CRL.A(MD) No.280 of 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 28.08.2026

Pronounced on : 01.10.2026

CORAM

THE HONOURABLE MR.JUSTICE S.KARTHIKEYAN

Crl.A(MD) No.280 of 2018

Velmurugan ... Appellant / Sole Accused

Vs.

State through

The Inspector of Police,

Town Police Station,

Tirunelveli District.

In Crime No.97 of 2015. ... Respondent / Complainant

Prayer: This Criminal Appeal has been filed under Section 374 of

Cr.P.C, to call for the entire records connected to the judgment in S.C.No.

40 of 2016 on the file of the Mahila Court, Tirunelveli, dated 07.03.2018

and set aside the conviction and sentence imposed against the appellant.

For Appellant : Mr.R.Manickaraj

For Respondent : Mr.A.Robinson

Government Advocate (Crl.Side)

JUDGMENT

This Criminal Appeal is directed against the judgment of conviction

and sentence passed by learned Sessions Judge, Mahila Court,

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Tirunelveli, in S.C.No.40 of 2016 dated 07.03.2018.

2. On careful perusal of the records, it is found that, on getting

information from Tirunelveli Medical College Hospital, Head Constable

987 visited the hospital on 17.02.2015 and recorded Ex.P1 complaint

statement of PW1. Based on the said complaint statement, PW6

Muthukrishnan, the then Special Sub-Inspector of Police, Tirunelveli

Town Police Station, registered Ex.P7, First Information Report in Crime

No.97 of 2015 for the offences punishable under Sections 448, 294(b),

323, 307, 380(NH) and 506(ii) of IPC r/w. Section 4 of TNPWH Act. He

forwarded the said information to the learned Judicial Magistrate No.4,

Tirunelveli, along with the complaint statement and other copies to his

higher authorities and he forwarded a copy of the case diary for

investigation to the higher officers.

3. PW9 Isakki, the then Inspector of Police, Nellai Town Police

Station, had taken up the investigation of the said case on 17.02.2015 and

at around 10.30 p.m, he visited the place of occurrence and prepared

Ex.P3 Observation Mahazar and Ex.P10 Rough Sketch in the presence of

witnesses PW4 Murugan and Vignesh Natarajan. He recovered M.O.1

blood-stained cement stone under the cover of Ex.P4 athatchi in the

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presence of the same witnesses. Thereafter, he examined the Mahazar

witnesses and the witnesses to the occurrence and recorded their

statements. On 22.02.2015 at around 6.15 p.m., he arrested the Accused

at the entrance of Nellaiappar Temple in the presence of witnesses

Sangarasubbu and Poovaraghavan. The Accused volunteered to give a

confession, which he recorded in the presence of the same witnesses.

Based on the confession given by him, he recovered the gold chain,

which was concealed in the shop of the Accused situate at Kulakkadai

Bazaar. He recovered the same under the cover of Ex.P12 athatchi. He

brought the Accused to the police station and caused him to be remanded

to judicial custody. He examined the confession witnesses and recorded

their statements. On 14.05.2015, he examined the Special Sub Inspector

of Police Muthukrishnan, who registered the First Information Report

and the doctor who had treated the victim and recorded their statements.

On completion of the investigation, he laid the final report before the

Judicial Magistrate.

4. The learned Judicial Magistrate-IV, Tirunelveli, took cognizance

of the said final report and issued summons to the Accused. On his

appearance, copies of the documents relied on by the prosecution were

furnished to the Accused under Section 207 of Cr.P.C. Since the offences

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are exclusively triable by the Court of Sessions, the learned Magistrate

committed the said case to the Principal Sessions Court, Tirunelveli.

Since the offences alleged were committed against a woman, the said

case was made over to the Mahila Court, Tirunelveli. The Trial Court

framed the charges against the Accused under Sections 448, 354, 307,

326, 392 and 506(i) of IPC. The charges were read over and explained to

the Accused, which the Accused denied. Therefore, he was ordered to be

tried by the Trial Court. Further, subsequently, the Trial Court altered the

charges for the offences punishable under Sections 451, 354, 392 read

with 397 and 506(i) of IPC. The Accused was again questioned on the

above charges, which he denied.

5. On the side of the prosecution, PW1 to PW9 were examined and

Exhibits P1 to P12 were marked and M.O.1 to M.O.3 were also marked.

Upon closure of the prosecution witnesses, the incriminating

circumstances appearing in the evidence were put to the Accused under

Section 313(1)(b) of Cr.P.C. The Accused denied them as false and

reported that he had witnesses on his side. However, no witnesses were

examined on the side of the defence. Therefore, the defence evidence was

also closed.

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6. After hearing both sides, the Trial Court found the Accused

guilty of the offences punishable under Sections 451, 354, 392 read with

397 of IPC and the Accused was found not guilty of the offence

punishable under Section 506(i) of IPC. The Accused was sentenced to

undergo the sentence as stated below:

Section of Law

Sentence of

imprisonment

Fine amount

Section 451 of IPC

To undergo two

years Rigorous

imprisonment

Rs.1,000/- i/d to

undergo six months

Simple Imprisonment

Section 354 of IPC

To undergo three

year Rigorous

imprisonment

Rs.1,000/- i/d to

undergo six months

Simple Imprisonment

Section 392 r/w.

397 of IPC

To undergo ten year

Rigorous

imprisonment

Rs.1,000/- i/d to

undergo one year

Simple Imprisonment

The above sentences were ordered to run concurrently. Aggrieved by the

said conviction and sentence, the appellant has preferred the present

appeal before this Court. Though the appellant was acquitted from the

charge under Section 506(i) of IPC, neither the State nor the victim has

filed any appeal.

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7. In this appeal, the learned counsel for the appellant and the

learned Government Advocate (Crl.Side) for the State/respondent were

heard. The Trial Court records were called for and perused.

8. Point for determination:

Whether the judgment of conviction passed by the Mahila Court,

Tirunelveli, against the appellant is sustainable?

Answer:

9. On careful perusal of the records, it is found that it is the case of

the prosecution that on 17.02.2015 at around 14.00 hours, when PW1

was in her house situated at No.10, Lalugaburam, Arasannagar,

Tirunelveli Town, the Accused herein trespassed into her house, abused

her in filthy language, assaulted her on her mouth and thereby caused

simple injury and further intimidated her by saying that he would not

leave her alive and by saying, “Die with this”, he attacked her on the

back of her head with a cement stone which was used for keeping a

grinder. The Accused picked up one of them and attacked her on her head

repeatedly, saying, “Die with this.” The entire room became a pool of

blood. When she was lying unconscious, he had taken away four

sovereigns of gold thali chain, which she wore around her neck. At

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around 3.00 p.m., her husband came back to her house to have lunch. On

seeing her unconscious, he had taken her to the hospital in an auto. While

proceeding in the auto, an ambulance came. She was taken in the

ambulance to the High Ground Hospital and she was admitted to the

hospital. When she was in the hospital, the Police had recorded her

complaint statement. Since she was not in a position to sign, she affixed

her fingerprint. She identified the complaint statement as Ex.P1. The said

complaint was attested by PW2, her husband and she identified the

bloodstained stone, which was used for attacking her, as M.O.1. She

identified four sovereigns of thali chain, which was robbed from her

neck, as M.O.2. She further deposed that the dollar depicted with

Lakshmi picture, which was received by her along with M.O.2, was

melted and a chain was manufactured. She identified the photographs of

the scene of crime, which were taken on her husband's cell phone, as

M.O.3 series.

10. PW2, the husband of PW1, in his evidence, deposed that the

Accused is the husband of his sister Jayalakshmi and is doing goldsmith

work. He is also working in the same building where he worked. On

17.02.2015, at around 11.00 a.m., he had gone to his shop as usual and at

around 2.00 p.m., when he returned to his house along with his friend

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PW3 Rajasekar to have lunch, he found the Accused in front of his house

threatening his wife that he would murder her if she revealed the

happenings to others. On seeing PW2, he had fled away. PW2 was

thinking why the Accused was running from his house and when PW2

and PW3 went into his house, he found his wife lying on the ground in a

pool of blood. When he awoke her, she informed him that the Accused

came there, asked for a marriage CD and when she had gone to the

bedroom, he hugged her. When she pushed him aside, he kissed her on

her mouth and attacked her with the stone, saying that she would reveal

the happenings to others and therefore, she should not live. Further, he

had taken the chain from her neck and fled away. He and PW3 picked up

an auto and took her to High Ground Hospital. At the main road, an

ambulance came and therefore, she was taken to the hospital in the

ambulance. In the complaint statement, he had attested.

11. PW3 Rajasekar, friend of PW2, in his evidence, deposed that

on 17.02.2015, at around 2.00 p.m., he and his friend PW2 came to

PW2's house. At that time, the Accused threatened his friend's wife that

he would murder her if she revealed the happenings to others. On seeing

them, he fled away. Thereafter, he entered the house along with his

friend. He found that his friend's wife was lying in a pool of blood. When

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his friend questioned his injured wife, she reported that the Accused

asked for a marriage CD and when she had gone to pick it up, he hugged

her and attacked her on the mouth, attacked her on the back of her head

with the stone and snatched four sovereigns of thali chain. He and his

friend had taken the injured victim in an auto, and a 108 ambulance came

there. They shifted her to the ambulance and took her to the Government

Hospital, Tirunelveli. When PW1 gave her complaint statement, he was

also present.

12. PW4 Murugan is the witness to Ex.P3 Observation Mahazar

and he has deposed about the preparation of observation mahazar and

recovery of the cement stone from the scene of crime by the Inspector of

Police. PW5 is the witness to the arrest, confession and recovery and he

has deposed about the recovery of gold chain under the cover of Ex.P6

athatchi and he identified his signature in Ex.P6.

13. PW6, the Special Sub-Inspector of Police, who registered the

First Information Report, has spoken about the receipt of information

from the hospital and recording of complaint statement by Head

Constable 987 and registration of the First Information Report.

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14. PW7 is the Doctor, who admitted PW1 in the Government

Hospital, Tirunelveli. He, in his evidence, deposed that the injured was

brought by her husband PW2 Marimuthu and he found the lacerated

injury on her back head and a inflammation on her upper lip. The injured

had taken treatment between 17.02.2015 to 18.03.2015 for about 20 days.

He certified that the injury sustained by PW1 are grievous in nature. In

this connection, he has recorded Ex.P8 Accident Register.

15. PW8 Doctor Nagalakshmi, who has given treatment to PW1, in

her evidence, deposed that the victim was two months pregnant and she

has given treatment to the injury sustained by her on her head and the

wound was sutured and it was not healed and the Doctor has suggested

plastic surgery, since the victim was pregnant, it was decided to conduct

the plastic surgery after three months of pregnancy and sign was obtained

from the injured in this regard and on 08.03.2015 the injured was

discharged. Ex.P9 is the medical record relating to the treatment given to

PW1.

16. PW9 is the Investigation Officer, he has spoken about the

investigation done by him, arrest of the Accused, recovery of gold chain

based on the disclosure and filing of final report before the jurisdictional

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Magistrate.

17. On careful perusal of the evidence of PW1 to PW3, it is found

that the Accused herein is none other than the own sister's husband of

PW2, the husband of PW1. PW1 is the injured witness.

18. It is a settled principal of law that the evidence of injured

witnesses to be treated in a higher pedestal. The injured witness may

have no reason to falsely implicate someone other than the one who has

caused injury on her. From the evidence of PW1, it is clear that the

appellant herein had entered into her house, asked her to give her

marriage CD and when the injured was searching the marriage CD in the

bureau, he had hugged her and attempted to misbehave with her and

when she pushed him aside, enraged by that the Accused attacked PW1

with stone and caused injury on her back head.

19. On careful perusal of cross examination of PW1, defence has

not brought in any circumstances to discredit her testimony. Though the

defence had established certain discrepancies in her evidence and her

previous statement Ex.P1 they are minor in nature. They are not touching

upon the material particulars of the case. Therefore, this Court is of the

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considered view that the said minor discrepancies in no way affected the

case of the prosecution.

20. However, the defence has brought in one important contraction

in the evidence of PW1 from her Ex.P1 complaint statement. In Ex.P1

complaint statement, the victim has stated that when the Accused

attacked her, four sovereigns of gold chain was found missing, whereas

she in her evidence deposed that when she was unconscious, the Accused

herein had snatched four sovereigns of thali chain from her neck.

Therefore, the learned counsel for the appellant contended that it is only

an improvement from her earlier statement. Therefore, according to the

learned counsel for the appellant, the charge of robbery made against the

appellant is not proved beyond all reasonable doubts.

21. Further, he contended that PW1 either in complaint statement

or in her evidence did not say that the thali chain contains a lakshmi

dollar, whereas Form 91(which was not marked before the Trial Court,

but available in the record) clearly shows that originally the gold chain

was produced in which the Magistrate has signed on 22.02.2015. On

22.02.2015 Form 91 was returned to be produced at working hours along

with properties. Thereafter, the properties were re-submitted on

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16.04.2015 and the Police had produced a broken chain, gold string,

dollar chain, lakshmi dollar. Ex.P12 athatchi does not contain the said

details except it is a gold chain. Therefore, according to the learned

counsel for the appellant, the recovery is doubtful. Though the said Form

91 was not marked before the Trial Court, this Court is court is of the

considered view that in order to satisfy the judicial conscience, this court

can look into the Form 91 dated 22.02.2015 produced before the Trial

Court as it is a matter of record and the Accused himself is relying upon

the same.

22. On careful perusal of Form 91, it is found that originally Form

91 dated 22.02.2015 was produced before the Trial Court on 22.02.2015

at about 8.55 p.m., the date on which, the Accused was arrested and the

recovery was made vide Ex.P6 Athatchi. In Ex.P6 in Serial No.5, it is

mentioned that the property recovered is four sovereigns of gold thali

chain and in Form 91 also, it was mentioned that a gold chain of four

sovereigns. At the back of the said Form 91, there was a written

endorsement made by the learned Magistrate that to produce at working

hours along with property. The said form was re-submitted only on

16.04.2015, at that time, it was found that after signature of the learned

Magistrate in Column No.1, four items were mentioned as below:

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1.One gold murukku chain -28.280 grams

2. Broken chain-2.250 grams.

3.Gold string – 2.200 grams

4.Dollar contains lakshmi picture – 0.980 grams

The said properties were remanded in P.R.No.66 of 2015. Therefore,

there are discrepancies between the properties said to have recovered and

the properties said to have produced. Further, it is curious to note that

PW1 in her chief examination did not identify the other three items

except the thali chain, which was marked as M.O.2.

23. Though PW1, in her chief examination, has claimed that she

had melted the dollar containing the Lakshmi picture and made the gold

chain, there is no corroborative piece of evidence in this regard.

Therefore, on a cumulative reading of the above evidence, it is found that

the case of the prosecution that the thali chain of PW1 was snatched

away by the appellant becomes doubtful as it is an improved version of

the prosecution.

24. The learned counsel for the appellant contended that the chain

which was found missing in the said occurrence was later identified and

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utilised for the purpose of strengthening the case, as it was recovered

from the disclosures made by the appellant herein. In this connection, the

evidence of the witnesses to the recovery needs to be seen.

25. One Sankarasubbu, PW5, was examined on the side of the

prosecution as a witness to the recovery. The other witness to the

recovery was not examined before the Trial Court. The PW5 has

deposed, in his evidence, that the Accused herein had produced the chain

from the shop and he has not stated anything that it was taken from the

concealed place and produced to the Investigation Officer.

26. It is relevant to note here that the appellant is also a goldsmith.

Had the appellant robbed the chain, he could have easily melted it and

could have manufactured other jewels. Therefore, he had no reason to

keep it in his shop. Unless the recovery is made from a concealed place,

it cannot be stated that it is a fact discovered. Therefore, this Court is of

the considered view that there is sufficient force in the argument of the

learned counsel for the appellant.

27. In view of the said position, this Court is inclined to extend the

benefit of doubt to the appellant herein. Therefore, the finding of the

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Trial Court in this regard needs to be set aside.

28. Further, the learned counsel for the appellant contended that

though originally a charge was framed for the offences punishable under

Sections 307 and 326 of IPC, subsequently, the said sections were altered

and a charge under Section 392 read with Section 397 of IPC was

framed. Therefore, the learned counsel for the appellant contended that

robbery being a major offence, the appellant can be convicted for the

minor offence, without there being a charge.

29. In this connection, it is useful to refer to the decision of this

Court In Re:Raman Ambalam and others, reported in

MANU/TN/0038/1951. This Court has considered the legal position that

Section 397 covers two different offences, namely, the offence of robbery

and the offence of voluntarily causing grievous hurt with a dangerous

weapon. Likewise, Section 394 of the IPC is made up of robbery and

voluntarily causing hurt. Therefore, there is no defect whatsoever if the

Court has convicted the Accused of the graver offence for one existing

part of that offence. Further, this Court, in the said case, has gone into

Sections 237 and 238 of the Code of Criminal Procedure, 1893 which is

anlagous to Sections 221 and 222 of the code of Criminal Procedure

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Code 1973. Therefore, though the offence of robbery was not proved,

since the appellant was not charged for the offences punishable under

Section 392 r/w. 394 of the IPC, wherein grievous hurt is also one of the

constituents of the said offence, this Court is of the considered view that

the appellant can be punished for the offence of hurt or grievous hurt.

The learned counsel for the appellant further contended that the grievous

hurt is defined under Section 320 of IPC as below:

320.Grievous hurt.—

The following kinds of hurt only are designated as

“grievous”:—

(First)— Emasculation.

(Secondly)— Permanent privation of the sight of either eye.

(Thirdly)— Permanent privation of the hearing of either ear,

(Fourthly)— Privation of any member or joint.

(Fifthly)— Destruction or permanent impairing of the powers

of any member or joint.

(Sixthly)— Permanent disfiguration of the head or face.

(Seventhly)— Fracture or dislocation of a bone or tooth.

(Eighthly)— Any hurt which endangers life or which causes

the sufferer to be during the space of twenty days in severe

bodily pain, or unable to follow his ordinary pursuits.

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The injured did not suffer any fracture in view of the action of the

appellant. The injured suffered infection and, therefore, she was treated

in the hospital beyond the period of 20 days, which was beyond the

control of the appellant. Therefore, according to him, the injury sustained

by PW1 is not grievous hurt but only a simple hurt. In this connection, it

is useful to refer to Section 320 of the IPC, as cited supra.

30. On careful perusal of the said provision, it is found that the

injury sustained by PW1 does not fall under any of the clauses from the

first to the seventh and it may fall under the eighth clause, that “any hurt

which endangers life or which causes the sufferer to be during the space

of twenty days in severe bodily pain, or unable to follow his ordinary

pursuits.” In this connection, it is useful to refer to decision of the Apex

Court in Mathai vs State Of Kerala reported in 2005 (3) SCC 260

wherein the Hon'ble Apex Court observed as below:

“Some hurts which are not like those hurts which are

mentioned in the first seven clauses, are obviously

distinguished from a slight hurt, may nevertheless be more

serious. Thus a wound may cause intense pain, prolonged

disease or lasting injury to the victim, although it does not fall

within any of the first seven clauses. Before a conviction for

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the sentence of grievous hurt can be passed, one of the injuries

defined in Section 320 must be strictly proved, and the eighth

clause is no exception to the general rule of law that a penal

statute must be construed strictly.”

Clause eight contains two parts. The first one is any hurt which

endangers life. The Doctor who admitted the victim and the Doctor who

treated the victim were examined as PW7 and PW8. Ex.P8 Accident

Register was recorded by PW7 at the time of admission of PW1. Ex.P8

discloses that there was a 3 X 3 cm laceration (NC) at the back of the

head and swelling on the upper lip. The Accident Register further

discloses that MRI-Brain was done and there was no significant

abnormality in the brain. There was no separate wound certificate given

by the Doctor disclosing the reason for his opinion. The Doctor has

simply stated in his opinion that the injury is grievous in nature. Whether

the injury is grievous or simple should be decided by the Court in the

light of Section 320 of IPC and the opinion of the Doctor is not decisive

as it was rendered only in a clinical point of view. Reliance is placed

upon the decision of this Court in Re:Joseph @ Duraian reported in

Manu/TN/0440/1984. Neither PW7 nor PW8 had deposed that the injury

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sustained by PW1 is capable of endangering her life. Therefore, it does

not fall under the first part of the eighth clause.

31. The second part is “which causes the sufferer to be during the

space of twenty days in severe bodily pain or unable to follow his

ordinary pursuits.” The evidence of PW7 and PW8 is not to the effect

that PW1 had suffered severe bodily pain or she was not able to follow

her ordinary pursuits during the 20 days. The prosecution has not proved

that during the 20 days, the victim had suffered bodily pain or was not

able to pursue her ordinary pursuits. Therefore, this Court is of the

considered view that the injury sustained by the victim does not answer

any of the clauses of Section 320 of IPC. Therefore, the injury is simple

in nature and the opinion of the Doctor that it is grievous is not

supported by any records and therefore, it need not to be given much

credence.

32. Therefore, this Court is of the considered view that the

appellant herein is not punishable under Section 392 r/w.397 of IPC,

instead, he is punishable for the offences under Section 324 of IPC.

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33. Though the learned counsel for the appellant contended that

originally in the case, it was mentioned that the appellant herein attacked

PW1 with grinder stone, subsequently, it was changed as if a stone which

used for keeping grinder. Therefore, according to the learned counsel for

the appellant, the prosecution has failed to prove the weapon said to have

used to attack PW1. Therefore, the case would fall only under Section

323 of IPC and not under Section 324 of IPC. Though the argument

seems to be attracting, it has no substance.

34. On careful perusal of Ex.P9, it is found that using grinder stone

was interpolated at a later point of time. In the complaint statement, PW1

has stated that she was attacked by the grinder stone. However, the

investigation officer has recovered MO1 cement stone, which is used for

the purpose of keeping the grinder. PW1 has identified the said stone and

the same is marked as MO1.

35. On careful perusal of the cross-examination of PW1 by the

appellant, the appellant had not disputed that the injury was caused by

MO1 stone. Therefore, the said contention of the learned counsel for the

appellant is rejected.

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36. Insofar as the offences under Sections 451 and 354 of IPC are

concerned, the Trial Court has rightly appreciated the evidence available

on record and found the appellant guilty. The appellant has not brought

in any circumstances to discredit the evidence of PW1 except a bare

suggestion that she and PW3 had illicit intimacy, which was seen by the

appellant herein, as a result of which she got afraid, ran into the

bedroom, fell down and sustained injuries. Except the said bare

suggestion, nothing was brought on record to prove the suggestion.

Therefore, this Court is of the considered view that the finding of the

Trial Court with regard to Sections 451 and 354 needs to be upheld.

37. Accordingly, this Criminal Appeal is partly allowed. The

conviction and sentence in respect of the offence under Section 392 r/w.

397 of IPC are hereby set aside. Instead, the appellant is found guilty of

the offence punishable under Section 324 of IPC and hence, he is

imposed with three years of Rigorous Imprisonment with a fine of Rs.

10,000/-, in default, to undergo 6 months simple imprisonment. The

conviction and sentence imposed by the trial court with regard to the

offence under Section 451 of IPC and Section 354 of IPC are upheld.

The appellant is directed to undergo the said sentences concurrently. Out

of the said fine, a sum of Rs.10,000/- is ordered to be paid as

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compensation to the victim under Section 357(3) of Cr.P.C. The bail

bond executed by the appellant is hereby cancelled. The Trial Court is

directed to secure the appellant for serving the remaining sentence, if

any.

01.10.2026

Index : Yes / No

Internet : Yes/ No

Indu

To:

1.The Inspector of Police,

Town Police Station,

Tirunveli District.

2.The Additional Public Prosecutor,

Madurai Bench of Madras High Court,

Madurai.

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S.KARTHIKEYAN ,J

Indu

Crl.A(MD) No.280 of 2018

01.10.2026

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