Madras High Court
Nambi Kumar vs State Represented By on 22 July, 2019
Author: P.Velmurugan
Bench: P.Velmurugan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.07.2019
CORAM
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.No.416 of 2014
and
M.P.No.1 of 2014
1. Nambi Kumar
2. Meganathan
3. Devaraj
... Appellants/Accused
Vs.
State represented by
Inspector of Police,
H8, Thiruvottiyur Police Station,
Chennai.
... Respondent / Complainant
PRAYER: Criminal Appeal is filed under Section 374 of the Criminal
Procedure Code, to set aside the judgment passed against the
appellants in S.C.No.229 of 2012 dated 17.07.2014 by the learned
Sessions Judge, Thiruvallur.
For Appellants : Mrs.Revathi G. Mohan (Legal Aid Counsel)
For Respondent : Mr.T.Shanmugarajeswaran
Government Advocate (Crl. Side)
http://www.judis.nic.in
2
JUDGMENT
This Criminal Appeal has been filed to set aside the judgment passed in S.C.No.229 of 2012 dated 17.07.2014 by the learned District and Sessions Judge, Thiruvallur.
2. Based on the complaint given by one Sampath kumar/P.W.1 against the appellants before the respondent police for the offences under Section 341, 325, 427 and 506(ii) IPC. The accused persons were arrested and a case was registered against them in Crime No.473 of 2008. After registering the case, the police investigated the matter and laid charge sheet before the learned Judicial Magistrate, Thiruvottiyur in P.R.C.No.16 of 2010 and the learned Magistrate, after serving copies to the accused, since the offences are triable by the Court of Sessions, the case was committed to the Sessions Court. The learned District and Sessions Judge, Tiruvallur framed the charges against the appellants for the offences punishable under Section 341, 324, 326 IPC and Section 3(1) of TNPPDL Act and 506(ii) read with 34 of IPC and taken the case on file in S.C.No.229 of 2012. Before the Sessions Court, in order to prove the case of the prosecution, as many as 7 witnesses have been examined viz., P.W.1 to P.W.7 and as many as 10 documents were marked viz., Ex.P1 to Ex.P10 and 4 Material Objects were http://www.judis.nic.in 3 produced as M.O.1 to M.O.4 by the respondent police. After completion of the evidence on the prosecution side, the appellants were questioned under Section 313(1)(A) Cr.P.C. The appellants denied the incriminating circumstances and denied all evidences as false. On the side of the defence, there is no oral and documentary evidence was produced. After hearing the arguments of both sides, the Sessions Judge found the appellants/accused 1, 3 and 4 guilty for the offences under Section 341, 324 and 326 read with 34 of IPC and convicted and sentenced them to undergo one month simple imprisonment each for the offence under Section 341 IPC; convicted and sentenced to undergo six months rigorous imprisonment and to pay a fine of Rs.2,000/- each, in default, to undergo one month simple imprisonment for the offence under Section 324 IPC; and convicted and sentenced the accused to undergo one year rigorous imprisonment and to pay a fine of Rs.10,000/- each, in default, to undergo one month simple imprisonment for the offence under Section 326 IPC. The accused 1,3 and 4 are found not guilty for the offence under Section 506(ii) IPC and Section 3 of TNPPDL Act read with 34 of IPC and they were acquitted from the above charges. The 2nd Accused has found not guilty of the charges under Section 341, 324, 326, 506(ii) and Section 3(1) of TNPPDL Act read with 34 of IPC and he has been acquitted from all the charges. Out of the fine imposed for the offence under Section 324 IPC, a sum of Rs.5,000/- has been http://www.judis.nic.in 4 ordered as compensation to P.W.3 and out of the fine imposed for the offence under Section 326 IPC, a sum of Rs.25,000/- has been ordered as compensation to him under Section 357 Cr.P.C.
3. Challenging the said judgment of conviction and sentence passed by the learned Sessions Judge, Tiruvallur in S.C.No.229 of 2012 dated 17.07.2014, the appellants/accused have preferred the present Criminal Appeal before this Court.
4. The learned counsel for the appellants would submit that though the prosecution has specifically stated that at the time of occurrence, P.W.1 and P.W.3 came by his motor bike and A1 intercepted the motor bike and A3 and A4 attacked P.W.1 with wooden logs. Due to that he sustained injury and he was taken to the private hospital by P.W.2 and P.W.4. After information, the respondent police went to the hospital and recorded the statement given by the victim. Based on the statement, the respondent police arrested the accused persons and registered the case against them. The prosecution has not proved its case beyond reasonable doubt. Out of 7 witnesses, P.W.1 to P.W.4 stated to have been eyewitnesses, out of 4 eyewitnesses, P.W.2 and P.W.4 have turned hostile. P.W.1 and P.W.3 are injured witnesses. According to P.W.1, A1 intercepted the motor bike of the P.W.1; A3 and A4 have http://www.judis.nic.in 5 attacked P.W.1 with wooden logs, he sustained injury. Whereas A1 caused damages to his motor bike and the bike was not seized in this case and not marked by the prosecution and there is no material to show that the bike was damaged. P.W.2 and P.W.4 have turned hostile, they have not supported the case of the prosecution. There is a material contradiction between the evidence of P.W.1 and P.W.3 and the Doctor's evidence has also not tallied with them. Two persons alleged to have been attacked with wooden logs, there is no overtact against A2 and recovered four material objects i.e. the wooden logs, which also creates doubt. Therefore, non seizure of the motor bike, non assessment of the damages to the motor bike and non obtaining certificate from the Motor Vehicle Inspector for damages, which were fatal to the case of the prosecution. Since P.W.1 is the ruling party, therefore, the respondent police has supported the case of the complainant and they have foisted a false case against the appellants. The prosecution has failed to prove its case beyond reasonable doubt. The learned Sessions Judge failed to consider the material contradictions and also non seizure and production of the motor bike before the Motor Vehicle Inspector for inspection and obtain damage certificate, which creates P.W.1 and P.W.3 are not trust worthy and they have foisted a false case.
http://www.judis.nic.in 6
5. Per contra, the learned Government Advocate (Crl. side) appearing for the State would submit that when the P.W.1 and P.W.3 came by bike, A1 way laid them; A3 and A4 attacked P.W.1 with wooden logs and the said action was questioned by P.W.3, A3 and A4 attacked P.W.3, therefore, he sustained simple injuries and P.W.1 sustained grievous injuries. The Doctor/P.W.5 has clearly stated about the injuries sustained and A.R.Copy itself shows that four known persons were assaulted. P.W.6 Investigating Officer investigated the matter and filed charge sheet. Therefore, the prosecution has established its case beyond reasonable doubt. The trial Court has rightly convicted all these accused and acquitted A2, since there is no overtact against A2. There is no valid reason to interfere with the judgment passed by the trial Court.
6. Heard the learned counsel for the appellants and the learned Government Advocate (Crl. Side) and perused the materials available on record.
7. The case of the prosecution is that on 15.07.2008 at about 11.00 p.m. When P.W.1 and P.W.3 came by motor bike bearing registration No.TN 04 R 4327, due to previous enmity with common intention, all the accused restrained them and assaulted P.W.1 with wooden logs over his body and he sustained injuries, and also caused http://www.judis.nic.in 7 injury to P.W.3 and also damaged the motor bike to the tune of Rs.5000/- and threatened the witnesses and thereby the appellants/accused committed the offences under Section 341, 324, 326 IPC and Section 3(1) of TNPPDL Act and 506(ii) read with 34 of IPC. After registering the case, the respondent police investigated the matter and laid charge before the learned Judicial Magistrate, Thiruvottiyur and the same was committed to the learned District and Sessions Judge, Tiruvallur. Before the Sessions Judge, in order to prove the case of the prosecution, as many as 7 witnesses have been examined viz., P.W.1 to P.W.7. Out of which, P.W.1 and P.W.3 are injured witnesses. On reading of the evidence of P.W.1, it is seen that P.W.1 and P.W.3 came by motor bike, at that time all the accused restrained them and A1 intercepted the vehicle and damaged the vehicle, A3 and A4 assaulted P.W.1 with wooden logs and he sustained injuries. According to P.W.3, they attacked P.W.1 with wooden logs and he questioned the same, the accused attacked him with wooden logs and he sustained simple injuries. According to the prosecution, P.W.2 and P.W.4 are eyewitnesses and they have not supported the case of the prosecution. It is seen from the evidence of P.W.2 and P.W.4, they have stated that they have not seen the occurrence, they have taken the P.W.1 and P.W.3 to the hospital and admitted them for treatment. P.W.1 has clearly stated that A1 has not attacked him, he damaged his bike only. Unfortunately, in http://www.judis.nic.in 8 this case, the prosecution has not seized the bike and produced before the competent authority to ascertain the nature of damages caused to the bike and valuation certificate for the damaged portions. In the absence of one such valuation report, the Sessions Judge has also came to the conclusion that the prosecution has not proved the case for the offence under Section 3(1) of TNPPDL Act. Further, there is no specific overtact against A2. Therefore, he was acquitted from all the offences. Insofar as offences against the A1, A3 and A4 are concerned, once A1 was acquitted for the offence under Section 3(1) of TNPPDL Act, there is no bike was produced and damage certificate was marked. Therefore, he cannot be convicted for any offence. Because both the witnesses have not stated that A1 attacked them and caused injuries. Therefore, the benefit of doubt extended to the A1. The learned District and Sessions Judge failed to consider that there is no specific overtact against A1 and also further three persons have attacked the witnesses but the Police recovered 4 wooden logs. The prosecution has not established that which appellants handled more than one wooden logs and how many accused have used the wooden logs, which also creates a doubt. Further, non seizing of the motor bike, non production before the Court, valuation certificate of the damages and seizing of the four material objects, only two persons attacked the victims which creates a doubt. Therefore, once the benefit of doubt arisen, there are two views are http://www.judis.nic.in 9 possible, the views which is favourable to the accused has to be extended.
8. This Court finds that the prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt should be extended to the appellants herein. Therefore, the learned Sessions Judge failed to consider the material objects used by the accused and also evidence of eyewitnesses of the prosecution. Admittedly, at the time of the incident, injured witnesses came by bike, but they have not stated anything about what happened to that bike which creates suspicious. As stated by the learned counsel for the appellants that they might have fell down from the bike and sustained injury inebriated mood. Even they have not gone to the Government Hospital, they went only to private hospital which creates a doubt in the mind of the Court. The benefit of doubt has not been given to the appellants by the trial Court.
9. The appellate Court has got power to re-appreciate the entire evidence and to give an independent findings. On reading of the entire oral and documentary evidence, this Court finds that the prosecution has failed to prove its case beyond reasonable doubt. The benefit of doubt shall be extended to the appellants. Therefore, http://www.judis.nic.in 10 conviction and sentence passed by the trial Court is liable to be set aside.
10. In view of the discussion held above, this Criminal Appeal is allowed by setting aside the judgment in S.C.No.229 of 2012 dated 17.07.2014, on the file of the learned District and Sessions Judge, Tiruvallur. In this case, the appellants/A1, A3 and A4 are acquitted from all the charges levelled against them. The fine amount paid by the appellants shall be refunded, if any. The damages and fine paid by them shall be refunded to the appellants. Consequently, connected miscellaneous petition is also closed.
11. Mrs. Revathi G. Mohan, Legal-Aid-Counsel, who is appearing for the appellants, is entitled for getting legal fees as per rules.
22.07.2019
Index : Yes/No
Internet: Yes/No
Speaking order/Non speaking order
rli
To
1.The Sessions Judge Tiruvallur.
2. The Inspector of Police,
http://www.judis.nic.in
11
H8, Thiruvottiyur Police Station,
Chennai.
3. The Public Prosecutor,
High Court of Madras.
4. The Tamil Nadu Legal Services Authority,
Chennai.
http://www.judis.nic.in
12
P.VELMURUGAN, J.
rli
Crl.A.No.416 of 2014
and
M.P.No.1 of 2014
22.07.2019
http://www.judis.nic.in