IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.02.2011 CORAM THE HONOURABLE MR. JUSTICE A. ARUMUGHASWAMY Criminal Appeal No. 1185 of 2004 1.Saravanan 2.Muthiah ... Appellants -- vs -- State by Inspector of Police, Devala Police Station, The Nilgiris (Cr.No.119/2002) ... Respondent Criminal Appeal filed under Section 374 of the code of Criminal Procedure, praying to set aside the judgment and conviction dated 9.9.2004 and made in S.C.No.38 of 2003 on the file of the learned District and Sessions Judge, Ootacamund, the Nilgiris. For Appellant : Mr.ARL.Sundaresan, Senior Counsel for Mrs.AL.Ganthimathi For Respondent : Mr. N.Kumanan,G.A.(crl.side) - - - - - J U D G M E N T
The accused are the appellants. The present appeal has been filed against the judgement in S.C.No.38 of 2003 on the file of the District and Sessions Judge, Ootacamund, the Nilgiris. Against the judgement, the appellants/accused are convicted for the offence under Section 450 IPC and sentenced to undergo Rigourous Imprisonment for five years; convicted for the offence under section 307 of IPC and sentenced to undergo 7 years Rigourous Imprisonment; convicted for the offence under section 3(2)(V) of the SC/ST (Prevention of Atrocities)Act, 1989 and sentenced to undergo three years Rigorous Imprisonment and to pay a fine of Rs.2,000/- in each counts in default to undergo simple imprisonment for one year for each counts. Against the same, the present appeal has been filed.
2. The case of the prosecution are as follows:
A1’s sister is PW.2. A2 is A1’s brother in law. When PW.2 was just 14 years, PW.1 has taken the PW.2 and married and they settled at Devela in Nilgiris district. A1 and A2 belong to pudukottai District. PW.1 belongs to Scheduled caste community and PW.2 belongs to Udaiyar community. PW.1 and PW.2 were married and settled at Devela. After the marriage, A1’s father namely PW.2’s father used to visit his daughter’s house and to present Rs.500/-, biscuits and etc., now and then. Under such a circumstance, on 5.7.2002, at about 1.00 ‘o’ clock, A1 and A2 came to PW.2’s house. At that time PW.1 has gone for his work. They have been till at 5.00 pm., at their house. Thereafter, they left to go to the village after presenting some biscuits to the baby girl. Then, during the night hour on the same day at mid night, they knocked the door and they entered into the house at about 12.30 mid night, and informed that they missed the last bus and also wanted to stay in their house. Thereafter, they were talking with each other and they had gone to bed. While he was sleeping with PW.1, A1 pushed him on the bed by using the blanket and he attempted to crush his neck. Likewise, they attempted to PW.2 also. She shouted. At that time, on hearing the noise, PW.4, who is the neighbour came out of his house and seen that the A1 and A2 were running from the house of PW1. Then next day morning at 9.00 ‘o’ clock, they had gone to the Police Station and gave complaint to the Sub Inspector of Police, who registered the First Information Report Ex.P8. Thereafter, on the memo, the PW.1 and PW.2 were taken to Government Hospital for treatment. The Doctor was examined as PW.3. PW.3, on the deposition, he has examined PW.1 and PW.2 and he noticed five injuries on the PW.1 and 7 injuries on the PW.2 and he issued Exs.P2 and P3 Wound certificate. Thereafter, the police investigated the matter. PW.5 is the observation mahazar witness and thereafter the Investigation Officer obtained Certificate from the Tahsildar, Ex.P7 to the effect that PW1 belongs to Scheduled Caste community and thereafter, the investigation was completed by PW.9, Deputy Superintendent of Police and filed the charge sheet under Sections 450, 307 r/w.34 and 3(1)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. Thereafter, the trial court examined PW.1 to PW.9 on the side of the appellants, Exs.1 to 14 were marked and Material Objects 1 to 4 were produced and thereafter, the trial court has convicted the accused as stated supra. Hence, the present appeal has been filed.
3. The contention of the appeal is two grounds. One is there is an inordinate delay in preferring the complaint and as well as sending the First Information Report to the Court. Therefore, he prayed the benefit of doubt in favour of the accused. The second contention raised by the petitioner is that after the so called incident there was an elaborate discussion among the villagers. Therefore, the accused has been falsely implicated in the case. Hence, he prayed that they are entitled for an acquittal.
4. Learned counsel Government Advocate (Crl.side) appearing for the respondent contended that due to the odd hour and climactic condition, there is a delay in preferring complaint, and their implicitly has been proved by the prosecution. Hence, the present appeal is to be dismissed.
5. From the evidence, it is clear that A2 is the brother in law of A1. Likewise A1’s sister is PW.2 and her husband is PW.1. From the evidence, it is also seen that PW.1 has taken the PW.2, when she was 14 years old he married and they were living together at Devala in Ooty District with their one female child. Further it is also not in dispute that the father of the PW.2 used to visit her and present some money as well as the biscuits and other small things to PW.2. On the fateful day also A1 has given Rs.500/- as first time to his sister and presented some eatables to her daughter, which is also not in dispute. From the evidence of PW.1, it is seen that they were so cordial and A1 is also extend same cordial relationship to PW.2 his sister. As per the evidence of PW.2, it is clear that they came again at 12.30 mid night after missing the last bus. Even though, they came there at 12.30 in the mid night as per the admission of the PW.1 itself it is clear that they were discussing with various aspects during the course of conversation, only there was an emotion between PW1 and A1 which resulted injury inflicted with PW.1 and PW.2 have sustained the injuries also as seen from the evidence of the Doctor. Further except the PW.1 and PW.2, no other independent witnesses had spoken about the incident. Considering the close relationship between the parties and the nature of injury sustained by them, the punishment awarded by the trial Court under Section 307 IPC, can be set aside and the accused can be convicted for the offence of 323 IPC, six months simple rigorous imprisonment with fine of Rs.1,000/- in each count is sufficient.
6. Considering that PW.1 scold A1 using the community name cannot be said to be correct. Further the occurrence had taken place only at PW.1’s residence. No necessity to the others to know about that. Therefore, I am of the view that no offence has been established against the accused. A1 and A2 voluntarily came to the house of PW.1 and they extended their cordial relationship and they were received by his sister and he had slept in the night. At this juncture, I am of the view, it is far away to imagination that A1 has attacked PW.1 by using unparliamentary words under the SC/ST (Prevention of Atrocities) Act, 1989. Therefore, I am of the view that punishing the accused by the Trial court is not properly considered and on this aspect the punishment is not correct and therefore, the conviction made by the Trial court under Section 450 IPC and ST/ST (Prevention of Atrocities) Act has been set side along with section 307 of IPC. Instead, the accused has been convicted only for an offence under Section 323 IPC and they have been convicted for five months and to pay a fine of Rs.1,000/- in each counts. The appeal is modified as indicated above.
7. With this observation, the Criminal Appeal is allowed and the punishment imposed on the appellants/accused in S.C.No.38 of 2003 on the file of the District and Sessions Judge, Uthagamandalam is modified. The fine amount if any paid by the appellants/accused is directed to be refunded. No costs.
aes
To
1. District and Sessions Judge,
Ootacamund,
Nilgiris.
2.The Public Prosecutor
High Court,
Chennai