Madras High Court
Vadivel vs State Represented By on 18 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.No.642 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.07.2022
CORAM
THE HON'BLE Mr.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.No.642 of 2019
1. Vadivel
2. Loganathan
3. Subramanian ... Appellants
Vs.
State represented by,
The Inspector of Police,
Negamam Police Station,
Coimbatore District.
Crime No.219 of 2008 ... Respondent
Prayer : This Criminal Appeal is filed under Section 374(2) of Code of
Criminal Procedure, 1973, to set aside the Judgment made in S.C.No.217
of 2013 dated 09.09.2019 on the file of the Principal District & Sessions
Judge, Coimbatore.
For Appellants : Mr.M.N.Balakrishnan
For Respondent : Mr.S.Vinoth Kumar
Government Advocate (Crl. Side)
JUDGMENT
The Criminal Appeal has been filed to set aside the Judgment made in S.C.No.217 of 2013 dated 09.09.2019 on the file of the Principal District & Sessions Judge, Coimbatore.
https://www.mhc.tn.gov.in/judis 1/15 Crl.A.No.642 of 2019
2. On 15.08.2008, when PW.12 was on duty at the Negamam Police Station, the statement recorded from PW.1 at Coimbatore Government Hospital was brought to the station; the gist of allegations in the said statement is that there was a civil dispute pending before the Court regarding the cart track and on the day of occurrence that is on 14.08.2008, in the evening, the Advocate Commissioner came to the spot for noting down the physical features and measuring the property about the cart track; immediately after the inspection was over, there was a great tension in the site and therefore, PW2 Rajendran, who is the relative of PW1 came to rescue in a car and afraid of the accused persons, PW1, his wife PW3 and his daughter all got into the car along with PW2 Rajendran and tried to go away from the scene. Even then, they were attacked with the weapons like Aruval and Vallaiyam, and wind shields of the car were also broken and in the incident, PW.1, 2 and 3 suffered injuries and were treated at the Government Hospital, Coimbatore.
3. On the basis of the said allegations, a case in Crime No.219 of 2018 was registered for the offences punishable under Sections 147, 148, https://www.mhc.tn.gov.in/judis 2/15 Crl.A.No.642 of 2019 341, 324, 354, 506(ii) and Section 3(1) of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992. The same was taken up for investigation by PW12 and after completion of the investigation, he laid a charge sheet against totally 10 accused proposing guilt of the said offence. The case was taken on file by the Judicial Magistrate, Pollachi in P.R.C.No.30 of 2013 and after appearance of the accused, and furnishing of copies under Section 207 of Cr.P.C., the learned Magistrate committed the same to the Principal Sessions Court, Coimbatore. Thereafter, the case was taken on file as S.C.No.217 of 2013 and was made over to the trial Court. The trial Court, after considering the materials on record and the role played by the various accused, framed charges under Sections 147, 148, 341, 341 r/w 149 of IPC., 324, 324 r/w 149 of IPC., 354, 354 r/w 149 of IPC., 506(ii) and Section 3(1) of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 as the case may be.
4. Upon being questioned about the charges, the accused denied the same. In order to bring home the charges, the prosecution examined the defacto complainant and the injured witnesses viz., Murugesan as PW.1, the second injured witness viz., Rajendran as PW.2, one Thulasimani, who https://www.mhc.tn.gov.in/judis 3/15 Crl.A.No.642 of 2019 is the wife of PW.1 was examined as PW.3 and the third injured witness viz., Aruchamy was examined as PW.4 and one Sivaraj, who was examined as PW.5, who turned hostile, one Vellaiappa Gounder, who is also the resident of the Village as PW.6, who has also deposed about the incident; one Kanthasami, who was also resident of the Village, was a witness to the Mahazar as PW.7, one Dr.Krishnaraj was examined as PW.8, who treated PW.1 and issued the wound certificate; one Murugan, who is a Mechanic, who repaired the damages in the car as PW.9; one Sivakumar was examined as PW.10, who is a Motor Vehicle Inspector, who inspected the damaged car, noted the damages and issued certificates; one Dr.Jayaprakash was examined as PW.11, who treated PW.2 and PW.4 and issued would certificates and one Durairajan, the Investigating Officer, who is the Sub-Inspector of Police was examined as PW.12.
5. The prosecution marked the complaint given by PW.1 as Ex.P1, the signature of the attesting witness in the observation Mahazar as Ex.P2; the wound certificate given to PW.1 as Ex.P3; the receipt given by the Mechanic for the damages as Ex.P4; the Inspection report of the Motor Vehicle Inspector as Ex.P5; the would certificate given by PW.2 as Ex.P6; https://www.mhc.tn.gov.in/judis 4/15 Crl.A.No.642 of 2019 the wound certificate given to PW.4 as Ex.P7; the First Information Report as Ex.P8; the rough sketch as Ex.P9; the observation Mahazar as Ex.P10 and the death certificate of the Investigating Officer as Ex.P11.
6. After appreciation of the entire facts, there upon being questioned about the material evidence and incriminating circumstances on record; under Section 313 of the Cr.P.C., the accused denied the same as false. Thereafter, no evidence was let in by the defence. The trial Court therefore proceeded to hear the learned Public Prosecutor and the learned counsel for the accused and after considering the evidence on record, acquitted the accused Nos.1, 2, 5 to 8 and 10 of all the charges.
7. The A3 was convicted for the offences punishable under Section 324 of IPC and was imposed with a Simple Imprisonment of six months and a fine of Rs.1,000/- and in default of payment of fine, to undergo two month Simple Imprisonment. The trial Court convicted A9 under Section 323 of IPC and imposed a fine of Rs.1,000/- and in default of payment of fine, to undergo one week Simple Imprisonment. He was also convicted for the offences punishable under Section 324 of IPC and was sentenced to https://www.mhc.tn.gov.in/judis 5/15 Crl.A.No.642 of 2019 undergo six months Simple Imprisonment and imposed a fine of Rs.1,000/- and in default of payment of fine, to undergo Simple Imprisonment for two months. The A4 was convicted for the offences punishable under Section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and was sentenced to undergo six months Rigorous Imprisonment and was imposed a fine of Rs.4,000/-. Against which, the present appeal is laid before this Court.
8. Heard M.N.Balakrishnan, learned counsel appearing for the appellants and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) appearing for the respondent.
9. Learned counsel for the appellants would submit that as far as the conviction of A3 viz., Mr.Vadivel is concerned, he would submit that in this case when the charge was made against ten accused and inspite of evidence of PW.1 to PW.4, when the trial Court has acquitted the other accused, convicting A3 alone was incorrect in law. He would further submit that there is a delay of 18 hours in lodging the complaint and when a case is of this nature, when there is stress and strain between two groups https://www.mhc.tn.gov.in/judis 6/15 Crl.A.No.642 of 2019 relating to a civil matter, when the complaint is lodged only after 18 hours that too on the next day, the same gives room to serious doubts in the case of the prosecution.
10. He would further submit that it may be noted in the complaint that it was alleged that almost 25 persons were involved in the incident. However, the prosecution itself laid charges only against 10 persons. Therefore, there are serious and inherent flaws in the case of the prosecution. Further the alleged dangerous weapons used by A3 was not at all recovered and produced before the Court and therefore, in the absence of any proof, convicting A3 under Section 324 of IPC is unwarranted. Making the same submission in respect of A9, he would submit that even in respect of A9, the alleged weapon used by him viz, Aruval was not at all recovered and produced by the prosecution in this case.
11. As far as the offences punishable under Section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 is concerned, learned counsel for the appellants submitted that in this case, even during the course of the investigation, the car was not seized and produced before https://www.mhc.tn.gov.in/judis 7/15 Crl.A.No.642 of 2019 the learned Magistrate. Not even the photograph of the car was produced before the trial Court. Therefore, when the best evidence i.e., the primary evidence itself is available, the prosecution without producing the same, is trying to establish the damage based on the report of the Motor Vehicle Inspector and the Mechanic and it would not be permitted. Even, the Motor Vehicle Inspector has not spoken about any damage about the rear side wind shields, while the allegation of the witnesses is that A4 damaged the rear side wind shields. Therefore, he would further submit that this Court should acquit the findings about A3.
12. Per contra, learned Government Advocate (Crl.Side) would submit that this is a case, in which the prosecution had examined PW.1, 2 and 4, all the three injured witnesses, who have clearly and categorically spoken about the incident and also the injuries sustained by them; PW.3, who is the wife of PW.1 was also an occupant in the car and was an eye witness. She has also clearly deposed the case; similarly, PW.6 also had generally spoken about the occurrence of the incident, who is an independent witness, who corroborates the evidence of the other eye witnesses in this case.
https://www.mhc.tn.gov.in/judis 8/15 Crl.A.No.642 of 2019
13. The learned Government Advocate (Crl.Side) would submit that the Doctors, who treated the injured witnesses were examined as witnesses and the wound certificates were duly marked as exhibits. Therefore, the offences punishable under Sections 323 and 324 of IPC., were proved to the hilt by the prosecution. He would further submit that as far as the offences punishable under Section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 is concerned, the Motor Vehicle Inspector has been examined as a witness and the certificate given by him was marked as Ex.P6. This apart, the Mechanic, who certified the vehicle and undertook the repair was also examined and he had also given a receipt, which is marked as Ex.P4. Therefore, it is not necessary that always the vehicle should be seized and produced and the prosecution can establish the offences in other ways also.
14. I have considered the rival submission made on the either side and perused the materials on record in this case. As far as the first appellant viz., A3 Vadivel is concerned, it is seen that the injured witness viz., PW.1 has clearly spoken about the occurrence and identified the accused. The injury caused by A3 also proved by the Medical evidence. https://www.mhc.tn.gov.in/judis 9/15 Crl.A.No.642 of 2019 Therefore, there was no doubt that A3 caused injury to the injured witnesses. But, however, in order to convict him under Section 324 of IPC., the prosecution has to prove that either he has used the deadly weapon and in the absence of any weapon being recovered or spoken out in detail about the witnesses as to the nature of the weapon, I am of the view that convicting of the A3 under Section 324 of IPC is incorrect and accordingly, the conviction is modified as to one under Section 323 of IPC.
15. Similarly, as against the 3rd appellant viz., A9 Subramanian is concerned, he was also charged for causing injuries of 2 counts and he is convicted under Section 323 of IPC for one count and 324 of IPC for the another count. Even in this case also, the witnesses clearly identified him and spoken to the manner in which he caused injuries. However, in the case of the 3rd appellant viz., A9 also, the Aruval, which is stated to have been used by him was not recovered and injuries are simple in nature and I hold that the conviction in respect of the two counts for the offences punishable under Section 324 of IPC is not sustainable and is accordingly modified as under Section 323 of IPC.
https://www.mhc.tn.gov.in/judis 10/15 Crl.A.No.642 of 2019
16. Even though, the learned counsel for the appellants argued that the offences as against the 2nd appellant viz., Loganathan, who is A4 in this case is not at all proved, since, the car was not seized and produced before the learned Magistrate, I am of the view that still the said offence is proved, because the injured witnesses and the eye witnesses viz., PW.1 to 4 have spoken about the fact that A1 has damaged the car and the Motor Vehicle Inspector has inspected the car and issued certificate about the damages of it. Therefore, mere non production of the vehicle before the Magistrate will not be fatal to the prosecution and accordingly, the findings of guilt even as against A4 is confirmed by this Court.
17. Now coming to the question of sentence, the learned Government Advocate (Crl.Side) would submit that the trial Court itself has taken a lineant view and has imposed the sentence of six months only as against all the three appellants. In this case, it may be seen that the second appellant viz., A4 is convicted for the offences punishable under Section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, in which the minimum punishment of one year is prescribed. https://www.mhc.tn.gov.in/judis 11/15 Crl.A.No.642 of 2019 But, however, the proviso provides that for the reasons to be recorded, the punishment lesser than one year may also be granted.
18. Already, the trial Court has granted lesser punishment than the minimum sentence viz., 6 months Rigorous Imprisonment. Now considering the age of A3 being 32 at the time of the occurrence, A4 being 35 at the time of the occurrence, and A9 being 28 at the time of occurrence and the occurrence having happened in the year 2008 and now 14 years have been gone by and considering the fact that when both the parties are not there in the disputed site and they moved on, considering the fact that there are no other antecedents against these appellants and now that they are living with their respective families and there is a lapse of time of 14 years, I am of the view that this is a case where special circumstances have to be invoked and lesser punishment of two months simple imprisonment for all the offences are imposed as against all the three appellants.
19. Therefore this Criminal Appeal is partly allowed as follows:-
(i) The 1st appellant is convicted for the offence punishable under Section 323 of IPC and https://www.mhc.tn.gov.in/judis 12/15 Crl.A.No.642 of 2019 imposed punishment of 2 months Simple Imprisonment and a fine of Rs.1,000/- and in default of payment of fine to undergo simple Imprisonment for a period of one week;
(ii) The 2nd appellant Loganathan is convicted for the offences punishable under Section 323 of IPC (2 counts) and sentenced to undergo Simple Imprisonment for a period of two months and to pay a fine of Rs.1,000/- each counts and in default of payment of fine to undergo Simple Imprisonment for a period of two weeks;
(iii) The 3rd appellant Subramanian is convicted for the offences punishable under Section 3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and he is sentenced to undergo two months Simple Imprisonment and to pay a fine of Rs.4,000/- and in default of payment of fine to undergo Simple Imprisonment for a period of two weeks.
https://www.mhc.tn.gov.in/judis 13/15 Crl.A.No.642 of 2019
20. The sentences shall run concurrently and the accused are entitled to set off the period already undergone by them.
21. Accordingly, this Criminal Appeal is partly allowed.
18.07.2022 Index :Yes/No Speaking/Non-Speaking Order rgi To
1. The Principal District & Sessions Judge, Coimbatore.
2. The Inspector of Police, Negamam Police Station, Coimbatore District.
3. The Public Prosecutor, High Court of Madras.
https://www.mhc.tn.gov.in/judis 14/15 Crl.A.No.642 of 2019 D.BHARATHA CHAKRAVARTHY, J.
rgi Crl.A.No.642 of 2019 18.07.2022 https://www.mhc.tn.gov.in/judis 15/15