Madras High Court
Palani vs The State Rep. By on 15 March, 2018
Author: R.Suresh Kumar
Bench: R.Suresh Kumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Date : 15.03.2018
CORAM
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
Criminal Appeal No.623 of 2015
1.Palani
2.Renuga
.. Appellants/Accused 1 & 2
Versus
The State rep. by
The Deputy Superintendent of Police,
Ulundurpet,
Ulundurpet District.
.. Respondent/Complainant
Criminal Appeal filed under Section 374(ii) of Criminal Procedure Code, against the judgment dated 09.09.2015 in S.S.C.No.68 of 2015 on the file of the learned Special Sessions Judge, S.C/S.T.Act cases at Ulundurpet and to set aside the same.
For Appellants : Mr.S.Saravana Kumar
For Respondent : Mrs.S.Thankira, GA (Crl.side)
O R D E R
This Criminal Appeal has been preferred against the judgment and conviction made by the learned Special Sessions Judge, S.C./S.T. Act cases, Ulundurpet in S.S.C.No.68 of 2015, by judgment dated 09.09.2015.
2. The case of the prosecution is that, on 29.11.2010, at about 4.00 p.m., the accused persons had assaulted and scolded P.W.2 by making derogatory statement with an intention to insult and humiliate her in the public place, since he is a member of the Scheduled Caste.
3. Based on the alleged occurrence said to have taken place on 29.11.2010 at 4.00 p.m., P.W.2 has got admitted in a Government Hospital at Ulundurpet on the said day and taken treatment. Subsequently, it was claimed that, the P.W.2 had shifted to (Villupuram) Mundiampakkam Government Hospital, where, after having taken treatment for three to four days, P.W.1, husband of P.W.2 had given a complaint to the respondent police on 04.12.2010, based on which an FIR was registered and the case was investigated. After investigating the case, P.W.8, the Investigating Officer, Deputy Superintendent of Police, Ulundurpet had laid the charge sheet against the accused persons for the alleged offences punishable under Section 323 of IPC and under Section 3(1)(x) of the SC/ST (Prevention of Atrocities) Act, 1989 [hereinafter referred to as SC/ST Act].
4. The Trial Court, after having tried the matter, has given its judgment and conviction, by the impugned judgment dated 09.09.2015 whereby, the Trial Court has convicted the accused persons with one year imprisonment for the offence punishable under Section 3(1)(x) of the SC/ST Act and six months imprisonment for the offence punishable under Section 323 of IPC. Aggrieved over the said judgment and conviction, the accused persons have preferred this appeal.
5. Before the trial court, on the side of the prosecution, eight witnesses were examined, seven exhibits were marked and there was no material object marked. On the side of the defendants, one exhibit was marked and there was no witness examined.
6. Mr.S.Saravana Kumar, learned counsel appearing for the appellants/accused has urged the following points in favour of the defence side:
(i) That P.W.1, complainant is not an eye witness as he was not along with P.W.2 during the alleged occurrence and therefore, what he has stated by way of complaint to the respondent police is only a hearsay. As such, the said complaint cannot be taken as a basis for building up the case against the accused persons.
(ii) Even though it was claimed that the occurrence took place on 29.11.2010 at 4.00 p.m., the FIR was registered by the respondent police only on 04.12.2010 and there is absolutely no reason stated for such a huge delay in registering the FIR on the side of the prosecution.
(iii) On the side of the prosecution, there were no independent witnesses and the witnesses who deposed before the trial court on the side of the prosecution i.e., P.W.1 to P.W.5 were either the defacto complainant or the alleged victim or the near and dear or relatives of P.W.1 and P.W.2.
(iv) The prosecution has not produced any evidence to show that P.W.2 had taken treatment at two hospitals for four days and that is the reason, there was a delay in filing the FIR.
(v) As per the evidence of P.W.8, the Investigating Officer, the prosecution has not enquired anyone in the locality of the alleged occurrence place. Out of the five prosecution witnesses i.e., P.W.1 to P.W.5, except P.W.2 no one had claimed that, they were in the scene of occurrence or in the nearby area.
(vi) Even the wound certificate produced on the side of the prosecution marked as Ex.P3 does not disclose whether P.W.2 had taken treatment as an inpatient in Ulundurpet hospital.
(vii) P.W.6, Doctor, who claimed to have treated P.W.2, had not deposed that after one day treatment, P.W.2 had been referred to Villupuram hospital.
7. By raising the aforesaid grounds, the learned counsel for the appellants argued before this Court that, absolutely there is no evidence either oral or documentary to establish the case of the prosecution, fixing the accused persons for the alleged offence punishable under Section 323 of IPC or under Section 3(1)(x) of the SC/ST Act.
8. The learned counsel appearing for the appellants vehemently contended that, since the delay of more than five days in filing the FIR has not been explained, that itself is fatal to the prosecution case.
9. The learned counsel in this regard would rely upon the judgment of the Honourable Apex Court in Peddireddy Subbareddi and others vs. State of Andhra Pradesh reported in 1991 Crl.L.J.1391. The learned counsel by citing the said judgment has stated that, even 15 hours delay in lodging the FIR had been taken as a fatal point for the prosecution case. In the case at hand, since there was a delay of more than five days in registering the FIR, that itself would disprove the case of the prosecution. Therefore, the learned counsel for the appellants submits that the appellants/accused are to be acquitted.
10. Per contra, Mrs.S.Thankira, learned Government Advocate (Crl.side) submitted that, the delay of more than five days in filing the FIR is attributable to the complainant only i.e., P.W.1 or P.W.2, because after the incident, on the date of occurrence, the victim P.W.2 was admitted in the Government hospital at Ulundurpet in the night hours and thereafter, she was continuously taking treatment for three to four days at Ulundurpet as well as at the Villupuram Hospital and only thereafter, since P.W.1-husband of P.W.2 had given the complaint to the police, immediately, the respondent police acted upon by registering the FIR on 04.12.2010.
11. The learned Government Advocate would further submit that, this aspect has been properly considered by the learned Trial Judge. The learned trial Judge has given reasoning for accepting such a delay stating that, since P.W.1 and P.W.2 are from Scheduled Caste Community and they being illiterates residing in the village, they might not have awareness of giving immediate complaint to the police. Therefore, such a delayed complaint, on the side of the defaco complainant to the police, would in no way vitiate the prosecution case.
12. Learned Government Advocate (Crl.side) would also submit that, A2 also got admitted in the very same hospital on the very same day of occurrence, of course three hours belatedly than P.W.2, where, she claimed to have given the statement to the Doctor that, she got injury because of the assault on her, by P.W.2. The same was recorded by the Doctor and in this regard, the wound certificate given by the same Doctor to A2, has also been marked as Ex.D1 and that itself shows that at any rate, at the time of occurrence, A2 was at the spot and confronted with P.W.2, as a result of which, P.W.2 sustained injuries. Therefore, the very act on the part of A2 in having admitted herself in the very same hospital on the date of occurrence itself clearly establishes that A2 and P.W.2 confronted on the date of occurrence and who was the aggressor had been proved by way of the wound certificate issued by the doctor.
13. Learned Government Advocate would further argue that, if at all A2 also got injury as she claimed, she would have given the complaint to the police, but, nothing had happened and she did not immediately go to the hospital and only after three hours of P.W.2 having got admitted in the hospital, A2 went to the hospital and claimed that she was beaten by P.W.2. Only based on these factual matrix, the learned Trial Judge has come to a right conclusion that by the action on the part of A2 herself it has been proved that A2 alone was present at the time of occurrence and therefore, it can be easily inferred that P.W.2 and A2 had confronted and as a result, P.W.2 sustained injuries as per the wound certificate issued by the Doctor, P.W.6. Accordingly, the trial Court proceeded to conclude that the accused persons committed the offence and hence, they were punished by the Trial Court. Therefore, the learned Government Advocate (Crl.side) submitted that the judgment impugned requires no interference from this Court.
14. This Court has given its anxious consideration to the rival submissions made by the learned counsel for both sides and also perused the materials placed before this Court.
15. First of all, it is the case of the prosecution that on 29.11.2010 at about 4.00 p.m. the occurrence was taken place. According to the prosecution, only after four or five days, P.W.1, the husband of P.W.2 had given the complaint, based on which, FIR was registered and investigation has taken place.
16. The aforesaid case of the prosecution has been reiterated by P.W.8, the Investigating Officer, who has deposed before the Trial Court that on 04.12.2010 at 6.00 a.m., P.W.1 visited the respondent police and gave the complaint, which was registered as Crime No.432 of 2010 at Thirunavalur police station under Section 323 of IPC and under Section 3(1)(x) of the SC/ST Act. Only after the said registration of FIR, the next day, i.e., on 05.12.2012, at about 7.00 a.m., P.W.8 visited the scene of occurrence and prepared the Mahazar.
17. Therefore, it is the definite case of the prosecution that only after the complaint given by P.W.1 on 04.12.2010, the occurrence was brought to the notice of the police and only thereafter, FIR was registered and investigation commenced. The said case of the prosecution has been demolished by the very evidence of P.W.1 and P.W.2 in their deposition. In this regard, P.W.1 in his cross examination has deposed as follows:
vq;fs; Chpy; ,Ue;J cSe;J}h;Ngl;il Rkhh; 7fp.kP ,Uf;Fk;. ehd; ,Urf;fu thfdj;jpy; tPl;Lf;F te;Njd;. vd; kidtpia fhhpy; kUj;Jtkidf;F $l;b nrd;Nwd;. vd; kidtpf;F jiyapy; mbgl;L uj;jk; vJTk; tutpy;iy. tpOg;Guk; kUj;Jtkidf;F nrd;W vd; kidtp 4 ehl;fs; rpfpr;irapy; ,Ue;jhh;. cSe;J}h;Ngl;il kUj;Jtkidapy; ,Ue;j NghJ NghyPrhh; vd;idAk; vd; kidtpiaAk; tprhhpj;jhh;fs;. Gfhiu cSe;J}h;Ngl;ilapy; vOjp b.v];.gp ,lk; nfhLj;Njd;.
18. Likewise, P.W.2, who is the actual victim according to the prosecution, in her cross examination has stated as follows:
cSe;J}h;Ngl;il kUj;JtkidapNyNa NghyPrhh; vd;id tprhhpj;jhh;fs;. rz;il ele;j md;W ,uNt NghyPrhh; vd;id tprhhpj;jhh;fs;. Gfhh; nfhLj;j gpwF tPl;bw;F te;jJk; gpwF NghyPrhh; tprhhpf;ftpy;iy.
19. The victim-P.W.2 and the complainant-P.W.1 have categorically deposed before the Trial Court that, on the date of occurrence itself i.e., on 29.11.2010, the police came to the hospital at Ulundurpet and enquired with P.W.2. If that be so, when the police themselves had enquired the matter with P.W.2, immediately the First Information Report would have been registered on 29.11.2010 at the late hours or at least on the next day morning i.e., on 30.11.2010. However, the fact remains that the FIR was registered only on 04.12.2010, that too on the basis of the complaint given by P.W.1.
20. Further, even though five independent witnesses had been examined on the side of the prosecution apart from official witnesses i.e., P.W.1 to P.W.5, none of the five witnesses were eye witness of the alleged occurrence except the victim. Further, all the five witnesses are either the victim or complainant or the near and dear or family members of the victim and the complainant. This aspect has been accepted by P.W.8 in his cross examination in the following terms:
mrh.2> mrh.1 d; kidtp mrh.3> mrh.1 d; kfd;> mrh.5 mrh.1 d; rNfhjuh;> mrh.4> mrh.5 d; kidtp> gl;bay; rhl;rpfs; 4>7 mrh.2 d; cwtpdh;fs;. gl;bay; rhl;rpfs; jtpu NtW rhl;rpfis ehd; tprhhpf;ftpy;iy. rk;gt ,lj;jpw;F mUfpy; cs;sth;fis tprhhpf;ftpy;iy.
21. Further, P.W.2 deposed that, on the date of occurrence, her husband had taken P.W.2 to the hospital, whereas, P.W.6, the Doctor had stated in his evidence that, one Murugan, relative of P.W.2 had brought P.W.2 to the hospital.
22. Further, P.W.6 in his deposition had stated that he had given Ex.P3, Wound Certificate, stating that the said wounds were simple in nature and only contusions were found. He had also deposed that on the very same night at about 10.00 p.m., A2 was also admitted in the hospital, for whom also, he had given the Wound Certificate stating that she sustained simple injury. Further, P.W.6, the doctor had also deposed that, P.W.2 had not taken any further treatment and he was also not clear whether P.W.2 had been referred to Villupuram Hospital. Like that P.W.8 submitted, he did not know as to whether P.W.2 had been referred to Villupuram Hospital or whether he had taken any treatment. Even on the side of the prosecution, no evidence has been let in or any documents had been produced to state that P.W.2 had taken treatment as inpatient at Ulundurpet hospital for three to four days or she had been referred to Villupuram Hospital. In the absence of any such documents to show that P.W.2 had taken treatment for three to four days at Ulundurpet hospital, the said reasoning given by the prosecution for delayed FIR cannot be accepted.
23. Further, since there was no eye witness either for the alleged occurrence or on the allegation that P.W.2 and the accused confronted and they used derogatory words against P.W.2 in order to intentionally insult or humiliate her, since she is a member of Schedule Caste, has not been proved. Except P.W.2, no one was in the spot. This has also been accepted by P.W.2, as she has stated in her cross examination, that at the time of occurrence no one was there. Her deposition is as follows:
ehd; ,lj;ij fhl;Lk; NghJ NtW ahUk; mq;F ,y;iy. vd;id vjphpfs; mbf;Fk; NghJ mq;F ahUk; ,y;iy.
24. As has been rightly pointed out by the learned counsel for the appellants, in Pettireddy Subbareddi's case, the Honourable Apex Court has taken into account the delay of 15 hours in registering the FIR and has taken a view in favour of the accused persons. The relevant portion of the said judgement is extracted hereunder:
4. No doubt, plurality of witnesses is not necessary to establish a fact in issue and a conviction can be based on the testimony of a sole witness provided that evidence is wholly believable (Vide Vadivelu Thevar v. State of Madras). In the present case as we have come to the conclusion that the evidence of the P.W. 1 is clouded with strong suspicion and as the first information report was lodged by a delay of 15 hours, the false implication of appellants in the present case cannot be completely ruled out. On going through the judgments of both the Courts below we are unable to share with the finding rendered by the two Courts holding the appellants are guilty of the charges with which they stand convicted.
5. In the result we allow the appeal and set aside the convictions and the sentences as recorded by the Courts below under Sections 148, 302 read with 149, I.P.C. and 201, I.P.C. and acquit all the appellants.
25. In this regard, the observations of a Division Bench of this Court in the matter of Ramalingam vs. State of Inspector of Police, Pennadam Police Station, Cuddalore District reported in 2014(4) MLJ (Crl.) 561 can be usefully referred to hereunder:
59. In a heinous crime as in the present case on hand, the first information shall be given without any delay and soon after the registration of the case, the complaint as well as the F.I.R. shall reach at the hands of the Magistrate immediately without any delay and if any delay is found it would lead the court to presume that the first information as well as the first information report could have been fabricated or confabulated.
60. In so far as the present case on hand is concerned, we find that the delay in lodging the complaint as well as in travelling the magisterial court is abnormal, which has not been satisfactorily explained by the prosecution.
26. Further, on the side of the defendants, Ex.D1 was also marked which is the wound certificate issued by P.W.6 to A2, who was also admitted in the very same hospital, where P.W.2 was admitted. According to Ex.D1, she was admitted in the female ward, because of the complaint of right chest pain and body pain. According to the opinion of the doctor, the injuries 1 and 2 are simple in nature. If at all any occurrence had taken place on 29.11.2010 at 4.00 p.m., where the accused persons have aggressively beaten P.W.2, as a result of which she sustained injuries and was admitted in the hospital on the same day and when the police enquired her at the hospital on the same night, as deposed by both P.W.2 and P.W.1, certainly the police would have registered the FIR on the same night i.e., on 29.11.2010 or immediately the next day early morning i.e., on 30.11.2010. Further, the fact remains that, even according to the prosecution, only on 04.12.2010, P.W.1 gave the complaint and based on such complaint, FIR was registered and on the next day i.e., on 05.12.2010, P.W.8, the Investigating Officer visited the scene of occurrence. When this issue was raised before the trial court on the defence side, the Trial Court has given reason that because of illiteracy, P.Ws.1 and 2 would not have been in a position to make the complaint immediately, therefore, that would not vitiate the prosecution case. But the Trial Court failed to take note of the fact that, as has been extracted above, both P.Ws.1 and 2 have deposed before the Trial Court that the police came to the hospital on 29.11.2010 itself and enquired P.W.2 about the incident or injury. If that is the case of P.Ws.1 and 2 and they corroborated with each other on the particular point that the police had enquired on 29.11.2010 at night hours at the hospital, the reasoning given by the Trial Judge that they are illiterate and therefore, they would not have given the complaint immediately to the police, cannot be accepted for the simple reason that, the learned Judge has proceeded to give such a reason on the pretext that, the police did not even meet P.W.2 or P.W.1 till 04.12.2010 when P.W.1 came to the police station to give complaint. However, it has been specifically deposed before the court by P.W.2 and P.W.1 that police, met P.W.2 and enquired her on 29.11.2010 at night hours at the hospital.
27. This crucial aspect has not been considered in a proper perspective by the learned Trial Judge and that is the reason why the defence taken by the accused side i.e., delayed FIR without any reason, has been simply brushed aside by the learned Trial Judge. However, on reading the evidences and taking into consideration the circumstances of the case, this Court feels that, the delay of more than five days in filing the FIR, even after the police have enquired the victim i.e., P.W.2, is absolutely unacceptable.
28. These contradictions between the witnesses and the prosecution theory, will certainly go to the root of the matter. The witnesses, viz., P.W.1 to P.W.5 are either family members or kith and kin. Moreover, none of the witnesses were present in the scene of occurrence and only based on hearsay evidence, they deposed before the Court. Therefore, this Court feels that the prosecution theory cannot be accepted only based on the strength of such witnesses.
29. In view of the aforesaid contradiction, this Court feels that the prosecution has not proved the case beyond reasonable doubt. Since the prosecution case has not been proved beyond reasonable doubt based on the cogent and acceptable evidence, the judgment and conviction of the trial court is liable to be interfered with. Accordingly, the judgment of the trial court, which is impugned herein, is set aside and the appellants are set at free. The bail bond if any, executed by the appellants shall be terminated by the trial court. This appeal is allowed accordingly.
15.03.2018 Index : Yes/No Speaking order/Non-speaking order smi To 1.The Principal Special Judge, Special Court under EC & NDPS Act, Chennai. 2.The Public Prosecutor, High Court, Madras. R.SURESHKUMAR, J. smi Judgment in Crl. A.No.623 of 2015 15.03.2018