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2015 Supreme(Mad) 3686
IN THE HIGH COURT OF MADRAS, (Madurai Bench)
S. Vimala, J.
Meenambigai and Another - Petitioners
Versus
State through Deputy Superintendent of Police, Madurai City - Respondent
Crl.R.C.(MD) No. 303 of 2013 and M.P.(MD) No. 2 of 2013
Decided On : 29-10-2015
For the Petitioners: M. Venkatraman, G. Marimuthu.
For the Respondent: P. Kandasamy.
Headnote:
Indian Penal Code, 1860 - Sections 120B, 166, 218, 204, 307 and 471 – Criminal Produce Code, 1973 - Section 164 - Abusive language - Public servant disobeying law, with intent to cause injury to any person - Cheating – Destruction of document or electronic record - Attempt to commit murder - Appeal against Acquittal - Defacto complainant was fetching water from lorry - Claiming that defacto complainant fetched excess water, fourth accused questioned it - In continuation of same, fourth accused used abusive language against defacto complainant and he caught hold of neck and had bitten thumb of defacto complainant and thereby caused injuries - Defacto complainant took treatment at Apollo Hospital and while he was on treatment, he preferred a complaint stating that fourth accused attempted to commit murder punishable under Section 307 IPC and after signing it and getting it attested by one Ashok, he gave it to Head Constable - Held, Nature of injury would also be a determining factor to find out whether intention could have been to cause death - In wound certificate issued by Apollo Speciality Hospital, in column relating to date of discharge, it is mentioned as O.P - Even assuming that he was admitted for a day, opinion is that he sustained simple injury and only injury mentioned is “bite injury” over right thumb - If really, P.W.5 was really involved, he could have stated the same even while his sample signature was taken at earliest point of time - After report of forensic expert that sample signature and disputed signature do not tally with each other, he might have been compelled to make such a statement - This could be only logical conclusion - Cumulative circumstances as indicated above, would go to show that findings rendered by Court below without considering evidence which ought to have been considered and considering evidence which ought not to have been considered, has made findings perverse - Criminal Revision Case is allowed.
S. Vimala, J.
The Inspector of Police-Marimuthu, Sub-Inspector of Police Selvi-M. Meemanbigai, Head Constable-M. Rajasekaran and one Dhanushkodi, were the four accused persons in C.C.No.41 of 2011 before the Judicial Magistrate, Dindigul.
2. The first accused was acquitted of the charges under Sections 120B, 166, 218, 204 and 471 of the Indian Penal Code and the fourth accused was acquitted of the charges under Sections 204, 471 and 120-B of the Indian Penal Code.
3. The revision petitioners were acquitted of the charges under Sections 120B and 471 of the Indian Penal Code, but were found guilty under Sections 166, 218, 204 and 465 of Indian Penal Code (Crime No. 1659 of 2005) and a sentence of 6 months imprisonment was imposed in respect of each of the offences, and the sentences were ordered to run concurrently.
4. As against the acquittal of A-1 and A-4, in respect of all offences, and as against the acquittal of A-2 and A-3 both under Sections 120B and 471 of the Indian Penal Code, there is no appeal.
5. As against the judgment of conviction, the second and third accused filed the appeal before the District Court, Dindigul in Crl. A.No. 62 of 2012 and the appeal was dismissed by the judgment dated 26.03.2013. Challenging the same, this revision petition has been filed.
6. The main grounds of revision are:
(a) The revision petitioners are public servants and as the occurrence is said to have taken place in discharge of their official duty, without prior permission of the competent authority, the prosecution initiated is illegal (as contemplated under Section 197 Cr.PC).
(b) When the charge is only under Section 471 IPC, the conviction under Section 465 IPC is illegal, in the absence of charge under Section 465 IPC.
(c) When the prosecution relied upon same set of evidence against all the accused persons, and when the allegations are primarily against A-1, the acquittal of A-1 and the conviction of A-2 and A-3 (revision petitioners) are illegal.
(d) The finding of the conviction is based on no evidence and hence the perverse finding is unsustainable; the case of P.W.1 is that on 23.05.2005, at 12.10 a.m., when he was taking treatment at Apollo Hospital, Madurai, the accused No.3 came and recorded the statement from him; but in the evidence of the Doctor it is stated that the defacto complainant / P.W.1 was treated as out-patient in the hospital and therefore, the finding is a perverse finding.
7. In order to appreciate whether the finding is perverse and if so, the extent to which the judgment of the Court below can be said to be perverse, it is necessary to look into the basic facts of the case.
8. Brief facts:
On 25.05.2005 at about 7.30 a.m., at Madurai Anna Nagar East Street, the defacto complainant-Sankaranarayanan was fetching water from the lorry. Claiming that the defacto complainant fetched excess water, the fourth accused Dhanushkodi questioned it. In continuation of the same, the fourth accused used abusive language against the defacto complainant and he caught hold of the neck and had bitten the thumb of the defacto complainant and thereby caused injuries. The defacto complainant took treatment at Apollo Hospital and while he was on treatment, he preferred a complaint stating that the fourth accused attempted to commit murder punishable under Section 307 IPC and after signing it and getting it attested by one Ashok, he gave it to Head Constable Rajasekaran. The Head Constable Rajasekaran, in conspiracy with rest of the accused persons, destroyed the complaint given by the defacto complainant and with an intention to relieve the accused from the clutches of Section 307 IPC, they fabricated a false complaint implicating the accused only under Sections 294B and 323 IPC and thereby they have committed offences under Sections 120B, 166, 218, 204 and 471 IPC.
9. In order to substantiate the offences against the accused persons, the prosecution has examined 22 witnesses and marked 35 documents. The accused persons (A-2 and A-3
