Madras High Court
Karuppusamy (A1) vs State Represented By on 13 February, 2008
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 15.12.2018
Pronounced on: 10.01.2019
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
Criminal Appeal.No.178 of 2008
1.Karuppusamy (A1)
2.Rani (A2)
3.Vijayabaskar (A3)
4.Senthil (A5)
5.Ganesh (A6)
6.Ranjithkumar (A7)
7.Selvaraj (A8)
8.Stalin (A9)
9.Radhakrishnan(A12)
.. Appellants
Versus
State represented by:
The Inspector of Police,
Sendurai Police Station,
Perambalur District.
.. Respondent
PRAYER:Criminal Appeal filed under Section 374(2) of the Criminal
Procedure Code, against the conviction and sentence imposed in
S.C.No.111 of 2007 dated 13.02.2008 on the file of Sessions Judge,
Mahila Court, Perambalur.
For Appellants : Mr.R.Sankara Subbu.
For Respondent : Ms.P.Kritika Kamal
(GovernmentAdvocate, criminal side)
http://www.judis.nic.in
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JUDGMENT
This Criminal Appeal had been filed by A1, A2, A3, A5, A6, A7, A8, A9 and A12, challenging the conviction and sentence imposed by the Sessions Judge, Mahila Court, Perambalur, by judgment dated 13.02.2008 in S.C.No.111 of 2007.
2.Originally 22 accused faced trial in the Sessions Case. All of them were charged with offences punishable under Section 148 IPC. They were all also charged for offence punishable under Section 452 IPC and also under Section 3(1) of the Tamil Nadu Property (Prevention of Damage and Loss) Act 1992.
3.A2 and A9 were charged with commission of offence punishable under Section 392 IPC. A8, A9 and A12 accused were charged with commission of offence punishable under Section 354 IPC. A2, A3, A5, A6, A7 and A9 were charged with commission of offence punishable under Section 324 IPC. A14 and A15 were charged with commission of offence punishable under Section 307 IPC. A4, A10, A11 were also charged with commission of offence punishable under Section 307 IPC.
4.After trial, the learned Sessions Judge, found A1, A2, A3, A5, A6, A7, A8, A9 and A12 guilty for offences punishable under Section 147 and 448 IPC. It http://www.judis.nic.in 3 was also found that A2 and A9 are guilty of offences punishable under Section 323 IPC and A8, A9 and A12 are guilty of offences punishable under Section 354 IPC. After hearing the accused on the sentence to be imposed, the learned Sessions Judge, had imposed penalty of fine alone for all the above offences individually against the accused. The learned Sessions judge, also found that the accused were not guilty of other charges framed against them and consequently acquitted them of those charges. Challenging this judgment, as stated above, the convicted accused had filed the present Criminal Appeal. Background Facts:-
5.A1 Karuppusamy, was Assistant Head Master at Government High School, Ponparappi Village, Ariyalur District. PW1/Complainant, Valarmathi, was teacher in the same school. A2, Rani and A4, Victoriya Kumari Keetha were the two wives of A1, Karuppusamy. A3 Vijaybaskar, A5 Senthil, A6 Ganesh and A7 Ranjithkumar were the sons of Karuppusamy. Other accused A8-A22 were all also very close relatives of A1 Karuppasamy.
6.PW1 Valarmathi, lived along with her husband PW2 Karunanithi and daughter PW3 Tamilisai and also with PW8 Kannaiyan, younger brother of PW2 Karunanithi and his wife Megala in one house.
7.In her complaint to the Inspector of Police, Sendurai Police Station, registered as Cr.No.91/06. Valarmathi, PW1 stated that on 21.08.2006 at around http://www.judis.nic.in 4 8.45AM, when she was having bath in the bathroom, which was situated adjoining the outer compound of her house, she noticed somebody peeping and watching her. She raised an alarm. Her husband PW2 Karunanithi, chased the person and found that Rajeshkumar, son of A1 Karuppasamy was the alleged culprit. They informed A1 Karuppasamy, about this incident. Later that day, Rajeshkumar, committed suicide. The body was cremated in the early hours of 22.08.2006.
8.In the complaint, PW1 Valamathi, further stated that on 22.08.2006, in the evening at around 6.30PM, when she was in her house, with her family members, drinking tea, A1 Karuppasamy, along with other accused came armed with iron rod, wooden stick, wooden log and damaged the motor cycle outside the house and also entered into the house and broke the television, doors, washing machine, fridge, chairs, tables and wooden almirah. They also broke the tiles in the roof of the house. Thereafter, she was also assaulted and her gold chain was snatched away. Her blouse was also cut. They placed the blame for the suicide of Rajeshkumar on her.
9.PW1 lodged a complaint which was not dated, but which was received by the police at 11.30PM on the same night. That complaint was marked as Ex.P1. Thereafter, PW15 Jayaraman, registered the First Information Report in Cr.No.91/06, under Section 147, 148, 442, 354, 323, 324, 307, 380 IPC and under Section 3 of PPD Act. He then took up investigation and during the course of investigation, prepared mahazars, arrested the accused, took the http://www.judis.nic.in 5 complainant and Megala, who also suffered injuries to the doctor, prepared rough sketch observation, and also seized the material objects, more specifically the torn blouse in the presence of witnesses and finally laid a charge sheet before the Judicial Magistrate Court, Ariyalur. Since the offences were triable exclusive by a Court of Sessions, the learned Judicial Magistrate, committed the case for trial before the Sessions Court, Ariyalur. Since an offence under Section 354 IPC was involved and since the victim/defacto complainant was a woman, the matter was made over to the Mahila Court, Perambalur, for trial. On appearance of the accused, charges were read over and explained to the accused. They denied the charges.
10.Trial then commenced to establish the charges. The prosecution examined PW1 – PW15 witnesses. The material witnesses were PW1 Valarmathi and PW3 Tamilisai. Prosecution also marked Exs.P1–P14 documents. Ex.P1 was the complaint given by the PW1 and Ex.P10 was the printed FIR in Cr.No.91/06.
The prosecution also produced M.O.1 series namely, ten pieces of tiles, damaged boxes, television, broken speaker, five small iron rods, five wooden sticks and such other items and also M.O.2, torn blouse. It must be mentioned that the other alleged victim Megala, wife of PW8 Kannaiyan, who was the younger brother of PW2 Karunanithi, was not examined in the trial. It was explained that she had committed suicide even before oral examination of witnesses commenced and it was suggested that one of the reasons that could have led her to commit suicide was alleged illegal intimacy between PW1 Valarmathi and PW8 Kannaiyan.
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11.As stated above, the convicted accused have filed the present appeal. In the judgment, the learned Sessions Judge, Mahila Court, found that as a fact, it was established that A1 and family members of A1 came to the house of PW1 and caused rioting. The learned Sessions Judge, however considered the evidence of PW1 and PW3 alone. The evidence of PW2 was rejected, since even though he stated in Court that he hid himself in the pooja room and witnessed the happenings, in the complaint Ex.P1, it had been stated that he hid himself in the bathroom, which was situated outside the house. The learned Sessions Judge, held that A1, A2, A3, A5, A6, A7, A8, A9 and A12 formed an unlawful assembly that caused the rioting in the house of PW1. He relied on evidence in chief examination of PW1. The learned Judge also observed that to her credit PW1, had not attributed acts of rioting against A13 - A18 and A20 – A22. The Sessions Judge, surmised that reference to the wife of A1 would naturally imply only the first wife, A2 Rani, and therefore held that second wife A4 Victoria Kumari Keetha, was not guilty of the offence of rioting. Consequently, A1 – A3, A5 – A9 and A12 were convicted for offence punishable under Section 147 and 448 IPC. They were each sentenced to pay a fine of Rs.1000/- for offence under Section 147 IPC and in default to undergo 100 days RI. They were also sentenced to pay a fine of Rs.500/- each for offence under Section 448 IPC and in default to undergo imprisonment of 50 days.
12.The learned Judge also convicted A2 Rani and A9 Stalin for offence under Section 323 IPC. Again the learned Sessions Judge, relied on the evidence http://www.judis.nic.in 7 of PW1. It was however found that the accused were not armed with any deadly weapon. The injuries suffered by PW1 were abrasions and contusion, and it was held that they were simple injuries and consequently, A2 and A9 were convicted under Section 323 IPC. For the conviction of the accused under all the above offences, the learned Sessions Judge, invoked the provision of Section 222 Cr.PC.
13.The learned Sessions Judge, also convicted A8 Selvaraj, A9 Stalin and A12 Radhakrishnan, for offence under Section 354 IPC, since PW1, stated in her chief examination that they tore her blouse and removed her saree, and thereby outraged her modesty. The learned Sessions Judge, also imposed fine of Rs.500/- on A2 and A9 for offence punishable under Section 323 IPC and in default to undergo 50 days RI. Similarly, the learned Sessions Judge, imposed fine of Rs.1000/- each on A8, A9 and A12 for offence under Section 354 IPC and in default to undergo 100 days RI for the said offence. Out of the fine amount, Rs.9000/- was ordered to be paid to PW1 Valarmathi, as compensation under Section 357(1)(b) Cr.P.C.
14.The accused were found not guilty of offences punishable under Section 148 and 452 IPC and under Section 3(1) TPDD Act. A2 and A9 were also found not guilty of offence punishable under Section 393 IPC. A2, A3, A5, A6, A7 and A9 were found not guilty of offences punishable under Section 324 IPC. A4, A10, A11, A14, and A15 were found not guilty for offences punishable under Section 307 IPC.
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15.Heard arguments advanced by Mr.R.Sankarasubbu, learned counsel of the appellants and Ms.P.Kritika Kamal, learned Government Advocate, Criminal Side, for the respondents.
16.Mr.R.Sankarasubbu, in the course of his arguments pointed out that A1 was the Head Master in a Government school and PW1 defacto/complainant, was also a teacher in a Government school. It was stated in the complaint, Ex.P1, that PW1 had allegedly found someone peeping when she was having bath and when she raised an alarm, her husband chased the person and found that it was Rajeshkumar son of A1. Later, being ashamed of being caught, Rajeshkumar committed suicide. The body also cremated. Thereafter, according to PW1, A1 along with his family members came to her house, caused rioting and also caused hurt to her and to her sister-in-law Megala and also snatched her gold chain. The learned counsel pointed that the jewels had been handed back to the police in compliance of the condition which had been imposed at the grant of anticipatory bail. The learned counsel pointed out that the act of alleged rioting was only an outburst of emotion since the son of A1 was levelled with charges by PW1 and PW2 and being ashamed, committed suicide. Not able to bear the pain of loss of their son by suicide, A1 and his family members had entered the house of PW1 and questioned PW1. The learned counsel pointed out that the issue that the entire conviction was based only on the evidence of PW1, who was an interested witness and who cannot be believed to speak with clarity the role of each one of the accused. The learned counsel urged that the Court http://www.judis.nic.in 9 should interfere with the punishment imposed, particularly, because A1 and A8 were in the teaching profession and also because the other accused were students and all were overtaken by emotions and it was not an intentional act committed against PW1.
17.On the other hand, Ms.P.Krithika Kamal, learned Government Advocate, Criminal Side, pointed out that the evidence of PW1 is convincing and the learned Sessions Judge, had accepted the evidence and had in fact complimented the witness for not imputing charges against all the accused who stood charged and faced trial in the Court. The learned Government Advocate, insisted that the judgment of the Sessions Mahila Court should not be interfered with and should be upheld.
18.I have carefully considered the arguments advanced.
19.PW1, Valarmathi was a school teacher in Government High School, Ponparappi Village. A1, Karuppusamy was Assistant Head Master in the same school. He had two wives namely, A2 Rani and A4 Victoria Kumari Keeta. He had two sons through A2 Rani, namely, A3 Vijayabaskar and A5 Senthil. He had three sons through A4 Victoria Kumari Keeta, namely, A6 Ganesh, A7 Ranjithkumar and the deceased boy Rajeshkumar.
20.Ex.P1, complaint is undated. It was however received at 11.30PM on 22.08.2006 in the Police Station. PW1 had stated that on 21.08.2006 at around 08.45AM when she was having her bath, she noticed someone peeping and when she raised an alarm her husband caught Rajeshkumar, son of A1 http://www.judis.nic.in 10 Karuppusamy. Thereafter, Rajeshkumar, committed suicide. On 22.08.2006, at around 6.30PM, A1, along with his family members armed with wooden sticks, iron rods and aruvals barged into her house, damaged the roof tiles, the motor cycle bearing Registration No.TN.46.D.9619 and also broke the TV, DVD, home theatre, washing machine, fridge, chair and table. They also snatched the golden thaali chain from her neck. They also tore her blouse and removed her saree and outraged her modesty. They also threatened her and her sister-in-law Megala, that they would kill them. Her husband PW2, hid himself in the bathroom. She named 18 persons in the complaint. She did not given specific overt acts against each one of the named persons. The specific acts which had been complained of were formation of unlawful assembly, rioting, breaking household equipments, snatching of golden chain with thaali and tearing the blouse and removing saree.
21. The complaint was registered as Cr.No.91/06, under Sections 147, 148, 442, 354, 323, 324, 307 and 380 IPC and under Section 3 of PPD, Act. PW1 was also taken to hospital. The doctor, PW-14 Dr.Rajendiran, had noted the following injuries:
1. 3*0.5 cm abrasion right side neck.
2. 3*0.5 cm abrasion nape.
3. 6*2 cm contusion right thigh.
4. 4*2 cm contusion over the sacral region
5. Complaint of pain over the head.
The above injuries were simple in nature. They have not been caused by any weapon.
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22.During her chief examination, PW1 Valarmathi stated that, “mjw;F mLj;j ehs; mjhtJ 22/08/2006 md;W khiy 6/45 kzpastpy; eh';fs; tPl;oy; cl;fhh;e;J bfhz;L vy;nyhUk; O Foj;Jf;bfhz;L ,Ue;njhk;/ mg;nghJ vjphp fUg;g[rhkp mtUila igad;fs; mtUila kidtp kw;Wk; vjphp KUfhde;jk; kw;Wk; epiwa egh;fs; ,Uk;g[ fk;gp kw;Wk; cUl;L fl;ilfs; Mfpatw;iw vLj;Jf;bfhz;L rj;jk; nghl;Lf;bfhz;L te;jhh;fs;/”
23.The learned Sessions Judge had convicted A2 only because he surmised that PW1 by the word “wife” would only imply A2 who was the first wife of A1 and not A4 who was the second wife of A1. It must be kept in mind, that Rajeshkumar, was the son of A4 and not A2. Consequently, the probability of A4 being more agitated is higher. The surmise of the learned Sessions Judge, that by “wife”, PW1 probably meant A2 and not A4 cannot be accepted and consequently, on that ground, I hold that the conviction of A2 under Section 147 and 448 IPC cannot be sustained. Similarly, PW1 had only stated “mtUila igad;fs;”. She did not give the names of the sons. Even if only two of the sons had joined in commission of offences, it would be plural. She did not state that all the sons of A1 had joined in committing act of rioting. Without the sons being named, it would be highly unjust to convict all the sons for the said offence. I hold that conviction of A3, A5, A6 and A7 under Section 147 and 448 IPC cannot be sustained.
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24.It is also seen that during her cross examination, PW1, admitted, “vjphp fUg;g[rhkpapd; kfd;fs; Ie;J bgUk; ehd;
gzpg[hpa[k; gs;spapy; vd;dplk; goj;jth;fs; vd;W
brhd;dhy; mJ rhp jhd;”.
PW1 obviously knew the sons personally. Nothing prevented her from naming them during evidence. Even though, the word “sons” has been used in general, convicting all the sons because of the usage of that one general term would not be appropriate. I therefore hold that the conviction in sentence of A3, A5, A6, A7 for offences under Section 147 and 448 IPC has to be set aside.
25.Similarly, the names of A8, A9 and A12 were also not mentioned by PW1 in her evidence. On the other hand, she had mentioned A19 Muruganantham, but Muruganantham was acquitted only because his name was not given in Ex.P1 complaint. As stated above, the names of A8, A9 and A12 were not mentioned by PW1. I therefore, hold that they also have to get the benefit of doubt and have to be acquitted for commission of offences under Section 147 and 448 IPC.
26. This leaves out A1 alone. A1 was the member of the unlawful assembly, but there is a strong motive for implicating A1. At the time when, evidence was given by PW1, she was suspended from service, since she was an http://www.judis.nic.in 13 accused in the offence relating to the suicide of her sister-in-law Megala. Even though presence of A1 cannot be disputed, specific overt act has not been mentioned against A1, either for causing damage to the articles or in personally attacking PW1. The name alone is mentioned. That is not sufficient to sustain conviction. I therefore hold that the sentence and conviction of A1 will have to be interfered with, in so far as offence, under Section 147 and 448 is concerned.
27.A2 and A9 have also been convicted under Section 323 IPC. It is seen that the evidence of PW-1 had been relied on by the learned Sessions Judge. During the evidence, she stated that A2 Rani and A9 Stalin hit her, stating that because of her, the son of Rani, committed suicide. This is factually wrong. Rajeshkumar, who committed suicide was the son of A4 Victoria Kumari Keetha and not A2. A mere statement by PW1 without any corroboration cannot be the basis of conviction. It must be mentioned that PW1 had also elaborated both in evidence and in the complaint, that the accused were in possession of iron rods, wooden sticks and aruvals. But she only claimed that he was assaulted by hand. In a large gathering of 22 persons, specifically identifying two individuals by PW1 and holding that only because she had not identified others, those identified alone must be convicted and those not identified must be acquitted is not the proper procedure to be followed. PW1, as stated already had a grouse against A1 and his family members. I would therefore extend the benefit of doubt to A2 and A9 in so far as the offence under Section 323 IPC is concerned. Their conviction under Section 323 IPC is set aside.
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28. It is also seen that A8, A9 and A12 have also been convicted under Section 354 IPC. The only ground on which they have been convicted is the evidence of PW1, Wherein she had stated as follows:
“M$h; 12tJ vjphp uhjhfpUc&;zd;. M$h; 8tJ vjphp bry;tuhR kw;Wk; M$h; 9tJ vjphp !;lhypd; Mfpnahh; vd;Dila utpf;ifia gpd;gf;fk; fpHpj;Jtpl;L vd; g[litia mtpH;j;J tpl;lhh;fs;”.
29.The learned Sessions Judge relied on the above evidence and actually commended the witness since she had not impleaded other accused. The torn blouse had also been produced as M.O.2, but the witness who signed in the mahazar was declare hostile to the case of the prosecution. It is seen that the charge had actually been framed under Section 334 IPC. That is obviously a typographical error since the ingredients of the charge making out the offence under Section 354 IPC had been read out and explained to the accused by the learned Sessions Judge. I however find it strange that PW-1 had not specifically mentioned this overt act against A8, A9 and A12 in the complaint Ex.P1. She had been personally attacked and her modesty had been violated. In the complaint, she had not chosen to directly implicate A8, A9 and A12 of this offence. I hold that she had improved her evidence. It must also be kept in mind that she gave evidence after considerable time from the date of the incident. I hold that it would be impossible to specifically identify three individuals from a group. I hold that the benefit of doubt must be extended to A8, A9 and A12 and consequently, http://www.judis.nic.in 15 their conviction under Section 354 IPC is set aside.
30.In view of the above, the Criminal Appeal is allowed and the Judgment in S.C.No.111 of 2007 dated 13.02.2008 on the file of the Sessions Judge, Mahila Court, Perambalur is set aside. The appellants are acquitted of the charges which they had been convicted. The bail bond, if any, executed by them, shall stand cancelled. The trial Court is directed to refund the fine amount, if any paid by them.
10.01.2019 smv Index: Yes/No Internet: Yes/No http://www.judis.nic.in 16 To
1.The Sessions Judge, Mahila Court, Perambalur.
2.The Inspector of Police, Sendurai Police Station, Perambalur.
http://www.judis.nic.in 17 C.V.KARTHIKEYAN, J., smv Crl.A.No.178 of 2008 10.01.2019 http://www.judis.nic.in