Bail Slip 2nd Petitioner/ The Accused 2 viz., Rathinasamy is directed to be released on bail as per of the Court dated 26.10.2006 made in Crl.M.P.No.1/06 in Crl.R.C.No.1145 of 2006 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 23.6.2008. CORAM THE HON'BLE MR.JUSTICE T.SUDANTHIRAM Crl.R.C.No.1145 of 2006 1. Santhi 2. Rathinasamy Petitioners / Appellant vs. State represented by Inspector of Police, Poolampatti Police Station, Poolampatti, Salem District. Respondent/ Respondent Criminal Revision Case filed under sections 397 and 401 Cr.P.C. against the judgment dated 30.6.2006 made in C.A.No.115 of 2005 on the file of the District and Sessions Judge, Salem modifying the judgment dated 26.7.2005 made in C.C.No.115 of 2005 on the file of Judicial Magistrate No.II, Sankari. For petitioners: Mr.G.Arul Murugan For respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side) ORDER The revision petitioners are accused 1 and 2 in C.C.No.115 of 2005 on the file of the Judicial Magistrate, Sankari and the learned Magistrate convicted both the accused under section 447 of the Indian Penal Code and sentenced to pay a fine of Rs.500/= each in default to undergo simple imprisonment for two weeks, convicted the first accused under section 427 of the Indian Penal Code and sentenced to fine of Rs.1000/= in default to undergo 4 months simple imprisonment, convicted A2 under section 427 of the Indian Penal Code and sentenced to undergo one year rigorous imprisonment, convicted the first accused under section 341 of the Indian Penal Code and sentenced to pay a fine of Rs.500/= in default to undergo simple imprisonment for one week, convicted the second accused for offence punishable under section 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and pay a fine of Rs.1000/= in default to undergo six months simple imprisonment and the sentences were https://hcservices.ecourts.gov.in/hcservices/ to run concurrently. In the appeal preferred by them before the learned Additional Sessions Judge, Salem in C.A.NO.115 of 2005, the convictions were confirmed, but, the sentences were modified to the extent of six months rigorous imprisonment and pay a fine of Rs.5000/= in default to undergo one year simple imprisonment for the offence under section 326 of the Indian Penal Code and to undergo six months simple imprisonment for the offence under section 427 of the Indian Penal Code. Out of the fine amount, Rs.4000/= was directed to be paid to PW1 as compensation. 2. Aggrieved by the said conviction and sentence, the revision case has been preferred. 3. The case of the prosecution is that PW1 is the wife of PW5 and they were owning lands on the north of the lands of the accused. There was a stone made ridge in the land of PW5 which separates the land of PW5 and the accused and there was a dispute between the parties. On the date of occurrence, viz., on 6.7.1999, while PW1 was in the house, PW2 and PW5 were in the lands of PW1, both the accused came near the ridge. The second accused, armed with crowbar, hit the ridge and the first accused who is the wife of the second accused, collected the stones and threw them on the land of PW5. On seeing the activities of the accused, PW1 rushed to the place and questioned the accused. Both the accused scolded her in filthy language and the second accused hit her on her head with the crowbar. P.Ws.2 and 5 rushed to the scene of occurrence. P.Ws.3 and 4 also witnessed the occurrence. The accused had run away from the scene of occurrence. PW1 was admitted to the hospital at about 7.00 am. PW6 Doctor gave treatment and X-ray was also taken. PW7 Doctor gave X-ray report. PW8, Head Constable, on receiving intimation, came to the hospital and recorded the statement of PW1 at about 10.30 am and registered a case and prepared the FIR, Ex.P4. PW10, Sub Inspector of Police took up the investigation and after completing the investigation filed final report. 4. Both the courts below, after considering the evidence, convicted both the accused. 5. Learned counsel for the petitioners submitted that the prosecution has not placed all materials before the court and though the second accused was also injured, no explanation has been given by the prosecution. None of the witnesses has explained the injuries on the second accused. The investigating officer has also failed to place the materials with regard to the complaint given by the second accused. As such, the origin of the occurrence is not established by the prosecution. https://hcservices.ecourts.gov.in/hcservices/ 6. Learned Government Advocate (Criminal Side) submitted that the evidence of PW1 has been accepted by both the courts below and further submitted that the injury said to have been sustained by the second accused is only a simple injury. Ex.D1 is marked through DW1 Doctor. The non-explanation of the simple injury sustained by the second accused does not affect the prosecution case. 7. This court considered the submissions and perused the judgments of both the courts below and other records. It appears from the evidence of DW1 and Ex.D1 that the second accused also sustained an injury of a contusion (2x1 cm) on the upper aspect of right side of head and the second accused also had stated to the Doctor that he sustained the injury due to the assault with a stick by some known persons at the fields. From the evidence of DW1 and Ex.D1 it is clear that the second accused also sustained injury at one and the same time. It is true that none of the witnesses speaks about the attack on the second accused and the injury sustained by him. There is no explanation from the prosecution for the injury sustained by the accused. The investigating officer, PW10 also accepted that the counter case was registered in Crime No.481 of 1999. This court feels that the non explanation of the injury sustained by the second accused affects the prosecution case to some extent. 8. PW1 also admitted in the cross examination that there was a wordy quarrel between the parties for about ten minutes. She also admits that both the parties have abused each other. This evidence of PW1 shows that before the assault by the second accused on PW1, there had been a wordy quarrel and exchange of words. This being the case, the conviction imposed on the first accused is improper. Therefore, the conviction and sentence imposed on the first accused is set aside. 9. As far as the second accused is concerned, the injury sustained by him is only a simple injury. The injury sustained by PW1 is established by her evidence and also the evidence of the Doctor. PW1 had sustained grievous injury on the head on attack with a crowbar. As already mentioned, the evidence of PW1 shows that there had been a wordy quarrel between PW1 and the accused and abusive words had also been used by PW1. In the said circumstances, the offence committed by the second accused would fall only under section 335 of the Indian Penal Code instead of section 326 of the Indian Penal Code. "335. Voluntarily causing grievous hurt on provocation – Whoever voluntarily causes grievous hurt on grave and sudden provocation, if he neither intends nor knows himself to be likely to cause https://hcservices.ecourts.gov.in/hcservices/ grievous hurt to any person other than the person who gave the provocation, shall be punished with imprisonment of either description for a term which may extent to four years, or with fine which may extent to two thousand rupees, or with both." 10. It is to be noted that the second accused has caused the grievous hurt on a grave and sudden provocation in the circumstances of the case. The second accused is convicted under section 335 instead of section 326 of the Indian Penal Code and the sentence of imprisonment is set aside and the sentence of fine of Rs.5000/= imposed on him is confirmed. The order passed to pay compensation of Rs.4000/= is also confirmed. The conviction and sentence of fine under section 341 of the Indian Penal Code against the second accused is confirmed, but, the conviction and sentence of imprisonment under section 427 of the Indian Penal Code on the second accused is set aside. 11. The revision in respect of the first petitioner is allowed and fine amount, if any, paid may be refunded to her and in respect of the second petitioner, it is only partly allowed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. ssk. To 1. The District and Sessions Judge, Salem. 2. Judicial Magistrate No.II, Sankari. 3. do thro the Chief Judicial Magistrate, Salem 4. Inspector of Police, Poolampatti Police Station, Poolampatti, Salem District. 5. The Public Prosecutor,High Court , Madras 1 cc to Mr.G. Arulmurugasn, Advocate, Sr. 31529 Crl.R.C.No.1145/2006 SCD (CO) kk 7/7 https://hcservices.ecourts.gov.in/hcservices/