Muthu Thevar vs State and Ravichandran @ Ayyakutti

A.C. Arumugaperumal Adityan, J.—This revision has been preferred against the judgment in C.C. No. 289 of 1997 on the file of the

Judicial Magistrate No. II, Mannargudi, against the acquittal of A2, who was charged u/s 326 r/w 34 IPC. It is admitted fact that co-accused A1

died pending trial.

After taking cognizance of the case the learned Judicial Magistrate issued summons to the accused and on their appearance, furnished copies u/s

207 of Cr.P.C. When the charges were explained to the accused, they pleaded not guilty.

Before the trial Court P.W.1 to P.W.11 were examined and Ex.P.1 to Ex.P.13 were exhibited and M.O.1 to M.O.3 were marked. After going

through the oral and documentary evidence, the learned Judicial Magistrate has come to the conclusion that the charges levelled against A2 has not

been proved beyond any reasonable doubt and accordingly, acquitted A2, which necessitated the complainant-P.W.1 to prefer this revision.

The learned Judicial Magistrate had acquitted the accused on two grounds. First being the motive spoken to by P.W.1 in his evidence and the

motive according to the prosecution differs and the second one is that A1, the co-accused has also sustained injury in the same occurrence, but not

explained by the prosecution. According to the evidence of the Investigating Officer-P.W.11, who would admit in the cross-examination that A1

had also preferred a counter complaint which was registered under Cr. No. 33 of 1997. But both P.W.1 and P.w.2 have not spoken to anything

about the injury sustained by A1 in the occurrence. The learned Judicial Magistrate, under such circumstances, has observed that since the

prosecution has failed to file the FIR registered in the counter case on the basis of the complaint preferred by A1 and also the result of the

investigation, it cannot be ascertained who is the aggressor for the offence.

The learned Senior counsel appearing for the revision petitioner would contend that since the injury sustained by A1 in the same occurrence was

only trivial or superficial in nature, the Investigating Officer has proceed with the complaint preferred by P.W.1, which was registered under Cr.

No. 32 of 1997 and dropped the complaint preferred by A1. But to show that the injury sustained by A1 in the occurrence was simple and

superficial in nature, there is no material produced on the side of the prosecution.

On the side of the accused D.W.1 to D.W.3 were examined and Ex.D.1 was marked. According to the accused, the land intended to be

purchased by P.W.1 was purchased by A1 under Ex.D.1-sale deed is the motive for occurrence. This fact was spoken to by D.W.1 and D.W.2.

But according to the prosecution, P.W.1 and A1 are adjacent land owners. The water from the land of A1 was allowed to go into the land of the

complainant-P.W.1 and destroyed the hayrick stored in the land of P.W.1. when this was questioned by P.W.1, A1 had attacked him with spade

and A2 attacked P.W.1 with a knife causing grievous injury. The learned Senior counsel would represent that according to P.W.8, the doctor,

P.W.1 was admitted in the hospital on 31.1.1990 at about 8.00 am and that Ex.P.6 is the wound certificate issued by him. It is seen from the

evidence of P.W.11-Investigating Officer that only on the evidence of P.W.8, the doctor, who had described the injury as grievous in Ex.P.6, he

has charged A2 u/s 326 IPC. The injury No. 2 to Ex.P.6 is a stab injury at the bottom of the stomach measuring 2 x 3 cms through which all the

fat materials were protruding out. To describe an injury as a grievous it should come within the ambit of Section 320 IPC. An injury may be

medically grievous but the prosecution must show that it is legally also grievous. Absolutely there is no material produced on the prosecution to

show that the injury sustained by P.W.1 is legally grievous as defined u/s 320 IPC. This point has also been dealt with by the learned Judicial

Magistrate at para 21 of his judgment.

The important point which looms larger against the case of the prosecution is that the non explanation of the injury sustained by A1 in the same

occurrence. The learned Judicial Magistrate at para 32 to his judgment relying on a ratio of the Honourable Apex Court in 2002 SCC (Cri.) 1444,

has held that the non-explanation of the injury sustained by A1 in the same transaction is fatal to the prosecution case, and accordingly acquitted

the accused. The State has not preferred any appeal against the findings of the learned Judicial Magistrate. Under such circumstances, I do not find

any reason to interfere with the well considered judgment of the Court below in C.C. No. 289 of 1997 on the file of the learned Judicial Magistrate

No. II, Mannargudi, which is neither illegal nor infirm to warrant any interference from this Court.

In fine, the revision is dismissed confirming the judgment in C.C. No. 289 of 1997 on the file of the learned Judicial Magistrate No. II,

Mannargudi.