eye-witnesses and victims. P.W.3 Machagandhi is the mother-in-law of P.W.2 and the grandmother of P.W.1 and P.W.3's evidence does not corroborate with the evidence of P.Ws.1 and 2 and only after hearing the alarm, P.W.3 rushed to the place of occurrence and P.W.3 https://hcservices.ecourts.gov.in/hcservices/ witnessed that her daughter-in-law P.W.2 lost two teeth and she was unconscious. Considering these aspects, it is to be held that P.W.3 is not an eye-witness. Both the Courts below have not considered this factum and so, I am of the view that P.W.3 is not the eye-witness and hence, P.W.3's evidence cannot be taken into consideration and the same is hereby discarded. 8. Now, this Court has to decide as to whether the evidence of P.Ws.1 and 2 is trustworthy and reliable. Admittedly, P.Ws.1 and 2 are the eye-witnesses and they have sustained injuries. At this juncture, it is appropriate to consider the argument advanced by learned counsel for the petitioner/accused that even though P.W.7 Sub-Inspector of Police and P.Ws.1 and 2 have stated that they were sent to P.W.6 Doctor along with a medical memo, admittedly, in Ex.P- 3 accident register and Ex.P-4 wound certificate, the said aspect of medical memo has been not mentioned, and it is fatal to the case of the prosecution. But the above argument does not merit acceptance, because, they were treated by P.W.6 Doctor and as per the evidence of P.W.1, she went to the Police Station on the very next day and gave a complaint to P.W.7 Sub-Inspector of Police and he sent them through medical memo and merely because the Doctor has not mentioned the aspect of medical memo, it will not vitiate the entire conviction. Furthermore, when P.W.6 Doctor was in the witness box, no question has been posed to her with regard to the said aspect of medical memo. In such circumstances, I am of the opinion that non- mentioning of the medical memo in Exs.P-3 and P-4, will not vitiate the conviction and sentence. 9. Now, this Court has to consider the evidence of P.Ws.1 and 2 as to whether they have properly explained the delay in preferring the complaint. Considering the evidence of P.Ws.1 and 2 and P.W.2's husband has been far away from home and only three ladies have been residing in the house and even though P.W.1 was working as Lecturer in the College, admittedly there was a land dispute between the family of the revision petitioner/accused and the family of P.Ws.1 and 2 on the date of incidence, i.e. 30.4.2005 at 11 am., and the revision petitioner/accused abused them with filthy language and assaulted them with wooden log and P.W.2 Radha has sustained loss of two teeth and also sustained injury. When it was questioned by P.W.1, she was also assaulted by the revision petitioner/accused. Since they are ladies, they entered into the house and locked their house and in such a situation, they would not have been in the mood to go the Police Station and give a complaint. It is well settled that at the time of incident, the human nature of the individual is different and some may fight for the incident and some may go to Police Station and seek for legal remedy and some may hide in a different place fearing the situation, and in such circumstances, merely because these ladies have not given complaint on the same day, it will not vitiate the conviction. Hence, I am of the view that P.Ws.1 and 2 have properly explained the delay in preferring the complaint and so, the argument https://hcservices.ecourts.gov.in/hcservices/ advanced by learned counsel for the revision petitioner/accused that the delay in preferring the complaint vitiates the conviction, does not merit acceptance. 10. Now this Court has to decide as to whether the occurrence has taken place at 11 am or 11 pm. Admittedly, in Ex.P-4 wound certificate, in the first paragraph, it was mentioned as 11 am, but in the second paragraph, it was mentioned as 11 pm, and even though P.W.6 Padmavathy was examined before Court, she was confronted by cross examination and no question has been posed to her, as to whether 11 am is correct or not. Furthermore, the victims P.Ws.1 and 2's categorical evidence is that the occurrence has taken place at 11 am and so, the argument advanced by learned counsel for the revision petitioner/accused that there is a discrepancy in the time of occurrence, will not in any way, help the case of the defence. 11. Learned counsel for the revision petitioner/accused further submitted that there is material contradiction in the evidence of P.Ws.1 and 2, but as already stated, there is no contradiction in their evidence and their evidence is natural, cogent and convincing and hence, the same is trustworthy and reliable. 12. Even at the time of trial, the trial Court and the first appellate Court, the counsel for the defence has taken steps that there is no corresponding injury for the loss of two teeth and Ex.P-4 wound certificate has specifically mentioned as "2 lower incisor fallen c bleed" and so, both the Courts below properly considered with regard to the injuries sustained by P.Ws.1 and 2. Therefore, I do not find any infirmity in the conviction of the revision petitioner/accused, imposed by both the Courts below and the conviction is hereby confirmed. 13. At the time of arguments, learned counsel for the revision petitioner/accused submitted that at the time of occurrence, the petitioner was 22 years and now, he is 26 years and he was in jail for 36 days and that the occurrence had occurred due to sudden and grave provocation and hence, the learned counsel requested for leniency in the sentence. It is stated that the fine amounts of Rs.6,000/- have been paid by the revision petitioner/accused. 14. Considering the said submission of the learned counsel for the petitioner/accused, I am of the opinion that the sentence of imprisonment shall be modified to one already undergone by him and to meet the ends of justice, the sentences as modified by the appellate Court on all the three offences are modified to the one already undergone by him. This Court is also of the view that the fine amounts imposed on the offences under Section 325 IPC and Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, is enhanced from Rs.3,000/- to Rs.5,000/-, and since he has already paid Rs.6,000/-, the balance fine amount of Rs.4,000/- shall be deposited https://hcservices.ecourts.gov.in/hcservices/ by the revision petitioner/accused and the same be paid to the victims' family as compensation and the same shall be withdrawn by P.Ws.1 and 2 in accordance with law before the trial Court. This Court imposes that if the enhanced fine amount is not paid in respect of the above said offences in Section 325 IPC and Section 4 of the Act, the revision petitioner/accused shall undergo a period of one month's simple imprisonment. 15. With the above observations, the Criminal Revision Case is partly allowed, and the conviction in respect of all the offences is confirmed, and modifying the sentences to the one already undergone by the accused and enhancing the total fine amounts from Rs.6,000/- to Rs.10,000/-, out of which, Rs.4,000/- shall be paid to P.Ws.1 and 2 in accordance with law. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar cs To 1. Additional District and Sessions Judge (Fast Track Court No.1), Tindivanam. 2.Do thro the Principal Sessions Judge, Villupuram. 3. District Munsif-cum-Judicial Magistrate, Vanur, Vellore District. 4.Do thro the Chief Judicial Magistrate, Villupuram 5.The Inspector of Police, Kottakuppam, Auroville Police Station, Villupuram District. (Crime No.162 of 2005) 6. The Public Prosecutor, High Court, Madras. 7.The Superintendent,Centrla Prison, Cuddalore. 1 cc To Mr.L.Mahendran, Advocate, SR.19549 Crl.R.C.No.365 of 2009 ng(co) pmk.7.4.2011 https://hcservices.ecourts.gov.in/hcservices/