Madras High Court
Karuppaiah vs The State Represented By on 12 April, 2019
Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on: 14.09.2023
Pronounced on: 06 .11.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.DHANABAL
Criminal Appeal (MD). No.210 of 2019
and
Crl. R.C.(MD).No.358 of 2019
---
Crl.A.(MD) No.210 of 2019
Karuppaiah .. Appellant
Versus
1.The State represented by
The Deputy Superintendent of Police,
Sivagangai Division.
2.The State represented by
The Inspector of Police,
Town Police Station,
Devakottai,
Sivagangai District.
(Crime No.229 of 1997)
3.P.Alagarsamy .. Respondents
Criminal Appeal is filed under Section 374(2) of Cr.P.C., praying to
allow this appeal and set aside the judgment passed in Special C.C.No.4 of
2010 dated 12.04.2019 on the file of the Special Judge for Exclusive Trial of
Case under SC/ST (POA) Act 1989, Sivagangai for alleged offences
https://www.mhc.tn.gov.in/judis
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Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019
punishable under section 147, 341, 323 of IPC and 3(i)(X) of SC/ST (POA)
Act r/w. 149 of IPC.
For Appellant : Mr. P. Aju Tagore
For R1 & R2 : Mrs. M. Aasha
Government Advocate (Crl.Side)
For R3 : Mr. A. Saravanan
Crl.RC.(MD).No.358 of 2019
P.Alagarsamy .. Petitioner
Versus
1.The State represented by its
Deputy Superintendent of Police,
Sivagangai Sub Division, Sivagangai District,
Devakottai Taluk Police Station,
(Crime No.229 of 1997)
2.Karuppiah .. Respondents
Criminal Revision Case is filed to enhance the sentence, fine amount
and to award appropriate compensation by modifying the judgment and
conviction of sentence passed by the Sessions Judge, Special Court for
Exclusive Trial of Cases registered under SC/ST (POA) Act 1989, Sivagangai,
made in Special C.C.No.4 of 2010 dated 12.04.2019.
For Appellant : Mr. A.Saravanan
For R1 : Mrs.M.Aasha
Government Advocate (Crl.Side)
For R2 : Mr. P. Aju Tagore
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Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019
COMMON JUDGMENT
The Criminal Appeal has been filed by the appellant/accused as against the judgement and conviction passed by the Special Judge for Exclusive Trial of Case under SC/ST (POA) Act 1989, Sivagangai, in Special C.C.No.4 of 2010 dated 12.04.2019, wherein the trial Court has convicted the appellant- accused for the offences under sections 147, 341, 323 and 3(i) (X) of SC/ST POA Act r/w. 149 of IPC and sentenced to undergo one month simple imprisonment, for the offence under section 147 of IPC and to pay a fine of Rs.1000/- in default, sentenced to undergo one month simple imprisonment; for the offence under section 341 of IPC to pay a fine of Rs.500/- in default, sentenced to undergo one month simple imprisonment; for the offence under section 323 of IPC to pay fine of Rs.1000/- in default; sentenced to undergo 3 years of simple imprisonment; for the offence under section 3(i)(X) of SC/ST (POA) Act r/w.149 of IPC to pay fine of Rs.1000/- in default. As against the conviction and sentence passed by the trial Court, the accused has preferred this appeal.
2. The Criminal Revision Petition has been filed by the petitioner/defacto complainant as against the judgement passed by the Special Judge for Exclusive Trial of Case under SC/ST (POA) Act 1989, Sivagangai, in Special C.C.No.4 of 2010 dated 12.04.2019 and prayed to enhance the https://www.mhc.tn.gov.in/judis 3/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 sentence and to award compensation to him.
3. The prosecution case is that the victim/P.W.1 belongs to Hindu Scheduled Caste Pallar community and the accused belongs to Hindu Vellalar non Scheduled Caste community. The other co-accused Subramani, Kandasamy, Murugan and Ramasamy belongs to Hindu Kallar non Scheduled Caste community. In the village of Alangudi, the public removed the trees situated in the pond without permission, thereby, the President of Anumanthakudi, had given complaint and the same was handed over through the defacto complainant. Thereby, there was a enmity between the accused and the defacto complainant. Due to that previous enmity, on 10.11.1997 at about 4.30 p.m., when the defacto complainant along with one Tinis, were standing in front of the rice mill, the accused Subramani asked the complainant about complaint given, with regard to the cutting of trees. At that time, the said Subramani, abused the victim with obscene words by saying that 'Vz;lh gs;sg;Gz;il kfNd vq;f Ch; tpraj;jpy; jiyapLfpwha;"and also assaulted him with footwear on his head and face. The co-accused also abetted to commit that offence. The above said witnesses Tinis and Durairaj pacified the accused and the complainant. Thereafter, the defacto complainant was taken to the fertilizer shop of Durairaj and there also, the accused Subramani, Kandasami, Murugan and Ramasamy formed themselves into an unlawful assembly and wrongfully restrained the defacto complainant by holding his https://www.mhc.tn.gov.in/judis 4/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 shirt and also assaulted him.
3(i) Thereafter, the victim went to the Police Station through back side door of the fertilizer shop and gave a complaint/Ex.P1. Based on the above said complaint, FIR/Ex.P12 has been registered in Crime No.229 of 1997. P.W.13/Deputy Superintendent of Police was appointed as investigating officer to investigate the case and he examined the witnesses and recorded their statements. He has also filed final report as against the accused for the offence under section 147, 341, 323, 355 IPC and 3(i)(x) of SC/ST (POA) Act r/w.149 of IPC. Thereafter, the case was committed to the Special Court and the Special Court, after hearing both sides, framed the charges, for the offence under section 3(i)(x) of SC/ST (POA) Act r/w. 149 of IPC, 147, 341 and 323 of IPC. During the pendency of the investigation, the accused Subramani, Kandasamy and Murugan were died. As against the accused Ramasamy, the case was split up and this accused alone faced trial before the trial Court. The charges were read over and explained to the accused and he denied the same. Thereafter, the trial Court has examined P.W.1 to 14 and marked Ex.P1 to 13 but no material objects were marked. On the side of the accused, neither any witness was examined nor documents were marked.
3(ii) After completion of prosecution side witnesses, the trial Court examined the accused, under section 313 (1) (b) of Cr.P.C with regard to the https://www.mhc.tn.gov.in/judis 5/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 incriminating evidences adduced against him, which was denied by the accused. The trial Court after perusing the oral and documentary evidences adduced on either side, found the accused guilty, for the offences under section 341, 147, 323 IPC and 3(i)(x) of SC/ST r/w.149 of IPC and sentenced him to undergo various sentences, as described above.
4. The grounds raised in the appeal in Crl.A.No.210 of 2019 are that, (1) the judgment of the Court below is contrary to law weight of evidence and probability of the case.
(2) The judgment of Court below is based on only presumption, surmises and conjunctures which are not relevant to the circumstance of the case.
(3) The Lower Court ought to have discorded the evidence of P.W.3, P.W.5 to 8, P.W.9 and P.W.10 to 14 on the ground that there is no probation in their evidence and all are in after thought for false implication of this appellant/accused in this case.
(4)The Court below ought not to have convicted the appellant/accused holding that the prosecution has proved its case beyond all reasonable doubt.
(5) The Court below ought to have acquit the appellant/accused because there is no evidence is available for disclose the prima facie for the offence punishable under section 147, 323, 341 of IPC and 3(i)(x) of SC/ST Act r/w. https://www.mhc.tn.gov.in/judis 6/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 149 of IPC.
(6) The Court below ought to have acquit the appellant/accused because the motive between the appellant/accused and victim was not established by the prosecution.
(7) The Court below failed to see the flow of investigation and very grave legal error committed by the prosecution agency for filing charge sheet against the appellant/accused.
(8) The Court below failed to see the FIR because the FIR was registered against 4 unnamed kallar community people. but this appellant/accused is belongs to different caste and no such test identification parade was conducted for identify this appellant/accused and after 12 years 1st time the defacto complainant identifying this appellant/accused during the trial is highly improbable.
(9) The Court below failed to consider that the prosecution suppressed the genuineness of the occurrence.
(10) The Court below ought to have acquitted the accused on the ground of benefit of doubt when the prosecution fails to prove the case by eye witnesses and related documents.
(11)The Court below ought to have rejected the Ex.P13 Cr.P.C. 164 statement of P.W.5 at the time of recording the statement, the learned https://www.mhc.tn.gov.in/judis 7/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 Magistrate did not applied his legal mind and not followed the legal procedure enumerated by the law.
5. The grounds raised in the revision petition in Crl.R.C.No.358 of 2019 are that (1) The judgment and conviction passed by the Court below in awarding lesser punishment and fine amount and failure to award mandatory compensation to him is against law, weight of evidence and facts and probabilities of this case.
(2) The Court below having categorically found that the charge under section 3(1)(x) of SC/ST POA Act 1989 r/w. Section 149 of I.P.C., which clearly proved beyond reasonable doubt. Though appropriate sentence is 5 years and fine provided under Act the trial Court has imposed only a lesser sentence of 3 years and meager fine amount of Rs.1000/- only.
(3) The Court below erred in not awarding compensation which is mandatory to be awarded to the victim under the SC/ST (POA) Act r/w. rules thereon.
(4) The Court below having found that the practice of untouchability and the attack made by the accused against the appellant and who is the victim being defamed in a public place and strict punishment provided under the offence but the Court below have chosen to impose a lesser punishment https://www.mhc.tn.gov.in/judis 8/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 without any reason.
(5) The trial Court has not stated any reason for imposing the lesser sentence against the accused in a SC/ST act which having proved beyond reasonable doubt.
(6) The Court below failed to see that to deliver a appropriate justice to SC/ST communities through affirmative action in order to enable them to live in society with dignity and self esteem and without fear, violence or suppression from the dominant caste the act being promulgated but the ratio followed by the trial Court without any basis awarded a lesser punishment.
6. The learned counsel appearing for the appellant in Criminal Appeal No.210 of 2019 and respondent in Criminal Revision Case in Crl.R.C.No.358 of 2019 would contend that the trial Court has convicted the accused for the offence under sections 147, 341, 323 and 3(i)(x) of SC/ST (POA) Act r/w. 149 of IPC even though there is no acceptable evidence to conclude that the appellant has committed any offences as alleged by the prosecution. This appellant has been falsely implicated in this case and no specific overt-act has been attributed as against the appellant-accused. The evidence of P.W.1, who is said to be the victim, is unbelievable and the trial Court failed to consider the major discrepancies among the prosecution witnesses. The medical evidence is totally contra to the oral testimony of P.W.1. The Investigating https://www.mhc.tn.gov.in/judis 9/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 Officer failed to examine the persons who were present in the rice mill, where the occurrence said to have taken place. There are major contradictions between the complaint and the evidence of P.W.1 and the statement recorded under section 164(5) of Cr.P.C. Further, the main reason for the occurrence is that there was an enmity between the accused and the victim with regard to cutting of trees. But the Panchayat President/P.W.9 in her evidence, stated that the complaint was given as against one Kalimuthu, and no complaint was given as against this accused. The above said aspects have not been considered by the trial Court and the trial Court, without analysing the evidence in a proper perspective, wrongly convicted the accused. The evidence of P.W.1, is totally contra to the complaint and the statement given under section 164 of Cr.P.C., before the Magistrate, in respect of the manner of occurrence and the words uttered by the accused. In fact, P.W. 1 to 4 turned hostile and P.W.5 is the victim and his evidence is highly suspicious. The main accused Subramani was convicted for the offence 294 (b) of IPC and already the case was disposed of, as against him. In fact, the case was re-opened again and a fresh complaint was given, based on which, this case was registered and the previous complaint was not brought to the knowledge of the Court. In the FIR, name of the accused did not find place and as per evidence of P.W.7, the other accused assaulted the victim with sticks and this accused was standing there and thereafter, assaulted him with hands. But, there is no injuries sustained by https://www.mhc.tn.gov.in/judis 10/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 the victim and medical evidences also not revealed any injuries sustained by the victim. Further in the FIR itself the victim made endorsement that he is not willing to go to hospital. Therefore, there is no specific overt-act as against this accused. As per FIR no name of this accused find place and mentioned as identifiable 4 persons. While so, in order to prove the identity of the accused, no ID parade was conducted. Further, the appointment order appointing the investigating officer has not been produced before this Court and thereby, the mandatory procedure under rule 7 of SC/ST (POA) Act have not been followed. Therefore, the prosecution failed to prove the charges levelled against the accused beyond reasonable doubt and the accused is entitled for acquittal.
7. The learned counsel appearing for the appellant also submitted that the defacto complainant/P.W.1 has filed the Criminal Revision Petition in Crl. R.C. No.358 of 2019 to enhance the punishment awarded by the trial Court. The prosecution failed to prove the charges levelled against the accused beyond reasonable doubt and thereby, the accused is entitled for acquittal. Hence, the question of enhancement of sentence does not arise. Therefore, the judgment and conviction of the trial Court is liable to be set aside by allowing this Appeal and the Revision Petition is liable to be dismissed. https://www.mhc.tn.gov.in/judis 11/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019
8. The learned counsel appearing for the appellant would further contend that the victim has no locus-standi to prefer the appeal as against the judgment of conviction for enhancement of the punishment. To that effect, he relied the following judgments:
1.Ponnusamy Vs.State, reported in (2016) 1 MLJ 668.
2.Parvinder Kansal Vs.State of NCT of Delhi and another reported in 2020 (3) MWN (Crl.) 1 SC
3.Singh @ Bhagavathsingh Vs.Deputy Superintendent of Police, Paramakudi Sub Division, Paramakudi reported in (2017) 4 MLJ (Crl) 433.
9. The learned counsel appearing for the petitioner in Criminal Revision in Crl.R.C.No.358 of 2019 and third respondent in Criminal Appeal Crl.A.No. 210 of 2019 would contend that the villagers of the accused had cut the trees situated in the pond and the punchayat President had given complaint. The said complaint was handed over to the authorities through this petitioner/ defacto complainant. Thereby, there was an enmity between the accused and the defacto complainant. While so, on 10.11.1997 at about 4.30 p.m., when the victim was standing in front of the rice mill belongs to Lakshmanan along with Tinis, the accused Subramani came there and assaulted the victim with footwear and abused him by saying 'Vz;lh gs;sg;Gz;il kfNd vq;f Ch; tpraj;jpy; jiyapLfpwha;". Thereafter, the co-accused also assaulted the victim and they were pacified by the witnesses Tinis and Durairaj. Again, https://www.mhc.tn.gov.in/judis 12/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 when the victim was sitting in the fertilizer shop of one Durairaj, the accused formed unlawful assembly and assaulted him. Thereafter, the victim went to the Police Station and gave a complaint, based on which, the police registered a case in Crime No.229 of 1997 for the offences under sections 147, 341, 323 and 3(i)(x) of SC/ST (POA) Act r/w.149 of IPC. The trial Court has framed the charges under sections 147, 341, 323 and 3(i)(x) of SC/ST (POA) Act r/w.149 of IPC.
9(i) In order to prove the above said charges, on the side of the prosecution, they have examined P.W. 1 to 14 and marked Ex.P1 to P13. P.W. 5 is the victim and he categorically deposed about the manner of occurrence and the words uttered by the accused. The doctor/P.W.10, who treated the victim in the hospital has deposed about the treatment given to the victim and the injuries sustained by him. P.W.11 has deposed about the community of the victim as well as the accused and marked as Ex.P5 and P6. P.W.14 has deposed about the recording of statement of the victim under section 164 Cr.P.C. and P.W.13 has deposed about the investigation and filing of final report. Therefore, the prosecution has proved the charges levelled against the accused beyond reasonable doubt and the trial Court has convicted the accused for the offence under section 147, 341, 323 and 3(i)(x) of SC/ST (POA) Act r/w.149 of IPC. However, the trial Court has failed to award proper https://www.mhc.tn.gov.in/judis 13/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 punishment and compensation to the petitioner. Therefore, the Appeal filed by the appellant in Crl.A.No.210 of 2019 is liable to be dismissed, the punishment awarded to the accused has to be enhanced and the Criminal Revision Petition in Crl.R.C.No.358 of 2019 is liable to be allowed.
10. To support his contention, the learned counsel appearing for the respondent has relied the following judgments:
1.K.C.Subramani (Died) Vs.State represented by the Deputy Superintendent of Police, Katpadi reported in 2022 (1) CTC 864.
2.State of Madhya Pradesh Vs.Suresh reported in (2019) 14 SCC 151.
3.P.Alagarsamy Vs.State of Tamilnadu represented by Secretary, Home Department, Chennai-9 reported in 1999 (iii) CTC 464.
11. The learned Government Advocate (Criminal Side) appearing for the 1st and 2nd respondent in Criminal Appeal No.210 of 2019 and the 1st respondent in Criminal Revision Petition in Crl.R.C.No.358 of 2019 would contend that the accused and the other villagers, cut the trees in the pond unauthorisedly and in connection with the same, the panchayat President had given complaint and the same was handed over to the officials through the victim and thereby, there was an enmity between the victim and the accused. Due to enmity, on 10.11.1997 at about 4.30 p.m., the accused formed unlawful assembly and abused the victim with caste name and also assaulted him with https://www.mhc.tn.gov.in/judis 14/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 foot wear. Subsequently, the victim gave a complaint before the Police Station. Thereafter, the concerned police have registered a case based on the complaint and the investigation officer was appointed. Since the offences are falling under section SC/ST (POA) Act, the Deputy Superintendent of Police investigated the case and filed final report. In order to prove the case of the prosecution, they have examined P.W.1 to 14 and marked Ex.P1 to 13. In this case, though P.W.1 to 4, turned hostile, P.W.5, who is victim has categorically deposed about the occurrence. The Tahsildar gave the certificate stating that the accused belongs to non SC community and victim belongs to SC community. P.W.13 has deposed about the statement recorded under section 164 Cr.P.C and P.W.12, has deposed about the fair investigation. The trial Court after taking into consideration of the materials available on record, correctly convicted the accused. Therefore, the Appeal is liable to be dismissed, as far as revision is concerned, this Court can pass appropriate orders.
12. This Court heard the counsel on either side and perused the records. Upon hearing the counsel for the parties and perusing the records, including the judgment of trial Court, grounds of appeal, the points for determination in Crl.A.No.210 of 2019 is https://www.mhc.tn.gov.in/judis 15/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 "whether the prosecution has proved the charges levelled against the accused for the offences under sections 147, 341, 323 of IPC and 3(i)(x) of SC/ST (POA) Act r/w. 149 of IPC".
12(i). The points for determination in Crl.R.C.No.358 of 2018 is "whether the judgment and conviction passed by the trial Court in CC. No. 4 of 2010 is sustainable in law and on facts and the punishment imposed on the accused is to be enhanced?".
13. Since both the appeal as well as revision petition are arising out of the same judgment, this Court has heard the appeal as well as the revision petition together and inclined to pass common judgment. POINTS:
14. The prosecution case is that the defacto complainant belongs to SC community and the accused belongs to non-Sc community. There was a previous enmity between the victim and the accused with regard to the complaint given by the punchayat President through the victim. Due to previous enmity, on 10.11.1997 at about 4.30 p.m., all the accused formed unlawful assembly and one Subramani abused the victim with obscene words and assaulted him with foot wear. Thereafter, other co-accused also assaulted the victim with bare hands and thereby, the victim sustained injuries. https://www.mhc.tn.gov.in/judis 16/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 Thereafter the witnesses Tinis and Durairaj pacified the accused and the victim. Again, when the victim was sitting in the fertilizer shop of the Durairaj, all the accused abused the victim with caste name and also assaulted him. Thereafter, the defacto complainant gave a complaint. Thereby, the accused have been charged for the offence under sections 147, 341, 323 of IPC and 3(i)(x) of SC/ST (POA) Act r/w. 149 of IPC.
15. In this case, there is no contravention that the victim belongs to SC community and the accused belongs to non SC community. The prosecution has examined the Tahsildar/P.W.11, who issued community certificate to the victim as well as the accused and the same has been marked as Ex.P5 and Ex.P6. Therefore, from the evidence of P.W.11, Ex.P5 and P6, it is clear that the accused belongs to non SC community and the victim belongs to SC community.
16. In order to prove the case of the prosecution, they have examined P.W.1 to 14 and marked Ex.P1 to 13. P.W.1, 2 and 4 turned hostile. P.W.4 is the attesting witness for observation magazar and he also not supported the prosecution case and turned hostile. However, P.W.5 is the victim/defacto complainant and he has deposed that on 10.11.1997 at about 4.30 p.m., when he was standing in front of the Anumanthakudi, Lakshmanan's rice mill along https://www.mhc.tn.gov.in/judis 17/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 with Tinis, at that time, the accused Karuppaiya, Ramasamy, Subramani, Kandasamy and Murugan were present there. Among them, deceased Subramani asked about the complaint given with regard to the cutting of trees, for that, the victim replied that he only handed over the complaint given by the panchayat President. However, the deceased Subramani abused the victim with caste name and also assaulted him. At that time, the accused Karuppaiya and Ramasamy also abused the victim with caste name and attempted to assault by saying that 'jhNahop gs;sg;gaNy ,tid tplf;$lhJ". After seeing the same, one Tinis, Sivasamy, Durairaj rescued the victim and taken him to the fertilizer shop of Sellaiya/father-in-law of Durairaj. Again, all the accused came there and threatened and also abused him with caste name saying that "mtid ntspNa tpL;fs; gs;sj;jhNahop mtid Rk;kh tplf;$lhJ". Immediately, one Sellaiya sent the defacto complainant to the back side door of the fertilizer shop and he went away from there through the river side and gave a complaint before the police station.
16(i) The said complaint has been marked as Ex.P3. On careful perusal of Ex.P3, it reveals that on 10.11.1997, at about 4.30 p.m., when the victim was standing in front of rice mill of Lakshmanan, all the accused surrounded him and the first accused assaulted him with foot wear by saying "nehf;fhyp gs;sg;gaYf;nfy;yhk; vd;d #j;Jf;nfh*g;Ngwpg; Nghr;rh vd;d jpkpW ,Ue;jh vq;f CU kuk; gpur;ridf;fhf eP ngl;brd; FLg;Ng". The https://www.mhc.tn.gov.in/judis 18/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 other co-accused abused the victim by stating ",d;dpf;fpj;jhd; trkh khl;Ldhd;> tplhjpq;flh" and assaulted him with hands. After hearing the alarm, one Tanis, Durai raj and others came there and rescued him. However, at the time of examination before the trial Court, the complainant deposed that the deceased Subramani abused him with obscene words by saying that 'Vz;lh gs;sg;Gz;il kfNd vq;f Ch; tpraj;jpy; jiyapLfpwha;". At that time, the accused Karuppaiya and Ramasamy also abused the victim saying that 'jhNahop gs;sg;gaNy ,tid tplf;$lhJ" and also assaulted him. According, to the evidence of P.W.1, there is no reference about the assaults made by the accused.
17. As per evidence of P.W.1, it reveals that the deceased Subramani uttered obscene words, at that time, other co-accused also uttered obscene words and also attempted to assault the victim but the said evidence is contra to the complaint given by P.W.1. Therefore, there are major contradictions between the evidence of P.W.1 and the complaint given by the victim. Further, the P.W.1, in his evidence, stated that the Sub-Inspector, gave a memo to go to hospital for the injuries sustained by the victim on his cheek and head. Since the injuries are simple injuries, after treatment, he was discharged. P.W.1 has not stated about the specific overt-act as against the accused and not even stated about the assault made by the accused. In another place, he stated that https://www.mhc.tn.gov.in/judis 19/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 he sustained injuries and then went to hospital, the hospital authorities treated him, as out patient.
18. In this context, the prosecution examined the doctor as P.W.10 and he in his evidence, stated that on the date of occurrence i.e., on 10.11.1997 at about 4.30 p.m., the victim appeared through police memo and he treated him. At that time, he noticed that there are some simple injuries found on his body but failed to mention the type of injuries and number of injuries. To that effect, he gave a certificate as Ex.P4. On perusal of Ex.P4, it reveals that the accused sustained injuries on his cheek and does not reveal the nature of wound and size of wound.
18(i) Further in the complaint/Ex.P3 itself, the victim made endorsement that he is not willing to go to hospital for taking treatment. As per the complaint, all the accused assaulted the victim and thereby, he sustained injuries. But the evidence of P.W.1, does not reveal, who assaulted him and no reference in the evidence of P.W.1 with regard to the assault made by the accused. Therefore, the reasonable doubt would arise to the prosecution case as to whether the occurrence has taken placed as alleged by the prosecution. Further, as per the complaint, there is no reference about the abuse of caste name by the accused. Further, the eye witnesses/ Tinis and Durai Raj have been examined as P.W.8 and 7 respectively. P.W.7/Durairaj has deposed before the trial Court that on 10.11.1997 at about 4.30 p.m., when he was https://www.mhc.tn.gov.in/judis 20/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 proceeding to take the workers to unload the fertilizers, he heard some noise, at that time, 4 to 5 persons were standing near the rice mill campus. At that time, one Subramani and Kandasami, have assaulted the victim/Alagarsamy with stick on his head and back side and also abused him by saying that ",d;dpf;fpj;jhd; trkh khl;Ldhd;> tplhjpq;flh". At that time, the accused Karuppaiya, Ramasamy were also standing there and assaulted the victim with hands. The eye witnesses Lakshmanan, Sivasamy and Tinis pacified the assailants. When the victim was sitting in the fertilizer shop, the accused Karuppaiya, Ramasamy, Subramani, Kandasamy and Murugan came and abused the victim with caste name by saying that 'Vz;lh gs;sg;Gz;il kfNd vq;f Ch; tpraj;jpy; jiyapLfpwha;" and also assaulted him. Thereafter, the victim was sent through back side door of the fertilizer shop. At that time, all the accused threatened that they would kill him. The above said evidence of P.W.7 is totally contra to the evidence of P.W.5/victim, with regard to the manner of occurrence and the words uttered by the accused.
18(ii) The victim has not stated anything about the assault made by the accused. Further, had the occurrence taken place as alleged by the P.W.7, the victim would have got injuries, when he was assaulted with stick, but the medical evidence is totally contrary to the evidence of P.W.7 and no specific injuries were found on the body of the victim. Therefore, the evidence of P.W. 7 is highly doubtful and it does not inspire the confidence of this Court. Yet https://www.mhc.tn.gov.in/judis 21/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 another eye witness Tinis stated that 20 years ago, when he was talking with the victim opposite to rice mill, one Subramani asked about the cutting of trees and also assaulted the victim with foot wear. At that time, 3 to 4 persons also came there and he don't know their names. Thereafter, the said Subramani along with 3 to 4 unknown persons chased Alagarsamy towards the road side. The said evidence of P.W.9 is also contra to the prosecution case and neither P.W.5 nor P.W.7 have stated about the alleged chase of the victim by the accused, but P.W.8 has introduced a new version. Even according to the evidence of P.W.8, he only stated about the Subramani and he did not identify the other accused. The complainant P.W.1 has also not stated anything about the chasing by the accused. Hence the evidence of P.W.8 is also creates serious doubt over the prosecution case. Therefore, the evidence of P.W.8 is not sufficient to prove the prosecution case.
19. The main motive for the occurrence is that the victim handed over the complaint given by the panchayat President regarding cutting of trees. In order to prove that complaint, the former panchayat President was examined as P.W.9 and she deposed that she gave a complaint as against one Kalimuthu through the victim. The Tahsildar also had taken action as against the said Kalimuthu. Therefore, according to the evidence of P.W.9, no complaint was lodged as against the accused. Therefore, the prosecution failed to prove the https://www.mhc.tn.gov.in/judis 22/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 said motive between the victim and the accused.
20 . In this case, the P.W.14 who recorded the statement of victim was examined and he deposed before the trial Court that he recorded the statement of the victim as well as other witnesses under section 164(5) of Cr.P.C. During the cross examination, P.W.14 stated that the victim/P.W.5 has not stated about the abusing of caste name by the accused and there is no statement given by the victim/P.W.5 that the accused Karuppaiya and other co-accused abused the victim with caste name. Further P.W.6 and 7 have not stated anything about the abusing of caste name by the accused. P.W.1 also did not state anything about the assaults made by the accused and no reference was made about the alleged abusing of caste name in the complaint. Therefore, the evidence of P.W.1 is totally contra to the statement given by victim before the learned Magistrate under section 164 Cr.P.C. It is well settled that the statement recorded under section 164(5) can be used either for corroboration or for contradiction.
21. The learned counsel appearing for the appellant would contend that the victim has no locus-standi to prefer appeal as against the judgment of conviction for enhancement of the punishment. To that effect he relied the following judgments:
https://www.mhc.tn.gov.in/judis 23/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019
1.Ponnusamy Vs.State, reported in (2016) 1 MLJ 668.
2.Parvinder Kansal Vs.State of NCT of Delhi and another reported in 2020 (3) MWN (Crl.) 1 SC
3.Singh @ Bhagavathsingh Vs.Deputy Superintendent of Police, Paramakudi Sub Division, Paramakudi reported in (2017) 4 MLJ (Crl) 433.
21(i). In the case of Parvinder Kansal Vs.State of NCT of Delhi and another reported in 2020 (3) MWN (Crl.) 1 SC, on careful reading of the judgments, it is clear that so far as victim's right of appeal is concerned, the same is restricted to three eventualities, namely, acquittal of the accused, conviction of the accused for lesser offence or for imposing inadequate compensation. While the victim is given opportunity to prefer an appeal, in the event of imposing inadequate compensation, but at the same time, there is no provision of appeal by the victim for questioning the order of sentence as inadequate, whereas, section 377 Cr.P.C gives the power to the State Government to prefer appeal or for enhancement of sentence. While it is open for the State Government to prefer appeal for inadequate sentence under section 377 Cr.P.C, no appeal can be maintained by victim under section 372 Cr.P.C on the ground of inadequate sentence. Per contra, the learned counsel appearing for the revision petitioner has argued that the petitioner has filed revision petition and not filed any appeal and thereby the revision petition is https://www.mhc.tn.gov.in/judis 24/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 maintainable. To support his contention, he relied the judgement of K.C.Subramani (Died) Vs.State represented by the Deputy Superintendent of Police, Katpadi reported in 2022 (1) CTC 864, wherein this Court has held that the revision petitioner seeking enhancement of sentence is maintainable as provision of appeal is not available to him. In the case on hand the victim has filed revision and not filed appeal before this Court and thereby, the above said case law submitted by appellant will not be applicable to the present facts of the case; and the judgment relied on by the revision petitioner in K.C.Subramani is squarely applicable to the present facts of the case and thereby the revision petition is maintainable.
21(ii). in the judgement of Singh @ Bhagavathsingh Vs.Deputy Superintendent of Police, Paramakudi Sub Division, Paramakudi reported in (2017) 4 MLJ (Crl) 433, wherein, the Division Bench of this Court held in Para 14:-
14. Apart from that, the entire investigation under SC and ST Act to be carried out by the Officer not below the rank of Deputy Super- intendent of Police as per Rule 7 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995. The said Rule read as follows:-
"7. Investigating Officer.-(1) An offence committed under the Act shall be investigated by a police officer not below the rank of a Deputy Superintendent of Police. The investigating officer shall be appointed by the State Government/Director General of Police/Superintendent of Police after taking into account 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.
https://www.mhc.tn.gov.in/judis 25/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 (2) The investigating officer so appointed under subrule(1) shall complete the investigation on top priority, submit the report to the Superintendent of Police, who in turn shall immediately forward the report to the Director General of Police or Commissioner of Police of the State Government and the officer in-charge of the concerned police station shall file the charge sheet in the Special Court or the Exclusive Special Court within a period of sixty days (the period is inclusive of investigation and filing of charge-sheet).
(2-A) The delay, if any, in investigation or filing of charge- sheet in accordance with sub-rule(2) shall be explained in writing by the investigating officer.) (3)The Secretary. Home Department and the Secretary. Scheduled Castes and Scheduled Tribes Development Department (the name of the Department may vary from State to State) of the State Government or Union territory Administration. Director of Prosecution, the officer in-charge of Prosecution and the Director General of Police or the Commissioner of Police in- charge of the concerned State of Union territory shall review by the end of every quarter the position of all investigations done by the investigating officer."
Absolutely there is no material whatsoever available on record to show that PW8 and PW12 have been specifically appointed or authorised by the Superintendent of Police to conduct the investigation. The Trial Court has not gone into this aspect and simply believed the prosecution version and convicted the appellant with the life sentence. In this regard it is useful to refer the decision reported in Periyasamy and Another v. State, rep. by the Deputy Superintendent of Police, Avinashi Sub Division, Kovilpalayam P.S., Coimbatore District 2015 (2) MWN (Crl) 628, wherein it is stated as follows:-
"27. In view of the nature of the offence, Higher Officials namely an Officer not below the rank of a Deputy Superintendent of Police has been specified in the Rules, to investigate this type of offences, further Rule 7(1) specifically mentions that the D.S.P should have specified past experience etc. Further, as per Rule 7(2), the investigation has to be completed within 30 days....
https://www.mhc.tn.gov.in/judis 26/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019
35.It is also not the case of the prosecution that with reference to P.W.15, the mandatory requirements in Rule 7(1) has been complied with. Thus, the very investigation by P.W.15 is vitiated. Consequently, the entire criminal proceedings is vitiated."
21(iii). In the judgement of Ponnusamy Vs.State represented by Deputy Superintendent of Police, Palladam Range, Kamanaicken Palayam Police Station, Coimbatore District, reported in (2016) 1 MLJ 668, this Court held in para 26 to 29 as follows:-
"26. No doubt, PW-11 is a Deputy Superintendent of Police, but the point is whether then he was statutorily qualified to investigate this case registered under SCandST (PA) Act, 1989. There is no record to show that a specific order empowering him to investigate this case has been passed by the District Superintendent of Police taking into account his special qualification as prescribed under the Rules. Further, nowhere in his evidence, PW-11 would say that he has been so empowered. In such circumstances, Periyasamy's case squarely applies to this case.
27. In this case, FIR has been registered on 3.9.2007 by PW-10 Inspector of Police. On the same day, PW-11, D.S.P., took up his investigation. Admittedly, he has completed his investigation and filed the Final Report before the Court only on 17.10.2007. It is clear that it is beyond 30 days.
28. In this connection, it is relevant here to extract what is stated in paragraph-36 in Periyasamy's case, which runs as under:-
"36. As per Rule 7(2), the investigation has to be completed within 30 days. Now in this case PW-15 took up his investigation on 25.4.2007. He has filed the Final Report before the concerned Court only on 10.09.2007. It is far beyond 30 days. The act gave him 30 days, but he took more https://www.mhc.tn.gov.in/judis than 3 months to complete the investigation."27/35
Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019
29. Thus, the prosecution has failed to establish the charge under section 3(i)(x) of SC/ST (POA) Act, 1989."
On careful perusal of the above said judgment, the prosecution has to establish that the Investigating Officer was appointed in consonance with Rule 7(1)(2) of the SC/ST (POA) Act Rules. In the case on hand, though the Investigation Officer stated that he was appointed as Investigation Officer, he failed to produce the proceedings issued to him for his appointment to investigate this case.
22. The learned counsel appearing for the respondent would contend that the trial Court failed to award proper punishment and take into consideration of aggravating circumstances and the serious nature of offences and he has relied the following judgments:
1. State of Madhya Pradesh Vs.Suresh reported in (2019) 14 SCC 151.
2.P.Alagarsamy Vs.State of Tamilnadu represented by Secretary, Home Department, Chennai-9 reported in 1999 (iii) CTC 464.
22(i) In the judgement of P.Alagarsamy Vs.State of Tamilnadu represented by Secretary, Home Department, Chennai-9 reported in 1999 (iii) CTC 464, the judgement related to this occurrence. In that case, already this Court, after elaborate discussion, directed the State Government as well as the https://www.mhc.tn.gov.in/judis 28/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 Subordinate judiciary to understand the procedure to be followed while dealing with the case under section SC/ST (POA) Act. On careful perusal of the above said judgment, it is clear that there are some materials available on record for the offences under section SC/ST (POA) Act, but during the course of examination, the evidences adduced on the side of the prosecution, are not cogent and they creates serious doubt over the prosecution witness.
22(ii) In the judgment of State of Madhya Pradesh Vs.Suresh reported in (2019) 14 SCC 151, the Hon'ble Supreme Court in para No.14 held that “ 14. In the process of sentencing, any one factor, whether of extenuating circumstance or aggravating, cannot, by itself, be decisive of the matter. In the same sequence, we may observe that mere passage of time, by itself, cannot be a clinching factor though, in an appropriate case, it may be of some bearing, along with other relevant factors. Moreover, when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of.” On careful perusal of the above said judgment, it is clear that when certain extenuating or mitigating circumstances are suggested on behalf of the convict, the other factors relating to the nature of crime and its impact on the social order and public interest cannot be lost sight of. In the case on hand, already this Court has elaborately discussed and decided that the prosecution failed to prove the charges levelled against the accused and thereby, the said case law will not be helpful to decide the case in favour of the revision petitioner.
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23. Further in this case, P.W.13 was appointed as investigation officer but the proceedings relating to such appointment were not marked before the trial Court. Thereby, also the case of the prosecution is highly doubtful.
(i) As far as the offence under section 147 is concerned, there is no evidence that the accused formed unlawful assembly and no evidence with regard to the common object of the unlawful assembly. As per complaint and evidence of P.W.1 no evidence to attract the offence under section 147 of IPC. As per evidence of P.W.7, the accused formed unlawful assembly in front of the fertilizer shop, but no sufficient evidence adduced by the prosecution to prove the unlawful assembly, common object and the riot. Thereby, the forming of unlawful assembly itself has not been proved by the prosecution.
(ii) As far as offence under section 341 IPC is concerned, nowhere P.W. 1 stated about the wrongful restraint made by the accused. The P.W.5 only stated that when he was inside the fertilizer shop, all the accused asked them to send him out and the same do not constitute the offence. Apart from that, there is no evidence to constitute the offence under section 341 IPC.
(iii) As far as offence under section 323 IPC is concerned, P.W.5 has not stated about the assaults made by the accused and he only stated that the Sub- Inspector gave a memo to go to hospital for the injuries sustained on his head and cheek, but there is no medical evidence, to prove that he sustained injuries. In the wound certificate/Ex.P4 stated that there is no reference about the https://www.mhc.tn.gov.in/judis 30/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 specific injury sustained by P.W.5 and he himself has not stated about the injuries sustained by him. Therefore, there is no sufficient evidence to prove the injuries sustained by the victim. Further as prosecution case the accused subramani assaulted the victim with foot wear, but P.W.5 being the victim has not stated anything about the assault made by the accused and not even stated about the assaults.
(iv) As far as the offence under section 3(i)(x) of SC/ST (POA) Act r/w. 149 IPC is concerned, the prosecution has failed to prove the unlawful assembly and thereby, section 149 IPC would not attract.
(v) As far as offence under section 3(i)(x) SC/ST (POA) Act is concerned, as per complaint/Ex.P3, the accused Subramani abused the victim with caste name. As per evidence of P.W.5, the accused Subramani abused the victim with caste name. Thereafter, the accused Karuppaiya and Ramasamy, have abused the victim with caste name. Further as per the complaint, the Subramani abused the victim with caste name by saying 'Vz;lh gs;sg;Gz;il kfNd vq;f Ch; tpraj;jpy; jiyapLfpwha;". Therefore, there are major contradictions between the evidence of P.W.1 and complaint with regard to specific words abused with caste name by the accused. At the time of cross examination also, P.W.1 in his evidence, stated that the accused Karuppaiya abused the victim with case name. Further, P.W.13/investigation officer also in his evidence stated that during the investigation, the victim has https://www.mhc.tn.gov.in/judis 31/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 not stated about the abusing of caste name by the accused karuppaiya. Therefore, the evidence of P.W.1 is highly doubtful and thereby, the prosecution has failed to prove the charge under section 3(i)(x) of SC/ST (POA) Act. As per charge, the accused subramani abused caste name and the charge against the accused is 3(i)(X) of SC/ST (POA) Act r/w. 149 of IPC. Already this Court held that no offence of unlawful assembly and the common object was not proved by the prosecution, thereby offence under section 3(i)(X) of SC/ST (POA) Act r/w. 149 of IPC has also not been proved.
24. Therefore, as discussed above, this Court is of the opinion that the prosecution failed to prove the charges levelled against the accused for the offence under section 147, 341, 323 and 3(i)(x) of SC/ST (POA) Act r/w.149 of IPC. The trial Court without considering the above said aspects wrongly came to the conclusion that the prosecution has proved the charges levelled against the accused. The trial Court failed to consider that the evidence of P.W.5 is contra to the complaint given by the defacto complainant and there is no reference to the complaint about the abusing of caste name by the accused. Further the words uttered by the accused Subramani also differ and the investigation officer, failed to mark the proceedings issued by the Superintendent of Police to investigate the case. The trial Court failed to appreciate the evidence in a proper perspective and thereby, the judgment and https://www.mhc.tn.gov.in/judis 32/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 conviction passed by the trial Court are unsustainable and the same is liable to be set aside. Since the judgment of conviction and sentence are unsustainable the question of enhancement of punishment would not arise.
25. In the result,
(i) The Criminal Appeal is allowed and the judgment of conviction and sentence passed by the trial Court in Special C.C.No.4 of 2010 dated 12.04.2019 are set aside and the appellant/accused is acquitted from the charges under section 147, 341, 323 and 3(i)(x) of SC/ST (POA) Act r/w. 149 of IPC and he be set at liberty subject to other cases if any. The bail bond, if any, executed by the appellant shall stand cancelled and fine amount, if any, paid by him is ordered to be refunded to him.
(ii) In view of the above discussions, the Criminal Revision Petition in Crl.R.C.(MD).No.358 of 2019 is dismissed.
06.11.2023
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
mpa
https://www.mhc.tn.gov.in/judis
33/35
Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 To
1. The Special Judge for Exclusive Trial of Case under SC/ST (POA) Act 1989, Sivagangai.
2.The State represented by The Deputy Superintendent of Police, Sivagangai Division.
3.The State represented by The Inspector of Police, Town Police Station, Devakottai, Sivagangai District.
https://www.mhc.tn.gov.in/judis 34/35 Crl.A.(MD).No.210 of 2019 & Crl.R.C.(MD).No.358 of 2019 P.DHANABAL, J.
mpa Pre-delivery orders in Criminal Appeal (MD). No.210 of 2019 and Crl. R.C.(MD).No.358 of 2019 06.11.2023 https://www.mhc.tn.gov.in/judis 35/35