Madras High Court
M.Sri Ramar vs The Deputy Superintendent Of Police on 10 September, 2015
CRL.A.(MD)No.336 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 21.04.2021
DELIVERED ON : 22.06.2021
CORAM
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.A.(MD)No.336 of 2016
M.Sri Ramar : Appellant
Vs.
1.The Deputy Superintendent of Police,
Office of the Deputy Superintendent of Police,
Aruppukottai, Virudhunagar District.
2.The Inspector of Police,
Aruppukottai Town Police Station,
Virudhunagar District.
(Crime No.306 of 2003).
3.R.Ramamoorthy : Respondents
PRAYER: Criminal Appeal filed under Section 374 of Criminal Procedure Code,
to call for the records pertaining to the judgment in S.C.No.127 of 2009, dated
10.09.2015 on the file of the Principal District and Sessions Court, Virudhunagar
at Srivilliputhur in Cr.No.306 of 2003 on the file of the Respondent No.1 and to
set aside the same.
For Appellant :Ms.T.Seeni Syed Amma
for Mr.T.Lajapathi Roy
For R1 and R2 :Mr.A.P.G.Ohm Chairma Prabhu
Government Advocate (Crl.side)
For R3 :Mr.T.Antony Arulraj
***
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JJUDGMENT
This is an appeal filed by the de-facto complainant/PW-4 against the
judgment of acquittal passed by the learned Principal District and Sessions
Judge, Virudhunagar at Srivilliputhur.
2.As per the grounds of appeal, the learned Principal District and Sessions
Judge, Virudhunagar at Srivilliputhur, failed to appreciate the facts involved in
the case in the light of the weight of evidence against law and probabilities of the
case. The Trial Court acquitted the third respondent/accused on flimsy grounds
without considering the facts and circumstances of the case.
3.The third respondent/accused working as Special Officer in the Primary
Agricultural Co-operative Credit Society, Puliampatti, Aruppukottai Taluk and
the appellant was working as Salesman. The third respondent/accused wrote a
confidential note in the service register of the appellant, as if he belongs to
Scheduled Caste community and he is a terrorist; he is not loyal to this Bank; he
is an active sympathizer of “Puthiya Thamilagam” political party; he is a petition
monger; he is not even fit to serve as a Salesman under any circumstances; he
belongs to “Puthiya Thamilagam' party. In short, he is the worst man, whom
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might not have met in my life and career and his conduct and character are very
worst. The service register of the appellant is exhibited as Ex-P6.
4.It is crystal clear that the third respondent/accused had acted upon
illegally and with an intention to abuse the appellant by his caste remarks.
Therefore, the conduct of the third respondent attracts the provisions of offences
under Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989.
The said vital point was not considered by the learned Principal District and
Sessions Judge. The alleged occurrence attracting the provisions of Section 3 of
the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989,
was not considered by the learned Trial Judge. Therefore, the order passed by the
learned Principal District and Sessions Judge, Virudhunagar at Srivilliputhur, had
to be set aside.
5.The learned Counsel for the appellant restricted his arguments to Section
3(i)(x) of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, as
it stood in 1989. Section 3(i)(ix) of the Act is with regard to public servant.
Section 3(i)(x) of the Act is with regard to humiliate a public servant in public
view. The learned Counsel for the appellant submitted that he is confining his
arguments only with regard to Section 3(i)(x) of the Act.
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6.In support of his submissions, the learned Counsel for the appellant had
relied on the Ruling of the Honourable Supreme Court reported in (2008) 8 SCC
435, in the case of Swaran Singh and others vs State through Standing
Counsel and another and submitted that the order of the learned Principal
District and Sessions Judge acquitting the third respondent/accused is to be set
aside and the third respondent is to be sentenced.
7.The learned Government Advocate (Crl.side) appearing for the
respondents 1 and 2 adopts the arguments of the learned Counsel for the
appellant/de-facto complainant.
8.The third respondent, who is the accused before the Principal District
and Sessions Court, had engaged a Counsel. As per the submissions of the
learned Counsel for the third respondent, provisions of Section 3 of the Act is not
attracted in this case. The learned Counsel for the third respondent had requested
this Court to consider the grounds of appeal. In the grounds of appeal, it is
mentioned that the appellant herein was working as Salesman and the third
respondent was working as Special Officer in the Primary Agricultural Co-
operative Credit Society, Puliampatti, Aruppukottai Taluk. The Special Officer
had made entries in the service register, which reads as follows:
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“the appellant belongs to Scheduled Caste community and he is
terrorist; he is not loyal to this Bank; he is an active sympathizer of
“Puthiya Thamilagam” political party; he is a petition monger; he is
not even fit to serve as Salesman under any circumstance; he belongs to
“Puthiya Thamilagam' party. In short, he is the worst man, whom
might not have met in my life and career and his conduct and character
are very worst.”
that is not the grounds of appeal. The grounds of appeal shall be based on the
facts agitated before the Trial Court. Here, a new fact is stated in the grounds of
appeal. The grounds of appeal proceed, as though the cause of action for filing
of the case under the Scheduled Caste and Schedule Tribes (Prevention of
Atrocities) Act, 1989, had been invoked by the appellant herein based on the
entry in the service register of the appellant by the third respondent, that is not
the case. The appellant herein had gone to the house of the third respondent,
whereas, the third respondent protested and stated that who gave you the power
to come to my house. The same words uttered, will not attract the provisions of
the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989.
10.The learned Counsel for the third respondent drew the attention of this
Court to the grounds of the appeal, wherein, the appellant had mentioned that the
entry in the service register of the appellant is one of the grounds for filing this
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appeal. The appellant/de-facto complainant had given the complaint. Based on
which, the preliminary enquiry was conducted by the SC/ST Minorities
Commission and legal opinion was given that the provisions of Scheduled Caste
and Schedule Tribes (Prevention of Atrocities) Act, 1989 had not been violated,
therefore, further action was dropped and that the complaint was closed.
Subsequently, the appellant herein had influenced the prosecuting agency and
reopened the case only to wreak vengeance on his superior by misusing the
provisions of law to threaten a law abiding duty conscious Officer, who was the
Manager of the Bank.
11.This appellant was the Salesman and he was not respecting his
colleagues as well as his superior Officers. On 19.03.2003, the appellant herein,
who is the de-facto complainant, had gone to the house of the third
respondent/accused. He had shouted at his superior Officer, when the superior
officer was in his residence. That annoyed him. He had shouted at the appellant
herein/de-facto complainant that, who gave you the power to come to my house?
and get out? was the only word used. Whereas, in the FIR, it is stated that in the
public place, the third respondent abused the appellant/de-facto complainant by
using his caste name. Therefore, the witness, who was mentioned in the
complaint by the appellant, was also summoned and examined. He had let in
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evidence as PW-5. He had not spoken to anything about the caste name or other
atrocities.
12.The learned Counsel for the third respondent drew the attention of this
Court to page No.66 of the typed set of papers furnished along with the appeal
and in paragraph 32, the learned Principal District and Sessions Judge had clearly
stated that the corroborating witness, PW-4, had not spoken anything in his
evidence regarding the actual words used by the third respondent to attract the
provisions of Sections 3(i)(ix) and 3(i)(x) of the Scheduled Caste and Schedule
Tribes (Prevention of Atrocities) Act, 1989. Therefore, the learned Principal
District and Sessions Judge had analysed the facts and the Indian Evidence Act to
satisfy herself that the case whether attracts Section 3 of the Act. Likewise, the
prosecution had marked Ex-P6, which was a photostat copy of the service
Register of PW-4, the appellant herein. The photostat copy cannot be marked, as
it is treated as secondary evidence. If the de-facto complainant had obtained
certified copy of the service register, it could have been marked. It was not done.
Hence, this Court cannot consider Ex-P6. As per Section 63 of the Indian
Evidence Act, secondary evidence cannot be considered.
13.The Investigation Officer in this case had deposed as PW-7. In his
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evidence during cross examination, he had admitted that he had not obtained the
service register or the adverse remarks passed by the third respondent against the
appellant herein and he had not conducted any investigation regarding the entry
in the service register of the appellant herein. PW-4, who is the appellant herein,
had also not stated anything in his chief examination.
14.The learned Counsel for the third respondent drew the attention of this
Court to page Nos.14 and 15 of the typed set of papers filed by the appellant
regarding the claim of the appellant, wherein, it has been stated as follows:
“ehd; nrhy;fpw Ml;fSf;nfy;yhk; murpd; kz;nzz;iz
rhkhd;fis gzk; thq;fhky; nfhLf;fNtz;Lk; vd;W nrhd;dhh;. ehd;
mthplk; Neubahf mt;thW nfhLf;fKbahJ vd;W nrd;Ndd;. ,jdhy;
vjphpf;Fk; vdf;Fk; rpwpJ fUj;JNtWghL ,Ue;Jte;jJ. i~ vjphp
vd;Dil gzpgjpNtl;by; Fwpg;gplg;glhj thh;j;ijfisAk; eP xU
jho;j;jg;gl;lth; r%fj;ij rhh;e;jth; vd;Wk;> eP xU gaq;futhjp
vd;Wk;> eP xU gpuhL vd;Wk;> eP xU [hjp ntwpgpbj;jth;
vd;Wk; eP xU Gjpa jkpoh;fs; ghh;l;b vd;Wk; eP Ntiyf;F
yhaf;F ,y;yhjth; vd;Wk; cd;id Ntiyiatpl;L fhypnra;Aq;fs;
vd;Wk;> ,th; khWjyha; nry;Yk; nghOJ 14.5.2002 md;W
vd;Dila gzpgjpNtl;by; gjpT nra;Js;shh;. i~ tptuk; vdf;F
njhpatu ehDk; vdJ ez;gUk; MWKfjh]; vd;gtUk; vjphptPl;bw;F
nrd;Nwhk;. i~ tptuk; rk;ge;jkhf Nfl;gjw;fhf tPl;L thry;gb
epd;Nwhk;. mg;NghJ vjphp Nghdpy; Ngrpf;nfhz;bUe;jhh;.
vq;fisg; ghh;j;jTld; ntspapy; te;jhh;. vq;fsplk; vd;ntd;W
Nfl;lhh;. mjw;F ehd; vd;Dila tho;f;ifia Vd; ,g;gb
tpisahLfpwPh;fs; vd;W Nfl;Nld;. mjw;F mth; jhnahop kfd;>
gs;sg;gaNy vd;Wk; vd; tPL thry;gb kpjpf;ff;$lhJ vd;Wk; eP
fnyf;lh; Jizgjpthsh; MfpNahhplk; kDnfhLj;Js;sha; mij ehd;
ghh;j;Jnfhs;Ntd; vd;Wk; ,dpNky; vd; tPl;L thrg;gbf;Fte;jhy;
cd;id Ms; itj;Jf;nfhy;yhky; tplkhl;Nld; vd;Wk; mbf;f fk;Gld;
Xbte;jhh;. ehDk; vd;Dld; nrd;w MWKfjh]; vd;gtUk;
Xbte;Jtpl;Nlhk;. mJrkak; ,lj;ij Rw;wp Rkhh; 20 egh;fs;
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$btpl;lhh;fs;.”
15.After the evidence of the prosecution was closed, Ex-D1 was marked in
cross examination of PW-4, the complaint preferred by the appellant herein to the
District Collector. He had admitted that he had sent a petition to the District
Collector subsequent to the filing of the case by the SC/ST (POA) Wing of the
police. Another letter marked as Ex-D2 had been filed by the appellant, wherein,
PW-4, the appellant herein, had stated that the third respondent had used the
word “gs;sg;ga kfNd Nghlh ntspNa”. In the said letter, he further stated that on
19.03.2003, he had given complaint to the SC/ST (POA) Wing and they had not
taken steps till 28.04.2003 and requested the Collector to direct them to file
investigation report. Ex-D3 is a document also written by the appellant herein to
the Revenue Divisional Officer for not taking steps on the complaint preferred by
the de-facto complainant.
16.Prima facie of the case also is not attracted as per the complaint. The
witness mentioned by the appellant in his complaint had not been examined as a
witness. On analysing the entire evidence available before the learned Principal
District and Sessions Judge, Virudhunagar, she had acquitted the accused. It is to
be noted that the complaint was given in the year 2003. The judgment was
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pronounced in the year 2015. The third respondent attained superannuation and
was not allowed to retire, as the present case was pending in the Court of the
learned Principal District and Sessions Judge, Virudhunagar.
17.The FIR proceeds, as if the third respondent threatened the appellant
herein that he shall not stand in front portion of his house and he came with a
wooden stick to beat him and scared the appellant/de-facto complainant and that
he ran away from front portion of the third respondent's house. At that time, the
third respondent has stated that “gs;sg;ga kfNd Nghlh ntspNa”.
Points for consideration:
18.Whether the appeal against the acquittal is to be allowed and the
judgment and order passed by the learned Principal District and Sessions Judge is
to be set aside and the third respondent is to be convicted?
19.As rightly pointed out by the learned Counsel for the third respondent,
even though the FIR proceeds with the words, the words were not spoken to.
Therefore, further proceeding by the Investigation Agency was closed. After that
the appellant herein sent reminders to the Collector seeking to investigate the
case and lay charge sheet against the third respondent. The appellant herein had
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himself let in evidence as PW-4. In the evidence, he had not stated anything that
the third respondent threatening the appellant by using abusive words “gs;sg;ga
kfNd Nghlh ntspNa” and it was seen by a person mentioned in the complaint.
But, the said witness was not examined. On assessment of evidence, it is found
that PW-4 had not stated anything. Likewise, PW-7 the Investigation Officer had
admitted that he had not seized the service register of the appellant from the
Cooperative Bank.
20.The judgment relied upon by the learned Counsel for the appellant/de-
facto complainant, reported in (2008) 8 SCC 435, in the case of Swaran Singh
and others vs State through Standing Counsel and another will not be
applicable to the facts and circumstances of the case. That was a case, where, the
accused in that case had called the de-facto complainant “chamar” (the name
used in North India for cobblers). Therefore, after registration of the case and
investigation pending, the persons, who were arrayed as accused in the FIR,
moved the Court to quash the FIR. That was not done. That is a case where the
parties had stated to have used the word “chamar”, causing annoyance to the de-
facto complainant.
21.In this case, even though the FIR had stated some words and mentioned
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the witnesses, the place of occurrence is the entrance to the residence of the
superior Officer of the appellant herein. PW-4 himself had not spoken to in his
deposition regarding the claim that the third respondent used abusive words
against the caste to which the appellant belongs. When there is no incriminating
evidence available to convict the third respondent/accused, the Court is justified
in acquitting the accused from the charges.
22.As rightly pointed out by the learned Counsel for the third respondent,
when the Trial Court had acquitted and the Appellate Court hears the appeal from
the aggrieved de-facto complainant, the Appellate Court is not expected to
disturb the findings of the Trial Court on the ground that the Trial Court had the
benefit to appreciate the evidence and demeanor of the witness, whereas, the
Appellate Judge will not be able to appreciate the body language of the witness.
Therefore, at the lightest pretext, the Appellate Court will not disturb the findings
of the Trial Court, if the findings are based on proper appreciation of evidence.
The appeal against the conviction invariably will be heard and decided on a
narrow restricted space and until otherwise, the appreciation of evidence by the
learned Trial Judge is found perverse, usually the Appellate Court will not disturb
the findings of the Trial Court. Therefore, the learned Counsel for the third
respondent seeks indulgence of this Court to dismiss this appeal as having no
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merits.
23.On perusal of the FIR, the deposition of PW-4, Sri Ramar, PW-7,
Investigation Officer, clearly attracts the Court regarding the incriminating
evidence not available in the deposition of PW-4/de-facto complainant. When
that being the case, no purpose will be served by setting aside the order of
acquittal by the learned Principal District and Sessions Judge. When materials
are not available, the Court cannot, on its own motion, mark an unmarked
document, for which PW-7, the Investigation Officer, had clearly stated that he
had not enquired the employer of PW-4 regarding Service Register. When that
being the case, in the grounds of appeal, instead of appreciation of evidence, it is
stated that the case was based on the Service Register entry and the service
register entry itself gives presumption for the Court to act upon, based on the
entry in the service register by the third respondent. The actual fact is that on
coming to know about the adverse entry in the Service Register by the third
respondent, the appellant herein went to the residence of the third respondent.
On seeing the appellant herein, the third respondent shouted that how can you
come to my house; who gave you the power to stand in front of my house?; you
get out from this place. These ingredients will not attract the provisions of
Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 and
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end up in conviction. Therefore, when the de-facto complainant, as PW-4
himself, had not stated the actual words used attracting the provisions of Section
3(i)(x) of the Act.
24.In the light of the above discussion, the point for consideration is
answered in favour of the third Respondent and against the prosecution. The
order of acquittal passed by the learned Principal District and Sessions Judge,
Virudhunagar, at Srivilliputhur cannot be set aside.
25.In the result, this appeal has no merits and dismissed.
22.06.2021
Index: Yes/No
cmr
To
1.The Principal District and Sessions Judge,
Virudhunagar at Srivilliputhur.
2.The Deputy Superintendent of Police,
Office of the Deputy Superintendent of Police,
Aruppukottai, Virudhunagar District.
3.The Inspector of Police,
Aruppukottai Town Police Station,
Virudhunagar District.
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SATHI KUMAR SUKUMARA KURUP, J.
cmr Judgment made in CRL.A.(MD)No.336 of 2016 22.06.2021 https://www.mhc.tn.gov.in/judis/ 15/15