IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02/07/2003
CORAM
THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM
C.A.No.801 of 1997
P.Rathinam .. Appellant
-Vs-
State represented by
Sub Inspector of Police
Elachipalayam Police Station
Salem
(Cr.No.95/93) .. Respondent
This criminal appeal is preferred under S.374 of The Code of Criminal
Procedure against the conviction and sentence passed by the Principal District
and Sessions Judge, Salem, by judgment dated 18.4.1995 made in S.C.No.177 of
1994.
!For Appellant : Mr.R.Amarnath Rao
for Mr.R.Dhanapal Raj
^For Respondent : Mr.V.Jaya Prakash Narayanan
Government Advocate (Crl. Side)
:JUDGMENT
The appellant/A-4 herein who stood charged and tried along with four
others under Ss 148, 447, 324, 365 and 342 of I.P.C. and S.3(1)(x) of SC/ST
(Prevention of Atrocities) Act and found guilty under Ss 147, 447, 342 and 365
of I.P.C. and sentenced to pay a fine of Rs.500/- under S.147 in default of
which to undergo 3 months R.I. and to pay a fine of Rs.100/- under S.447 in
default of which to undergo 15 days R.I. and to pay a fine of Rs.500/- in
default of which to undergo 3 months R.I. and to undergo 1 day imprisonment
along with a fine of Rs.1 ,000/- in default of which to undergo 6 months R.I.
has brought forth this appeal.
2. The short facts necessary for the disposal of this appeal can be
stated as follows:
P.W.6 Ponnusamy was carrying on his crushing business by name Senthil
Raja Jalli Crusher at Vaiyamalai. P.W.1 Balakrishnan, P.W.2 Kandasamy, P.W.3
Tmt.Chinthamani, P.W.4 Viswanathan and P.W.5 Shanmugam were employed under
him. On 30.1.1993, P.Ws.1, 4 and 5 took two loads of jalli in two lorries
bearing Registration Nos.TN 33-5004 and TN 28 Y-8856 to a person at
Konganapuram. At the time of loading the jalli at 1.00 A.M., there was a
wordy quarrel between the said prosecution witnesses and the local area people
there, as a result of which both the parties were attacking each other.
Afterwards, P.Ws.1, 4 and 5 returned to the Crusher Mill. At about 3.00 A.M.,
the accused 1 to 5 accompanied by 30 persons came in a Toyota Van bearing
Registration No.TCH 3648 and trespassed into the Crusher Mill. They abused
P.W.2 the watchman of the Mill by using filthy language referring to his cast.
The second accused drove the Crusher Lorry No.TN 33-5004, dashed against the
Office and caused damage to the tune of Rs.15,000/-. Thereafter, the accused
kidnapped P.W.2 to their place and kept him under wrongful confinement. A-1
threatened P.W.6 Ponnusamy that he should surrender the two lorry drivers
namely P.Ws.4 and 5, if he was to release P.W.2 from the confinement. At
10.00 A.M. P.W.1 came to the Police Station and lodged Ex.P1 complaint, on
the strength of which P.W.11 Ganesan, Sub Inspector of Police registered a
case in Crime No.95/93 under Ss 147, 148, 341, 364, 427 and 447 of I.P.C.
Ex.P5 F.I.R. was despatched to the concerned Magistrate’s Court. P.W.11 took
up the further investigation, proceeded to the scene of occurrence, prepared
Ex.P6 rough sketch, examined P.Ws.1, 3 and 6 on 31.1.93 at 8.1 5 P.M. and
recorded their statements. P.W.2 came to the Police Station and gave a
statement to P.W.11. P.W.11 Investigation Officer sent P.W.2 to the
Government Hospital, Thiruchengode for treatment. P.W.8 Dr.Nalliappan,
attached to Government Hospital, Thiruchengode, gave treatment to P.W.2, found
four injuries on him and issued Ex.P2 wound certificate. On the basis of the
statement of P.W.2, P.W.11 added S.7(1)(d) of PCR Act and sent Ex.P7 report to
the Court concerned. The Investigation Officer seized the vehicle No.TN
33-5004 and sent the same for expert’s opinion. He also seized the other
vehicle TCM Toyota bearing Registration No.3468, marked as M.O.3 in the
presence of P.W.10 Kandasamy and one Mohan under Ex.P4 mahazar. The
Investigation Officer examined P.Ws.2, 4, 5 and 10 and recorded their
statements. P.W.12, who took charge of the respondent Police Station on
28.9.93 , examined the other witnesses, and on completion of the
investigation, he filed the charge sheet against the accused before the
Judicial Magistrate, Thiruchengode on 30.9.1993.
3. In order to prove the case, the prosecution examined 12 witnesses
and marked 7 exhibits and 3 material objects. After the evidence of the
prosecution was over, the accused were questioned under S.313 Cr.P.C. as to
the incriminating circumstances found in the evidence of the prosecution
witnesses, and they flatly denied the same as false. No defence witness was
examined. After considering the rival submissions and scrutiny of the
available materials, the trial Court found the appellant/A-4 along with the
other accused guilty of the offences. The lower Court convicted the appellant
and sentenced him to imprisonment as stated supra.
4. Advancing the arguments on behalf of the appellant, the learned
Counsel made the following submissions:
The prosecution has not placed before the lower Court, the first part
of the occurrence, in which the accused were assaulted. The occurrence,
according to the prosecution, has taken place at 3.00 A.M. in the Crusher
Mill of P.W.6 at Vaiyamalai, following an incident that took place at
Konganapuram at 1.00 A.M., in which P.Ws.1, 4 and 5 were involved. Thus, the
prosecution has not unfolded the genesis of the crime. P.W.1 has given the
first complaint, on the strength of which a case was registered in Crime
No.95/93 by the respondent police. P.W.2 has also given another statement,
which was also acted upon. The lower Court has not believed the evidence of
P.W.2. It is pertinent to point out that the first complaint was given by
P.W.1, wherein he has stated that A-1 and 30 others armed with deadly weapons
came to the place of occurrence and committed the crime in question. It
remains to be stated that the occurrence has taken place during night hours,
and the witnesses have clearly spoken to the fact that the accused were not
known to them previously, and hence, without knowing the accused earlier, the
witnesses, who could not see the assailants on the day of occurrence, could
not identify them properly. It has to noted that no identification parade was
also conducted, and the name of the appellant/A-4 was nowhere mentioned in the
F.I.R. P.W.1 has stated that the accused have climbed over a tamarind tree
and witnessed the occurrence. But, the investigation has not revealed the
existence of the tamarind tree. Therefore, for all these reasons, the
judgment of the lower Court has to be set aside, and the appellant be
acquitted of the charges.
5. Countering to the above contentions of the appellant’s side, the
learned Government Advocate (Criminal Side) would urge that the lower Court
has considered the evidence carefully and found the accused guilty of the said
charges; that it is pertinent to note that P.W.2 was kidnapped by the accused,
and he was examined; that there are no two complaints as alleged by the
appellant; that P.W.2 went to the Police station and gave a statement, which
was recorded and acted upon; that it is true that there were two information
in this case, one by P.W.1 on the strength of which the said case was
registered in Cr.No.9 5/93, and the other by P.W.2, on the basis of which
P.W.11 added S.7(1)(d) of PCR Act; that the prosecution witnesses have clearly
and cogently narrated the incident, and hence, the minor discrepancies will
not affect the prosecution case; and therefore, the judgment of the trial
Court has to be sustained.
6. This Court paid its full attention on the available materials, as
a result of which the Court is of the considered opinion that the appeal has
got to be allowed.
7. The specific case of the prosecution was that the appellant,
ranked as A-4 along with four other accused, who stood charged before the
lower Court, and 25 others constituted into an unlawful assembly and came to
the place of occurrence at about 3.00 A.M.; that they attacked P.W.2 with
sticks and caused injuries; that they caused damages to the Office of P.W.6 to
the tune of Rs.15,000/-; that they abused P. W.2 by making a reference to his
community; that they kidnapped P.W.2; and that they threatened P.W.6 that he
should surrender his two lorry drivers namely P.Ws.4 and 5, if the accused
were to release P.W.2. On the strength of the complaint given by P.W.1, a
case was registered by P.W.11 Sub Inspector of Police against the accused 1 to
5 and investigation has proceeded. It is quite evident from the testimony of
P.Ws.1 to 5 that the incident in question was preceded by an incident that
took place at Konganapuram, wherein P.Ws.1, 4 and 5 were involved. P.Ws.1, 4
and 5 took two loads of jalli in two lorries to be supplied at Konganapuram,
where following a wordy quarrel, an incident of attack between P.Ws.1, 4 and 5
on the one side and the accused party on the other side had taken place at
about 1.30 A.M. This fact was also spoken to by the complainant P.W.1 by
stating that the incident of attack had taken place at two places, and one
such incident took place at Konganapuram; and that since the incident at
Konganapuram took place during night hours, he could not say who were all
involved. Thus, it would be clear that the prosecution has placed evidence
only as to the second part, but not as to the first incident that took place
at Konganapuram. The incident in question at Vaiyamalai has taken place.
But, neither the investigation was done in respect of the first part of the
incident, nor the same was unfolded at the time when the case was placed
before the lower Court at the time of trial. Under the stated circumstances,
it would be very difficult to appraise of the entire case to arrive at a
correct conclusion and take a decision in the matter. In short, it can be
well stated that the prosecution has not brought before the Court below the
genesis of the occurrence.
8. It is not the case of the prosecution that all the accused, who
came to the place of occurrence, were not already known to P.W.1. But, in the
earliest information given by P.W.1, he has stated the names of the first
accused and 30 others. He has not whispered anything about the appellant
anywhere. According to him, due to fear he just climbed over a tamarind tree
and witnessed the occurrence. As rightly pointed out by the learned Counsel
for the appellant, no tamarind tree is shown in Ex.P6 rough sketch. From the
evidence of P.Ws.1 to 5, it would be clear that the occurrence has taken place
at about 3.00 A.M. during darkness, and they could not pinpoint the acts
committed by the culprits, in particular when they were about 30 or 35 in
number. P.W.11 the Investigation Officer, has categorically admitted in his
evidence that he recorded the statement of P.W.2 from which he came to know
that an incident had taken place at Konganapuram Bus Stand at 1.00 A.M.,
wherein the prosecution witnesses were involved, but, he has not enquired
anything about the same. According to the Investigation Officer, he has not
prepared the observation mahazar, though he claimed that he made an inspection
of the site of occurrence. The non-preparation of the observation mahazar by
the Investigation Officer and the non-existence of the tamarind tree, as per
Ex.P6 rough sketch prepared by the Investigation Officer would cast a doubt
whether the Investigation Officer had really made an inspection of the site of
occurrence. In view of all the infirmities and doubts in the prosecution
case, it would be highly unsafe to hold that the appellant/A-4 was guilty of
the offences under Ss 147, 447, 342 and 365 of I.P.C., and hence, he is
entitled for an acquittal.
9. In the result, this criminal appeal is allowed, setting aside the
judgment of the lower Court in respect of the appellant/A-4. The
appellant/A-4 is acquitted of the charges against him. The bail bond, if any
executed by the appellant/A-4, shall stand cancelled and the fine amounts, if
any paid, shall be refunded to the appellant/A4.
Index: Yes
Internet: Yes
To:
1) The District and Sessions Judge, Salem.
2) The Principal District and Sessions Judge, Salem.
3) The Public Prosecutor, High Court, Madras.
4) The D.I.G. of Police, Chennai 4.
5) Mr.V.Jaya Prakash Narayanan, Government Advocate
(Crl. Side), High Court, Madras.
6) The Sub Inspector of Police, Elachipalayam Police Station
Velagoundampatti Circle, Salem District.
nsv/