Madras High Court
Shanmugam vs State Rep. By
Author: P. Velmurugan
Bench: P.Velmurugan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON
:
11.09.2018
PRONOUNCED ON
:
19.09.2018
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A. No.201 of 2013
Shanmugam ...Appellant
Vs.
1.State rep. By
The Deputy Superintendent of Police,
Vaniyambadi Police Station,
Vaniyambadi.
2.Venkatachalam
3.Arum Kumar
4.Gopi ...Respondents
PRAYER : Criminal Appeal is filed under Section 378 of the Criminal Procedure Code against the judgment of acquittal dated 29.06.2012 made in SSC.No.32 of 2011 by the learned Principal Sessions Judge Vellore.
For Appellant : Mr.V.Krishnamoorthy
For Respondent : Mr.R.Ravichandran,
Govt. Advocate (Crl.side) for R1
Mr.E.Kannadasan for RR2 to 4.
J U D G M E N T
This Criminal Appeal has been filed seeking to set aside the judgment of acquittal dated 29.06.2012 made in SSC.No.32 of 2011 by the learned Principal Sessions Judge, Vellore.
2 Case of the prosecution is that on 29.10.2011, because of the civil dispute, the respondents, who belong to Hindu Vanniyar community, insulted and humiliated the appellant/victim, who belongs to Hindu Adi Dravida community, intentionally in the public view by degrading his caste by uttering gw njtoah igah/ ,e;j gw njtoah igad;fshy; jhd; gpur;rid and criminally intimidated the appellant and hence based on the complaint given by the appellant/victim, the P.W.7/ the Inspector of Police has registered a case in Cr.No.630 of 2010 for the offences punishable under Sections 3 (1) (x) of SC/ST (Prevention of Atrocities) Act 1989 (herein after referred to as the Act) and 506 (ii) of IPC . After detailed investigation, the Deputy Superintendent of Police, Vaniyambadi, had filed a final report before the learned Principal District Munsif-cum-Judicial Magistrate, Vaniyambadi. Since the offences under the Act, is triable only by the Court of Sessions, the learned Magistrate committed the case to the learned Principal Sessions Judge, Vellore, which was taken on file in Special Sessions Case No.32 of 2011.
3 Before the trial Court, in order to prove the case of the prosecution, P.W.1 to P.W.9 were examined and Ex.P1 to P7 were marked. On the side of the defence, no witness was examined and Ex.D1 was marked.
4 The learned Principal Sessions Judge, after elaborate trial, had acquitted the accused, since they were not found guilty of offences punishable under Sections 3 (1) (x) of SC/ST (Prevention of Atrocities) Act 1989 and 506 (ii) of IPC, by judgment dated 29.06.2012.
5 Aggrieved against the above judgment of acquittal dated 29.06.2012, the victim has preferred the present criminal appeal before this Court.
6 The learned counsel for the appellant/victim would submit that though, P.W.1/victim had clearly stated that he belongs to Hindu Adi Dravida Community and Ex.P3/community certificate of P.W.1 was also produced and respondents 2 to 4 belong to Hindu Vanniyar community and stated that the respondents/accused due to earlier civil dispute, had uttered gw njtoah igah/ ,e;j gw njtoah igad;fshy; jhd; gpur;rid and threatened him with dire consequence. P.W.2 & P.W.3, who were eye witness to the occurrence, had narrated the incident and the prosecution had substantiated its case. Even though the victim and other eye witnesses had clearly spoken about the incident, the trial Court had failed to appreciate the same. Though, it was stated that all the witnesses are belong to same community i.e. Adi Dravida, the Court below had failed to consider the evidence of P.W.2, who belongs to the community of respondents/accused i.e. Hindu Vanniyar community. The Court below had failed to consider the above facts and evidence of the victim, and erroneously acquitted the accused, which warrants interference of this Court.
7 The learned counsel for the respondents/accused would submit that due to civil dispute, the appellant had filed a false complaint. Due to civil dispute, the respondents 2 to 4 had filed a suit and got an order of injunction against the appellant. Further the first accused gave a complaint against the appellant and a case in Cr.No.629 of 2010, FIR was registered. Hence, with an intention to wreck vengeance, the appellant had given complaint against the respondents 2 to 4 with false allegations. The alleged incident had taken place on 28.10.2010, but the appellant had given complaint only on 30.10.2010 and FIR registered on the same day. The above delay in lodging complaint itself creates doubts and there was no proper reason for the delay. All the witnesses are relatives to the appellant and no independent witness had been examined by the prosecution. The Police also foisted false case, without any proper investigation, since they are also relatives to the appellant. Hence, the trial Court had rightly found that the respondents 2 to 4 are not found guilty and acquitted them and there is no merit in the appeal.
8 Heard the rival submissions made by the learned counsel appearing on either side and perused the original records.
9 On a perusal of the records, it reveal that there was civil dispute between the parties which resulted in filing of civil suits by both the parties, in which the respondents 2 to 4/accused got an order of injunction against the appellant. The respondents 2 to 4 on 28.10.2010, because of the civil dispute, criminally intimidated the appellant and uttered gw njtoah igah/ ,e;j gw njtoah igad;fshy; jhd; gpur;rid. P.W.2 to P.W.4 had stated about the incident , which corroborate the evidence of P.W.1/victim. The respondents took a stand that because of the civil dispute, the appellant made a false complaint against the respondents 2 to 4 before the first respondent and further there was delay in lodging complaint, which creates doubts. The Hon'ble Supreme Court and as well as this Court, time and again held that delay in lodging complaint and registering FIR shall not be fatal to the case of the prosecution, if there is proper and valid explanations given in the complaint. In the case on hand, delay in lodging complaint was properly explained by the appellant in the complaint/Ex.P1 itself and during the examination he has also clearly stated the reason for delay in lodging the complaint before the police. PW2 to PW4 have corroborated the evidence of PW1. Further it is the main contention of the learned counsel for the respondents 2 to 4/accused that all the witnesses are interested witnesses and most of them are belong to Adi Dravida community and hence they supported the appellant/complainant.
10 A perusal of the evidences of the prosecution witnesses, would go to show that even though, P.W.2 is belongs to Hindu Vanniyar Community, which is the community of respondents 2 to 4/accused, his evidence is corroborated with the evidence of PW1 the defacto complainant. In the case of this nature under Special Act i.e. SC/ST Prohibition of Atrocities Act, 1989, evidence of other community cannot be expected to support the case of defacto complainant. Merely because eyewitnesses are family members of same community their evidence cannot be perse be discarded. Relationship is not a factor to affect credibility of a witness. Evidence of PW1 to PW4 is consistent and inspires confidence in the mind of Court. It is not settled law that there cannot be any hard and fast rule that evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses. Hence the respondents 2 to 4/accused are found guilty under Sections 3 (1) (x) of SC/ST (Prevention of Atrocities) Act 1989 and 506 (ii) of IPC.
11 In India, caste system prevails, even now a days also, especially in the villages. In some of the villages non SC/ST community Hindu people will not allow the SC/ST community Hindu people in the street, where non SC/ST community Hindu people are residing. Further, they are not treating the SC/ST community Hindu people with dignity. In some of the villages the SC/ST people are living with fear and also the behavior of some of the non SC/ST community Hindu people that the SC/ST people are under the control and mercy of the non SC/ST caste Hindu people. Under the said situation, delay in lodging the complaint as like in this case may not be a ground to vitiate the entire case of the prosecution.
12 One should not utter the community of SC/ST with an intention to degrade and insult the same. In this case P.W.1/victim had clearly stated that the respondents 2 to 4 uttered gw njtoah igah/ ,e;j gw njtoah igad;fshy; jhd; gpur;rid. Evidence of P.W.2 to P.W4 had corroborated the evidence of P.W.1/victim. The person who written the complaint was examined as PW9 and he deposed that as narrated by PW1 he written the complaint. Therefore the reason stated by the trial Court that the respondent filed civil suit and in order wreck vengeance, the complainant had filed a false case, is not acceptable. Admittedly, there were civil dispute between the parties, but, the respondents 2 to 4/accused had threatened the appellant by degrading and insulting his community. The trial Court only emphasized the civil dispute, and failed to consider the evidence of P.W.1/victim. Under these circumstances, this Court cannot discord the evidence of P.W.1/victim.
13 While dealing with the case under the Act, the Court has to see whether the evidence of victim is trust worthy and amount of witnesses is not a matter, only the worthiness of the evidence of victim has to be take into consideration. Once there is no valid reason to discord the evidence of the victim, the Court should not discord the evidence of the victim and should not acquit the accused and other aspects need not bee looked into, except any circumstances warrants. In the present case, it was emphasized by the Court below and also appellant given false complaint, due to earlier civil dispute, is not acceptable one and it would not at all suffice to acquit the accused.
14 In the result, the Criminal Appeal is allowed and the judgment of acquittal dated 29.06.2012 made in SSC.No.32 of 2011 by the learned Principal Sessions Judge Vellore, is hereby set aside. However, before recording sentence, the accused has to be heard. Therefore, for question of sentence, the accused are directed to appear before this Court on 26.09.2018.
19.09.2018.
FOR QUESTION OF SENTENCE 26.09.2018 The Criminal Appeal has been filed seeking to set aside the judgment of acquittal dated 29.06.2012 made in SSC. No.32 of 2011 by the learned Principal Sessions Judge, Vellore.
2.When the matter came up on 19.09.2018, this Court has allowed the appeal and passed the judgment of conviction and directed the respondent 2 to 4 to appear before this Court for question of sentence. Today, when the matter is taken up for hearing, the respondent 2 to 4 appeared before this Court, for question of sentence.
3. Respondent 2/Accused No.1 submit that he is an innocent and aged about 72 years old and he is a retired teacher and he was not aware of the occurrence, due to filing of Civil case, this case has been foisted against him. This case is only a counter blast. The prosecution have filed a false case against him and he has not committed any offence as alleged by the prosecution.
4. Respondent 3/Accused No.2 submit that he is working as a teacher, he was in the school on the said day and he was not in the spot. The case is only a counter blast. The prosecution have filed false case and he has not committed any offence. Even though, in support of his case, he has produced the document before the Advocate, who appeared before the trial Court, has not produced the document before the trial Court and he pleaded he is an innocent.
5. Respondent 4/Accused No.3 submit that he is working in Private Company as an Assistant Manager and he has a child and he was not in the spot at the time of occurrence and he has not committed any offence. The case is only a counter blast. All the respondents have filed their written submissions with regard to question of sentence and pleaded leniency of this Court.
6. The learned Counsel for the respondents 2 to 4 would submit that they are all from good family. The first Accused/second respondent is a retired teacher, the second accused/third respondent is working as a teacher and the third accused/fourth respondent is working in a private company as an Assitant Manager. They have not committed any offence as stated by the prosecution. This case has been filed due to filing of a civil case and it was only a counter blast to the civil case. Hence, the respondent police filed a false case against them. The prosecution is failed to investigate the case in proper manner and they filed false case against the respondents/accused. However, they have not committed any offence.
7. Heard the learned counsel for the respondents 2 to 4/Accused 1 to 3 and also perused the written submissions filed by them.
8. Considering the submission made by the accused and also the learned counsel for the respondents 2 to 4, this Court found the accused 1 to 3/respondent 2 to 4 guilty and convicted them for offences under Section 3(1)(X) of SC/ST (POA) Act 1989 and 506(ii) of IPC and sentenced them to undergo one year rigorous imprisonment for offence under Section 3(1)(X) of SC/ST (POA) Act 1989 and 3 months rigorous imprisonment for offence under Section 506(ii) IPC and also to pay a fine of Rs.1000/- each, in default, to undergo further period of 2 months simple imprisonment. The sentences are ordered to run concurrently.
19.09.2018 Note : (i) Registry is directed to issue copy of the judgment by today itself (i.e, on 26.09.2018).
(ii) The first respondent/Police is directed to secure the custody of the accused 2 to 4 to execute the period of imprisonment.
Speaking/Non-speaking
Index : Yes/No
cgi/rli
P. VELMURUGAN, J.
cgi/rli
To
1. The Principal Sessions Judge Vellore.
2. The Public Prosecutor,
High Court, Madras.
3. The Deputy Superintendent of Police,
Vaniyambadi Police Station,
Vaniyambadi.
Crl.A. No.201 of 2013
19.09.2018