Madras High Court
Ponniah vs State on 8 September, 2009
Author: C.T.Selvam
Bench: C.T.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/09/2009 CORAM THE HONOURABLE MR.JUSTICE C.T.SELVAM Crl.A.No.779 of 1999 1.Ponniah 2.Sonaikalai 3.Botha Raj 4.Sathasivam 5.Selvaraj 6.Periakaruppan 7.Chandran .. Appellants/ Accused Nos.1,2,3,8,10,12 and 19 Vs State, rep. by the Deputy Superintendent of Police, Melur Police Station. (Crime No.986 of 1996) .. Respondent/Complainant Prayer Criminal appeal is filed under Section 374(2) of Cr.P.C., against the judgment dated 30.08.1999 passed in C.C.No.142 of 1998 by the learned Fourty Additional District and Sessions Judge (PCR), Madurai. !For appellants ... Mr.K.Jeganathan ^For respondent ... Mr.L.Murugan Govt. Advocate (Crl. side) * * * * * :JUDGMENT
This criminal appeal has been preferred against the judgment dated 30.08.1999 passed in Calender Case No.142 of 1998 by the learned Fourth Additional District and Sessions Judge (PCR), Madurai.
2. The accused were charged as follows:
Sl. Name of the accused Offences No. 1 Ponniah 148, 341, 452, 380, 506(ii) I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
2 Sonaikalai 148, 341, 452 324, 380 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
3 Botharaj 147, 341, 452, 323, 380 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
4 Thangaiah 147, 323, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
5 Nalluchamy 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
6 Pandi 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
7 Palanichamy 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
8 Sadasivam 147, 323, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
9 Ramachandran 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
10 Selvaraj 147, 323, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
11 Manikandan 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
12 Periyakaruppan 148, 324, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act 13 Nakesh 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
14 Pitchai 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
15 Pandi 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
16 Jeyamani 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
17 Selvam 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
18 Thennarasu 147, 341, 325 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
19 Chandran 147, 323, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
20 Aadalarasan 147, 341, 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
21 Selvam @ Selvan 147, 341, 323 452, 380 read with 149 I.P.C., Section 3(i)(x) of SC/ST Act and Section 3(i) of TNPPDL Act.
3. On conclusion of trial, the learned Fourth Additional District and Sessions Judge (PCR), Madurai convicted the accused 1 to 3, 8, 10, 12 and 19 and the other accused were acquitted of the charges against them. The conviction is as follows:
Accd. No. Conviction Sentence A1 148,341,452, 506(ii) I.P.C., To undergo simple imprisonment for one year under 3(i)(x) of SC/ST(PA) Act, 3(i) Section 148 I.P.C.and simple imprisonment for one of TNPPDL Act. month under Section 341 I.P.C. and rigorous imprisonment for three years and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 452 I.P.C. and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(i)(x) of SC/ST Act and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(1) of TNPPDL Act and rigorous imprisonment for one year under Section 506(ii) I.P.C.
A2 147,341,452, 380, 323 I.P.C., To undergo simple imprisonment for six months under Section 147 3(i)(x) of SC/ST(PA) Act, 3(i) I.P.C.and simple imprisonment for one month under Section 341 of TNPPDL Act. I.P.C. and rigorous imprisonment for three years and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 452 I.P.C. and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(i)(x) of SC/ST Act and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(1) of TNPPDL Act and rigorous imprisonment for three years and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 380 I.P.C. and simple imprisonment for six months under Section 323 I.P.C.
A3 147,341,452, 323 I.P.C., 3(i)(x) To undergo simple imprisonment for six months under Section 147 I.P.C. of SC/ST(PA) Act, 3(1) of and simple imprisonment for one month under Section 341 I.P.C.and TNPPDL Act. rigorous imprisonment for three years and to pay fine of Rs.1000/- i/d.
to undergo simple imprisonment for one month under Section 452 I.P.C. and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(i)(x) of SC/ST Act and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(1) of TNPPDL Act and simple imprisonment for six months under Section 323 I.P.C.
A8 147,341,452, 323 I.P.C., 3(i)(x) To undergo simple imprisonment for six months under Section 147 I.P.C. of SC/ST(PA) Act, 3(1) of and simple imprisonment for one month under Section 341 I.P.C.and TNPPDL Act rigorous imprisonment for three years and to pay fine of Rs.1000/- i/d.
to undergo simple imprisonment for one month under Section 452 I.P.C. and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(i)(x) of SC/ST Act and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(1) of TNPPDL Act and simple imprisonment for six months under Section 323 I.P.C.
A10 147,341,452, 323 I.P.C., 3(i)(x) To undergo simple imprisonment for six months under Section 147 I.P.C. of SC/ST(PA) Act, 3(1) of and simple imprisonment for one month under Section 341 I.P.C.and TNPPDL Act rigorous imprisonment for three years and to pay fine of Rs.1000/- i/d.
to undergo simple imprisonment for one month under Section 452 I.P.C. and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(i)(x) of SC/ST Act and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(1) of TNPPDL Act and simple imprisonment for six months under Section 323 I.P.C.
A12 148,341,452, 324 I.P.C., 3(i)(x) To undergo simple imprisonment for one year under Section 148 I.P.C. of SC/ST(PA) Act, 3(1) and simple imprisonment for one month under Section 341 I.P.C. and of TNPPDL Act rigorous imprisonment for three years and to pay fine of Rs.1000/- i/d.
to undergo simple imprisonment for one month under Section 452 I.P.C. and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(i)(x) of SC/ST Act and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(1) of TNPPDL Act and rigorous imprisonment for one year under Section 324 I.P.C.
A19 147,341,452, 323 I.P.C., 3(i)(x) To undergo simple imprisonment for six months under Section 147 I.P.C. and of SC/ST(PA) Act, 3(1) simple imprisonment for one month under Section 341 I.P.C. and rigorous of TNPPDL Act imprisonment for three years and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 452 I.P.C. and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(i)(x) of SC/ST Act and rigorous imprisonment for one year and to pay fine of Rs.1000/- i/d. to undergo simple imprisonment for one month under Section 3(1) of TNPPDL Act and simple imprisonment for six months under Section 323 I.P.C.
4. The facts necessary for the disposal of this appeal are as follows:
(i) In the Panchayat Election held during 1996, Melavalavu Village was reserved for reserved candidates (SC/ST). Due to the above reservation, the other community people objected and there was enmity between SC/ST and other communities. On 28.12.1996, when the Panchayat election was going on, the accused assembled in front of booth No.128 at 10.30 am with dangerous weapons with the intention of attacking SC/ST people, who came for voting. Raising an issue of such people acting high-handed and hurling derogatory abuses, A1 tried to attack the complainant viz., Ramar with Aruval. A2 and A3 beat the complainant with a stick. A12 stabbled PW2 on his left thigh with knife. A8 beat him on the left shoulder with stick. A10, A17 and A-18 beat P.W.3 with sticks. Then the accused led by A1, entered the Polling booth, ransacked the place and carried away the ballot boxes. P.Ws.5 to 12, 16, 18, 19 and 22 helplessly witnessed the occurrence. P.W.1 preferred complaint Ex.P1 to P.W.24, the Head Constable at the Police Station. Ex.P9 is the printed First Information Report. P.W.25 received the First Information Report and took up investigation, went to the scene, prepared Observation Mahazar Ex.P2 and Rough Sketch Ex.P10 in the presence of P.W.4. Torn posters and candidate symbols and other articles were recovered under Exs.P3 and P4. Statements of witnesses were recorded by P.W.25. He arrested A1 to A10 at 06.00 a.m. on 29.12.1996 and A11 to A21 at 08.15 a.m. On 06.01.1997. The accused were sent for remand. Three ballot boxes M.Os.1 to 3 were seized under due Attakshi. P.Ws.26, Deputy Superintendent of Police took up further investigation. He examined the doctor, P.W.15, obtained Accident Registers Exs.P5 to 7, examined the Tahsildar P.W.21.
obtained community certificates, completed the investigation and filed the charge sheet.
5. The case was taken on file by the Court of the Judicial Magistrate, Melur and the same reached trial Court as the same was empowered to try the offences alleged.
6. On completion of procedure contemplated under Section 207 Cr.P.C. charges were framed against the accused as stated supra.
7. On questioning under Section 313 Cr.P.C., the accused denied their involvement. As an accused by name Subbiah failed to appear pending trial, the case against him was split up and A1 to A21 were tried.
8. To prove the offences against the accused, prosecution examined P.Ws.1 to 26, marked Exs.P1 to 10 and M.Os.1 to 3. Ex.D1 was marked on the side of the defence.
9. Urging the present appeal, the learned counsel for the appellants submitted that the versions regarding the occurrence vary between the complaint and the evidence of the witnesses. Apparently, there had been an occurrence in the concerned polling booth in which several persons were involved and such number according to the accident register pertaining to P.W.1 was about 40 persons. Given the position that P.W.1 to P.W.3 had suffered some injuries, the prosecution has wrongly picked and chosen these accused/appellants and on false charges, they stand wrongly convicted. The learned counsel for the appellants draws the attention of this Court to the testimony of the witnesses, which on a joint reading of the evidence of P.W.1 to P.W.3 shows that only P.W.1 to P.W.3 suffered injuries in the incident.
As per P.W.1, the first accused abused P.W.1 by touching upon his caste and sought to cut P.W.1. P.W.1 bent down and avoided the blow. P.W.2 intervened. The second and third accused beat P.W.1 on the left leg with a stick. According to P.W.2, A-1 sought to attack P.W.1, A-12 stabbed P.W.2 with knife on the left thigh, A-3 beat P.W.2 with stick on the left shoulder. According to P.W.3, A-10 beat him on the head with a stick. A-17 beat him on the left knee and calf with stick. A-19 beat him on the hip and A-20 on the right shoulder with sticks.
In their cross examination, while P.W.1 admits that A-1 and a village leader Sonakalai, had been taken away by the Sub Inspector of Police, since there was a complaint of bogus voting at a neighbouring place and that the present occurrence took place only thereafter, P.W.2 in cross examination admits of not having known the names of either the accused or their fathers. P.W.3 has not said anything about the attempted attack on P.W.1 or the attacks on P.W.2 and P.W.3. Thus, it is seen that apart from P.W.1 and P.W.2 speaking of the intended attack on P.W.1, they speak only about the injuries suffered by themselves. P.W.3's evidence is also on similar lines.
10. Learned counsel for the appellants submits that in convicting the accused, the lower Court has chosen to convict those who stand specifically implicated of having caused physical harm to P.Ws.1 to 3. The lower Court has chosen to acquit A-17, since the Investigating officer P.W.25 has admitted in his cross examination that P.W.3 did not inform him of the attack by A-17 on him. We, for now, will leave alone the offences attracted owing to the causing of injury to P.Ws.1 to 3.
11. The other offences for which the accused stand charged are Sections 380, 452 I.P.C., Section 3(1)(ii) of the Prevention of Damage to Public Property Act and Section 3(1)(x) of the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989. As regards, the offences under Section 380, 452 I.P.C. and Section 3(1)(ii) of the Prevention of Damage to Public property Act, it is to be seen that the occurrence involved several persons, as per the Accident Register of P.W.1, 40 persons. All the 22 accused stood charged for offences under Section 452 I.P.C. and Section 3(1)(ii) of the Prevention of Damage to Public Property Act, while accused 1 to 3 stood charged under Section 380 I.P.C. and accused 4 to 22 under Section 380 read with 149 I.P.C. From a bare reading of the Judgment in appeal, it is seen that only those who have been implicated of having caused physical injuries to P.Ws.1 to 3 have been convicted in respect of these offences. A-2 stands convicted for offences under Section 380 I.P.C., while there is no such conviction in respect of A-1 and A-3 nor is there any conviction under Section 380 and 149 I.P.C. in respect of the other accused. While the approach of the lower Court in this regard can hardly be appreciated, this Court is of the view that in any event, the offences under Sections 380 I.P.C. and 452 I.P.C. cannot be held to be made out against the accused persons. The independent witnesses sought to be examined have turned hostile and the persons on election duty have all not been able to say anything about the involvement of the accused. It is hardly surprising that P.W.11 and P.W.12 being as they are "police witnesses", depose as if they are capable of identifying the accused persons but this Court would, refrain from accepting their testimony in the circumstances of this case. Thus, this Court would hold that no offences under Sections 380 and 452 I.P.C. have been made out as against the accused.
12. It is next to be examined if any offence under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 would stand established. Though several witnesses would speak of utterances on the part of the accused that would attract such offence, the basic requirement of investigation by an officer not below the rank of Deputy Superintendent of Police into offences under such Act has not been met. P.W.25 has initially investigated the case and P.W.26, who is in the rank of Deputy Superintendent of Police and a person competent to investigate offences under the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989 has been examined to show that he conducted investigation. In cross, such witness admits that he has examined the witnesses already examined by P.W.25 and since they confirmed what they earlier had informed PW25, he had not recorded their statements. Thus, the so-called investigation conducted by P.W.26 cannot be recognised as one that would meet the requirement of the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989. Hence, the appellants would stand acquitted of offences alleged against them under Section 3(1)(x) of the Scheduled Castes and the Schedules Tribes (Prevention of Atrocities) Act, 1989.
13. Now to turn back to the offences attracted on the causing of injuries to P.Ws.1 to 3. Along with those, we will also examine the alleged offences under Sections 147, 148, 341, 452, 323, 324,, 325 and 506(ii) I.P.C., the offences for which the accused/appellants stand convicted. To repeat the I.P.C. offences of which the accused stand convicted are as follows:
Accd. No. Conviction A1 148,341,452, 506(ii) I.P.C.
A2 147,341,452, 380, 323 I.P.C., A3 147,341,452, 323 I.P.C.
A8 147,341,452, 323 I.P.C.
A10 147,341,452, 323 I.P.C.
A12 148,341,452, 324 I.P.C.
A19 147,341,452, 323 I.P.C.
14. All but one of the injuries admittedly are said to have been caused by sticks. Only P.W.2 has suffered an injury by use of knife. The injury is one to the thigh, 3 x 1/2 x 1/2 cm and showing even edges. P.W.15, Doctor, in his cross examination had admitted that such injury is a cut injury and not a stab injury. While so, this Court is able to perceive that such injury also could have been caused by use of a sharp edged or broken stick. Admittedly, no knife has been recovered. Again in respect of offences relating to wrongful restraint, trespass, theft etc, it is seen the P.Ws.1,2 and 3 have not spoken thereabout. The evidence of the other witnesses, save the police witnesses, hardly points to the role played by the particular members of the mob. In these circumstances, learned counsel for the appellant submits that at most the evidence of P.Ws.1 to 3 would only implicate A-1 to A3 and that too only of offences under Section 323 and 506(ii) I.P.C. Even an extension to Section 147 I.P.C. would be strained. Having regard to the nature of injuries, this Court may exercise leniency in imposing sentence and even if a finding of conviction was to be arrived at, a sentence to the effect that imprisonment had already been undergone by the accused may be passed. Learned counsel informs that A1 is undergoing life imprisonment in another case and A2 and A3 already have suffered imprisonment of about 50 days.
15. I have considered the submissions. Given the evidence on record, the admitted position of inter-caste rivalry resulting in communal back lash in the conduct of a Panchayat Election, given the passage of time, viz., that the occurrence is of the year 1996 and we are now 13 years away from the date of occurrence and being conscious that re-imprisonment of the accused could again open up old scars which could have a deleterious effect on society. (It is the admitted case that three persons of the SC/ST community carrying dangerous weapons had been arrested early in the morning on the same day.) I am inclined to accept the submission of the learned counsel for the appellant.
16. In fine, this Court holds as follows:
(a) the circumstances of the case do not warrant conviction for offences under Sections 147, 148, 324, 325, 341, 380 and 452 I.P.C. and offences under the TNPPDL Act or SC/ST Act;
(b) and the accused shall stand acquitted of such offences.
(c) the accused 1 to 3 stand convicted for offencs under Section 323 I.P.C. A1 also shall stand convicted for offence under Section 506(ii) I.P.C.
The sentence already undergone by them is considered as sufficient punishment for such offences; and
(d) A8, A10, A12 and A19 are acquitted of all charges against them.
17. The Criminal Appeal is ordered accordingly.
smn To
1.The Additional District and Sessions Judge (FTC), Pudukkottai.
2.The Inspector of Police, Kottaipattinam Police Station, Pudukkottai.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.