Madras High Court
Balamurali vs The State Of Tamil Nadu on 30 October, 2019
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
Crl.O.P.(MD) No.15626 of 2019
BEFORE THE MADURAI BENGH OF MADRAS HIGH COURT
DATED: 30.10.2019
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
CRL.O.P (MD) No.15626 of 2019
Balamurali ... Petitioner
Vs
1.The State of Tamil Nadu,
Deputy Superintendent of Police,
Valivalam Police Station,
Nagapattinam District.
(in Crime No.272 of 2011)
2.Mathiyalagan ... Respondents
PRAYER: Criminal Original Petition filed under Section 482 of Cr.P.C,
praying to call for the records pertaining to the S.S.C.No.116 of 2016
on the file of the 1st Additional District and Sessions Judge, (PCR)
Court, Thanjavur and quash the same as against the petitioner.
For Petitioner : Mr.A.Arun Prasad
For Respondents : Mr.K.Suyambulinga Bharathi,
G.A. (Crl. Side) for R1
ORDER
This petition has been filed to quash the proceedings in S.S.C.No.116 of 2016 on the file of the 1 st Additional District and Sessions Judge, (PCR) Court, Thanjavur having been taken cognizance 1/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 for the offence under Sections 147, 294(b) and 323 of IPC and r/w Section 3(1)(x) of SC/ST Act, 1989.
2. The case of the prosecution is that there are totally twelve accused, in which, the petitioner herein was arrayed as A3. The respondent police after investigation, filed a final report and the same was taken cognizance as SSC No.40 of 2012 on the file of the 1st Additional District and Sessions Judge (PCR) Court, Thanjavur. During the trial due to long pendency of the case, the petitioner herein has not appeared no one occasion before the trial Court and hence, the case was split up and the trial was proceeded against the petitioner/accused No.3. After completion of the full fledged trial, the learned I Additional District and Sessions Judge (PCR) Court, Thanjavur has acquitted A1 to A6 in SSC No.116 of 2016 based on the ground that all the prime witness has turned hostile and the case against the petitioner is now pending as SSC No.116 of 2016.
3. The learned counsel appearing for the petitioner submitted that the 1st respondent completed the investigation and filed the final report and the same has been taken cognizance in S.S.C.No.40 of 2012 and thereafter, A1 to A6 appeared before the trial Court and 2/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 conducted the case, which was also ended in acquittal. Since, the petitioner has not appeared no one occasion before the trial Court, the trial Court split up the case insofar as the petitioner is concerned in S.S.C. No.116 of 2016 and it is now pending. The trial Court acquitted A1 to A6 on the ground that all the prime witness has turned hostile.
4.The learned counsel appearing for the petitioner further submitted that the petitioner has nothing to do with the crime as alleged by the prosecution. The prosecution examined Pws.1 to 12 and marked as Exs.P1 to 14 and the trial Court found that they have not spoken about the charges to prove the same and as such, A1 to A6 have been acquitted. In these circumstances, as against the petitioner, there is absolutely no evidence and as such, the pendency of the proceedings in S.S.C.No.116 of 2016 would not serve any purpose and therefore, he prayed for quashment of entire proceedings.
5.The learned Government Advocate (criminal side) would submit that there are totally seven accused, in which, the petitioner was arrayed as A3 and only because of the absence of the petitioner before the trial Court, his case has been split up from the main case in S.S.C.No.40 of 2012, which was ended in acquittal. Therefore, the 3/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 case as against the petitioner is concerned is pending in S.S.C.No.116 of 2016 for trial and the prosecution has to let in evidence and they have incriminating evidence as against the petitioner and as such, he sought for dismissal of the quash petition.
6.Heard the learned counsel appearing for the petitioner and the learned Government Advocate (criminal side) appearing for the 1st respondent.
7.It is the admitted case of the petitioner as well as the prosecution that there are totally seven accused, in which, A1 to A6 are concerned, the trial has been conducted and they have been acquitted in S.S.C No.40 of 2012 and insofar as A3 is concerned, since the petitioner has not appeared no one occasion before the trial Court, the case has been split up in S.S.C.No116 of 2016 and the same is pending for trial. All the accused have been charged for the offence under Sections 147, 294(b) and 323 of IPC and r/w Section 3(1)(x) of SC/ST Act, 1989.
8.The entire dispute is that intentionally insults or intimidates with intent to humiliate victims belongs to a scheduled caste. The 4/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 trial Court recorded the reason for acquittal as follows:
“To substantiate its case, the prosecution has examined P.W. 1 to P.W.15 and exhibited Ex.P1 to Ex.P34. From Ex.P11 to Ex.P29, it is found that P.W.1 to P.W.8 and Gnanasekaran are all belong to Hindu Parayan Community, neither a Scheduled Caste. The Accused herein belong to Hindu Veerakodi Vellalar Community, neither a Scheduled Caste nor a Scheduled Tribe.
However, the defacto complainant P.W1 and injured witness P.W.2 to P.W.8 have not supported the case of the prosecution. According to them, on 27.05.2009 there was scuffle near river bridge of Keezha Sambalur Village among the members of Velalar Community. When the witnesses P.W. 1 to P.W.8 Gnanasekaran and Nandakumar has gone to worship temple car near river bridge they have suffered injury. Further, the witness said to have seen the occurrence P.W.9 Aathimuthu have also not supported the case of the prosecution. Though the prosecution was permitted to cross examine those witnesses, it could not extract anything in its favour. Hence, this Court found no single substantive evidence as against the Accused herein.
11.Further one of the witnesses to the observation Mahazar P.W.10 Amirthalingam has also turned hostile to the case of the prosecution and other witness to the observation Magazer was not examined before this Court. Hence, the evidence of P.W.10 is also not helpful to the prosecution.
12.Further, the defacto complainant disowned his complaint and his signature found in Ex.32 complaint is marked as 5/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 Ex.P1. Even assuming that the receipt of complaint was pro0ved through P.W.14, the complaint and the First Information Report are only a corroborative piece of evidence and they cannot be used against the Accused herein in the absence of any substantive piece of evidence. Further, though P.W.11 Dr.Ramachandran found certain injuries on the body of injured witnesses and poined that they are in simple in nature and though P.W.13 Dr.Amuthavadivu opined that the injury sustained by P.W.5 is grievous in nature, in the absence of any substantive evidence that the Accused herein are the cause for the said injuries, the said evidence cannot be put against the accused. Though the prosecution claimed that the accused herein attacked injured witnesses withAruval, Iron rod and Wooden log, no such material Objects were produced and marked before this Court. Further the prosecution has failed to prove the investigation Officer in this case was appointed interms of Rule 7 of SC/ST (PoA) Rules. In the absence of any such proof the evidence collected by the said investigation officer cannot be put against the Accused herein. In the given circumstances, this Court is of the considered view that the prosecution has miserably failed to prove its case beyond all reasonable doubts and the Accused herein are entitled to benefit of doubts.”
9.In this regard, it is relevant to rely the judgment reported in 2007-1 L.W.(Crl.) 514 – Tamilmaran Vs. The State rep. by Inspector of Police, Paravakottai Police Station, Mannargudi 6/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 Taluk, Thiruvarur District, where, this Court has held as follows:
“7. This Court is of the considered view that there is much force on the contention put forward by the learned senior counsel to the effect that the learned trial Judge having disbelieved the prosecution case in toto no useful purpose would be served by putting the petitioner to undergo the ordeal of trail on the basis of the very same set of evidence. It is also pointed out by the learned senior counsel that even the defacto complainant himself turned hostile giving a total go-by to his earlier version and there is no other material available on record to implicate the petitioner. The learned senior counsel has rightly placed reliance on the decision of the Delhi High Court in a case in Sunil Kumar v. State reported in 2000 (1) Crimes 73 wherein it is held as follows:
“3. The question thus is as to whether in the face of the judgment of acquittal the petitioner should still be permitted to undergo the ordeal of a trial. In Sat Kumar v. State of Haryana (AIR 1974 SC 294), it was held that there is no rule of law that if the Court acquits some of the accused on the evidence of a witness raising doubt with regard to them the other accused against 7/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 whom there is absolute certainty about his complicity in the crime based on the remaining credible part of evidence of that witness must be acquitted. (See also Har Prasad v. State of Madhya Pradesh (AIR 1971 SC 1450,) Makan Jivan v. State of Gujarat (AIR 1971 SC 1797) Mohd. Moin Uddin V. State of Maharashtra (1971 S.C.C.(Cri.) 617). But where the evidence against all the accused persons is inseparable and indivisible and if some of the accused persons have been acquitted, the remaining accused persons cannot be treated differently on the basis of the same evidence.
4. On perusal of the Judgment of acquittal dated 19.01.1998 it appears that the deceased Balwan Singh met with a homicidal death owing to burn injuries sustained by him has not been disputed by the accused persons. The evidence against the accused persons mainly consists of the evidence of the eye-witnesses, namely, Karan Singh (PW2) and Smt. Asha Rani(PW-5) (Wife of the deceased Balwan Singh) besides the dying declaration (Ex.PW-13/a) of the deceased Balwan Singh. Both the said witnesses have not supported the 8/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 prosecution case and so they have been declared hostile by the prosecution.
Eliminating the evidence of the said eye-
witnesses, there remains the dying declaration (Ex.PW.13/A) of the deceased Balwan Singh, which has been disbelieved by the learned Addl. Sessions Judge. It would, therefore, appear that the accused persons, namely, Jangli Tyagi, Balbir Singh, Anil Kumar Tyagi and Sushil Kumar Tyagi were acquitted on the ground of insufficiency of evidence. Thus, the evidence adduced in the case against all the accused persons is inseparable and indivisible and that being so the petitioner cannot be treated differently on the basis of the said evidence. In this view of the matter, there is no prospect of the case ending in conviction against the petitioner and the valuable time of the Court would be wasted for holding trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. If the Court is almost certain that the trial only would be an exercise in futility or sheer wastage of time, it is advisable to truncate or ship the proceedings at the stage of Section 227 if the Code itself.” 9/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019
10.Further, this Court and various High Courts repeatedly held that the acquittal of the other co-accused, after considering the depositions and holding their evidence to be unreliable, the trial Court cannot re-assess their depositions once again and take a contrary view. Therefore, this Court is of the considered view that the above settled proposition of law laid down in the above decision is squarely applicable to the case on hand.
11.In the present case, except the petitioner/A3, other accused viz., A1 to A6 have been tried the charges and acquitted in S.S.C.No. 40 of 2012 by the trial Court disbelieving the case of the prosecution and holding that the prosecution has failed to prove the charges beyond reasonable doubt. The petitioner is being A3 is also standing in the same footing like the other accused persons. Under these circumstances, no useful purpose would be served to make the petitioners to undergo the ordeal of the trial.
12.In view of the above discussion, this criminal original petition is allowed and the proceedings in S.S.C.No.116 of 2016 on the file of the I Additional District and Sessions Judge (PCR) Court, Thanjavur is 10/12 http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 quashed as against the petitioner/A3 is concerned. Consequently, connected miscellaneous petitions are closed.
30.10.2019 Internet:Yes Index:Yes vsg To
1. The I Additional District and Sessions Judge (PCR) Court, Thanjavur.
2.The Deputy Superintendent of Police, Valivalam Police Station, Nagapattinam District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
11/12http://www.judis.nic.in Crl.O.P.(MD) No.15626 of 2019 G.K.ILANTHIRAIYAN, J.
vsg Order made in CRL.O.P (MD) No.15626 of 2019 30.10.2019 12/12 http://www.judis.nic.in