(Prayer: Criminal Appeal is filed under Section 378 of the Code of Criminal Procedure, against the judgment dated 18.02.2008 made in S.C.No.142 of 2007 on the file of the Principal District and Sessions Judge, Pudukottai.)

1. This Criminal Appeal has been preferred against the judgment dated 18.02.2008, made in S.C.No.142 of 2007, passed by the learned Principal District and Sessions Judge, Pudukottai.

2. The appellant herein is the sole accused in S.C.No.142 of 2007, on the file of the learned Principal District and Sessions Judge, Pudukottai. The appellant has been charged for the offence under Section 307 IPC. The learned Principal District and Sessions Judge convicted him for the offence under Section 326 IPC and sentenced him to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,500/-, and in default to pay the fine amount to undergo simple imprisonment for three months.

3. The case of the prosecution is that, Thiru.Kalimuthu, [P.W.1] and the accused are residents of the Kamarajar Nagar, Avudaiyarkoil. There was an enmity between P.W.1 and the accused with regard to putting up of a hut in the place belonging to P.W.1 and on 19.04.2007, at about 08:45 p.m., when P.W.1 was going back home after his work, the accused hit him by means of an Aruval on his head. When P.W.1 prevented the accused, he got injured on his left palm.

4. According to the prosecution, P.W.1s wife Anjalai [P.W.2] and his son Muthukumar [P.W.3] had witnessed the occurrence. Thereafter, P.W.1 was taken to Avudaiyarkoil police station by P.W.2 and P.W.3, where P.W.1 lodged a complaint [Ex.P.1] with the Sub-Inspector of Police. Thiru.Albert Sekar [P.W.9], the then Sub-Inspector of Police, Avudaiyarkoil Police Station, received the complaint from P.W.1 on 19.04.2007 and registered the First Information Report [Ex.P.9] in Crime No.35 of 2007, for an offence under Section 307 IPC. Thereafter, P.W.1 was sent to Government Hospital at Aranthangi.

5. Doctor Tamilpavai [P.W.8] examined P.W.1 and found the following injuries on P.W.1:

1) Cut injury involving the left lateral aspect of the hand exposing the left hand tendons.

2) An injured would about 5 cm x 1cm x 0.5 cm in the left side of the head.

6. Thereafter, P.W.8 referred P.W.1 to the Medical College Hospital, Thanjavur and after receiving a report from the Thanjavur Medical College Hospital, gave an opinion that the injuries sustained by P.W.1 are grievous in nature. Thiru.Rajendran, the then Inspector of Police, [P.W.10], took up investigation in Crime No.35 of 2007, visited the scene of occurrence on 20.04.2007 and prepared a rough sketch [Ex.P.10] and an observation Mahazar [Ex.P.11], in the presence of one Muruganantham [P.W.5] and one Ravi. He also examined the witnesses and recorded their statements. Thereafter, the accused was arrested and his confession statement was recorded in the presence of the witnesses Paramasivam [P.W.6] and Marimuthu [P.W.7]. Based on the confession statement given by the accused, an Aruval measuring 8 inches was recovered under the cover of a mahazar [Ex.P.11] in the presence of P.W.6 and P.W.7. After completing investigation, P.W.10 laid a final report before the Judicial Magistrate, Aranthangi, for an offence punishable under Section 307 IPC.

7. The learned Principal District and Sessions Judge, after considering the evidence on record had convicted the accused for the offence punishable under Section 326 IPC and acquitted him for the offence punishable under Section 307, IPC.

8. The specific contention of the learned counsel appearing for the accused is that:

i) There are material contradictions in the evidence of P.W.1 to P.W.4.

ii) The Doctor who has given treatment to the victim has not been examined and P.W.8 has given her opinion based on the report given by the doctor who has given treatment to the victim.

iii) The prosecution has not produced the X-Ray and the report in the instant case and there was no bloodstain in the Aruval, [M.O.1], which has been allegedly recovered based on the alleged confession given by the accused.

iv) The Mahazar witnesses have also not supported the case of the prosecution and therefore, the recovery of the weapon has not been proved beyond doubt by the prosecution.

9. Per contra, the learned Government Advocate (Crl. Side) would contend that P.W.1 is the victim in the instant case and he has specifically deposed that he was attacked by means of an Aruval due to prior enmity and the doctor has also clearly spoken about the injuries sustained by P.W.1. He would further contend that the learned Principal District Judge, Pudukottai was right in convicting the accused for the offence under Section 326 IPC, which does not warrant any interference by this Court.

10. This Court has considered the rival submissions made by both the counsels and perused the documents placed on record.

11. The trial Court has held that the accused with an intention to cause injuries to the victim had attacked him with an Aruval and that the prosecution has proved their case beyond doubt. However, he convicted the accused under Section 326 IPC alone, though final report is filed under Section 307 IPC.

12. A perusal of a copy of the Accident Register shows that the accused has stated before the doctor that he was attacked by means of a knife, but, what has been recovered from the accused is an Aruval and there was no bloodstain in the Aruval, as rightly pointed out by the learned counsel appearing for the accused. Apart from that, in the instant case, the prosecution has not produced the X-Ray and its report, to show that the injuries sustained by P.W.1 are grievous in nature. The radiologist has also not been examined in the instant case. The doctor, who has given the wound certificate, has clearly deposed that she has not seen the X-Ray report before giving an opinion with regard to the injuries sustained by P.W.1. In fact, no material is placed on record to show the treatment given to P.W.1 in the Government hospital at Thanjavur except making a reference about X-Ray being taken. Production of X-Ray is absolutely required to substantiate the opinion of the doctor [P.W.8] that the injuries sustained by P.W.1 is grievous in nature. On top of it, M.O.1 ie., Aruval was not even shown to P.W.8, the doctor.

13. The prosecution has not also recovered the bloodstained shirt either from P.W.1 or from the accused. The Mahazar witnesses have also turned hostile and they did not support the case of the prosecution. Therefore, the recovery of weapon is not proved by the prosecution. The trial Court mainly relied on the medical evidence and convicted the accused for the offence punishable under Section 326 IPC. No reason is assigned for non-production of X-Ray and its report by the prosecution. There are also contradictions in the evidence of P.W.1 to P.W.4, in material particulars. P.W.2 and P.W.3 have deposed that they came over to the place of occurrence only after hearing a loud noise and Murugan [P.W.4] has not stated anything about the attack made by the accused on the body of P.W.1 by means of an Aruval. Furthermore, the mahazar witnesses, as already observed, had also turned hostile to the prosecution. The learned Principal District and Sessions Judge, Pudukottai has not appreciated the evidence in the correct perspective.

14. Therefore, considering the facts and circumstances of the present case, this Court comes to the conclusion that the charge under Section 326 IPC, for which the accused is convicted by the trial Court has not also been proved and hence, the Criminal Appeal is liable to be allowed.

15. In the result, the Criminal Appeal is allowed and the conviction and sentence dated 18.02.2008, passed by the learned Principal District and Sessions Judge, Pudukottai, is set aside and the appellant is acquitted from the offence under section 326 IPC. The bond, if any, executed by the appellant / accused stands cancelled. The trial court is directed to return the fine amount, if any, paid by the accused, on application. The Aruval, M.O.1 is directed to be destroyed.