Madras High Court
G.Selvamani vs The State Rep. By The Deputy ...
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
.Crl.A.No.90 of 2017.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On: 20.09.2023
Delivered On : 29.09.2023
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Crl.A.No.90 of 2017
1.G.Selvamani
2.A.Sriramalu
3.S.Kanniyappan
4.M.Mani
5.M.Vadivel ... Appellants/Accused
Vs.
The State rep. by the Deputy Superintendent of Police,
Tindivanam Sub Division,
Olakur Police Station.
(Cr. No.477 of 2021) ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 378 of Cr.P.C., against the
judgment dated 25.01.2017 passed in S.C.No.121 of 2015, on the file of the
learned Sessions Judge, Special Court for Exclusive Trial of cases registered
under S.C., & S.T., (Prevention of Atrocities) Act, 1989, Villupuram.
For Appellants : Mr.R.C.Paul Kanagaraj
For Respondent : Ms.G.V.Kasthuri
Additional Public Prosecutor
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JUDGMENT
This Criminal Appeal had been filed under Section 378 of Cr.P.C., against the judgment dated 25.01.2017 passed in S.C.No.121 of 2015 on the file of the learned Sessions Judge, Special Court for Exclusive Trial of cases registered under S.C., & S.T., (Prevention of Atrocities) Act, 1989, Villupuram.
2.The legal Aid Committee attached to this Court nominated a Counsel, his service is not utilised by this Court as Thiru.R.C.Paul Kanagaraj offered to complete the arguments today itself. Any way, this Court appreciates the Legal Aid Counsel for his efforts to prepare the case and advance the arguments. Since he had sought time, as Thiru.R.C.Paul Kanagaraj offered to argue today itself, the service of the Legal Aid Counsel is dispensed with. On behalf of the earlier Counsel for the Appellant viz., S.N.Subramani, Thiru.R.C.Paul Kanagaraj, learned Counsel submitted his arguments.
3.As per his submissions, the Appellants were convicted by the learned Sessions Judge, Special Court for exclusive trial of cases arising out of 2/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
SC/ST (Prevention of Atrocities) Act, Villupuram in Spl. S.C.No.121/2005. A-1 to A-5 were convicted for the offences under Section 147 of IPC to undergo Simple Imprisonment for one year each and fine of Rs.2,000/- each in default to undergo Simple Imprisonment for three months. A-1 was found guilty for the offence under Section 294 (b) of IPC and he was sentenced to undergo the Simple Imprisonment for three months and fine of Rs.1000/- in default to undergo Simple Imprisonment for 21 days.
4.A-1 to A-5 are found guilty of the offence under Section 352 of IPC and sentenced them to undergo three months Simple Imprisonment each and fine of Rs.5,000/- each, in default to undergo 21 days of Simple Imprisonment. A-3 is found guilty for the offence under Section 506(ii) IPC and sentenced him to undergo one year Simple Imprisonment and fine of Rs.1,000/- in default to undergo three months of Simple Imprisonment. A2 to A5 are found guilty for the offence under Section 3 (1) (x) of SC/ST (Prevention of Atrocities) Act r/w. 34 of IPC and they sentenced to undergo one year Simple Imprisonment and fine of Rs.3,000/- in default to undergo three months Simple Imprisonment each. The period of detention already undergone was set off under Section 428 Cr.P.C., 3/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
5.Aggrieved by the same, the Appellants are before this Court.
6.The learned Counsel for the Appellants submitted that there were originally six Accused. 6th Accused died before trial. Therefore, the charge abated as against the 6th Accused.
7.The brief facts which are necessary to appreciate this case for considering this Appeal are as follows:
7.1.Mangavarthal is a resident of Eppakkam contesting the local body election. The Panchayat President post was reserved for Schedule Caste women. The Accused-1 in this case/Appellant/Selvamani also contested the local body election. Mangavarthal is the sister-in-law of P.W-1, the husband of Mangavarthal/Panchayat President is the brother of P.W-1. The Accused 2 to 5 are the supporters of the A-1 in the local body election and they canvased for A-1/Selvamani. The Witnesses P.W-1 to P.W-5 and P.W-8 are supporters of Mangavarthal. They canvased for Mangavarthal in the local body election. Therefore, there were enmity between them due to the 4/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
Panchayat election. A-1 also belongs to Scheduled Caste. As per the Prosecution case, on 10.12.2011 by around 5.15 p.m., A-1 scolded Mangavarthal and her supporters. She abused them in filthy language for which P.W-1 discussing with her neighbours P.W-2 to P.W-5 and P.W-8. At that time A-1 was passing by. On seeing P.W-1 to P.W-5 and P.W-8, A-1 is alleged to have abused them stating that elder brother of P.W-1 was killed by sorcery and she will do the same thing to P.W-1 also. By uttering those words, A-1 is alleged to have pulled P.W-1 Devi by the hair and pushed her to the ground and kicked her using abusive words, caste slur “gwj;njtpoah gr';fsh” “I will call my friends, let them come we will kill you”. By saying so A-1 summoned A-2 to A-5 on the mobile and came to this place by two wheeler and attacked them. The main person in the Village came to the rescue, P.W-1 was also attacked and P.W-2 to P.W-5 and P.W-8 who came to the rescue of P.W-1, were also attacked. On the next day of occurrence, P.W- 1 went to the Police Station and lodged a Complaint under Ex.P-1 with P.W- 7, the Special Sub Inspector of Police, Olakkur Police Station. On receipt of the Complaint under Ex.P-1, he registered a case in Cr.No.477/2011 for the offence under Sections 147, 294(b), 324, 506 (ii) r/w. 3 (1) (x) of SC/ST 5/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
(Prevention of Atrocities) Act, 1989 and the same was sent to the Court of the learned Judicial Magistrate, Tindivanam and the copies of the same was sent to the higher Officials of the Police Department. The Superintendent of Police, Villupuram had by proceedings under Ex.P-7 appointed the Deputy Superintendent of Police, Tindivanam Sub Division as Investigation Officer. The Deputy Superintendent of Police as Investigation Officer proceeded to the Village where the alleged occurrence had taken place and prepared rough sketch under Ex.P-8 and Observation Mahazar under Ex.P-2 in the presence of Witnesses P.W-6 and P.W-7. He had enquired the Witnesses and recorded their submissions. On completion of the investigation, he had laid the final report before the Court of the learned Judicial Magistrate, Tindivanam. On appearance of the Accused, the learned Judicial Magistrate, Tindivanam had furnished copies to the Accused under Section 207 of Cr.P.C. and as the case is triable by Court of Sessions, committed the case to the Court of the learned Special Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act and bound over the Accused.
7.2.On appearance of the Accused before the learned Special Judge, Special Court for exclusive trial of cases arising out of SC/ST (PoA) Act, 6/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
Villupuram, after hearing the arguments of the learned Public Prosecutor and the learned Counsel for the defence, the learned Special Judge had framed charges as under:
(i) Section 147 of IPC against A-1 to A-6
(ii) Section 294(b) of IPC against A-1 to A-6
(iii) Section 352 of IPC against A-1 to A-6
(iv) Section 506(ii) of IPC against A-1 to A-6
(v) Section 3(i) (x) of SC/ST (Prevention of Atrocities) Act r/w.
Section 34 of IPC against A-2 to A-6.
The Accused 1 to 6 had denied the charges.
7.3.Since the Accused denied the charges, the learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act had ordered trial.
7.4.During trial, the Prosecution examined 10 Witnesses and marked 8 documents. No Material Objects were marked. After closing of Prosecution evidence, the Accused 1 to 6 were examined under Section 313 Cr.P.C. The incriminating evidence against A-1 to A-5 were denied by A-1 to A-5. 7/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
7.5.After the proceedings under Section 313 Cr.P.C., the Accused had examined Dr.Sweetlin as D.W-1 and marked documents under Ex.D-1 to D-5. On appreciation of evidence and after hearing the arguments of the learned Public Prosecutor and the learned Counsel for the defence before the trial Court, the learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act, Villupuram by judgment in Spl.S.C.No.121 of 2015, dated 25.01.2017 had convicted A-1 to A-5. A-1 to A-5 are found guilty of the offence under Section 352 of IPC and sentenced them to undergo three months Simple Imprisonment each and fine of Rs.5,000/- each, in default to undergo 21 days of Simple Imprisonment. A-3 was found guilty for the offence under Section 506(ii) IPC and sentenced him to undergo one year Simple Imprisonment and fine of Rs.1,000/- in default to undergo three months of Simple Imprisonment. A2 to A5 were found guilty for the offence under Section 3 (1) (x) of SC/ST (Prevention of Atrocities) Act r/w. 34 of IPC. They were sentenced to undergo one year Simple Imprisonment and fine of Rs.3,000/- in default to undergo three months Simple Imprisonment each. The period of detention already undergone was set off under Section 428 Cr.P.C.
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8.The Judgment of the learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act, Villupuram was assailed by the learned Counsel for the Appellants stating that there is delay in registering the FIR. The earlier Complaint given by P.W-8 was suppressed. The Accused in this case/A-1 to A-5 suffered injuries at the hands of the Prosecution Witnesses. Therefore, Counter complaint in Cr.No.478/2011 was lodged for which Ex.D-4 was marked. The alleged occurrence was on 10.12.2011 whereas the FIR was registered on 15.12.2011. There is a delay of 5 days. Also, it is a case and counter. The Accused had in their evidence marked Ex.D-2 which is FIR in Cr.No.478/2011. Based on the complaint of A-1/Selvamani who was allegedly attacked by Gopal for the offence under Sections 147, 294(b), 323 of IPC. Whereas, the complaint of P.W-1, the FIR in Cr.No.477 of 2011 was registered under Sections 147, 294(b), 324, 506 (ii) of IPC and Section 3(i)
(x) of SC/ST (Prevention of Atrocities) Act, it is a case and counter. While so, the Investigation Officer to find out who is the aggressor and close the case arising out of the complaint as a mistake of fact if it is found that one of the Complaint is not a true complaint. Here, both the Crime Numbers had been investigated and final reports were laid before the Court. 9/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
9.Since, the Complaint filed belatedly and there is a suppression of earlier Complaint by P.W-8 given from the Hospital, the Complaint taken as Ex.P-1 herein is a belated complaint. Therefore, there is every possibility of embellishment. The learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act failed to take note of the same and mis-directed himself had convicted A-1 to A-5 and sentenced them to undergo the imprisonment and the same is to be set aside as perverse.
10.Mr.R.C.Paul Kanagaraj, the learned Counsel for the Appellants invited the attention of this Court to the FIR under Ex.P-3 on the side of the Prosecution and Ex.D-2 on the side of the defence. The delay in registering the Complaint was not explained either by the Prosecution or by the Prosecution Witness/P.W-1.
11.Further, to attract Provisions of Section 294(b) of IPC and Section 3
(i) (x) of SC/ST (Prevention of Atrocities) Act, the Witnesses shall be independent Witnesses “the public means members of the public available in the place either on the road or any public place”. Here, the alleged occurrence had alleged to have taken place in Colony, place of residence of 10/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
P.W-1.
12.The learned Counsel for the Appellants invited the attention of this Court to the cross-examination of P.W-10-Investigation Officer, who had stated that near the place of occurrence, the adjacent house owner/Duraikannu was present. But he was not examined as he had not supported the case of the Prosecution. Also, the learned Counsel for the Appellants submitted that the statement of all the Witnesses were sent to the Court along with the chargesheet even though the FIR under Ex.P-3 was sent to the Court on 15.12.2011. The statement of Prosecution Witnesses recorded by the Investigation Officer/P.W-10 was sent along with the final report. Therefore, there are possibility of embellishment.
13.The learned Counsel for the Appellants invited the attention of this Court to the evidence of P.W-1 to P.W-5 and P.W-8. As per the evidence of P.W-1 to P.W-5 and P.W-8, they were attacked with wooden log. No material objects were recovered by the Investigation Officer and produced before the Court. The evidence had stated the same fact as stated by P.W-1 that the occurrence took place on 10.12.2011 by 5.15 p.m., A-1 is alleged to have 11/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
abused P.W-1 when questioned he is alleged to have summoned A-2 to A-5 in the village, whereupon A-2 to A-5 came to the spot by two wheeler and attacked P.W-1 to P.W-5 and P.W-8. P.W-2 to P.W-5 came to the spot on hearing the commotion. The same fact is stated by other Witnesses, they are alleged to have been attacked by A-1 to A-5 and suffered injuries and no medical records were marked regarding injuries suffered by them. Further, the learned Counsel for the Appellants invited the attention of this Court to the evidence of P.W-1 to P.W-5 and P.W-8 in their cross-examination, P.W-1 had stated that on the next day of the occurrence the Complaint was given. On 16.12.2011, Police Officials came to the village and enquired. P.W-2, in his cross-examination stated that the Police Officials came to the Village but no statement or complaint was recorded by them. P.W-3 also stated that the Police Officials came to the Village and recorded the statement. P.W-4 in his cross-examination stated that the Police Officials came to the Village and enquired them and recorded the statement. The alleged occurrence said to have taken place in the Village colony. P.W-6 is the mahazar witness. He has stated that P.W-10 visited the place of occurrence and prepared Observation Mahazar under Ex.P-2 and Police Officials were present to assist Deputy Superintendent of Police. P.W-7, Special Sub Inspector of Police who had 12/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
accepted the Complaint and registered the FIR under Ex.P-3. He states that the Complaint was already returned. By someone, he had not enquired who had returned the Complaint. He had admitted in his cross-examination that on the same day, another case was registered in Cr.No.478/2011 by 6.30 p.m., after recording oral complaint of A-1 from the Hospital. P.W-8 had corroborated the evidence of P.W-1. In the cross-examination, he submitted that he had already given a Complaint. P.W-9-Tahsildar who had issued caste certificate regarding the Accused 2 to 5 and the caste of P.W-1. A-2 to A-5 belongs to Backward Class for which certificate under Ex.P-4 was issued. P.W-1 belongs to Scheduled Caste for which certificate under Ex.P-5 was issued. P.W-10 had in his evidence deposed that he had received the copy of the FIR in Cr.No.477/2011. On the next day i.e., 16.12.2011, after receiving the proceedings under Ex.P-7, the learned Counsel for the Appellants invited the attention of this Court to the rough sketch under Ex.P-8 prepared by the Deputy Superintendent of Police in which it is found that it is signed on 15.12.2011 whereas evidence stated that he went to the village on the next day of occurrence ie 16.12.2011. Rough sketch under Ex.P-8 was not prepared by him and it was prepared prior to his visit to the place of occurrence. As per his evidence, he had received proceedings on 15.12.2011 13/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
under Ex.P-7 and he had reached the Village on the next day whereas Ex.P-8 is prepared on 15.12.2011. There is evidence before the Court that the A-1 to A-5 was also attacked by the victim herein/Prosecution Witnesses herein. They had given complaint from the Hospital. A-1 had undergone treatment for a week in the Government Hospital.
14.As per the submissions of the learned Counsel for Appellants, to attract the Provisions under Section 3(i) (x) of SC/ST (Prevention of Atrocities) Act, the “public place” means the members of the different communities present and they shall be independent and not friends or relatives of the Complainant. Here, Accused are available, P.W-2 to P.W-5 are close relatives of P.W-1. Therefore, their evidence cannot be believed. They are supporters of Mangavarthal/sister-in-law of P.W-1 and who had canvased for Mangavarthal. Therefore, the ingredients of Section 3(i) (x) of SC/ST (Prevention of Atrocities) Act is not at all attracted. The learned Judge had ignored those facts and had mechanically convicted the Accused.
15.Regarding public place, the learned Counsel for the Appellants relied on the rulings of this Court in the case of Manimeglai and others -vs- 14/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
State Represented by the Inspector of Police, Adhiyamankottai, Dharmapuri District in Crl.A.No.474/2009 where in it is observed as follows:
“38.The expression “public view” employed in Section 3(1)(x) of the SC/ST Act, came for consideration in a case before a Division Bench of the Delhi High Court. In the said case, the defacto complainant is a member of Scheduled Caste. He was staying in a flat along with his family. The accused were residing in the same flats. They were alleged to have called the defacto complainant and his wife by their caste. It was contended that the occurrence did not take place in public view as no public person was present. Justice V.S.Agarwal (as His Lordship then was) took the view that for the purpose of 'public view' employed in Section 3(1)(x) of SC/ST Act, it is not necessary that a huge crowd must present, it is enough two or more members of the public were present, heard and viewed, as four persons residing in the same flats viewed the occurrence, the occurrence had taken place in public view.
39.However, Justice B.A.Khan (as His Lordship then was) took the view that the persons who were present and viewed must be independent persons, it will not include his friends, Associates, neighbours and thus the residents of the same flats will not be independent persons, so the occurrence had not taken place in 'public view'.
40.The said tangle was referred to a third Judge, namely, Hon'ble Justice S.K.Agarwal [Daya Bhatnagar vs. State of Delhi {2004(109)DLT 915}]
41.Hon'ble Justice S.K.Agarwal endorsed the view of Hon'ble Justice B.A.Khan and observed as under:
19. The SC/ST Act was enacted with a laudable object to protect vulnerable section of the society. Sub- clauses (i) to
(xv) of Section 3(i) of the Act enumerate various kinds of atrocities that might be perpetrated against Scheduled Castes and Scheduled Tribes, which constitute an offence.
However, Sub-clause (x) is the only clause where even offending “utterances” have been made punishable. The Legislature required 'intention' as an essential ingredient for the offence of 'Insult' 'intimidation' and 'humiliation' of a 15/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
member of the Scheduled Castes or Scheduled Tribe in anyplace within 'public view'. Offences under the Act are quite grave and provide stringent punishments. Graver is the offence , stronger should be the proof. The interpretation which suppresses or evades the mischief and advances the object of the Act has to be adopted. Keeping this in view, looking to the aims and objects of the Act, the expression “public view” in Section 3(i) (x) of the Act has to be interpreted to mean that the public persons present, (howsoever small number it may be ), should be independent and impartial and not interested in any of the parties. In other words, persons having any kind of close relationship or association with the complainant, would necessarily get excluded. I am again in agreement with the interpretation put on the expression “public view” by learned brother Mr. Justice B.A.Khan. The relevant portion of his judgment reads as under:
“ I accordingly hold that expression within 'public view' occurring in Section 3(i)(x) of the Act means within the view which includes hearing, knowledge or accessibility also, of a group of people of the place/locality/village as distinct from few who are not private and are as good as strangers and not linked with the complainant through any close relationship or any business, commercial or any other vested interest and who are not participating members with him in any way. If such group of people comprises anyone of these, it would not satisfy the requirement of 'public view' within the meaning of the expression used.”
42. Thus from the language used in Section 3(1)(x) of the Act and the above survey of case-laws, it is very clear that for an offence under Section 3(1) 3(x) of SC/ST Act, at the time of occurrence, some independent members of the public should hear and view the utterances made by the accused towards a member of the Scheduled Caste/Scheduled Tribe Community.”
16.If applying those principles, here P.W-2 to P.W-5 and P.W-8 are not independent witnesses. They have vested interest to the support the version 16/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
of P.W-1. P.W-1 along with P.W-2 to P.W-5 are supporters of Mangavarthal/sister-in-law of P.W-1. Therefore, their evidence cannot be treated as caste abused P.W-1 to P.W-5 using caste name to attract the Provisions of Section 3 (i) (x) of SC/ST (Prevention of Atrocities) Act. A group of people will not satisfy the requirement of “public view”. The group of people should contain members of public in various communities and they should be independent of each other. Here, P.W-1 to P.W-5 are not independent and they are belonging to same group, they have vested interest to implicate A-1 to A-5. Therefore, in the light of the above said rulings, the offence is not attracted by the Judgment of the learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act. Here, in this case, Ex.P-5 and Ex.P-6 issued by P.W-9 which are not community certificates and it is a report. Therefore, it is cited by the rulings in 2009 2 MLJ Crl. 40 in the case of Dhanapal Vs. State. Therefore, the learned Counsel for the Appellants sought to set aside the Judgment of conviction and sentence of imprisonment and fine imposed on the Appellants and to acquit the Appellants.
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17.Ms.G.V.Kasthuri, learned Additional Public Prosecutor by way of reply submitted that it is not a case and counter. Ex.D-2 is related to the occurrence that had taken place by 6.00 p.m., whereas the offence alleged in this case had taken place on 10.12.2011 by 5.00 p.m., Therefore, they are not case and counter. The learned Sessions Judge, on appreciation of evidence, had convicted the Accused. Even though the learned Sessions Judge had framed the charges and at the time of framing of charges, one of the Accused/Saravanan died. Therefore, A-1 to A-5 only stood trial. On appreciation of evidence, the learned Judge had convicted the Accused for the following offences:-
(i) A-1 to A-5 were convicted for the offence under Section 147 of IPC.
(ii) A-1 alone was found guilty for the offence under Section 294 (b) of IPC.
(iii) A-3 alone was found guilty for the offence under Section 506 (ii) of IPC.
(iv) A-2 to A-5 were found guilty for the offence under Section 3 (i) (x) of SC/ST (Prevention of Atrocities) Act r/w. Section 34 of IPC. Therefore, on appreciation of evidence, the learned Judge had convicted the Accused.
18.Also, the learned Additional Public Prosecutor submitted that when 18/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
the learned trial Judge had convicted the Accused based on the materials available before her/him, on proper appreciation of evidence. On the same set of evidence, if the Appellate Court arrived at a different conclusion, the Appellate Court shall not impose its findings and replace the finding recorded by the learned trial Judge. It is because, the learned trial Judge had the advantage of observing demeanour of evidence. The Appellate Court does not have the advantage of observing the demeanour of the witnesses. Therefore, if the finding is recorded by the learned trial Judge on proper appreciation of evidence, the same shall not be disturbed. Under those circumstances, she sought to confirm the Judgment recorded by the learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act and to dismiss this Appeal.
19.Also, the learned Additional Public Prosecutor vehemently objected to the submission of the learned Counsel for the Appellants that it is not a case and counter as two occurrence had taken place on two different time for which it was properly investigated. The case attracting SC/ST (Prevention of Atrocities) Act was investigated by Deputy Superintendent of Police, Tindivanam Sub Division, after the proceedings was issued by the 19/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
Superintendent of Police under Ex.P-7 nominating the Deputy Superintendent of Police as Investigation Officer as per the Provisions of SC/ST (Prevention of Atrocities) Act. P.W-10-Deputy Superintendent of Police had conducted the fair investigation and laid the final report. The Inspector of Police, Olakkur Police Station had investigated the case in Cr.No.478/2011 and laid the final report before the Court of the learned Judicial Magistrate-I, Tindivanam. After due trial, the case in C.C.No.37/2011 was acquitted by the learned Judicial Magistrate, Tindivanam. Therefore, the submission of the learned Counsel for the Appellants that the case and counter, one of the case had to be closed by the Investigation Officer having found one of the case is not true, the case is not so. As per the Police Standing Order, if there is case and counter, the Investigation Officer has to investigate both the cases and find out which is the true case and close the false case. If the Investigation Officer is unable to come to the conclusion, he can close both the cases in which interested party/complainant can approach the Court of the learned Judicial Magistrate and file a protest Petition and obtain appropriate Orders against the Investigation Officer to proceed accordingly. Also, the Investigation Officer has the power to investigate both the cases and all the materials collected by 20/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
the Investigation Officer are placed fairly before the Court of the learned Judicial Magistrate and proceed accordingly. The submission of the learned Counsel for the Appellants that one of the case had to be closed will not apply in all the circumstances. Therefore, the learned Additional Public Prosecutor sought to reject the argument of the learned Counsel for the Accused regarding case and counter. The case and counter only both the occurrence had taken place in same time. It is true, in the case filed by the Accused, the Witnesses herein are portrayed as aggressor. On proper appreciation of evidence, the learned Judicial Magistrate had acquitted the Accused in C.C.No.37/2012 whereas the case in Spl.S.C.No.121 of 2015 before the learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act, had on appreciation of evidence convicted the Accused. Therefore, the learned Additional Public Prosecutor seeks to reject the arguments of the learned Counsel for the Appellants and to confirm the Judgment of the learned Sessions Judge, Special Court for exclusive trial of cases under SC/ST (Prevention of Atrocities) Act.
20.Point for consideration:
Whether the Judgment of conviction recorded by the learned Sessions Judge, Special Court for exclusive trial of 21/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
cases arising out of SC/ST (Prevention of Atrocities) Act, Villupuram is to be set aside as perverse?
21.Heard Mr.R.C.Paul Kanagaraj, learned Counsel for Mr.Subramanian, learned Counsel for the Appellants and Ms.G.V.Kasthuri, learned Additional Public Prosecutor for the Respondent.
22.Perused the evidence available before the trial Court during the evidence of P.W-1 to P.W-10 and Ex.P-1 to Ex.P-8 and D.W-1 and Ex.D-1 to Ex.D-5.
23.On perusal of the evidence of P.W-1 to P.W-5 and P.W-8 as highlighted by learned Counsel for the Appellants it is found that the basis for the alleged occurrence is the local body election where A-1 had contested the election and was defeated. The sister-in-law of P.W-1/Devi, Mangavarthal was elected as President of Panchayat. The first Accused and P.W-1 belongs to same community. A-2 to A-5 are alleged to have abused using Caste name on P.W-1 to P.W-5 as was stated by P.W-1 examination-in- chief was corroborated by P.W-2 to P.W-5. As per the Judgment of the then 22/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
learned Single Judge of this Court in Crl.A.No.474/2009, dated 18.11.2016, public place means it should contain members of different communities and no people belonging to the same group. Here, P.W-2 to P.W-5 as per their evidence belong to the same group. Except P.W-2 to P.W- 5 and P.W-8, independent witness had not been examined. P.W-10, in his evidence had stated the neighbour of P.W-1 viz., Duraikannu had refused to examine as Witness. Regarding the claim of attack by P.W-2 to P.W-5 using wooden log, no materials were seized by the Investigation Officer and no such material was marked as Material Objects. As per the proceedings of Superintendent of Police under Ex.P-7, P.W-10 was nominated as Investigation Officer on 15.12.2011. As per the evidence of P.W-10-Deputy Superintendent of Police, he had visited the place of occurrence (scene of crime) on the next day of alleged occurrence i.e., 16.12.2011. While so, the Rough Sketch under Ex.P- 8 was prepared on 15.12.2011, does not inspire confidence of the Court. Either it should have been prepared by his Sub-ordinates or it should have been prepared prior to his nomination by the Superintendent of Police of the District. Therefore, the evidence of P.W-10 that he visited the Village on the next day of occurrence and he received the proceedings under Ex.P-7 are found contradictory. It does not inspire confidence of the Court. 23/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
24.The claim of the learned Counsel for the Appellants that it is the case and counter appears to be true in this case relating to Cr.No.477/2011 involving the offence under SC/ST (Prevention of Atrocities) Act. The P.W- 1 to P.W-5 and P.W-8 involving for the offence under SC/ST (Prevention of Atrocities) Act as Accused in Cr.No.478/2011. When two simultaneous crime numbers involved and both the offences were investigated properly, the submission of the learned Counsel for the Appellants that one of the cases had to be closed as mistake of fact does not appear to be fair as per Police Standing Order. If there is a case and counter, if the case had to be investigated by the same Investigation Officer to find out which is original case and which is fictitious case. He has the discretion to close the fictitious case. At the same time, he is unable to come to the conclusion which one is fictitious and he had to proceed with the investigation and place all the materials before the Court concerned. Also, he/she has discretion. If both the cases appeared to be fictitious, he/she can close both the cases. Here, in this case involving SC/ST Act investigated by the Deputy Superintendent of Police as per the proceedings of the Superintendent of Police under Ex.P-7. P.W-10 had investigated the case and laid the final report. The other case 24/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
investigated by the Inspector of Police, he had laid the final report before the learned Judicial Magistrate-I. After proper appreciation of evidence, the learned Judicial Magistrate – I, Tindivanam had acquitted the Accused in C.C.No.37/2012 under Ex.D-2. Therefore, the Appellants are nowhere prejudiced. The arguments of the learned Counsel for the Appellants relying on the Police Standing Order stating that one of the cases is to be closed, but the Investigation Officer had proceeded with the investigation culminating in filing final report. It is found proper. The submission of the learned Counsel for the Appellants is rejected on that score. Regarding the Provisions of SC/ST (Prevention of Atrocities) Act, in the public place has stated placing reliance on Crl.A.No. 474/2009, dated 18.11.2016, the same is found acceptable. The public place invoking SC/ST Act squarely applies to the facts of the case. P.W-2 to P.W-5 and P.W-8 are belonging to the same group who are the supporters of Mangavarthal. Therefore, the conviction of the Accused recorded by the learned Sessions Judge, Special Court is found perverse in the light of the said rulings. Also, during the arguments of the learned Counsel for the Appellants submitted that as far as invoking SC/ST Act r/w. 34 IPC cannot be applied as a SC/ST Act is a special enactment the same cannot be sustained by this Court. IPC is a separate code. When the 25/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
group of individuals are found indulging in an offence automatically the Court has to invoke Section 34 of IPC. When the SC/ST Act does not given specific sections regarding execution of an offence by individuals forming the group automatically Section 34 of IPC is to be invoked by the Court. Accordingly, the learned Judge who framed the charge who invoke Section 34 of IPC nothing wrong in that. The submission of the learned Counsel for the Appellant cannot be held maintainable is rejected as it is not based on any rulings of the Hon'ble High Court or Hon'ble Supreme Court.
25.On perusal of the cross-examination of the Investigation Officer, it is found that the occurrence took place on the same day but on different time. Ex.P-3-copy of the FIR registered in Cr.No.477/2011 states that the alleged occurrence is by 5 p.m.,. Ex.D-2-copy of the FIR registered in Cr.No.478/2011 states that the alleged occurrence is by 6.30 p.m., In the cross-examination of P.W-10- Investigation Officer, it is found that the alleged occurrence is based on the local body election wherein the sister-in- law of P.W-1/Mangavarthal was the successful candidate in the local body election. The alleged occurrence had taken place due to the local body election. The contestants were Mangavarthal/sister-in-law of P.W-1 and the 26/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
Accused-1/Selvamani in this case. To the pointed question, the Investigation Officer/Deputy Superintendent of Police had admitted that he had not examined Mangavarthal and he had also not seized the wooden logs which are alleged to have been used by the Accused to attack the Witnesses.
26.As rightly pointed out by the learned Counsel for the Appellants, for the occurrence that is alleged to have taken place on 10.12.2011 by 5.00 p.m., there is evidence through the deposition of Witnesses/P.W-1 to P.W-5 and P.W-8 immediately after the occurrence, when the Police was informed they came to the Village and enquired. While so, the Complaint was given by P.W-1 only on 15.12.2011. When there is delay in lodging the Complaint automatically it gives presumption that there had been embellishment in the Complaint. P.W-8-Krishnan in this case had stated that he had lodged a Complaint from the Hospital. While so, as pointed out by the learned Counsel for the Appellants, there had been suppression regarding earlier complaint. Further the Complaint in this case, for the occurrence that took place on 10.12.2011, the FIR was belatedly given on 15.12.2011. Therefore, it is embellished Complaint and FIR. Further, as rightly pointed out by the learned Counsel for the Appellants, P.W-1 to P.W-5 and P.W-8 have cogently 27/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
stated the ingredients of the offences which attracts the Judgment of this Court in Crl.A.No.474/2009 regarding public view. Here, the Witnesses belonging to the same group who are the supporters of Mangavarthal against the defeated candidate. Therefore, it is a motivated Complaint. Therefore, the assessment of evidence by the learned Judge, Special Court for exclusive trial of cases arising out of SC/ST (Prevention of Atrocities) Act, Villupuram is perverse. The finding of the learned Judge ignoring these safety measures and mechanically convicting the Accused based on the evidence of P.W-1 to P.W-5 and P.W-8 is found perverse. Therefore, the same is to be set aside.
27.In the light of the ruling cited by the learned Counsel for the Appellants Manimeglai and others -vs- State Represented by the Inspector of Police, Adhiyamankottai, Dhrmapuri District in Crl.A.No.474/2009, the point for consideration is answered in favour of the Appellants and against the Prosecution. The Judgment of the learned Sessions Judge, Special Court for exclusive trial of cases arising out of SC/ST (Prevention of Atrocities) Act, Villupuram in Spl. S.C.No.121/2015 dated 25.01.2017 is to be set aside. 28/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
In the result, this Criminal Appeal is allowed. The Judgment of conviction and sentence of imprisonment imposed on the Appellants/Accused 1 to 5 in Spl.S.C.No.121/2015 dated 25.01.2017 is set aside and Accused are acquitted. The bail bond executed by the Appellants/Accused before the learned Sessions Judge, Special Court for exclusive trial of cases arising out of SC/ST (Prevention of Atrocities) Act, Villupuram are ordered to be cancelled.
The fine amount already deposited before the learned Sessions Judge, Special Court for exclusive trial of cases arising out of SC/ST (Prevention of Atrocities) Act, Villupuram are also ordered to be refunded to the Appellants.
29.09.2023 dh Index: Yes/No Internet:Yes/No Speaking Order/Non-speaking Order Note: Issue order copy on 29.09.2023 29/30 https://www.mhc.tn.gov.in/judis .Crl.A.No.90 of 2017.
SATHI KUMAR SUKUMARA KURUP, J.
dh To
1. The Sessions Judge, Special Court for Exclusive Trial of cases registered under S.C., & S.T., (Prevention of Atrocities) Act, Villupuram.
2. The Public Prosecutor, High Court, Madras.
Judgment in Crl.A.No.90 of 2017 29.09.2023 30/30 https://www.mhc.tn.gov.in/judis