IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 23 .12.2010 CORAM THE HON'BLE MR.JUSTICE G.M. AKBAR ALI CRIMINAL APPEAL Nos.534 and 582 of 2007 Mani @ Balasubramaniam .... Appellant in C.A.No.534 of 2009 Moorthy @ Thirumoorthy .... Appellant in C.A.No.582 of 2009 vs The Inspector of Police Palladam Police Station Coimbatore District .... Respondent in both the appeals
Appeals filed under Sec.374 (2) Cr.P.C against the Judgment of the learned Principal Sessions Judge, Special Court cum Principal Sessions Court, Coimbatore in S.C.No.15 of 2006 dated 12.6.2007.
For appellant in : Mr.K. Kalyanasundaram C.A.No.534/2007 For appellant in : Mr.B. Kumarasamy for C.A.No.582/2007 Mr.S. Gunalan for respondent : Mr.Hassan Mohamed Jinnah Addl.Public Prosecutor COMMON JUDGMENT
The appellant in C.A.No.534 of 2007 was convicted for the offence under Section 3(1)(x) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (3 counts) and sentenced to undergo 6 months R.I (each count) and to pay a fine of Rs.1,000/-(each count), in default, to undergo one month RI; convicted for the offence under Sec.342 IPC (4 counts) and imposed a fine of Rs.1,000/-(each count), in default, to undergo one month S.I (each count); also convicted for the offence under Sec. 323 IPC (4 counts) and imposed a fine of Rs.1000/-(each count), in default, to undergo one month S.I (each count) and also convicted for the offence under Sec.506(ii) IPC (4 counts) and imposed a fine of Rs.2,000/-(each count), in default, to undergo SI for one month(each count)by the learned Principal Sessions Judge, Special Court cum Principal Sessions Court, Coimbatore in S.C.No.15 of 2006 dated 12.6.2007.
The appellant in C.A.No.582 of 2007 was convicted for the offence under Sec.323 IPC (4 counts) and imposed a fine of Rs.1000/-(each count), in default, to undergo one month SI (each count) and also convicted for the offence under Sec.506(ii) IPC (4 counts) and imposed to pay a fine of Rs.2,000/-(each count), in default, to undergo one month S.I(each count) by the learned Principal Sessions Judge, Special Court cum Principal Sessions Court, Coimbatore in S.C.No.15 of 2006 dated 12.6.2007.
COMMON JUDGMENT
The case of the prosecution is as follows:
P.Ws.7 and 8 belong to Nathakoundapalayam at Palladam Taluk. They belong to Scheduled Caste and are living at Harijan Colony. The appellants also belong to the same village and they belong to Kongu Vellala, which is a backward class.
2. The first appellant was suspecting P.Ws.1, 7 and 8 for the theft of his TVS 50 Motorcycle. On 20.8.2005, around 11.00 a.m, P.Ws.1,7 and 8 were working in a coconut grove. The first appellant came to the place, assaulted P.W.1 and uttered “tz;o vd;dlh Mr;R rf;fpyp jha;nahHp;/”. He dragged P.W.1 to his poultry farm. In the poultry farm, P.Ws.7 and 8 had already been confined by the appellants. The second appellant also joined with the first appellant and tortured P.Ws.1,7 and 8 and also assaulted them. They also abused their caste by uttering the humiliative word. P.W.1 gave a complaint dated 20.10.2005. The Sub Inspector of Police, Palladam Police Station received the complaint on 21.8.2005 and registered a case in Cr.No.934/2005 under Sec.342, 323, 506(ii) IPC r/w 3(1)(X) of S.C and S.T. Act.
3. The Deputy Superintendent of Police investigated and proceeded to the scene of occurrence and prepared the magazar and also examined P.Ws.1,7,8,9. The witnesses were subjected for medical examination. The doctors who gave treatment were also examined by the investigating officer and wound certificate was also obtained. The Tahsildars of Dharapuram and Thiruppur were requested to give the Community Certificate for the witnesses as well as for the appellants. On completion of the investigation, the Deputy Superintendent of Police, Palladam laid a charge sheet for the offences under Secs.342, 323, 506(ii) IPC r/w 3(1)(x) S.C and S.T. Act. On committal, the case was transferred to Principal Sessions Judge, Special Court cum Principal Sessions Court, Coimbatore which was taken on file in S.C.No.15 of 2006.
4. On appearance of the appellants, the court framed charges and the appellants denied the same and opted for trial. In order to prove the case of the prosecution, 17 witnesses were examined, 14 documents were marked. On the basis of the oral and documentary evidence, the Special Court believed the evidence of P.Ws.1,7,8 and 9 and also relied on the medical evidence and found the appellants guilty for the charges leveled against them and convicted and passed the sentence as stated above.
5. Aggrieved by which, A.1 has preferred the appeal in C.A.No.534 of 2007 and A.2 has preferred the appeal in C.A.No. 582 of 2007.Though two different criminal appeals are filed, they are disposed of by a common judgment. The appellants are referred as 1st appellant and 2nd appellant.
6. Mr.K. Kalyanasundaram, learned counsel appearing for the first appellant submitted that the trial court has failed to note that the first appellant had already lodged a complaint against the witnesses on 19.8.2005 for the allegation of theft of his TVS Motor Cycle which has been registered in Cr.NO.935 of 2005. The learned counsel pointed out that P.W.1 has lodged the present complaint only on 20.8.2005 as a counter measure for implicating the appellant. The learned counsel also pointed out that the evidence of P.Ws.1,7 to 9 are false.
7. The learned counsel also pointed out that to attract Sec. 3(1)(x) of S.C.S.T Act, the person belonging to the Scheduled Caste ought to have been insulted or humiliated in the public view. The learned counsel pointed out that even according to the prosecution, the occurrence took place only in the poultry farm of P.W.1, which is not a public place.
8. Mr.B. Kumarasamy for Mr.S. Gunalan, the learned counsel appearing for the second appellant submitted that the trial court, having chosen to disbelieve the witnesses for the offence under Sec.3(1)(x) of S.C and S.T.Act, ought not to have believed their version for the alleged assault and criminal intimidation against the second appellant.
9. The learned counsel for the appellants relied on 1997 Crl.LJ 122 (Haridas vs State of Maharashtra),wherein, the Bombay High Court has held as follows:
“7….. On the other hand, the charge under Section 509 of the Indian Penal Code as also under Section 3(1)(x) of the Atrocities Act has been framed with the aid of Section 34 of the Indian Penal Code. Both the offences, i.e., under Section 509 and under Section 3(1)(x) are of such a nature which are individualistic; The essence of both the charges is the utterance of the filthy language on the art of the accused. Without this specific charge against the specific accused having uttered the particular offending words, the charge would really be a vague charge. In short, no accused has been given a notice of the allegation and the accused would not be in a position to know as to which of them has really uttered the offending words. The framing of the charge with the aid of Section 34 was entirely incorrect and the charge should have been framed substantively against the accused who was alleged to have uttered the offending words.
10. The learned counsel also relied on a decision reported in 2000 CRL LJ 1978 (Goura Gobinda Das and another vs State of Orissa), wherein, the Orissa High Court has held as follows:
“8….. To attract the provisions of Section 3 of the Act, it is necessary that it should be in a place where public could view the incident. In a case of this nature, the trial Court should exercise care and caution before holding an accused guilty of the charge, specially when the chances of falsely implicating the accused by persons in authority cannot be ruled out.”
11. He also relied on a decision reported in 2002 MLJ Crl.202 (Victor Paul and another vs State)
“The phrase used in the Section is “offence being committed in any place within public view”. This definitely contemplates persons besides the victim also viewing the occurrence. I have already discussed the oral evidence of P.Ws.2 and 3 and arrived at the conclusion that their evidence cannot be accepted. This means there is no other evidence except the evidence of P.W.1, alone, assuming it deserves acceptance, that he was insulted in a place within public view”.
12. He further relied on a decision reported in 2002 1 MWN Crl 86(Karuppiah vs Inspector of Police, PCR Unit Police Station, Virudhunagar), wherein this Court had held as follows:
“8. The learned counsel for the appellant also cited two authorities reported in Karnan Sings vs State of MP., 1992 Crl.L.J 3053 and Haridas vs State of Maharashtra, 1997 Crl.L.J 122 stressed that only when the incident took place within the public view it would attract provisions of Sec.3() and also to stress that contradiction in the evidence of prosecution witnesses would show that the accused is entitled to benefit of doubt”.
13. He further relied on a decision reported in 2004 2 Crimes 469(Mohammed Kutty vs State of Kerala), where the Kerala High Court held that prosecution must prove that the accused intentionally insulted or intimidated the person belonging to a Scheduled Caste or Schedule Tribe with intention to humiliate.
14. Lastly, the learned counsel relied on a decision reported in 2010 1 L.W (Crl.) 1,(Thangarasu and another vs State) the learned Single Judge of this Court has held as follows:
“16. Rule 7 of the Scheduled Castes and Scheduled tribes (Prevention of Atrocites) Rules 1995 says that an offence committed under the act shall be investigated by a police officer not below the rank of Deputy Superintendent of Police and that the Investigating Officer shall be appointed by the State/Director General of Police/Superintendent of Police after taking into his past experience, sense of ability and justice to perceive the implications of the case and investigate it along with right lines within the shortest possible time”.
15. To attract a conviction for offence under Sec.3(1)(x) of the Act, the prosecution must show that the accused intentionally insulted or intimidated with an intention to humiliate a member of S.C or S.T in any place within the public view. In 2002 MLJ Crl.202 (Victor Paul and another vs State) cited supra, this court has elaborately discussed what is public view. After discussing various decisions, this Court held that offence being committed in any place within public view contemplates persons besides the victim also viewing the occurrence.
16. To attract the provisions of Sec.3(1)(x) of the Act, it is necessary that it should be in a place where public could view the incident. The act could have been committed in any place but should have been committed within the public view. In the present case, P.W.1 would state that he was working in a coconut farm along with one Senniappan, Karuppan, Senthil and Mayavan. According to him, the 1st appellant came there and asked for his TVS 50 and said the humiliating words. According to him, the first appellant took P.W.1 to his poultry farm, where already P.Ws.7 to 9 were confined. According to P.W.1, both the appellants assaulted all the four witnesses. P.W.1 did not state that the appellants used the word at the poultry farm. P.W.7 would state that the first appellant took him to his land and uttered the humiliating word and thereafter assaulted. According to him, two days after confinement at the poultry farm, he came out. P.W.8 would state he was standing in front of his house and the first appellant took P.W.8 along with him to his farm under the guise that he has to offer a work for P.W.8. According to him, when he went to poultry farm, the first appellant wrongfully confined him and thereafter, applied electric shock and assaulted him. He did not say that the first appellant used the humiliating word.
17. P.W.9 Palanisamy who belongs to Naicker Community and P.W.10 Guna alias Gunasekaran, son of P.W.9 are the two independent witnesses. P.W.9 would state that he was called by the first appellant to his poultry farm and when he went there, P.Ws.1,7 and 8 were there and the first appellant asked him whether he knows anything about his TVS 50. He would further state that the 2nd appellant assaulted him and thereafter, the appellants uttered the humiliating word and also assaulted the witnesses. P.W.10 would state that on hearing his father that he was taken to the first appellant’s farm, he also went there. He would state that his father and other witnesses were tied up and the appellants were using the humiliating word and were beating up the witnesses.
18. P.Ws.2 and 3 are the doctors who examined the injured. P.W.2 would state that she had examined P.W.1 and found contusion on the right shoulder, left shoulder, right scapula and on the right buttocks and issued the wound certificate that he has sustained simple injuries. P.W.3 would state that he had examined P.W.7 and P.W.8. According to the doctor, P.W.7 and P.W.9 had not sustained any injury.
19. One Murugesan was also examined by the doctors but he was not examined as a witness before the trial court. P.W.9 Palanisamy was not subjected for medical examination.
20. P.Ws.7 and 8 had not sustained any injury. However, the trial court has found that the appellants have assaulted the witnesses and had caused simple injuries and that too, on four counts. As stated earlier, P.Ws.7 and 8 have not sustained any injury. P.W.9 was not subjected for medical examination. One Murugesan was given treatment for an abrasion but was not examined before the Court. But both the appellants were convicted for an offence under Sec.323 on four counts,which is unsustainable. They were also convicted for the offence under Sec.506(ii) IPC on four counts. However, the witnesses did not speak anything about criminal intimidation. Therefore, the conviction and sentence under Sec.506(ii) IPC on four counts is not sustainable.
21. That leaves the conviction of the first appellant for the offence under Sec.3(1)(x) on 3 counts and 342 IPC on four counts. P.W.7 would state that at the poultry farm the first appellant uttered the words “rf;fpypj;jhnahHpfsh bfhy;yhky; tplkhl;nld; vd;W brhy;yp jpl;odhh;”
22. He would also state that for two days he was confined by the first appellant. P.W.8 did not say that the first appellant uttered the word. P.W.9 the injured independent witness who belong to forward caste would state both the appellants used the humiliating word. P.W.10, son of P.W.9 would also state that both the appellants uttered the word.
23. P.Ws.9 and 10 would state that P.W.9 sustained injuries but as stated earlier, he was not examined. Even according to the prosecution and the finding of the trial court, the first appellant alone had uttered the humiliating word.
24. On the contrary, P.W.s9 and 10 would state that both the appellants have uttered the humiliating word. P.W.1 would state that the first appellant used the word when he was working in the coconut grove. He mentioned that one Seniappan, Karuppan, Senthil and Mayavan were present at the time, but they were not examined to corroborate P.W.1. P.W.1 did not state that the first appellant used the word at the poultry farm. Therefore, the evidence of P.W.s1, 7 to 10 are contradictory to each other about the first appellant uttering the humiliating word. Therefore, the benefit of doubt has to be given to the first appellant.
25. When the evidence are contradictory, the trial court is wrong in holding that the first appellant had committed offence under Sec.3(1)(x) of S.C.and S.T Act on four counts and also offence under Sections 342, 323 and 506(ii) IPC on four counts on each offence and therefore, the conviction and sentence passed by the learned Principal Sessions Judge, Special Court cum Principal Sessions Court, Coimbatore is not sustainable and they are liable to be set aside.
26. In the result, both the criminal appeals are allowed and the conviction and sentence passed by the learned Principal Sessions Judge, Special Court cum Principal Sessions Court, Coimbatore in S.C.No.15 of 2006 dated 12.6.2007 are set aside. Fine amount already paid for all the offences is ordered to be refunded. Bail bond executed by the appellants shall stand canceled.
sr
To
1. The District Munsif cum
Judicial Magistrate, Palladam
2. The Chief Judicial Magistrate
Coimbatore
3. The Special Court and Principal
Session Court, Coimbatore
4. The Public Prosecutor,
High Court, Madras
5. The Inspector of Police
Palladam Police Station
Coimbatore District