BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 01/09/2009 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.(MD)No.72 of 1999 State represented by The Inspector of Police, Crime Branch C.I.D., C.N.R. Unit Crime No.1 of 1996. .. Appellant Vs 1.Rajesh 2.Durairaj .. Respondents Accused 2 and 7 Prayer Criminal appeal is filed under Section 378 of Cr.P.C., against the judgment dated 21.09.1998 passed in C.C.No.159 of 1997 by the learned Judicial Magistrate, Srivaikundam. !For appellant ... Mr.L.Murugan Govt. Advocate (Crl. side) ^For respondent No.1 ... Mr.V.Gopinath Senior counsel for Mr.V.Andiraj For respondent No.2 ... Mr.V.Prabath * * * * * :JUDGMENT
This appeal has been filed by the State against the acquittal of the
accused 2 and 7 in C.C.No.159 of 1997 passed by the learned Judicial Magistrate,
Srivaikundam dated 21.09.1998.
2. The facts of the case are as follows:
Mrs.Subbulakshmi, W/o.Subburaman of Tirunelveli, who was the victim in the
alleged rape committed by A1 viz., Mangalam Dhanaraj, formerly Deputy
Superintendent of Police, PCR Unit, Madurai, which case was pending trial at
that time against A1 on the file of the learned Assistant sessions Judge,
Tenkasi in S.C.No.407 of 1993, brought to the notice of this Court that A1 who
was kept in Central Prison, Palayamkottai from 16.06.1996 on the execution of
the NBW issued against him, came out on bail on 16.07.1996 by producing bogus
High Court bail order in Crl.O.P.No.4915 of 1996 dated 15.07.1996 before the
learned Judicial Magistrate, Srivaikundam. The matter was taken up by this
Court in Crl.O.P.No.5968 of 1996 and an order was passed on 29.08.1996,
directing the Registrar, High Court, Chennai to lodge complaint with the Crime
Branch CID, Chennai against A1 and others for the offences under Sections
120(b), 468, 471 and 476 I.P.C. Accordingly, the Additional Registrar
(Judicial), High Court, Chennai lodged a complaint with the Crime Branch CID,
Chennai on 02.09.1996, which was registered in CB CID Headquarters as Crime
No.31 of 1996 and subsequently the case was transferred to CB CID, Thoothukudi
Unit on the question of jurisdiction. The same was registered in Thoothukudi CB
CID Crime No.1 of 1996 and investigation had been taken up as per orders.
(ii) On completion of procedure contemplated under Section 207 Cr.P.C.
charges were framed against the accused as follows:
Sl.No. Name of the accused Offences
1 Mangala Dhanaraj 120(b) I.P.C.
2 Rajesh 120(b), 476 r/w.109, 471 r/w.468,
109 and 420 r/w.109 I.P.C.
3 Asirkovilpitchai 120(b), 476, 468 r/w.109, 471 r/w.468,
109 and 420 r/w.109 I.P.C.
4 Sudandiraraj 476 I.P.C.
5 Subramanian 466 and 468 I.P.C.
6 Perumal 466 I.P.C.
7 Durairaj 471 r/w.468 and 420 I.P.C.
(iii) The prosecution examined twenty six witnesses and marked fourteen
exhibits and fourteen material objects towards proving the guilt of the accused.
(iv) On questioning under Section 313 Cr.P.C., the accused denied their
involvement and A1 and A3 wished to examine witnesses on their side. On the
side of A1, two witnesses were examined and ten exhibits were marked.
(v) The learned Judicial Magistrate, Srivaikundam on completion of trial
convicted A1 and A3 to A6 as follows:
Sl.No. Name of the accused Offence Sentence
1 Mangala Dhanaraj (A1) 120(b) I.P.C. To undergo rigorous imprisonment
for two years.
2 Aasir Kovilpitchai(A3) 471 r/w. 468, To undergo rigorous imprisonment
466 and 109, 476 for three years for each offence
I.P.C. under Sections
120(b), 466 read with 109 and
468 r/w.109 I.P.C. and rigorous
imprisonment for three years
for each offence under Sections
476, 471 r/w. 468 r/w.109 I.P.C.
3 Sudandiraraj (A4) 476 I.P.C. To undergo rigorous imprisonment
for three years.
4. Subramanian (A5) 466 and 468 r/w. To undergo rigorous imprisonment
109 I.P.C. for three years under Section
466 I.P.C. and simple imprisonment
for three years under Section
468 I.P.C.
5. Perumal (A6) 468 I.P.C. To undergo rigorous imprisonment
for three years.
However, A2 and A7 were acquitted and hence this appeal.
3. A2 is the son of A1. A7 is an Advocate, who moved bail application
before the concerned Court on the strength of the forged bail orders.
4. A2 was charged with offences under Sections 120(b), 476 r/w 109, 471
r/w 468, 109 and 420 r/w 109 I.P.C. and A7 was charged with offecnes under
Sections 471 r/w 468 and 420 I.P.C.
5. The learned Government Advocate (Criminal side) contends that P.W.7,
the Prison Officer at the Palayamkottai Central Prison, deposed that on
09.07.1996, during the prison visit of A2, son of A1 and one Suresh, another son
of A1, A1 sent the other son viz., Suresh out and asked A2 to bring one
Aashirkovilpitchai to Tenkasi Court towards obtaining bail for himself. After
the visit, A2 and A3, who stand convicted by the lower Court, had conspired to
prepare the fake bail order. This was spoken to by P.W.23. The evidence of
P.W.23 is that A2 and A3 were talking at the corner of the road, when A1 told A3
that his bail ought to be obtained, somehow or other. A3 said that Rs.15,000/-
would be required. A1 told A3 that he could pay only Rs.10,000/- and asked A2
to hand over the said sum to A3.
6. The learned Government Advocate (Criminal side) also seeks support in
the evidence of P.W.24, which is that A3 had represented himself to be an
Advocate Clerk and stated that if bail was not obtained before the lower Court,
the same could be obtained at Chennai through engaging a reputed counsel and
that the same would cost Rs.15,000/-. Having referred to the evidence available
as above, the learned Government Advocate (Criminal side) contended that the
same was sufficient to bring home the guilt against A2, the lower Court ought to
have convicted him on the strength thereof and hence the acquittal of A2 has to
be set aside.
7. As regards A7, the learned Government Advocate (Criminal side) relied
on Exs.P13 to 17. Ex.P13 to 17 are the affidavits of the sureties, the property
receipts and the memo of appearance filed by A7. The learned Government
Advocate (Criminal side) refers to Ex.P18 and submits that when the defect
therein viz., the name of the respondent being reflected as Revenue Divisional
Officer, Cheranmahadevi instead of the Assistant Sessions Judge, Tenkasi, was
pointed out, A7 had made bold to swear to an affidavit, Ex.P19, asserting that
the same was merely an error. The learned Government Advocate (Criminal side)
also states that whereas the concluding portion of such affidavit has been
corrected to show the seeking of an order of bail, the actual wording in such
portion in Ex.P19 was an undertaking by A7 to produce the corrected order copy
in relation to Ex.P18. This, according to the learned Government Advocate
(Criminal side) reflected the complicity of A7 in the crime and given the same,
the trial Court ought to have found A7 guilty in the case.
8. I have heard the learned senior counsel Mr.V.Gopinath on the
submissions of the learned Government Advocate (Criminal side).
9. Touching upon the submissions of the learned Government Advocate
(Criminal side) in relation to A2, the learned senior counsel submits that even
if the assertion of P.W.7 regarding A1 requiring A2 to bring A3 on a particular
date towards obtaining bail for A1, is taken to be true, there is nothing wrong
in a father speaking to the son on arrangements regarding bail for himself.
Having stated thus, the learned senior counsel took this Court through the
evidence of P.W.7 to show that the original of Ex.P4, Jail Visitors Register had
not been marked in the trial Court and such failure of the prosecution had drawn
adverse remarks at the hands of the trial Court. The learned senior counsel
stressed that the copy marked as Ex.P4 had not been so much attested. Thus the
submission is that Ex.P4 could not be relied upon. The learned senior counsel
also informed that the prosecution relied on the evidence of P.W.23, who had
deposed that he had seen A2 and A3 talking to each other when A1 made the
request to A3 for arrangement of bail. Having touched upon the same, the
learned senior counsel informed that the evidence of P.W.23 was that he went to
the house of P.W.22 and met P.W.20, the wife of P.W.22, who said that P.W.22 had
gone to Tenkasi and that on such information P.W.23, went to Tenkasi, when he
witnessed the conversation between A1, A2 and A3. P.W.20 had denied that
P.W.23, had called at her residence on the fateful day, 10.07.1986. As against
the evidence of P.W.23 that he informed P.W.22 of the conversation between A1 to
A3 on the same day, i.e., 10.07.1986, P.W.22’s evidence is that only on
02.10.1996, Gandhi Jeyanthi day, he met P.W.23, who informed of such
conversation between A1, A2 and A3. P.Ws.20 and 22 had filed several petitions
before the High Court, Chennai, wherein the forged order of bail was referred
to, but nowhere in those petitions, any reference was made to P.W.23. Added to
this, P.Ws.22 and 23 had already been examined in the case and no occasion for
them to meet arose. Thus, according to the learned senior counsel, the alleged
conspiracy between A1, A2 and A3 sought to be made out through the evidence of
P.W.23 would fall to the ground on a careful appreciation of the prosecution
evidence.
10. As regards the contention of the learned Government Advocate (Criminal
side) on the involvement of A7, the learned senior counsel would submit that A7
being an Advocate has conducted himself in such manner as any Advocate would and
that the very fact of swearing to an affidavit to the effect that the
respondents’ names had been wrongly typed in Ex.P18 would go to show that the
Advocate had nothing to hide. As regards the contention of Ex.P19 having been
clandestinely corrected by A7, the learned senior counsel drew the attention of
this Court to the evidence of P.W.18, the learned Judicial Magistrate,
Thiruchendur, who had stated that he had noticed the struck out portion in
Ex.P19 and when asked A7 had said that if necessary the corrected copy would be
submitted. Thus, it is apparent that it is Ex.P.19 as corrected, which was
submitted before the Court and there was nothing hanky-panky about it. The
learned senior counsel concluded his arguments by submitting that even on a
fresh appreciation by this Court, it would be clear that no criminality could be
attributed to either A2 or A7.
11. This Court in dealing with an appeal against acquittal would be very
slow to interfere and would in fact interfere only if the reasoning of the lower
Court was totally unfounded or was not supported by the material on record or
otherwise perverse or illegal. None of these defects could be attributed to the
finding of the trial Court, which on a proper appreciation of the evidence,
while arriving at the finding of guilt of the other accused had thought it fit
and proper to acquit the respondents herein.
12. The lucid explanation of the circumstances relied upon by the
prosecution towards implicating A2 and A7 in the case and on how, on the
material and evidence on record it totally would be unjust to infer the
involvement of these two respondents, call for immediate acceptance. The lower
Court, has on proper appreciation, acquitted the respondents herein. Hence,
this appeal fails and accordingly, the same is dismissed.
smn
To
1.The Judicial Magistrate,
Srivaikundam.
2.The Inspector of Police,
Crime Branch C.I.D.,
C.N.R. Unit.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.