Madras High Court
S.Ramesh ... Revision vs State Represented By on 23 November, 2023
CRL.RC(MD)Nos.330 & 641 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 25.09.2023
Pronounced on 23.11.2023
CORAM
THE HONOURABLE MR. JUSTICE P.DHANABAL
CRL.RC(MD)Nos.330 & 641 of 2019
and
Crl.MP(MD)Nos.4792, 9560 and 10018 of 2019
S.Ramesh ... Revision Petitioner in
Crl.RC(MD)No.330 of 2019
S.Brathibha ... Revision Petitioner in
Crl.RC(MD)No.641 of 2019
Versus
1.State represented by
The Inspector of Police,
Othakadai Police Station,
Madurai.
(Crime No.16 of 2012)
2.J.Adel ... Respondents in
both Revision Petitions
(R2 impleaded in Crl.RC(MD)No.
330 of 2019 as per the order of
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CRL.RC(MD)Nos.330 & 641 of 2019
this Court made in
Crl.MP(MD)No.5153 of 2019 in
Crl.RC(MD)No.330 of 2019 vide
order dated 21.06.2019 by TKJ
and the same R2 impleaded in
Crl.RC(MD)No.641 of 2019 as
per the order of this Court in
Crl.MP(MD)No.9557 of 2019 in
Crl.RC(MD)No.641 of 2019 vide
order dated 12.11.2019 by VPNJ)
Common Prayer : The Criminal Revision Petitions are filed under Section
397 read with 401 of Code of Criminal Procedure, to call for the records
pertaining to the concurrent judgment in C.A.No.9 of 2014 on the file of the
learned VI Additional District and Sessions Judge, Madurai dated
26.04.2019 in C.C.No.58 of 2012 on the file of the learned Judicial
Magistrate, Melur in C.C.No.58 of 2012 dated 03.01.2014 in Crime No.16
of 2012 on the file of the Respondent police and set aside the same.
For Revision Petitioners : Mr.T.Lajapathi Roy, Senior counsel
(in both cases) for Mr.S.Rajasekar
For R1 : Mr.M.Sakthi Kumar
(in both cases) Government Advocate (Criminal Side)
For R2 : Mr.K.M.Thirupathy
(in both cases)
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CRL.RC(MD)Nos.330 & 641 of 2019
COMMON ORDER
These Criminal Revision Petitions have been preferred as against the judgment passed in C.A.No.9 of 2014 on the file of the learned VI Additional District and Sessions Judge, Madurai. The 1 st Appellant has filed the Crl.RC(MD)No.330 of 2019 and the 2nd Appellant has filed the Crl.RC(MD)No.641 of 2019.
2. In the Trial Court, both of the accused have been tried together in C.C.No.58 of 2012. The Trial Court has convicted the 1st Accused for the offences under Section 447, 294(b) and 427 IPC and the 2nd Accused was convicted for the offences under Section 447 IPC. The 1st Accused was sentenced to undergo 2 months of Simple Imprisonment and to pay a fine of Rs.200/- in default to undergo 1 week of Simple Imprisonment for the offences under Section 294(b) IPC and for the offences under Section 427 IPC, the 1st Accused was sentenced to undergo 6 months of Simple Imprisonment and to pay a fine of Rs.1000/- in default to undergo 1 month of Simple Imprisonment. Both the 1st and 2nd Accused were sentenced each to undergo 2 months of Simple Imprisonment and to pay a fine or Rs.200/- in default to undergo 1 week of Simple Imprisonment for 3/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 the offences under Section 447 IPC.
3. The 1st Accused was acquitted from the charges under Section 323 and 506(2) IPC. The 2nd Accused was acquitted from the charges under Section 294(b), 323, 427 and 506(2) IPC.
4. The case of the prosecution is that, on 13.01.2012 at about 3 p.m., both of the accused along with one B.Mariyappa Sairam, who is the husband of the 2nd Accused entered into the administrative office of Meenakshi Mission Hospital and damaged the video camera of worth about Rs.10,000/- and also abused the witnesses one P.T.Sundar and one J.Adel. Further, the 1st Accused caused simple injury and also threatened with dire consequences. Thereafter, the defacto complainant namely J.Adel has given complaint (Ex.P.1) before the Othakadai Police Station, Madurai. Thereafter, the concerned Sub-Inspector of Police has registered the First Information Report (Ex.P.4) as against the Accused in Crime No.16 of 2012 for the offences under Section 147, 294(b), 323, 427, 447 and 506(ii) IPC. Thereafter, the P.w.7 has investigated the case and filed a final report as against the Accused. Thereafter, the Trial Court has furnished the copies of 4/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 documents relied on by the prosecution to the Accused under Section 207 of Code of Criminal Procedure. After hearing both sides, the Trial Court has framed the charges as against the Accused A1 and A2 for the offences under Section 294b, 323, 427, 447 and 506(ii) IPC. The case against A3 was split up due to his non-appearance.
5. The charges were read over and explained to the accused and they denied the charges. Thereafter, the Trial Court has examined the witnesses P.w.1 to P.w.7 and marked Ex.P.1 to Ex.P.5 and also marked M.Os 1 to 3. After completion of prosecution side evidence, the accused were examined under Section 313(1)(b) of Code of Criminal Procedure with regard to the incriminating circumstances found against them but they denied them as false. The Trial Court after evaluating the oral and documentary evidences adduced on either side found the 1st Accused guilty for the offences under Section 294(b), 427 and 447 IPC and found the 2nd Accused guilty for the offences under Section 447 IPC. Therefore, the 1st Accused was sentenced to undergo 2 months of Simple Imprisonment and to pay a fine of Rs.200/- in default to undergo 1 week of Simple Imprisonment for the offences under Section 294(b) IPC and for the offences under 5/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Section 427 IPC, the 1st Accused was sentenced to undergo 6 months of Simple Imprisonment and to pay a fine of Rs.1000/- in default to undergo 1 month of Simple Imprisonment. Both the 1st and 2nd Accused were sentenced each to undergo 2 months of Simple Imprisonment and to pay a fine or Rs.200/- in default to undergo 1 week of Simple Imprisonment for the offences under Section 447 IPC. As against the judgment and conviction passed by the Trial Court, the Accused have preferred an appeal in C.A.No. 9 of 2014 on the file of the VI Additional District and Sessions Judge, Madurai. After hearing both sides and perusing the records, the Appellate Court also dismissed the appeal by confirming the judgment and conviction of the Trial Court. As against the said judgment, the present Revisions have been preferred by the 1st Appellant/Accused in Crl.RC(MD)No.330 of 2019 and by the 2nd Appellant/Accused in Crl.RC(MD)No.641 of 2019.
6. Since both Criminal Revision Petitions are arising out of the same judgment, this Court has heard both the Criminal Revision Petitions altogether and passing common order.
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7. The grounds raised in Crl.RC(MD)No.330 of 2019 are as follows :
(i). The learned Appellate Court erroneously confirmed the judgment of the learned Trial court without appreciating the grounds raised by the Appellant as well as the evidence of the prosecution witnesses and the prosecution failed to prove the case beyond reasonable doubts and there are several serious infirmities on the judgment.
(ii) The learned Appellate Court ought to have considered that the Appellant is the son LW-9 one Dr.N.Sethuraman, who is the Founder Trustee of a Public Charitable Trust namely S.R.Trust and it runs a hospital namely Meenakshi Mission Hospital and Research Centre. The entry of the Appellant into the premises of the said hospital functions under a public charitable trust cannot be termed as trespass.
(iii) The learned Appellate Court ought to have considered that the P.w.2 affirmed in his cross examination that the family trustees in S.R.Trust were allotted office rooms in Meenakshi Mission Hospital. The Founder Trustee has appointed the Appellant as President and Managing Trustee in S.R.Trust vide a registered deed, dated 05.12.2011. Thereby the entry of 7/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Appellant into his own office will not attract the Penal offence under the Section 447 IPC.
(iv) The learned Appellate Court erroneously confirmed the judgment of the learned Trial Court based on the averment stated in the Ex.P.1 FIR as there is an order by this Court restraining the Appellant from entering the Meenakshi Mission Hospital by the P.w.1 deposed in cross examination that he is unaware whether there is any restraint order against the Appellant from entering the said hospital premises which runs under a public charitable trust.
(v) The learned Appellate Court has failed to consider the Appellant did not enter his own room to cause any intimidation, insult or annoyance to the P.w.1 and P.w.2 even though it is claimed to be the room of P.w.2.
Hence, the presence of the Appellant in the alleged place of occurrence will not amounts to criminal trespass.
(vi) The learned Appellate Court appreciated the case of the prosecution in a contradictory manner by holding that the place of alleged occurrence is P.w.2's private room while discussing the facts regarding the offence under Section 447 IPC whereas the learned Appellate Court held that the place of occurrence is a public place considering the presence of 8/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Camila Cancer Center in the same floor while discussing the facts regarding the offence under Section 294(b) IPC.
(vii). The learned Appellate Court failed to consider that the P.w.1 and P.w.2 have clearly deposed that the alleged place of occurrence allotted to the Appellant and they have no rights to send the Appellant away.
(viii). The learned Appellate Court has failed to consider that the qualified witnesses to speak about the Appellant's disentitlement are the trustees of SR Trust and they were not examined as prosecution witnesses, though they were listed in the charge sheet as LW-8 and LW-9, who are Trustee and Founder of SR Trust respectively as well as younger brother and father of the Appellant respectively. The non-examination of the trustees on the side of the prosecution creates doubt on the prosecution case.
(ix). The learned Appellate Court failed to consider that there were civil suits pending between the Appellant and the management of SR Trust and in such circumstances, the Trustees of SR Trust ought to have been examined to prove the Appellant's alleged disentitlement. The LW-8 is the main rival party in all civil suits.
(x). The learned Appellate Court ought to have considered that the P.w.1 to P.w.5 are working under the LW-8 and their evidence cannot be 9/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 taken for consideration as they are interested witnesses. It is also contended that the alleged place of occurrence was near Camila Cancer Center and the public may witnessed the alleged occurrence but no one from public were examined on the side of the prosecution as independent witness.
(xi). The prosecution was failed to recover the alleged damaged hard disk from the alleged place of occurrence. It was also contended that the learned Appellate Court ought to have considered that there is no specific overt acts in the complaint against the Appellant as he has grabbed and damaged the M.O-1.
(xii). The learned Appellate Court erred in holding that there is no flaw in sending the material objects to the Trial Court belatedly after a period of 9 months.
(xiii). The learned Appellate Court misconstrued that the mandatory requirements under Section 65B of Indian Evidence Act need not be followed since the compact discs in the present case has been marked as M.O.Nos.2 and 3. The electronic records cannot be marked as material objects and in such circumstances, the M.O.Nos.2 and 3 needs to be discarded as it has not been produced following the mandatory requirements under Section 65B of Indian Evidence Act.
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(xiv). It was further alleged that the learned Appellate Court ought to have considered that the prosecution failed to verify the mode of copying alleged to be done by the P.w.4 and it creates a reasonable apprehension that the video clippings would be morphed, doctored and modified.
(xv). The learned Appellate Court ought to have considered that the prosecution failed to get expert opinion on M.O.2 and M.O.3 to ascertain its veracity and mode of copying into it and it creates doubt on the case of the prosecution. The prosecution failed to identify the voice available in the M.O.2 and M.O.3 with the Appellant and the prosecution witnesses though experts to ascertain the veracity of the material objects and the alleged occurrence.
8. The grounds raised in Crl.RC(MD)No.641 of 2019 are as follows :
(i). The learned Appellate Court erroneously confirmed the judgment of the learned Trial court without appreciating the grounds raised by the Appellant as well as the evidence of the prosecution witnesses and the prosecution failed to prove the case beyond reasonable doubts and there are several serious infirmities on the judgment. 11/53
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(ii) The learned Appellate Court ought to have considered that the Appellant is the daughter of LW-9 one Dr.N.Sethuraman, who is the Founder Trustee of a Public Charitable Trust namely S.R.Trust and it runs a hospital namely Meenakshi Mission Hospital and Research Centre. The entry of the Appellant into the premises of the said hospital functions under a public charitable trust cannot be termed as trespass.
(iii) The learned Appellate Court ought to have considered that the P.w.2 affirmed in his cross examination that the family members of LW-9 Dr.N.Sethuraman were allotted office rooms in Meenakshi Mission Hospital and he has no powers to restrain them from entering the hsopital premises. The Founder Trustee has appointed the Appellant as President and Managing Trustee in S.R.Trust vide a registered deed, dated 05.12.2011. Hence, it was alleged that the entry of Appellant into his own office will not attract the Penal offence under the Section 447 IPC.
(iv) It was also alleged that the learned Appellate Court erroneously confirmed the judgment of the learned Trial Court based on the averment stated in the Ex.P.1 FIR as there is an order by this Court restraining the Appellant from entering the Meenakshi Mission Hospital by the P.w.1 deposed in cross examination that he is unaware whether there is any 12/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 restraint order against the Appellant from entering the said hospital premises which runs under a public charitable trust.
(v) The learned Appellate Court has failed to consider the Appellant did not enter his own room to cause any intimidation, insult or annoyance to the P.w.1 and P.w.2 even though it is claimed to be the room of P.w.2. Hence, the presence of the Appellant in the alleged place of occurrence will not amounts to criminal trespass.
(vi) The learned Appellate Court appreciated the case of the prosecution in a contradictory manner by holding that the place of alleged occurrence is P.w.2's private room while discussing the facts regarding the offence under Section 447 IPC whereas the learned Appellate Court held that the place of occurrence is a public place considering the presence of Camila Cancer Center in the same floor while discussing the facts regarding the offence under Section 294(b) IPC.
(vii). The learned Appellate Court ought to have considered that the burden of proof lies upon the prosecution to prove their own case and the prosecution failed to produce any material evidence or qualified witnesses like Trustees of SR Trust as the Appellants were restrained from entering 13/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 into the hospital. But the learned Appellate Court simply shifted the burden upon the Appellant as they have not produced any document to prove their entitlement in entering the hospital premises.
(viii). The learned Appellate Court has failed to consider that the qualified witnesses to speak about the Appellant's disentitlement are the trustees of SR Trust and they were not examined as prosecution witnesses, though they were listed in the charge sheet as LW-8 and LW-9, who are Trustee and Founder of SR Trust respectively as well as younger brother and father of the Appellant respectively. The non-examination of the trustees on the side of the prosecution creates doubt on the prosecution case.
(ix). The learned Appellate Court failed to consider that there were civil suits pending between the Appellant and the management of SR Trust and in such circumstances, the Trustees of SR Trust ought to have been examined to prove the Appellant's alleged disentitlement. The LW-8 is the main rival party in all civil suits.
(x). The learned Appellate Court ought to have considered that the P.w.1 to P.w.5 are working under the LW-8 and their evidence cannot be taken for consideration since they are interested witnesses. It is also contended that the alleged place of occurrence was near Camila Cancer 14/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Center and the public may witnessed the alleged occurrence but no one from public were examined on the side of the prosecution as independent witness.
(xi). It was also contended that the learned Appellate Court misconstrued that the mandatory requirements under Section 65B of Indian Evidence Act need not be followed since the compact discs in the present case has been marked as M.O.Nos.2 and 3. The electronic records cannot be marked as material objects and in such circumstances, the M.O.Nos.2 and 3 needs to be discarded as it has not been produced following the mandatory requirements under Section 65B of Indian Evidence Act.
(xii). The learned Appellate Court ought to have considered that the prosecution failed to get expert opinion on M.O.2 and M.O.3 to ascertain its veracity and mode of copying into it and it creates doubt on the case of the prosecution. The prosecution failed to identify the voice available in the M.O.2 and M.O.3 with the Appellant and the prosecution witnesses though experts to ascertain the veracity of the material objects and the alleged occurrence.
9. The learned counsel appearing for the Revision Petitioners would contend that the Revision Petitioner in Crl.RC(MD)No.330 of 2019 15/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 and others have formed a private trust. Due to misunderstanding between the trustees so many litigation are pending between the parties. While so, on 13.01.2012, when the Revision Petitioner along with others went to his office at Meenakshi Mission Hospital, the defacto complainant along with others at the instigation of other trustees made a quarrel with the Revision Petitioner and others and thereafter, the defacto complainant gave a false complaint against these Revision Petitioners and others. The Courts below failed to consider the disputes between the parties with regard to the Trust and the disputed property also coming under the Trust. The complaint was lodged by the defacto complainant with male fide intention and to harass the Revision Petitioners at the instigation of the other trustees. The prosecution has examined P.w.1 to P.w.7 and marked Ex.P.1 to Ex.P.5 and also marked M.Os.1 to 3. The P.w.1 is said to be a victim and P.w.2 and P.w.3 are said to be eye witnesses. The prosecution evidences are not cogent and they are filled with doubts. In fact, the Trial Court has framed charges as against the Accused for the offences under Sections 294b, 427, 447, 506(ii) IPC and the Revision Petitioner/1st Accused in Crl.RC(MD)No.330 of 2019 is concerned, he was acquitted from the charges under Section 323 and 506(2) IPC. As far as the Revision Petitioner/2nd Accused in Crl.RC(MD)No.641 of 16/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 2019 is concerned, she was acquitted from the charges under Section 294(b), 323, 427 and 506(2) IPC but only convicted under Section 447 IPC. As per the First Information Report, it is stated that more than 5 Accused were involved in this case and FIR also registered under Sections 147, 294(b), 323, 427, 447 and 506(ii) IPC. But the charge sheet was filed by deleting Section 147 IPC. It shows the malafide intention of the complainant to rope the Petitioners in the above said criminal case. Therefore, the prosecution case is highly doubtful. Further, there is no ingredients to constitute the offences under Sections 294(b), 427 and 447 IPC. The main contention of the prosecution is that the Accused damaged the camera but there is no mention about the damages in which part of the camera was damaged and what is the value of the damaged property and further the M.Os 2 and 3 CDs were taken from the original recording of electronic records and thereby, Section 65B of Evidence Act certificate is mandatory to prove the same. But in this case, the prosecution failed to produce the certificate under Section 65B of Evidence Act. Further, the Revision Petitioner in Crl.RC(MD)No.330 of 2019 is also one of the trustee and he was removed from the Trust without following the procedure and thereby, the Civil Suit is also pending. While so, the question of trespass 17/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 would not arise. As far as the offence under Section 294(b) is concerned, the offence only took place in private place and there is no evidence that the annoyance caused to the witnesses. Therefore, the prosecution has failed to prove the charges against the Accused beyond reasonable doubt. But the Trial Court as well as the Appellate Court without considering the above said discrepancies and the legal aspects have erroneously convicted the Accused. Therefore, the judgment and conviction passed by the Trial Court and confirmed by the Appellate Court are liable to be set aside by allowing this Revision petition.
10. The learned counsel appearing for the 2nd Respondent would contend that these Revision Petitioners/Accused are not law abiding citizens and they unlawfully entered into the hospital premises and assaulted the staff of the hospital and also abused with obscene words and damaged the camera and thereby, the complaint was lodged as against the 1st Accused. The Revision Petitioner namely S.Ramesh was removed from the trusteeship of the trustee and Civil Suit is also pending. During the pendency of the litigation, the Petitioners entered into the premises and committed the above said offences. In order to prove the case of the 18/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 prosecution, they have examined P.w.1 to P.w.7 and marked M.Os 1 to 3. The prosecution witnesses have categorically deposed about the assault made by the Accused, obscene words uttered by them and damages caused to the camera. All the witnesses have clearly deposed about the acts done by the A1 and A2. The Trial Court after consideration of these aspects correctly convicted the Accused. As far as the Section 65B of Evidence Act certificate is concerned, since the original camera itself was produced before the Court, no question of secondary evidence would arise and thereby, the argument with regard to Section 65B of Evidence Act is groundless. Under Section 85B of Evidence Act, there is a presumption for the electronic evidence and further the victim sustained injury on his finger and he had taken treatment and the doctor also examined and he stated about the injury sustained by the victim. These Revision Petitioners have not complied the conditions imposed by this Court and NBW is pending against the Revision Petitioner in Crl.RC(MD)No.641 of 2019. Thereby, they are not law abiding citizens and no any leniency shown to these Petitioners. The scope of interference to the concurrent judgments in Revision petition is limited and there is no any ground to interfere with the judgments of Courts below. The judgments of Courts below are well reasoned and thereby, the Revision 19/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Petitions are liable to be dismissed.
11. This Court has heard both sides and perused the records. Upon hearing both sides and perusing the records, the judgment of Courts below and grounds, the point for determination in Crl.RC(MD)No.330 of 2019 is whether the judgment and conviction passed by the VI Additional District and Sessions Judge, Madurai in C.A.No.9 of 2014 by confirming the judgment of Trial Court in C.C.No.58 of 2012 by convicting the 1st Accused under Sections 294b, 447 and 427 IPC are sustainable in law and on facts.
12. The point for determination in Crl.RC(MD)No.641 of 2019 is whether the judgment and conviction passed by the VI Additional District and Sessions Judge, Madurai in C.A.No.9 of 2014 by confirming the judgment of Trial Court in C.C.No.58 of 2012 by convicting the 2 nd Accused under Section 447 IPC are sustainable in law and on facts. POINTS :
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13. The case of the prosecution is that on 13.01.2012 at about 3 p.m. the Accused entered into the 6th Floor Administrative office of the Meenakshi Mission Hospital and assaulted one J.Adel and P.T.Sundar and abused them with obscene words and also damaged the camera of worth about Rs.10,000/- and caused criminal intimidation. Thereby, they have been charged for the offences under Sections 294(b), 323, 447, 427 and 506(ii) IPC. The Trial Court has convicted the 1st Accused for the offences under Sections 294(b), 427 and 447 IPC and acquitted the 1st Accused from the charges under Sections 323 and 506(ii) IPC. The 2nd Accused was convicted for the offences under Section 447 IPC and she was acquitted for the charges under Sections 294(b), 323, 427 and 506(ii) IPC. It is admitted fact that there is a dispute pending between the 1st Accused and the trustees of S.R.Trust with regard to the Trust properties. The Accused also admitted their entry into the disputed property. The case of the prosecution is that the Accused has trespassed into the property and assaulted the victims and also damaged the Video Camera and caused criminal intimidation. The contention of the Accused is that he was also one of the trustees of the Trust and while he entering into the office which was allotted to him, the defacto complainant has restrained him and thereby, there was some wordy 21/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 altercation between them.
14. In order to prove the case of the prosecution they have examined P.w.1 to P.w.7 and marked M.Os 1 to 3. In this case, the main witnesses are P.w.1 to P.w.5. The P.w.1 is the eye witness as well as the defacto complainant and he deposed before the Trial Court that he was working as General Manager at Meenakshi Mission Hospital and on 13.01.2012 at about 3 p.m. he along with one P.T.Sundar were discussing about the work in the room of P.w.2 P.T.Sundar. While he was showing a video camera to the said P.T.Sundar with regard to marketing, at that time, all the Accused along with 5 persons trespassed into the room and among them 5 persons told that they are advocates. All the 3 Accused shouted to go out. Since the Accused is son and daughter of the correspondent, he asked them with respect why they to go out. Immediately, the Accused S.Ramesh and S.Brathibha abused him with obscene words and the same was recorded in the video camera. At that time, the 1st Accused Ramesh plucked the video camera and thereby, P.w.1 sustained injury on his right hand middle finger. All the 3 Accused damaged the video camera as well as the hard disk and again they shouted to go out. After hearing the noise, the Senior Manager 22/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Pandiarajan along with Security Sundaraj came there and taken them out from the room and then he took treatment in the Hospital. Thereafter, at around 7 p.m. he gave the complaint before the Othakadai Police Station and the said complaint was marked as Ex.P.1. Further, he stated that the value of the camera is Rs.10,000/- and the said camera was handed over to the Sub-Inspector of Police. The said camera was marked as M.O.1.
15. Therefore, from the evidence of P.w.1, it reveals that on the date of occurrence, all the 3 accused along with 5 persons said to be Advocates went to the place of occurrence and asked the staff to go out. At that time, the Accused A1 and A2 abused the P.w.1 with obscene words and the Accused A1 plucked the video camera from the P.w.1. At that time, he sustained injury on his right hand middle finger. Thereafter, all the Accused damaged the video camera as well as the hard disk. The P.w.1 during his cross examination stated that he know about the details of trustees of S.R.Trust and further he stated that he did not know about whether the said room was allotted to the Accused A2 S.Brathibha for her administrative purpose. Moreover, he admitted in his cross examination that “nkw;go ,Utiua[k; kUj;Jtkidia tpl;L btspnawr;brhy;y vdf;F 23/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 chpikapy;iy vd;why; rhpjhd;” and also he stated that “rk;gt njjpapy; vjphp unkcp; v';fs; kPJ xj;jf;fil fhty; epiyaj;jpy; xU g[fhh; bfhLf;fg;gl;L tHf;F gjpt[ bra;ag;gl;lJ bjhpa[k;” . Therefore, the P.w.1 himself admitted that he has no right to evict the A1 and A2 from the Hospital. The same complainant in his complaint stated that on 13.01.2012 at about 3 p.m. when he along with P.T.Sundar were talking in the room of P.T.Sundar, all the Accused along with 5 Advocates entered into the room and pushed them out. At that time, his video camera was also thrown out and twisted his right hand finger and caused injuries and further, they damaged the video camera and taken the hard disk and further, they abused with obscene words and caused criminal intimidation. Therefore, the evidence of P.w.1 with regard to the manner of occurrence is contra with the complaint given by him.
16. According to the prosecution, the occurrence took place at 3 p.m. but the complaint was lodged at 7 p.m. The complainant P.w.1 is only a Manager of Meenakshi Mission Hospital but in the complaint he stated that already the High Court granted stay to enter into the Hospital premises and thereby, they trespassed into the Hospital. This shows that the complaint 24/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 was lodged with legal mind after thought. Further, according to the evidence of P.w.1, the Accused A1 plucked the video camera from the complainant at the time he sustained injury on his right hand middle finger but in the complaint there is no specific mention about the name of the person who plucked the camera and vaguely stated that the Accused plucked the camera. Further, in the complaint, it is stated that twisted his hand and then plucked the camera but in the evidence of P.w.1, it is stated that the Accused plucked the camera and no reference in the evidence about the alleged twist of the hand by the Accused. Therefore, the evidence of P.w.1 is highly doubtful. The P.w.1 during his cross examination stated that he do not know whether the Court has granted injunction not to enter into the Hospital but in the complaint he particularly stated that already the Madras High Court has granted stay against the Accused not to enter into the Hospital. Therefore, it shows that the complaint was lodged afterthought with the consultation of other persons.
17. The prosecution has examined P.w.2 and he deposed before the Court that on 13.01.2012 at about 3 p.m. when he was in his office, the 25/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Marketing Manager P.w.1 had shown the video. At that time, all the Accused along with 5 persons claiming to be Advocates entered into the room and asked them to go out. Immediately, he told that whatever may be you go and talk to Chairman. Immediately, the Accused S.Ramesh plucked the camera from P.w.1 and damaged the video camera and taken the disk. At that time, the Accused S.Ramesh and S.Brathibha uttered obscene words. Further one Sachithanantham who was present in the next room had recorded the video of the above said incident. At the time of occurrence, the P.w.1 J.Adel sustained injuries. The same P.w.2 in his cross examination stated that he know that the Accused A1 S.Ramesh is a lifetime member of the Trust and S.Ramesh was also in the Hospital Administration for 1 week to 10 days. For all the family members sufficient rooms were allotted in the Hospital and also he admitted that the place where the occurrence took place was allotted to Accused A1 and since he was not come to Hospital the said room was allotted to Visitors Registration Room. Therefore, the P.w.2 himself admitted that the said room was earlier allotted to Accused A1 and thereafter it was allotted to Visitors Registration Room. Further, the P.w.2 in his cross examination stated that he only handed over the CD to the police but the P.w.1 in his evidence stated that the video was recorded by 26/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 one Sachithanantham but the said Sachithanantham has not handed over the CD to the police. Therefore, there is no any explanation as to how the CD was came into the hands of P.w.2 and the same has to be explained by the prosecution but there is no explanation to that record.
18. The prosecution has examined P.w.3 who is also said to be eye witness of the occurrence and he also deposed about the occurrence that on 13.01.2012 at about 3 p.m., when he was in his office one Krishnan and security came to the office and told that in the room of P.T.Sundar, the elder son, daughter and son in law of doctor along with 5 persons scolded with him. Thereafter, he went to the place of occurrence and saw that A1 S.Ramesh abused the P.w.1 with obscene words and also plucked the camera from the P.w.1 and stomped it and then taken the disk. Immediately, the same was informed to Dr.N.Sethuraman over phone and he told that we will see after two days. The P.w.3 also in his evidence stated that the 1st Accused was managed the Hospital for some time and the separate room was also allotted to Accused A1. Therefore, from the evidence of P.w.3 it reveals that on the date of occurrence after received information from one Krishnan and security, he came to the place of occurrence and witnessed the 27/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 occurrence but the evidence of P.w.3 is totally contra to the evidence of P.w.1 and P.w.2 with regard to the manner of occurrence. According to the complaint, all the Accused plucked the video camera and damaged it. According to the evidence of P.w.1, the video camera was plucked by Accused A1 and all the accused damaged the video camera and taken the hard disk. As per the evidence of P.w.2, S.Ramesh damaged the Camera and taken the disk. As per the evidence of P.w.3, the Accused A1 damaged the camera by stomping. Therefore, there are major discrepancies and major contradictions between the prosecution witnesses with regard to the manner of occurrence.
19. The prosecution has examined P.w.4 and he deposed that on 13.01.2012 at about 3 p.m. he witnessed the occurrence through his room and he also asked the security about the occurrence and he told that the son, daughter and son in law of Dr.N.Sethuraman along with Advocates made quarrel with P.T.Sundar, when he came to the place of occurrence, the Accused abused obscene words and thereafter, he went to his chamber and then taken the video camera and recorded the occurrence. Thereafter, he came to know that S.Ramesh damaged the video camera and caused injury 28/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 to the finger of the P.w.1. On the same day, he handed over the copies of the video recording to the P.w.1 and P.w.2. Therefore, according to the evidence of P.w.4, after hearing about the occurrence he went to the place of occurrence and then again came to his room and taken the video camera and video recorded the occurrence but again in the same evidence, he stated that he went to J.Adel who told him that the Accused S.Ramesh plucked and damaged the camera from J.Adel i.e., P.w.1 and he sustained injury. Therefore, the reasonable doubt would arise about the evidence of P.w.4 as to whether he was present on the date of occurrence. Further, the P.w.4 in his evidence stated that he only handed over the copy of the video recordings to the P.w.1 and he did not handed over the video camera and hard disk to the police. Further, he admitted that in the video camera there was a memory card fixed and he did not handed over the memory card to the police. In the above said camera, there was a memory card but the memory card has not been handed over to the police. Therefore, the reasonable doubt would arise about the prosecution case. Therefore, according to the evidence of P.w.4, he went to the place of occurrence and video recorded. But he went to the place of occurrence after hearing the occurrence and his evidence is not clear whether he recorded the video of entire occurrence. 29/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Further, there is no evidence that who converted the video recordings in to C.D. Since the M.O.2 and M.O.3 are C.Ds prepared from original video camera under Section 65B of Evidence Act certificate is mandatory. But the prosecution failed to obtain certificate from the person who converted the video recording in to C.D. Even according to prosecution case, the M.O.1 was damaged and disk was taken by the Accused. But no clear cut evidence as about who particularly removed the disk from video camera. Therefore, the case of the prosecution is highly doubtful.
20. The prosecution has examined P.w.5 and he deposed that on the date of occurrence, the Accused along with others came to the Meenakshi Mission Hospital and abused obscene words and the Accused S.Ramesh damaged the video camera by throwing it on the surface. Thereafter, the police came there and they prepared Mahazar and sketch, in that he attested as witness.
21. The prosecution has examined P.w.6 and the P.w.6 deposed about the cut injury on the hand of P.w.1 i.e. J.Adel. But there is no evidence that how the cut injury was caused when plucking the video 30/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 camera which has to be explained by the prosecution but there is no any explanation and thereby, the medical evidence is not tallied with the evidence of P.w.1 with regard to the injury sustained by him.
22. The P.w.7 who is the Investigating Officer, in his evidence she stated that the video camera was handed over by P.w.1 and the CDs were handed over by P.w.2 P.T.Sundar and the same were sent to Court. The same P.w.7 in his cross examination stated that the complaint was given by P.w.1 as against the Accused A1 and 5 other persons and further FIR was registered for the offences under Sections 147, 294(b), 323, 427, 447 and 506(ii) IPC. But there is no investigation as about the other Accused and the charge sheet was filed for the offences under Sections 294(b), 323, 427, 447 and 506(ii) IPC. According to the complaint, the Accused A1 to A3 and 5 Advocates were also came along with the Accused to the place of occurrence but there is no reference about the other persons accompanied with the Accused who are said to be the Advocates. Further, there is no Mahazar prepared at the time of recovery of the material objects. Further, the P.w.7 failed to seize the video camera fixed in the Hospital and further the prosecution has failed to obtain certificate with regard to CDs under 31/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Section 65B of Evidence Act. Further, he admitted that the P.w.5 in his evidence stated that the photographer from outside have taken photos but the photographer has not been examined as witness in this case.
23. As far as the offences charged against the Petitioners are concerned, the Trial Court has acquitted the 1st Accused for the offences under Sections 323 and 506(2) IPC and convicted under Sections 294(b), 427 and 447 IPC. As far as the offence under Section 294(b) is concerned, the P.w.1 in his evidence has not stated that anything about the alleged obscene words uttered by the Accused. Particularly, he stated that “unkcp; gpujPgh Mfpnahh;fs; c';fs; Mj;jh v';fs; mg;gDf;fh bgj;jh btz;iz kfnd vd;W ngrpdhh;fs;”. The P.w.2 in his evidence stated that “unkcp; kw;Wk; gpujPgh ,UtUk; nrh;kdplk; nfl;fr;brhy;Yfpwhna cdJ Mj;jh nrh;kDf;fh cd;id bgj;jhh; vd;W nfl;lhh;fs;”. The P.w.3 in his evidence has not stated anything about the obscene words by the Accused. The P.w.4 in his evidence stated that “unkcp; Mlyplk; btz;iz vd; mg;gDf;fh gpwe;j cd; Mj;jh vdJ mg;gDf;fh Ke;jhid tphpj;jhs; ehna”. Therefore, the words uttered by the Accused are contradict to each other. 32/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Therefore, the reasonable doubts would arise about the prosecution case and the prosecution has failed to proved the charge under Section 294(b) IPC. Further, there is no any evidence that the Accused got annoyance due to the obscene words uttered by the Accused. Moreover, the said room is not situated in or near public place and the same is private room. Therefore, the offence under Section 294(b) would not attract. But the Trial Court has failed to consider the said aspects and erroneously came to a conclusion that occurrence took place near the Camila Cancer Center. The Appellate Court also did not consider the same.
24. As far as the offence under Section 447 IPC is concerned, it is admitted by the prosecution witnesses that the 1st Accused is none other than one of the trustees and there was a dispute pending between the parties with regard to the Trust. In order to attract the offence under Section 447 of IPC, the prosecution should prove the criminal trespass. The word criminal trespass defined in Section 441 of IPC, “441. Criminal trespass.—Whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, 33/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit “criminal trespass”.” As per Section 441 of IPC, the prosecution has to prove that the Accused has trespassed into the property with the possession of the complainant but in this case, the ownership itself is under dispute and so many litigation are pending between the parties. The Accused A1 was also one of the trustees and one room was allotted to him. The complainant is working in the hospital as Manager and the said hospital cannot be said under the possession of staff. The place of occurrence was also allotted to Accused A1 and thereby, the question of trespass would not arise. Further, the prosecution also failed to examine the other trustees to prove that the Accused A1 was removed from the trusteeship and the Accused A1 has no right to enter into hospital. Therefore, the prosecution miserably failed to prove the charge against the Accused for the offence under Section 447 of IPC.
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25. As far as the offence as against Accused A2 under Section 447 is concerned, already this Court had discussed about the possession of the property and the prosecution has failed to prove that the property was under the possession of defacto complainant and it is admitted fact that the Accused A1 also was one of the trustees and he was removed from the trusteeship and to that effect, case was also pending before the Court. Thereby, possession itself is questionable. Therefore, the question of trespass would not attract. In order to attract the offence under Section 447 IPC, the prosecution has to prove that the Accused has entered into the property in which the Accused had possession and he committed intimidation. The criminal trespass has been denied in Section 441 IPC. In order to attract the offence under Section 441 IPC, the Accused has to enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property. In this case, the charges are framed as against the Accused A2 for the offences under Sections 294(b), 323, 427, 447 and 506(ii) IPC. But the Trial Court has acquitted the Accused from the other charges and only convicted under 35/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Section 447 of IPC. Thereby, there is no any evidence that the 2 nd Accused had entered into the property with the possession of defacto complainant with intent to commit an offence or to intimidate, insult or annoy in possession of such property. Therefore, the prosecution has failed to prove the charges for the offences under Section 447 as against the 2nd Accused.
26. As far as the offence under Section 427 IPC is concerned, the prosecution case is that the 1st Accused damaged the video camera of worth about Rs.10,000/- and taken the hard disk. In this context, the Complainant P.w.1 has stated in his complaint that the Accused A1 plucked the camera and thrown the camera. The same complainant at the time of examination before the Court as P.w.1 has stated that all the accused taken the camera and damaged the hard disk. Therefore, the evidence of P.w.1 is contra to the complaint given by him with regard to the manner of occurrence and there is no specific evidence as to who damaged the camera. Further the P.w.2 in his evidence stated that the Accused S.Ramesh damaged the camera which was in the hand of J.Adel and taken the disk. The P.w.3 in his evidence stated that S.Ramesh plucked the camera from the 36/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 P.w.1 and stomped the same and then taken the disk. The P.w.4 in his evidence has not stated anything about the damage of camera. Therefore, the evidences of prosecution are not cogent with regard to the damage of camera. Moreover, the prosecution has marked M.Os.2 and 3 CDs which are taken by the P.w.4 at the time of occurrence but the P.w.4 in his evidence stated that he video graphed the occurrence in a camera which contains memory card and then he converted the same into the CD and the CD was handed over to P.w.2 and the P.w.2 handed over the same to the police. But the Investigating Officer failed to obtain certificate under Section 65B of Evidence Act from the P.w.4 and the CDs were also not handed over to the police by the persons who said to be recorded the videos i.e., P.w.4. Therefore, the M.Os 2 and 3 are not proved in accordance with law. Therefore, the prosecution has failed to prove the charge for the offence under Section 427 IPC.
27. The Trial Court as well as the Appellate Court have failed to consider the above said aspects and not even considered the failure on the part of prosecution to obtain certificates under Section 65B of Evidence Act and further, the Trial Court has failed to consider that already there was 37/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 dispute pending between the parties with regard to the property and the Accused A1 also was the lifetime trustee and the dispute is pending before the Court to that regard.
28. Further, the learned counsel appearing for the Revision Petitioners has relied on the judgment of Hon'ble Supreme Court made in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others case reported in (2020) 7 SCC 1 wherein the Hon'ble Supreme Court held as follows :
“61. We may reiterate, therefore, that the certificate required under Section 65-B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V, and incorrectly “clarified” in Shafhi Mohammad. Oral evidence in the place of such certificate cannot possibly suffice as Section 65-B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor v. 38/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Taylor, which has been followed in a number of the judgments of this Court, can also be applied. Section 65-B(4) of the Evidence Act clearly states that secondary evidence is admissible only if led in the manner stated and not otherwise. To hold otherwise would render Section 65-B(4) otiose.
62. In view of the above, the decision of the Madras High Court in K.Ramajayam, which states that evidence aliunde can be given through a person who was in charge of a computer device in the place of the requisite certificate under Section 65-B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled.” On careful perusal of the said judgment, it is clear that the certificate required under Section 65-B(4) of Evidence Act is a condition precedent to the admissibility of evidence by way of electronic record and secondary evidence is admissible only if led in the manner stated under Section 65(B) 39/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 of Evidence Act and not otherwise.
29. The learned counsel appearing for the 2nd Respondent has relied on the judgment of Hon'ble Supreme Court made in Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and Others case reported in (2020) 7 SCC 1 wherein the Hon'ble Supreme Court held as follows :
“34. Quite obviously, the requisite certificate in sub-section (4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, a computer tablet or even a mobile phone, by stepping into the witness box and proving that the device concerned, on which the original information is first stored, is owned and/or operated by him. In cases where “the computer”, as defined, happens to be a part of a “computer system” or “computer network” (as defined in the Information Technology Act, 2000) and it 40/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 becomes impossible to physically bring such network or system to the court, then the only means of proving information contained in such electronic record can be in accordance with Section 65-B(4). This being the case, it is necessary to clarify what is contained in the last sentence in para 24 of Anvar P.V. which reads as “... if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act ...”. This may more appropriately be read without the words “under Section 62 of the Evidence Act,...”. With this minor clarification, the law stated in para 24 of Anvar P.V does not need to be revisited.”
30. The learned counsel appearing for the 2nd Respondent has also relied on the judgment of High Court of Bombay made in Noor Ahmed Mohammed Bagwan Vs. State of Maharashtra and Another case reported in 2022 SCC OnLine Bom 1677 wherein the High Court of Bombay held 41/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 as follows :
“27. In addition to the above, medical evidence and the evidence of the two Investigating Officers on a careful analysis establishes that deceased Aman was in custody of Appellant since 3 : 00 p.m. of 28.11.2011; that it is also proven by prosecution that Appellant made a phone call to the police station at 12 : 10 hours giving information of murder which was recorded in the station diary, which has been exhibited vide Exhibit-52, and being a public document stands proven in evidence; that phone number from which the police station received the information was mobile phone No. 8888777427; this phone number has been identified by the caller ID install in the police station and the CDR record produced vide Exhibit-53 clearly proves the call received from the above number at the given time and thus under the amended provisions of Section 42/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 85B of the Evidence Act, 1872 the secured electronic record has presumptive value unless the contrary is proved. It is pertinent to note that vide panchanama Exhibit-37 one mobile phone and sim-card of the same number i.e. 8888777427 has been seized from custody of Appellant.
Clothes mentioned in seizure panchanama, Exhibit-20 are the same clothes which are identified and stated by the witnesses which were worn by deceased Aman. Cause of death is shown as asphyxia due to strangulation as per medical evidence and stands proven from the ligature mark on the neck. Evidence given by prosecution witnesses has not been shattered or discarded during their cross-examination. Circumstances stated above thus stand proven by the prosecution firmly to infer guilt of Appellant in having committed murder of Aman; the above circumstances unequivocally point towards guilt 43/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 of Appellant and if taken cumulatively form a chain so complete that it is conclusive to come to a decision that within all human probability, the crime of murder of Aman has been committed by Appellant and no one else. The aforementioned chain of circumstances and circumstantial evidence thus stand completed and is incapable of explanation of any other hypothesis than that of the guilt of Appellant.”
31. The learned counsel appearing for the 2nd Respondent has further relied on the judgment of Hon'ble Division Bench of this Court made in Yuvaraj Vs. State represented by The Additional Superintendent of Police and 2 Others case in Crl.A(MD)Nos.228, 230, 232, 233, 515, 536 & 747 of 2022 wherein this Court held as follows :
“197. In view of the above, the present legal position on electronic records can be summed up thus :
(a) The certificate under Section 65-B(4) of 44/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 the Indian Evidence Act is a condition precedent to the admissibility of electronic records.
(b) Oral evidence cannot be a substitute for a certificate under Section 65-B(4) of the Evidence Act.
(c) As long as the trial is not over, it is always left open to the Trial Court to direct the certificate to be produced at any stage.
(d) Where the requisite certificate has been called for or requested from the person or the authority concerned and they refuse to give the certificate or do not respond, it is left open to the party to apply to the Court for the production of the certificate by taking recourse to Section 91 and/or Section 311 of Cr.P.C. The Court itself has the power to call for such a certificate in exercise of its jurisdiction under Section 165 of the Evidence Act.
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(e) Where the certificate is not produced even after an order is passed by the Court or the production of such a certificate becomes impossible, it is left open to the Court to dispense with the certificate.
(f) Where the primary evidence (original document like computer, mobile phone, hard disk, etc.) is produced, the certificate under Section 65- B(4) is unnecessary and
(g) The dictum in Sonu case, even after it is specifically referred in Arjun Panditrao Khotkar case, was not disturbed and hence, in cases where the electronic evidence is allowed to come on record without any objection, it will then not be open to any party to dispute its admissibility at the Appellate stage. This will also equally apply to a Section 65-B certificate marked without objection and its form and non-fulfilment of some 46/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 of the requirements under Section 65-B(2)(b) and/or Section 65-B(4)(b), cannot be raised for the first time before the Appellate Court.” On a careful perusal of those judgments, they revealed that when the original electronic record itself is produced before the Court, then certificate under Section 65-B(4) is unnecessary and as per Section 85B of Evidence Act, there is a presumption as to electronic record unless the contrary is proved. In the case on hand, there is no original electronic record produced and M.O.2 and M.O.3 are C.Ds, copied from another electronic record. Therefore, the above said cases will not be applicable to this case.
32. The learned counsel appearing for the 2nd Respondent has also relied on the judgment of Hon'ble Supreme Court made in State of Maharashtra Vs. Jagmohan Singh Kuldip Singh Anand and Others case reported in (2004) 7 SCC 659 wherein the Hon'ble Supreme Court held as follows :
“22. The revisional court is empowered to exercise all the powers conferred on the appellate 47/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 court by virtue of the provisions contained in Section 401 CrPC. Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. Section 397 CrPC confers power on the High Court or Sessions Court, as the case may be, “for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior court”.
It is for the above purpose, if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate court on the revisional court is with the above limited purpose. The 48/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 provisions contained in Section 395 to Section 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
23. On this aspect, it is sufficient to refer to and rely on the decision of this Court in Duli Chand v. Delhi Admn. in which it is observed thus : (SCC p.651, para 5) “The High Court in revision was exercising supervisory jurisdiction of a restricted nature and, therefore, it would have been justified in refusing to reappreciate the evidence for the purposes of determining whether the concurrent finding of fact reached by the learned Magistrate and the learned Additional Sessions Judge was correct. But even so, the High Court reviewed the evidence presumably for the purpose of satisfying itself that there was evidence in support of the finding of fact reached by the two subordinate 49/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 courts and that the finding of fact was not unreasonable or perverse.”” On careful perusal of the above said judgment, it is clear that the High Court or Sessions Court can exercise all appellate powers, if necessary. Section 401 of Code of Criminal Procedure conferring powers of an Appellate Court on the revisional Court is with the above limited purpose. The provisions contained in Section 395 to Section 401 of Code of Criminal Procedure, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate power.
33. In view of the above said judgments and the above said discussions, this Court on opinion that the prosecution has failed to prove the charges as against the Accused and the Trial Court as well as the first Appellate Court have committed error and erroneously convicted the Accused. It is true that the scope of this Court under revisional jurisdiction is limited but however to correct the errors committed by the Courts below and to secure the ends of justice, this Court can exercise the revisional powers. Further, as per article 21 of Constitution of India, no one can deprive their personal liberty except according to a procedure established by 50/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 law. In this case also, the Trial Court as well as the Appellate Court have not considered the legal aspects and thereby, it is appropriate to set aside the judgment and conviction of Trial Court and confirmed by the Appellate Court.
34. In the result, the Criminal Revision Petition in Crl.RC(MD)No.330 of 2019 is allowed. The judgment and conviction passed by the Trial Court in C.C.No.58 of 2012 and confirmed by the Appellate Court in Crl.A.No.9 of 2014 as against the 1st Accused/Revision Petitioner are set aside. The Revision Petitioner/1st Accused herein is acquitted from the charges under Sections 447, 294(b) and 427 IPC and he, be set at liberty subject to other cases, if any. The bail bond if any executed by the Accused shall stand canceled and fine amount if any paid by the Accused shall be refunded to him.
35. The Criminal Revision Petition in Crl.RC(MD)No.641 of 2019 is allowed. The judgment and conviction passed by the Trial Court in C.C.No.58 of 2012 and confirmed by the Appellate Court in Crl.A.No.9 of 2014 as against the 2nd Accused/Revision Petitioner are set aside. The 51/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 Revision Petitioner/2nd Accused herein is acquitted from the charges under Sections 447 IPC and she, be set at liberty subject to other cases, if any. The bail bond if any executed by the Accused shall stand canceled and fine amount if any paid by the Accused shall be refunded to her. Consequently, connected miscellaneous petitions are closed.
23.11.2023 mkn2 Index:Yes/No Speaking Order : Yes/No To
1.The VI Additional District and Sessions Judge, Madurai
2.The Judicial Magistrate, Melur 52/53 https://www.mhc.tn.gov.in/judis CRL.RC(MD)Nos.330 & 641 of 2019 P.DHANABAL., J.
mkn2 PRE- DELIVERY JUDGEMENT MADE IN CRL.RC(MD)Nos.330 & 641 of 2019 and Crl.MP(MD)Nos.4792, 9560 and 10018 of 2019 23.11.2023 53/53 https://www.mhc.tn.gov.in/judis