Selvam @ Selvendran v. State By

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated : 12.08.2021

CORAM:

THE HONOURABLE MR. JUSTICE P.VELMURUGAN Crl.A.No.464 of 2019 Selvam @ Selvendran ... Appellant/Accused Vs.

State represented by The Inspector of Police, K-4, Anna Nagar Police Station, Chennai - 600 040.

... Respondent/Complainant PRAYER :

This Criminal Appeal is filed under Section 374 of Cr.P.C. praying to set aside the judgment of conviction and sentence passed by the learned Sessions Judge, Mahila Court/Spl.Court for Cases under POCSO Act/Children's Court, Chennai, dated 28.05.2019 made in S.C.No.172 of 2016. For Appellant :

Mr.J.Asokan for M/s.Ganeshrajan For Respondent :

Mr.S.Sugendran Govt. Advocate (Crl.Side)

JUDGMENT

This criminal appeal has been filed against the judgment of conviction made by the learned Sessions Judge, Mahila Court/Spl.Court for Cases under POCSO Act/Children's Court, Chennai, dated 28.05.2019 made in S.C.No.172 of 2016. The respondent police registered the case against the appellant in Crime No.498 of 2015 for the offence punishable under Section 307 of IPC (2 counts). After completing investigation, the respondent police laid a charge sheet before the learned V Metropolitan Magistrate, Chennai, which was taken on file in P.R.C.No.87 of 2015 and since it is the case of crime against woman and offence charged against the appellant is triable only by the Court of Session, the learned V Metropolitan Magistrate committed the case to the learned Principal District

and Sessions Judge, Chennai, which was taken on file in S.C.No.172 of 2016 and the same was made over to the learned Sessions Judge, Mahilia Court/Spl. Court for Cases under POCSO Act/ Children's Court, Chennai.

Before the trial Court, in order to prove the case of the prosecution, as many as 11 witnesses were examined as P.Ws.1 to 11 and marked 14 documents as Exs.P1 to 11 besides one Material Object M.O.1. After completing prosecution witnesses, when incriminating circumstances culled out from the evidence of prosecution witnesses were put before the appellant/accused by questioning under Section 313 Cr.P.C., he denied the same as false and pleaded not guilty. On the side of the defence, no one was examined and no document was marked.

The learned Sessions Judge, after trial, by judgment dated 28.05.2019, convicted the appellant/accused for the offence under Section 326 of IPC (2 counts) and sentenced him to undergo rigorous imprisonment for a period of five years with fine of Rs.5,000/- for each count, in default, to undergo simple imprisonment for a further period of six months each. Aggrieved against the said judgment of conviction and sentence, the first accused had preferred the present criminal appeal before this Court.

The learned counsel appearing for the appellant would submit that there are material contradictions between the evidence of prosecution witnesses, which has not been considered by the learned trial Judge. The evidence of the Doctor and medical records are not tallied with the evidence of injured witnesses P.Ws.2 & 3. At last, the learned counsel mainly contended two points, firstly on sudden provocation, the appellant assaulted his wife P.W.2 and P.W.3, who is sister of P.W.2, secondly there was only wordy quarrel even as observed by the learned trial Judge and the appellant does not have any intention to cause injuries to P.W.2 and P.W.3. Therefore conviction and sentence recorded by the trial Court against the appellant/accused is liable to be set aside.

The learned Government Advocate (Crl.Side) would submit that in this case there are two injured witnesses, who had categorically stated about the overt act attributed against the appellant. The appellant with an intend to cause grievous injuries to his wife P.W.2 and wife's sister P.W.3, used lethal weapon and caused grievous head injuries, due to which, P.W.3 gone up to the stage of coma. Prosecution has clearly proved its case beyond all reasonable doubt with corroborated medical evidence and the trial Court has also rightly convicted the appellant, which does not call for any interference.

Heard the learned counsel appearing for the appellant and the learned Government Advocate (Crl.Side) appearing for the respondent police and perused the materials available on record. Case of the prosecution is that the appellant/accused is Son-in-Law of the complainant one Shenbagavalli P.W.1, who is mother of injured witnesses. The appellant, who is husband of P.W.1, was living in the house of the P.W.1 and he asked them to get out of the house and on the date of occurrence, he picked up quarrel with his wife P.W.2 and attacked her with deadly weapon viz. Aruval and caused grievous injuries. On hearing the alarm of P.W.2, P.W.3 sister of P.W.2 and daughter of P.W.1 went and tried to rescue P.W.2, but the appellant attacked P.W.3 also with the same Aruval and caused head injures, which are grievous in nature. Immediately, both the injured witnesses were taken to Government Hospital and on information, police arrived. Hence P.W.1, mother of the injured witnesses lodged complaint against the appellant, which was marked as Ex.P1.

This Court, being an Appellate Court, is a final Court of fact finding, which has to necessarily re-appreciate the entire evidence and give an independent finding. Accordingly, this Court has re-appreciated the entire oral and documentary evidence produced before this Court.

The learned counsel for the appellant contended that on sudden provocation, the appellant caused injuries to P.Ws.2 & 3 and there was only wordy quarrel as observed by the trial Court. But, on reading of the entire evidence of injured witnesses, it is seen that the appellant used to pick up quarrel with his wife P.W.2 and on the date of occurrence, he attacked her with lethal weapon viz. Aruval and caused grievous injuries and when P.W.3 came to rescue her sister P.W.2, the appellant attacked P.W.3 also with the same Aruval and caused grievous head injuries and due to which P.W.3 went up to the stage of coma. Further, P.W.2 undergone Surgeries and P.W.3 also affected deeply and the evidence of the injured witnesses P.Ws.2 & 3 corroborated with the evidence of P.Ws.6 & 7 the Doctors, and also Exs.P6 to P9 the Wound Certificates and the Accident Registers of the injured witnesses.

On a combined reading of evidence of the injured witnesses P.Ws.2 & 3 and the Doctors P.Ws.6, 7 & 11 and Ex.P2 & P3 Wound Certificates of injured witnesses P.Ws.2 & 3, and Ex.P8 & P9 copy of Accident Registers, this Court is of the view that the trial Court has rightly framed charges under Section 326 of IPC (2 counts) and convicted the appellant accordingly. Further, this Court does not find any mitigating circumstances to consider the sentence imposed on the appellant by the trial Court.

In the result, the criminal appeal is dismissed as devoid of merit and substance. Trial Court is directed to secure the appellant to undergo remaining period of imprisonment, if any.

Sd/- Assistant Registrar(CS VI) //True Copy// Sub Assistant Registrar cgi To 1.The Sessions Judge, Mahila Court/Spl.Court for Cases under POCSO Act/Children's Court, Chennai. 2.The Inspector of Police, K-4, Anna Nagar Police Station, Chennai - 600 040.

3.The Superintendent, Central Prison, Puzhal, Chennai.

4.The Honourable POCSO Committee, High Court, Madras.

5.The Public Prosecutor, High Court of Madras.

6.The V Metropolitan Magistrate, Chennai.

7.Principal District and Sessions Judge, Chennai.

8.The District Collector, Chennai 9.The District General of Police, Mylapore, Chennai-4.

10.The Section Officer, Criminal Section, High Court, Madras.

Crl.A.No.464 of 2019 LN (CO) PR (24/09/2021)