B A I L S L I P The Accused Vadivel/Petitioner released on bail as per order of this court dated 16.11.2006 and made in Crl.MP.No.1/06. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.6.2009 CORAM: THE HONOURABLE MR.JUSTICE G.RAJASURIA Crl.R.C.No.1317 of 2006 Vadivel ... Petitioner / Petitioner /Accused 2. vs. State rep.by: The Sub Inspector of Police, Thalaivasal Police Station, Salem District ... Respondent /Respondent/Complainant Petition filed under Section 397 r/w 401 of Cr.P.C. against the order dated 17.1.2005, passed by the Judicial Magistrate,No.2- cum-Special Judicial Magistrate, Sandlewood Offence Attur Salem, in C.C.No.159 of 2003 confirming the judgment dated 31.5.2006 passed by the Additional District Judge, Fast Track Court, No.1, Salem, in C.A.No.20 of 2005. For Petitioner : No appearance For Respondent : Mr.Hasan Md.Jinnah,A.P.P. O R D E R Challenging and impugning the order dated 31.5.2006, passed by the Additional District Judge, Fast Track Court, No.1, Salem, in C.A.No.20 of 2005 confirming the judgement dated 17.1.2005 passed by the Judicial Magistrate, No.2-cum-Special Judicial Magistrate, Sandlewood Offence, Attur, Salem, in C.C.No.159 of 2004, this criminal revision case is focussed. 2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus: The police laid the police report in terms of Section 173 of Cr.P.C. as against the accused for the offence of accused having https://hcservices.ecourts.gov.in/hcservices/ caused grievous hurt on the victim-Amaravathi, namely, breaking of both the bones of the left forum and also abused her with filthy language at 6.30 p.m. on 20.3.2001 at Periyeri, Anna Nagar, within Thalaivasal Police Station limits. The accused pleaded not guilty; whereupon trial was conducted. 3. During trial, on the prosecution side, the victim was examined as P.W.1 along with seven others as P.Ws.2 to 8 and Exs.P1 to P8 and M.O.1 were marked. On the accused side, D.W.1 and D.W.2 were examined and no documentary evidence was adduced. 4. Ultimately, the trial Court acquitted A1 and convicted only A2 by imposing the following sentence: Offence Punishment imposed Sec.326 IPC to undergo simple imprisonment for six months and to pay a fine of Rs.500/-, in-default, to undergo simple imprisonment for one month Being aggrieved by and dis-satisfied with the same, C.A.No.20 of 2005 was filed before the Additional District Judge, Fast Track Court-I, Salem, which Court dismissed the appeal confirming the trial Court's conviction and sentence. Challenging and impugning the judgements of both the Courts below, this revision is filed on various grounds, the gist and kernal of them would run thus:- Both the Courts below failed to see that the weapon of offence was not seized, including the blood stained earth and clothes. The non-examination of Palanimuthu and Natesan, who were present at the scene of occurrence, were not examined, but both the Courts below ignored the fact. The motive aspect of the crime has not been taken into consideration. P.W.2 even though not an eye witness to the occurrence, both the Courts below believed it. They failed to consider that P.W.5-the Doctor categorically stated that the injury was possible by fall on a rough surface and that there was delay in lodging the FIR. 5. The point for consideration is as to whether there is any perversity or non application of law in assessing the evidence. 6. Despite opportunity given, no one represented the plaintiff. 7. The learned Additional Public Prosecutor would put forth and set forth his point that both the Courts below taking into consideration the evidence of the prosecution witnesses correctly arrived at the conclusion, warranting no interference. https://hcservices.ecourts.gov.in/hcservices/ 8. A bare poring over and perusal of the records would reveal that P.W.1 injured-Amaravathy, in her deposition detailed and delineated the facts, which were considered by the trial Court in dearth. P.W.2 Rajendran-the eye witness to the occurrence also spoke about it, which was evaluated by both the Courts below and accepted by them. P.W.5-the Doctor issued Ex.P3-the wound certificate dated 20.3.2001. 9. It is a trite proposition of law that this Court, while exercising its revisional power, is not expected to once again re-evaluate or re-assess the evidence. If at all there is any perversity or non-application of mind in properly evaluating the evidence by both the Courts below, this Court has to interfere. 10. In this case, the revision petitioner/A2 raised the point that there was delay in lodging the FIR. No doubt, that point deserves to be considered. Even though the occurrence took place on 20.3.2001 at 6.30 p.m. the FIR was registered only on 22.3.2001. By way of curing the apparent defect, P.W.5-the Doctor, who is having no axe to grind the matter, with reference to the public record, namely, the Accident Register, dated 20.3.001, clearly and categorically stated that soon after the occurrence, P.W.1 approached the hospital and she was treated. P.W.5 also recorded the history. As such, in this case, simply because there was some apparent delay in lodging the F.I.R. adverse inference cannot be drawn. The trial Court also considered the evidence of D.Ws.1 and 2 and disbelieved the same in view of the incoherent and inconsistencies in their depositions. The stand emanated from the accused's side that the injured fell down and sustained injury is a far fetched one, as it is quite antithetical to the ocular evidence coupled with the medical evidence placed before the Court. 11. The motive part of the crime also was spoken to by P.W.1 that when she questioned as to why the accused allowed he cattle to trespass into her land, the accused attacked her. P.W.1 also specifically deposed that A2 used an iron rod to attack her in causing fracture of both the bones of forum and to that effect she also stated before the Doctor. Hence, non recovery of the weapon of offence is not fatal to this case. 12. In all cases, invariably, it may not be taken that non- recovery of weapon of offence would lead to any doubt, unless, the circumstance warrants the Court to look askance at the case of the prosecution. 13. Here P.W.1's deposition has been relied on by both the Courts below, coupled with the medical evidence and in such a case, this Court finds no reason to interfere. https://hcservices.ecourts.gov.in/hcservices/ 14. Regarding the punishment aspect is concerned, the trial Court awarded six months imprisonment and imposed a fine of Rs.500/-, which in my opinion, is some what disproportionate to the offence committed. It appears, at the spur of the moment alone there was some altercation and in that the occurrence took place and hence, I would like to reduce the substantive sentence of imprisonment to three months. Accordingly, the sentence is reduced to three months imprisonment and the fine imposed shall remain intact. 15. In the result, the criminal revision case is partly allowed. The lower Court is directed to issue warrant to the revision petitioner on receipt of a copy of this order, so as to secure his presence and commit him to jail in order to undergo the reduced sentence of imprisonment imposed in this revision, if he has not already undergone. Msk Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1.The Judicial Magistrate,No.2-cum- Special Judicial Magistrate, Sandlewood Offence Attur Salem. 2.Do Thro The Chief Judicial Magistrate, Salem. 3.The Additional District Judge, Fast Track Court, No.1, Salem. 4.The Prl Sessions Judge, Salem. 5.The Superintendent, Central Prison, Salem. 6.The Sub Inspector of Police, Thalavaivasal Police Station, Salem. 7.The Public Prosecutor, High Court. PKB(CO) SR/13.7.2009 Crl.R.C.No.1317 of 2006 https://hcservices.ecourts.gov.in/hcservices/