The State v. A.Mohan @ Velu

IN THE HIGH COURT AT CALCUTTA

CRIMINAL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SHAMPA SARKAR AND HON'BLE JUSTICE ANANDA KUMAR MUKHERJEE CRA No. 7 of 2019 IA No. CRAN/1/2021 The State ... Appellant

Versus

Shri A.Mohan @Velu ... Respondent For the State/Appellant : Mr. Sumit Karmakar, Advocate For the Respondent :Mr. Rakesh Pal Gobind, Advocate Heard on : 19.04.2022 & 21.04.2022 Judgment on : 29.04.2022 ANANDA KUMAR MUKHERJEE, J.

1.

The State has preferred this appeal under Section 378 of the Code of Criminal Procedure 1973 (hereinafter referred to as the 'Code') against the judgement and order of acquittal dated 13.2.2019, passed by learned Sessions Judge, Andaman and Nicobar Islands in Sessions Case No. 3 of 2012. 2.

A brief profile of the prosecution case which leads to this appeal is that, M. Damodharan lodged an FIR before Aberdeen Police Station disclosing that he worked as a canteen manager under K Murugeshan at MV Kalighat. His employer, K.

Murugeshan purchased some landed property at Mazar Pahad from one Velu @ A.Mohan. On 29.12.2009, K. Murugeshan had engaged some labourers and Mason for repairing of a boundary wall on the land which he claimed to have purchased from Velu at Mazar Pahad. At about 8:30 A.M. A.Mohan reached the place and asked M.Damodharan to stop the work and call the owner. The defacto complainant informed the matter to Murugeshan over phone who reached Mazar Pahad within a short time. In the meantime, Velu @ Mohan who had left the place, returned by 11:00 A.M. along with another person. After alighting from a scooter, Velu @ A. Mohan started talking with Murugeshan and all of a sudden he picked up a 'sabbal' lying there and inflicted a blow on the head of Damodharan, causing bleeding injury. Mohan then assaulted K. Murugeshan on his head causing bleeding injuries and also assaulted him two to three times on his back and stomach and left the place.

3.

M. Damodharan suffered simple injury and Murugeshan sustained grievous injuries on his head and abdomen due to assault by Velu who intended to cause death to Murugeshan. The work was stopped and both the injured persons proceeded to the police station. They were then taken for medical treatment at G.B. Pant Hospital and Murugeshan was thereafter shifted to Chennai for further medical investigation.

4.

The FIR was lodged on the basis of a statement made by Damodharan before Police at G.B Pant Hospital on 29.12.2009 at 1:30 P.M., giving rise to Aberdeen Police Station case No.139 of 2009 dated 29.12.2009, under Section 307/323 of the Indian Penal Code.

5.

After investigation police submitted charge sheet under Sections 307/323/34 of Indian Penal Code against A.Mohan @ Velu and C. Palanivelu. Case was committed to the Court of Sessions Judge where Charge was framed against two accused persons under Sections 307/323/34 of the Indian Penal Code, to which they pleaded not guilty and claimed to be tried. 6.

Learned Sessions Judge, Port Blair examined ten prosecution witnesses in this case namely, M. Damodharan and K. Murugeshan, the two injured persons as PW 1 and PW 2 respectively. Nitiyanada Halder, a Mason and seizure witness has been examined as PW 3. S. Muthuraman another seizure witness as PW 4. Dr. R.C. Kar who examined the injured persons as PW 6. Saibu a seizure witness of wearing apparels of the injured persons had been examined as PW 7. Jay Prakesh Ram, a Photographer as PW 8. M.K Sukhla, Deputy Superintendent of Police who submitted charge sheet in this case has been examined as PW 9 and Stailin N.S the Investigating Officer as PW 10. Prosecution had produced

documents which had been marked as Exhibit 1 to Exhibit 12, consisting of the FIR, statements of PW 1 and PW 3 recorded under Section 164 of Cr.P.C, seizure list of blood stained and controlled earth (coaltar), seizure list of wearing apparels of the victims, the two injury reports as Exhibit 8 and Exhibit 9, the formal FIR as Exhibit 10, rough sketch map of place of occurrence as Exhibit 11 and seizure list of a scooter as Exhibit 12. The wearing apparels of the injured persons have been produced as Mat. Exhibit I to Mat. Exhibit IV and the blood stained and controlled earth (coal tar) as Mat. Exhibit V and MAT Exhibit VI.

7.

The two accused persons were examined under Section 313 of Cr.P.C. In course of their examination, A. Mohan pleaded alibi and stated that he was not at the place of incident on that date and he was in his shop. C. Palanivelu claimed to be innocent and he also stated that on the date of occurrence he was in Court. Defence examined two witnesses Kottaiyar as DW 1 and one R. Dharmender as DW 2. The evidence of DW 1 has no legal significance as he did not turn up for facing cross-examination and DW 2 did not state that A. Mohan was in his shop on 29.12.2009.

8.

Learned Sessions Judge arrived at a finding that motive behind the incident had not been proved and that though PW 1 admitted that there were ten to fifteen houses near the

disputed property where the alleged incident took place, prosecution failed to examine any member from those houses. Learned Trial Court further did not find any corroboration of prosecution case by independent witness in respect of the statement of the victims. On the basis of such finding learned Sessions Judge held that the prosecution had failed to bring home the charge under Sections 307/323/34 of the Indian Penal Code against the two accused persons beyond reasonable doubt and acquitted them.

9.

Being aggrieved and dissatisfied with the impugned judgement, State had preferred this appeal on the ground, inter alia, that judgement passed by the Trial Court is bad in law, the Court has failed to appreciate the facts and circumstances of the case and the evidence adduced by the witnesses. It is contended that learned Trial Judge has disbelieved the ocular evidence of the victims who have narrated the sequence of events, incident of assault despite the same having found support from the medical evidence of PW 6. It is urged on behalf of the appellant that PW 1 and PW 2 have categorically stated that accused A. Mohan @ Velu took a 'sabbal' kept beside the wall and hit on the head of PW 1 resulting in bleeding injury, but the same has been disbelieved by the Court. Similarly, the evidence of PW 2 K. Murugeshan, who sustained grievous injury on his head and abdomen in course

of occurrence and who had also deposed before the Court that accused A. Mohan @ Velu had struck him with the iron sabbal on his head, back of chest and the same has been corroborated by PW 1 M. Damodharan has been disbelieved against established principle of law that the evidence of an injured witness is an inbuilt guarantee of his presence at the scene of crime and the witness will not let his actual assailant go unpunished merely to falsely implicate a third party for the commission of an offence. Learned advocate urged that the impugned judgement is liable to be set aside and on the basis of the available evidence on record the respondent should be held guilty of the offence punishable under Sections 307/323 and Indian Penal Code.

10. Learned advocate for the respondent argued that there is no credible evidence to establish the charge against the accused persons and learned Court has appropriately held that the accused persons are not guilty and acquitted them. It is contended that there is no corroboration of the allegation that PW 1 and PW 2 were assaulted by A. Mohan. Learned advocate for the respondent argued that though the defacto complainant and Murugeshan have deposed that at the relevant time some labourers were appointed for repairing of boundary wall, none of the labourers came before the Court to support the evidence of PW 1 and PW 2. It is argued that the alleged occurrence

took place during broad day light, at about 11:00 to 11: 30 A.M. in a locality where there were houses of other persons, but no independent witness has been examined by the Investigating Officer in support of the prosecution case. Learned advocate for the respondent pointed out that the prosecution has miserably failed to establish any motive on the part of respondent which would lead to the alleged occurrence. Apart from such contention, it is also argued that the alleged weapon of assault has not been seized by the Police and blood stained wearing apparels were not sent for forensic examination to establish that the cloths were actually stained with blood of PW 1 and PW 2. It is argued that discrepancy regarding time of examination of PW 2 by the doctor also shakes the veracity of prosecution case and renders it doubtful.

11. Learned advocate for the respondent in support of his arguments relied upon the following decisions : (i) In the case of Aher Raja Khima - vs - State of Saurashtra; 1956 AIR (SC) 217, it was held that it was not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the Trial Court was wrong and if the Trial Court took a reasonable view of the fact of the case, interference under Section 417 Cr.P.C

was not justifiable, unless there were really some strong reasons for reversing that view.

(ii) In the case of Kali Ram - vs - State of Himachal Pradesh; 1973 AIR (SC) 2733, it was held that it was no doubt true that wrongful acquittals were undesirable and would shake the confidence of people in the judicial system, much worse, however, would be a wrongful conviction of an innocent person. The consequences of the conviction of an innocent person were far more serious, its reverberations could not, be felt in a civilised society. Nothing further could undo the mischief for the wrong resulting from the unmerited conviction. The situation would be irretrievable.

(iii) In the case of Asa Singh and others - vs - State of Punjab: 1973 AIR (SC) 512, the principle laid down was that if circumstances created suspicion against the accused, suspicion by itself however strong could not take the place of proof and if there was a reasonable doubt regarding the complicity of the accused, it must necessarily benefit the accused.

(iv) In the case of State of Punjab - vs - Bhajan Singh and others; 1975 AIR (SC) 258, it was reiterated that suspicion, by itself, however strong it may be, was not

sufficient to take the place of proof and warrant a finding of the guilt of the accused.

(v) In the case of Anne Nageswara Rao - vs - Public Prosecutor of Andhra Pradesh; 1975 AIR (SC) 1387, it was held that when two views were possible, it was not justified in setting aside the order of acquittal and convicting the appellant specially where the guilt of the appellant could not be established beyond reasonable doubt.

(vi) In State Delhi Administration - vs - Gulzarilal Tondon; 1979 AIR (SC) 1382, the principle laid down was that suspicion, however grave it may be, cannot take place of proof and the High Court was fully justified in holding that prosecution case had not been proved beyond reasonable doubt.

(vii) In the case of Sakharam - vs - State of Madhya Pradesh: 1992 CRLJ 861, it was held that simply because the pleas of suicide and alibi have failed at the trial no adverse inference could be drawn against the appellant and that guilt of the appellant had to be proved beyond reasonable doubt on the basis of the evidence produced by the prosecution.

(viii) In the case of Subash Chand - vs - State of Himachal Pradesh; 1995 CRLJ 3460, it was held that though it was not necessary that motive be established in every case, but if the same had been set up, non-proof would materially affect the truthfulness of the prosecution case. It was further held that if two possibilities were available or open, one in the favour of the prosecution and the other in favour of accused, the accused was undoubtedly entitled to the benefit of the situation. (ix) In another case, State of Uttar Pradesh - vs - Gambhir Singh and others; 2005 AIR (SC) 2436, the principle laid down was that if on the same evidence two views were reasonably possible, the one in favour of the accused must be preferred.

12. It has been argued by the learned advocate that in the absence of any independent and corroborative evidence as well as absence of proof of motive, the respondent had been acquitted from this case. Therefore, the respondent could not be held guilty on the basis of suspicion and if two views were possible on the basis of the same evidence, the view in favour of the accused must be preferred.

Learned advocate strenuously argued that the appeal was without any merit and the same was liable to be dismissed.

13. We have considered the arguments advanced by learned advocates, perused the impugned judgement, the evidence adduced by ten prosecution witnesses and two defence witnesses as well as the exhibited documents. Also considered the principle laid down in the decisions relied upon by the respondent. On a close scrutiny of the evidence adduced by PW 1, it appears that on the fateful day, on 29.12.2009, PW 1, M. Damodharan had been deputed to supervise the work for repairing of boundary wall and fence over the some landed property at Mazar Pahad. PW 1 deposed that at 8 A.M. three labourers were engaged for the work and at about 8:30 A.M. accused A. Mohan arrived at the spot and asked him to stop the work and to call Murugeshan, who had engaged them.

PW 1 further deposed that he accordingly informed the matter to Murugeshan over telephone, but before he could arrive, A. Mohan left the place and they resumed their work. At about 11 to 11:30 A.M., A. Mohan returned to the place along with another man and asked them to stop the work. There was some dispute over that landed property between Mohan and Murugeshan and PW 2 claimed to have made payments to A. Mohan for the land. At the relevant time A. Mohan assaulted PW 1 with a sabbal (Crowbar) on his head resulting in bleeding injuries. PW 1 fell down and thereafter when Murugeshan went to rescue PW 1, A. Mohan also struck him on his head and then on his back, chest and belly.

Murugeshan also sustained injuries and fell down. It transpires from the evidence of PW 1 that the labourers came thereafter and gave them water. From there, they proceeded to the Police Station on a vehicle. Murugeshan became unconscious also at the Police Station and thereafter they were taken to G.B.Pant Hospital, where they were admitted for their medical treatment. PW 1 deposed that on the basis of statement made by him and recorded by Police at G.B.Pant Hospital, a complaint was prepared and his statement reduced into writing was identified and marked as Exhibit 1 and his signature was marked as Exhibit 1/1. In his evidence-in-chief, PW 1 gave out that he received twelve stitches on his head for the injury and had remained admitted for two days. Witness also identified accused A. Mohan in Court.

The statement made by the witness before the Judicial Magistrate under Section 164 of Cr.P.C has been marked as Exhibit 2. In course of cross-examination of PW 1, it transpires that the witness was unable to disclose the name of the three labourers who were engaged for the work on that date. He also disposed that ten to fifteen houses stood near the disputed property. The witness in cross-examination deposed that at the time of the incident neither the three labourers nor any other person came to the spot. This rules out the possibility of there being any other witness of the occurrence.

examination of independent witness neither belies the prosecution case, nor reduces its trustworthiness.

14. In the course of cross-examination, PW 1 denied the suggestion that the accused A. Mohan never assaulted Murugeshan. He also denied the suggestion that neither Mohan nor any other person came to the spot or assaulted Murugeshan on that date. On a close reading of the evidence, it appears that the defence did not controvert the evidence of PW 1 that at first he was assaulted by A. Mohan with a 'sabbal' on his head. Non-traverse of this material statement on behalf of defence therefore, leads to admission of the prosecution case. It is true that the investigating officer neither seize the weapon of assault, nor produced the same before the Court. The blood stained wearing apparels were produced on the date fixed for evidence and were identified as Mat. Exhibit I, II, III and IV by PW 4 and PW 7.

In the course of cross-examination of PW 1, it was suggested that he assaulted the victim Murugeshan at the spot and the witness denied the same. The trend of crossexamination indicates that defence admitted that Murugeshan was assaulted at the spot on that date, but tried to blame PW 1 for such assault. The evidence of PW 1 reveals that he had been working under Murugeshan for twelve years.

they suffered injuries. PW 2 refuted the defence case that both the persons PW 1 and PW 2 received injuries due to a fight between themselves. Therefore, this defence story is unfounded one and fails to create a dent in the prosecution case. By any stretch of imagination, it cannot be construed that the employer PW 2 was assaulted by his manager.

15. PW 2, K. Murugeshan has deposed that he purchased some land from A. Mohan on 5.11.2007 at Mazar Pahad and they entered into an agreement for sale which was duly notarized and he has also paid Rs. 5,00,000/- to A. Mohan out of the consideration money of Rs. 5,90,000/-. PW 2 further deposed that after paying the advance consideration money, he had agreed to pay Rs. 90,000/- at the time of registration of the sale deed. PW 2 claimed that possession of the property was handed over to him and he served notice upon A. Mohan to register the sale deed after accepting the balance amount, but he did not comply. The witness also deposed that the fence of the said landed property had fallen down and he had engaged some labourers on 29.12.2009 for repairing the same and had sent his manager Damodharan to look after the work of the labourers. It is gathered from the evidence of PW 2 that A. Mohan went to the spot and asked the manager to stop the work and also to call him. Accordingly, Damodharan telephoned Murugeshan and he reached Mazar Pahad. Mohan

had left at the relevant time, but he arrived after half an hour on a scooter of another person whose name is Palanivelu. A. Mohan asked them to stop the work. At this PW 2 responded saying that he had purchased the property and asked him to registered the sale deed. This conversation indicates that an unrest grew between Mohan and Murugeshan at the relevant time over some property dispute. At that time, Mohan suddenly inflicted a blow with a 'sabbal' on the head of Damodharan and also assaulted PW 2 on his head with sabbal due to which he fell down. PW 2 further deposed that Mohan again assaulted him on his back side as a result he become unconscious and had to undergo operation. The witness showed long cut repair marks on his belly and also cut marks over his head.

It may be derived from the evidence of the PW 2 that the 'sabbal' which was used by Mohan @ Velu for assault was for the use of the labourers who worked there. After the assault, apprehending that Murugeshan had succumbed to the injuries, accused person left the place along with the 'sabbal'. The witness deposed that the labourers sprinkled water on him and tried to help him. PW 2 regained his sense and proceeded to the Police Station on a vehicle. The witness further deposed that Damodharan was with him at that time and he again become unconscious at the Police Station. When he regained his sense, he found himself at G.B.

treated for more than twenty days for his injuries. Later on, he was also treated at Chennai.

16. From the cross-examination of PW 2, it appears that there was a land dispute between Murugeshan and A. Mohan. The suggestion put to PW 2 during cross-examination is that Mohan had returned Rs. 4,00,000/- to him in connection with the landed property. This is an admission of the fact that there was some dispute between the accused and PW 2 regarding transfer of land to PW 2. The hostilities leading to such assault become probable due to the dispute over land and establishes the motive on the part of the accused for the alleged offence. Therefore, the finding of learned Trial Court that the motive regarding the dispute could not be proved, is unfounded. It is not essential to produce documents of title or record or rights in a criminal proceeding to prove any dispute over any landed property.

The evidence adduced has to be assessed and scrutinized to deduce the motive or mens rea for the alleged action and available material. In a case resting on direct evidence, the question of motive becomes less significant unlike in cases of circumstantial evidence, but from the emerging facts existence of motive for the assault of PW 2 has been established on the basis of irrefutable testimony of PW 2.

17. On traversing the cross-examination of PW 2, it appears that defence did not controvert the evidence of PW 2 that

Mohan assaulted Damodharan on his head. In crossexamination PW 2 deposed that he stated to police that after such assault, A. Mohan @ Velu left the place with sabbal. However, this evidence was not elicited during the crossexamination of the investigating officer, as such the statement of PW 2 has stood the test of cross-examination and no discrepancy could be brought out.

18. In the present use, there is no independent witness of occurrence. However, PW 3 Nitiyanada Halder who was working there as Mason on 29.12.2009 was the first person to reach the place of occurrence, immediately after the incident. PW 3 has deposed that on 29.12.2009 he was engaged for constructing a boundary wall of Murugeshan. Three persons were engaged in the work and they started their work at 9:00 A.M. At about 10:00 A.M. to 11:00 A.M. He heard hue and cry and found someone assaulted Murugeshan and Damodharan. On proceeding to the place of occurrence, he found Murugeshan had suffered injury on head and back side and he was shifted to the hospital. The witness also deposed that Police has seized some controlled earth and blood stained earth from the place of occurrence and he put his signature on the seizure list as Exhibit 4/1 and 5/1. It is revealed from the deposition of PW 3 that at the time of occurrence he was engaged in his work at the back side of the premises and he

reached the place of occurrence on hearing the hue and cry. PW 3 did not state that he had either seen the assailants or the occurrence. The witness was declared hostile by prosecution. In his cross-examination by defence, PW 3 deposed that he did not see the assault and put his signature on the seizure list at the Police Station. The evidence of PW 3 supports the prosecution case to the extent that on the particular date, when he was engaged as a Mason for construction of a boundary wall, an occurrence took place at about 11 A.M. when Murugeshan and Damodharan were assaulted and suffered bleeding injury. There is nothing to disbelieve the evidence of PW 3. The witness may have suppressed some material particulars of the event, but we cannot be oblivious to the fact that he was declared hostile by prosecution and it is prudent to place reliance on such portion of his evidence which has not been refuted by both sides.

19. PW 4, S. Muthuraman a resident of Nayagaon has deposed that on 29.12.2009 he received an information that Murugeshan was assaulted by some person and he was admitted at the hospital. PW 4 along with one Ganashekar proceeded to G.B.Pant Hospital and found Murugeshan in a serious condition, undergoing treatment. PW 4 is a seizure witness of the wearing apparels of Mugueshan and Damodharan which were seizure by police. PW 4 stated that

one blood stained half sleeve shirt was seized under seizure list where he put his signature as Exhibit 6/1. A banyan and full pant (trouser) was seized and he put his signature on the seizure list as Exhibit 7/1. During his evidence the witness identified the shirt which was seized in his presence as Mat. Exhibit I and the pant as Mat. Exhibit II and another shirt seized as Mat. Exhibit III and banyan as Mat. Exhibit IV. In cross-examination the witness stated that he did not see from which person the wearing apparels was seized by Police. It also appears that he had reached G.B.Pant hospital on that date at about 4 to 4:30 P.M. The material evidence which is gathered from the deposition of PW 4 is that on 29.12.2009 Murugeshan had to be admitted at G.B.Pant hospital due to his injuries and some blood stained wearing apparels were seized at the hospital in his presence which were identified by the witness in Court. There is nothing to indicate from the cross-examination of the witness, that he was inclined to adduce any false evidence in support of or against any person.

20. PW 5, C. Alagappan was tendered by prosecution but he did not depose anything in this case.

21. Dr. R.C. Kar PW 6, deposed that on 29.12.2009 he was posted at G.B.Pant Hospital, Port Bair and on that date at about 11:50 A.M. he examined one M. Damodharan aged 25 years of Diaryfarm. The said person was assaulted with blunt

weapon and he had sustained scalp injury at left parietal area. The Doctor on examination of Damodharan found some external injuries. A cut injury on the left parietal area of the scalp, measuring 1 inch x 1⁄2 inch x skin deep and the nature of injury was simple and caused by blunt weapon. The witness deposed that the injury was caused about 50 minutes prior to his examination. In course of his evidence PW 6 has proved injury report of Damodharan as Exhibit 8. The evidence of the Doctor supports the evidence of PW 1 and PW 2 regarding injury caused on the head of Damodharan due to assault with a blunt weapon.

22. PW 6 further deposed that on the same day at about 11:30 A.M he examined K. Murugeshan, aged 45 years who had a history of assault by blunt weapon. On examination he found scalp injury on the right fronto temporal-parietal region with active bleeding from wounds. There was blunt trauma on the left posterior side of his chest region. On examination, he found (i) cut injury on fronto temporal- parietal area, size 4 inch x 1⁄2 inch x skin deep, (ii) abrasion on back of chest of left side, size 4 inch x 1⁄2 inch. According to the Doctor, detailed examination was not done due to grave condition of the patient and he was admitted at Male Surgical Ward No.-1 for necessary management. On ultrasonography of abdomen there was report of internal haemorrhage within abdomen. This

evidence finds support from exhibit 9 the injury report of K.Murugeshan, prepared by PW 6. The witness also deposed that the nature of injury suffered by Murugeshan was serious and caused by blunt weapon and the injuries were recent. The Doctor opined that the injury of Murugeshan mentioned above were sufficient to cause death of any person. In course of cross-examination of PW 6, some discrepancies regarding time of examination of Murugeshan has surfaced. It is stated by the Doctor that time of examination mentioned by him in Exhibit 9 is 11:30 A.M. but as per the injury report it is written that the time of arrival of the patient is 11:45 A.M. On perusal of Exhibit 8, the medical report of Damodharan, it appears that he was examined at 11:50 A.M. The medical report relating to injury of K.

Murugeshan disclosed that his time of arrival is 11:45 hours and he was examined at 11:30 A.M. From the evidence of PW 1 and PW 2 it appears that they proceeded together at first to the Police station and thereafter they were taken to G.B.Pant Hospital. The incident occurred at around 11 A.M. and the injured person reached the hospital at about 11:45 A.M. They were examined one after the other. There is minor discrepancies regarding the time of examination of PW 2 by the Doctor. This does not destroy the prosecution case regarding injury sustained by Damodharan and Murugeshan. Furthermore, such discrepancies are minor and does not discredit the evidence of PW 6.

23. PW 7, Saibu is not a witness of occurrence. He has deposed that on 29.12.2009 on receiving a telephone call from Damodharan at about 12 to 12:30 noon and went to G.B.Pant Hospital where Murugeshan was inside the operation theatre. He also deposed that Police produce some blood stained wearing apparels of Murugeshan consisting of white colour shirt, blue pant and a white banyan. Police seized those wearing apparels under a seizure list and put his signature on the seizure list which was marked as Exhibit 7/2. In course of his evidence the witness also identified Mat. Exhibit I, Mat Exhibit III and Mat. Exhibit IV which were the wearing apparels. It appears from the cross-examination of the witness that he did not produce the wearing apparels to Police, but they were handed over to Police by the Doctor. Apart from being a seizure witness in respect of wearing apparels, PW 7 does not have any other role to play. The evidence of PW 7 fortifies the prosecution case only to the extent that on 29.12.2009 Murugeshan has sustained injuries and had to undergo medical treatment.

24. Jay Prakesh Ram PW 8 is a Home Guard. On 29.12.2009 he took some Photograph at Mazar Pahad on receiving information from PS Aberdeen. The evidence of PW 8 is of no significance.

25. M.K. Sukla PW 9, Deputy Superintendent of Police deposed that he submitted charge sheet in this case under Section 307/323/34 of IPC against A.Mohan and C. Palanivelu.

26. PW 10, N.S. Stailin is the Investigation Officer. His evidence is formal in nature. In course of his crossexamination PW 10 deposed that the offending weapon was not seized by him and the seized article were not sent for forensic examination. He has admitted that the FIR number was not mentioned on injury report marked as Exhibit 8 and Exhibit 9. However, non mentioning of FIR in injury reports is not necessary, specially when the FIR is lodged on the basis of the statement of the injured person made at the hospital and reduced into writing. The witness has prepared the rough sketch map of the place of occurrence as Exhibit 11 and he stated that he had seized the blood stained wearing apparels of victims Damodharan and Murugeshan and seized under proper seizure list in presence of witnesses.

27. Having considered the rival contentions of the appellant and respondent as well as the evidence discussed above we find that PW 1 M. Damodharan and PW 2 K. Murugeshan are two injured persons who sustained injuries in course of occurrence. The evidence of PW 1 and PW 2 are consistent regarding the date, time and place of occurrence as well as of

the sequence of events which took place on 29.12.2009. It is well established that the incident took place at about 11:00 A.M. at Mazar Pahad when PW 2 Murugeshan engaged PW 1 and some other persons to repair a boundary wall over a land which PW 2 claims to have purchased from respondent. From the evidence on record and trend of cross-examination of PW 2, We find that the accused/respondent claimed to have returned Rs. 4,00,000/- to PW 2 in connection with the landed property PW 2 in his evidence-in-chief has stated that he purchased the same land from A.Mohan on 5.11.2007 by virtue of an agreement of sale and have paid him Rs.5,00,000/- as advance but the deed of sale has not been registered. This evidence of PW 2 has not been controverted during evidence.

On the other hand it has surfaced in course of evidence that PW 2 instituted a civil suit in connection with the landed property against accused Mohan. This evidence establishes beyond shadow of doubt that a dispute had crept up between PW 2 and the respondent over the landed property. On the date of occurrence, when PW 2 engaged a Mason and labourers for constructing a boundary wall over the land which PW 2 claims to have purchased from the accused respondent, the dispute flared up and when PW 2 did not stop work, the accused assaulted PW 1 on his head and over the head, back and abdomen of PW 2, with a 'sabbal', inflicting bleeding injuries on their persons.

the learned Trial Court failed to appreciate this evidence in it true perspective, resulting in an illegality in the judgment.

28. Neither PW 1 nor PW 2 named C. Palanivelu as their assailant. It is only the investigating office who has only submitted charge sheet against the co-accused Palanivelu. There is no material against the co-accused to suggest that he had any involvement expect the fact that he had accompanied A. Mohan to the spot on that morning. No overt act is attributed to the co-accused to attract his culpability on the principle of common intention. PW 1 in his cross-examination stated that ten to fifteen houses are near the disputed property. He also deposed that the labourers reached the place after the occurrence and gave them water. PW 2 in his crossexamination stated that when Mohan assaulted him and his manager there were four labourers but they were not assaulted by the accused persons and there was no talk between them and the accused.

PW 3 Nitiyanada Halder deposed that at about 10:00 A.M. to 11:00 A.M. he heard hue and cry and found someone assaulted Murugeshan and Damodharan. On proceeding to the place of occurrence he found Murugeshan had sustained injury on the head and back.

stopped for the day. The evidence of PW 3 indicated that the labourers reached the place immediately after the occurrence and they did not witness the occurrence taking place. There is no evidence on record that other persons of the locality were present when the assault took place. Therefore, nonexamination of any other person as witness of occurrence does not destroy the prosecution case, when it is proved by credible and clinching evidence that PW 1 and PW 2 sustained injuries on their persons and they were assaulted by the accused/respondent.

29. Though there is no other witness of occurrence in this case, due importance has to be attached to the available evidence of the injured witnesses. It is well established principle of appreciation of evidence that where a witness to a occurrence has himself been injured in the incident, testimony of such witness is generally considered to be very reliable. He is a witness that comes with a built in guarantee of his presence at the scene of crime and it is unlikely that he will spare his actual assailant in order to falsely implicate some other person. In order to dislodge the veracity of such witness convincing evidence is required to be adduced. In Jarnail Singh - vs - State of Punjab; (2009) 9 SCC 719, the Hon'ble Supreme Court reiterated the special evidentiary status accorded to the testimony of an injured witness. It was held

that deposition of injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reasons that his presence on the scene stands established in case it is proved that he suffered injury during the said incident. Thus, the testimony of injured witness should be relied upon and it should not be discarded as unworthy of credence and there is no need to lookout for further corroboration.

30. The medical evidence adduced by prosecution also corroborates and lends support to the evidence of PW 1 and PW 2 that they sustained injuries due to assault. In the case of Kamaljeet Singh - vs - State of Punjab; (2003) 12 SCC 155, the Hon'ble Supreme Court laid down how medical evidence is to be collated with ocular evidence. It was held, "8. It is trite law that minor variations between medical evidence and ocular evidence do not take away primacy of the latter. Unless medical evidence in its turn goes so far as to completely rule out all possibilities whatsoever of injuries taking place in the manner stated by the eye witnesses, the testimony of eye witnesses cannot be thrown out.

The position was illuminatingly and exhaustibly reiterated in State of Uttar Pradesh - vs - Krishna Gopal: (1988) 4 SCC 302 when the acquittal by the Trial Court was found to be on the basis

unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice."

31. In the instant case, the medical evidence materially and extensively supports the unimpeachable testimony of PW 1 and PW 2, which inspires confidence of the Court regarding the mode and manner of assault by which injury was caused and specific part of their body were they sustained such injuries. In Exhibit 9 the time of arrival of K.Murugeshan has been recorded as 11:45 hours on 29.12.2009 and time of his examination has been recorded as 11:30 A.M. on the same date. Minor discrepancies and inconsistencies are hallmark of truth and are bound to occur. Such glitches do not shake the foundational facts until major contradiction strikes at the root of the prosecution case. Therefore, the medical evidence does not render the prosecution case doubtful due to the fact that PW 1 and PW 2 were taken to the hospital at the same time.

In the light of our above discussion, we hold that a minor discrepancy regarding the time of examination of the injured Murugeshan does not destroy the prosecution case. On reading the evidence of PW 1 and PW together with the evidence of doctor we find that the evidence of the injured persons is credible, consistent and trust worthy having a ring of truth.

Therefore, such evidence cannot be brushed aside on the plea that other independent witnesses have not been examined. It should be borne in mind that a Court of law is duty bound to decide a case on the available evidence and not be in contemplation as to what better evidence could have been adduced. In the case of Beere Gowda vs. State of Karnataka; (2010) 11 SCC 771, it was set out as follows: "10. It is undoubtedly true that if two views are possible and the trial court has recorded an acquittal, interference by the High Court should be restricted. However, in case the High Court finds that view taken by the trial court was not based on the evidence, it would defeat the ends of justice if the order was not set aside. We are of the opinion that the present case falls under the category where the High court was fully justified in interfering in the matter."

32. Learned Sessions Judge has over emphasized on non production of the weapon of assault and non-examination of the wearing apparels by the forensic experts and thereby failed to consider the material and substantive evidence which is available. The learned Judge of the Trial Court did not take into consideration the evidence of PW 1. His statement regarding assault by accused/respondent was uncontroverted and thereby was relevant to establish the charge under Section

323 of Indian Penal Code against the accused person. Learned Trial Judge also did not accord any importance to the evidence of the injured persons who had no reason to falsely implicate the accused specially as such injuries could not be selfinflicted. Learned Court below has referred to the evidence of the Doctor that the patient did not disclose the name of any person who assaulted them and that the doctor did not mention in his injury report about the person who identified the injured as Murugeshan. We should not be unmindful of the fact that the injured persons were taken to the hospital by police and the names of injured persons and other details were recorded in the injury report. Therefore, it is of no significance whether the doctor mentions the name of the person who identified the injured to him.

In a case where any dead person is produced for post mortem examination, it is necessary that the dead body is identified to the Doctor by someone, but when the injured persons are produced in the hospital they are in a position to disclose their name and particulars. If the name of assailants are not disclosed to the Doctor at the time of their examination, which may be for various reasons, non-disclosure of names of the assailant is not fatal and does not vitiate the prosecution case.

33. While considering the evidence on record learned Trial Court pointed out various deficiencies in investigations, such

as not citing independent witness, non-seizure of the weapon of assault and not sending the wearing apparels for forensic examination. It is true that deficiencies may arise in investigation, but such deficiencies and irregularities in investigation need not necessarily lead to rejection of the case of the prosecution when it is otherwise proved on the basis of credible ocular and medical evidence. The only requirement is that Courts should take extra caution while evaluating evidence in such cases. Acquittal of accused solely on the ground of defective investigation is not justified. In the case of Visveswaran - vs - State; (2003) 6 SCC 73 it was held that deficiency or irregularity in investigation need not necessarily lead to rejection of the case of prosecution, when it is otherwise proved - The only requirement is extra caution by Courts ....... Acquittal of accused solely on the defective investigation, held would not be just.

34. Upon re-appreciation of the entire evidence on record we are of the considered view that the evidence of PW 1 and PW 2 finds support from the evidence of PW 3 regarding the occurrence. The evidence of PW 6 has lent support to the evidence of the injured persons so far as the nature of their injury is concerned. The blood stained wearing apparels were identified in Court by PW 4 and PW 7 as Mat. Exhibit I, Mat. Exhibit II, Mat Exhibit III and Mat. Exhibit IV. The wearing

apparels were not sent for forensic examination, but PW 4 and PW 7 stated that they were seized at the hospital in their presence. The evidence of the prosecution witnesses taken together proves beyond reasonable doubt that the accused A. Mohan assaulted PW 1 and PW 2 with blunt weapon, voluntarily causing hurt to them. The acquittal of the accused person by the Trial Court is found to be perverse, based upon unwarranted assumption and manifestly erroneous appreciation of evidence, ignoring valuable and credible evidence, thereby resulting in serious miscarriage of justice. There may be deficiencies or irregularities in investigation but the same is not fatal to the prosecution case when there is other material evidence to proof the charge.

35. In Vijay Mohan Singh vs. State of Karnataka; (2019) 5 Supreme Court Cases 436, the Hon'ble Supreme Court held, "32. .... even in the case the High Court in an appeal against the order of acquittal interfered with the order of acquittal without specifically considering the reasons arrived at by the learned trial court and without specifically observing that the reasons are perverse, this Court can still maintain the order of conviction passed by the High Court, if this Court is satisfied itself that the approach of the Trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it are demonstrably unsustainable and the judgment of the

appellate court is free from those infirmities. It also emerges that the High Court is entitled to reappreciate the entire evidence independently and come to its own conclusion, however, the High Court would not be justified in interfering with the order of acquittal of the evidence that two views are possible."

In the present case the injured persons have narrated the occurrence and their evidence is found consistent. The medical evidence fortifies the same. Therefore, not considering its implicit value has led to a perverse finding of acquittal of the respondent. Such gross error calls for interference with the finding to prevent miscarriage of justice.

In Ramesh Vithal Patil Vs. State of Karnataka and others; (2014) 11 SCC 516, it was held that High Court must not interfere with order of acquittal only because it has power to do so or just because some other view is also possible - High Court must locate some gross error of law and fact and must feel impelled to interfere with order of acquittal to rectify it so as to prevent miscarriage of justice.

36. Charge was framed against the respondent under Section 307/323 of IPC. There was no evidence against the co-accused C. Palanivelu therefore, his acquittal from this case is beyond question. So far as the present respondent is concerned there

is substantial material against him establishing his involvement and inflecting injury to two persons. The Bed Head Ticket and Treatment sheet of PW 1 and PW 2 have not been seized and produced as medical evidence in this case. Therefore, it is not possible to ascertain whether the extent of injury of PW 2 was of such nature which could have resulted in his death. Therefore, we are of the view that charge under Section 307 of the Indian Penal Code could not be established against the accused/respondent.

Considering entire gamut of the evidence as well as the injury report and evidence of PW 6, we find and hold that the charge under Section 323 of IPC is proved against the accused/respondent beyond shadow of doubt and leads to an irresistible conclusion that the appellant is guilty of the offence under Section 323 of IPC for voluntarily causing simple hurt to PW 1 and PW 2. Therefore, the decisions relied on behalf of the respondent do not find application to the present case. The facts and circumstance of the cases relied on behalf of the respondent are different from the facts and evidence adduced in this case. Therefore, the broad principles laid down in the cited decisions though have a general application to criminal jurisprudence in our country, the same do not have any bearing to the present appeal.

same is liable to be set aside, in so far as acquittal of the respondent is concerned.

37. We find the accused/respondent guilty of the offence punishable under Section 323 of the IPC and he is accordingly convicted for such offence. The judgement of acquittal in respect of the respondent is set aside and reversed. The respondent having been found guilty of the offence punishable under Section 323 of the IPC, it is found reasonable, adequate and appropriate to sentence him to simple imprisonment for three month and a fine of Rs. 10,000/- in default to suffer simple imprisonment for one month. The respondent/convict is accordingly sentenced to simple imprisonment for three months and a fine of Rs.10,000/- in default to simple imprisonment for one month for the offence punishable under Section 323 of the I.P.C.

38. The period of detention under gone by the accused/respondent in course of trial be set off from the period of sentence under Section 323 of the IPC. The respondent is directed to surrender before the learned Sessions Judge, Port Blair within a fortnight from the date of this order for undergoing the sentence. The appeal is allowed in the light of the above discussions.

39. Let a copy of this judgement along with Trial court record be returned to the Court of learned Sessions Judge, Port Blair for execution of the sentence passed herein above with a direction that the sentence passed herein against the accused/respondent be executed within a month from the date of communication of this judgement.

40. The appeal being CRA/7/2019 along with CRAN/1/2021 are disposed of.

41. Urgent certified photocopy of this judgement, if applied for, be supplied to the parties upon compliance of usual formalities. (ANANDA KUMAR MUKHERJEE, J.) SHAMPA SARKAR, J.

I agree.

(SHAMPA SARKAR, J.)