O R D E R

This Criminal Revision Petition is filed against the judgment of conviction passed by the Learned Judicial Magistrate No.III, Thiruppathur and confirmed by the Learned III Additional District and Session Judge, Vellore @

Thiruppathur, Vellore District.

2. The case of the prosecution is that, on 17.12.2005 at about 4.30 p.m when Ragupathy (P.W.5) went to the cycle shop to paste his punctured cycle tube, A2 scolded him with filthy language due to previous enmity between the two families. P.W.5 went to the house and informed the same to his father (P.W.1). They both decided to give complaint about the incident and they were proceeded to Kurusillapattu Police Station. Knowing that they were proceeding towards Police Station, A1 to A5 restrained them. A1 attacked P.W.1 on the left wrist and shoulder with wooden log which caused grievous injury. A2 attacked P.W.1 with hands on his cheek causing simple injury. A3 attacked P.W.1 with wooden log on the left leg and left thigh. A4 assisted A1 to A3 to assault P.W.1 by holding the hands of P.W.1. A5 was along with the other accused spoke filthy words and threatened P.W.1 with dire consequences.

3. In the light of the above facts collected during investigation, Final Report was filed against A1 to A5. Charges under Sections 323, 341, 342, 325 r/w 34, 294(b) and 506(ii) of I.P.C were framed against the accused persons.

4. To prove the charges, the prosecution examined 8 witnesses and 7 Exhibits were marked. To show P.W.1 sustained fracture, M.O.1 and M.O.2-

X-ray Reports were marked.

5. The trial Court held A1 guilty of offence under Section 325 I.P.C sentenced him to undergo 1 year S.I with fine of Rs.1000/-, in default three months S.I. A2 & A3 found guilty of offence under Section 323 of I.P.C and sentenced to undergo 3 months S.I, in default 15 days S.I. A4 & A5 were acquitted from all charges.

6. Aggrieved by the above conviction and sentence, A1 to A3 preferred appeal before the Learned III Additional District and Sessions Judge, Vellore at Thirupattur in C.A.No.2 of 2015, the Lower Appellate Court dismissed the appeal confirming the judgment of conviction and sentence imposed on A1 to A3 in C.C.No.119 of 2010.

7. In this revision petition, it was canvassed that there was previous enmity between these two families and cases are pending against the defacto complainant. The alleged incident is an imaginary one. The injury sustained by P.W.1 in the road accident while he fell down from the two wheeler been attributed to the accused persons. The material contradictions between P.W.1 and P.W.5 regarding the injury and the incident regarding the overt act attributed to each of the accused were not taken note by the Courts below which has led to miscarriage of justice.

8. The Learned Counsel appearing for the revision petitioner would submit that the Courts below ought to have taken note of the counter complaint given by the accused persons. The prosecution failed to recover the weapon alleged to have been used to cause the said injuries. In the absence of recovery of weapon and the possibility of sustaining the injuries in a road accident will go to show that the case of the prosecution not proved beyond reasonable doubt. The exaggerated version of P.W.1 and P.W.5 who are interested witness ought to have been rejected in the light of the fact that P.W.3 and P.W.4 independent witnesses have turned hostile and not supported the case of the prosecution regarding mahazar and sketch.

9. The Learned Government Advocate (Crl.Side) for the respondent submitted that the failure to recover the weapon not fatal to the case of the prosecution in the light of the evidence given by the injured person supported by the wound certificate marked as Ex.P.4 and X-ray Reports marked as M.O.1 and M.O.2.

10. Relying upon the evidence of P.W.6, Dr.Lakshmipathy and P.W.7 Dr.Muthudurai, who have spoken about the injuries and nature of injuries. The Learned Government Advocate (Crl.Side) for the respondent submitted