The absence of recovered weapons undermined grievous assault charges; a compromise between parties allowed reclassification of conviction to a lesser offence under the IPC.

JUDGMENT :

G.K. ILANTHIRAIYAN, J.

This Criminal Appeal has been preferred as against the judgment dated 07.09.2022 made in S.C.No.143 of 2009 by the Special Court for Exclusive Trial of Cases under SC/ST (POD) Act, 1989 Sivagangai, thereby, convicting the appellants/accused No.1 to 4 for the offences punishable under Sections 294(b), 323, 326 r/w.34 IPC r/w. Sections 6, 3(2)(v) and 3(1)(x) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989

2. The case of the prosecution is that on 16.10.2008 at about 12 noon, all the accused persons went to the house of the injured and scolded him with the filthy languages by using his caste name and also assaulted him by iron rod and wooden stick. When the wife of P.W.1 attempted to prevent the assault, she also sustained injuries. Based on the complaint, the respondent registered the FIR in Crime No.253 of 2008 for the offences punishable under Sections 294(b), 323, 326 of IPC and Section 3(2)(v) of SC/ST(POA) Act, 1989. After completion of investigation, final report was filed and the same has been taken cognizance by the trial Court.

3. In order to prove the charges, the prosecution had examined P.W.1 to P.W.15 and marked Ex.P1 to Ex.P.19. The prosecution also produced material object M.O.1. On the side of the accused, D.W.1 was examined. They did not mark any documents.

4. On perusal of oral and documentary evidence, the trial Court convicted the appellants for the offences under Sections 294 (b), 323, 326 r/w.34 IPC and Section 6 and 3(2)(v) of SC/ST(POA) Act, 1989 and sentenced them to Life imprisonment. Aggrieved by the same, the present Criminal Appeal has been filed.

5. The learned Senior Counsel appearing for the appellants submits that though P.W.1 and P.W.2 deposed that the 1^st appellant/A1 assaulted him with iron rod and other accused persons attacked with wooden log, they did not even whisper before the Doctor as well as in the complaint about the accused used the iron rod to assault him. Further, the prosecution also failed to recover the iron rod and failed to produce before the trial Court. Therefore, the charge under Section 326 is not proved by the prosecution. At the worst, the appellants can be convicted for the offence punishable under Section 325 of IPC, the maximum punishment shall be 7 years. Therefore, the appellants cannot be sentenced to life imprisonment as contemplated under Section 3(2)(v) of SC/ST(POA) Act, 1989

6. Per contra, the learned Additional Public Prosecutor would submit that there are specific overt acts as against all the appellants/accused, as per the evidence of P.W.1 and P.W.2. P.W.1 and P.W.2 categorically deposed that the 1^st appellant/A1 assaulted P.W.1 with iron rod and other accused 2 to 4 assaulted P.W.1 with wooden sticks. Therefore, the prosecution categorically proved the charge under Section 326 of IPC and the trial Court rightly convicted the appellants/accused, and it does not warrant any interference by this Court.

7. Heard the learned counsel on either side and perused the materials available on record.

8. The complaint lodged by P.W.1 was marked as Ex.P.1. On the strength of the said complaint the respondent police registered FIR which was marked as Ex.P.15. On perusal of both Ex.P1 and Ex.P.15, it is seen that P.W.1 stated that all the accused persons attacked him by wooden sticks. The injured was examined as P.W.1, who deposed that A1 assaulted him with iron rod and A2 to A4 assaulted him by wooden sticks. It is also corroborated by P.W.2. However, the respondent police did not recover any iron rod from the scene of crime. They had recovered only wooden sticks. T