Madras High Court
Ganesan vs State Of Tamilnadu on 30 June, 2023
Crl.A.No.193 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 20.06.2023
PRONOUNCED ON : 30.06.2023
CORAM :
THE HONOURABLE MR.JUSTICE RMT. TEEKAA RAMAN
CRL.A.No.193 of 2017
1. Ganesan
2. K.Venkatesan
3. S.Kannan
4. K.Chandra ... Appellants / A1 to A4
-Vs-
State of Tamilnadu,
Rep. by Deputy Superintendent of Police,
Villupuram Sub Division,
Villupuram Taluk Police Station,
Villupuram District.
(Crl.No.410 of 2016) ... Respondent / Complainant
PRAYER: Criminal Appeal is filed under Section 374 of Criminal
Procedure Code, praying to call for the records relating to the proceedings
in Special S.C.No.90 of 2016 on the file of the learned Sessions Judge,
Special Court for Exclusive Trial of Cases registered under the Schedule
Caste and Schedule Tribe (Prevention of Atrocities) Act, 1989, Villupuram
and set aside the order of conviction dated 28.03.2017 and set the appellant
at liberty.
Page 1 of 22
https://www.mhc.tn.gov.in/judis
Crl.A.No.193 of 2017
For Appellant : Mr.M.Devaraj
For Respondent : Mr.L.Baskaran
Government Advocate (Crl.Side).
JUDGMENT
Convicted accused are the appellants herein. The Criminal Appeal has been filed against the judgment of conviction and sentence dated 28.03.2017 of the learned Sessions Judge, Special Court, Villupuram in Special Sessions Case No.90 of 2016.
2. The case of the prosecution as could be seen from the witnesses are that PW1 and PW2 were working in the land of one Govinda Ayyer at Kandamanadi Village for monthly salary. The land for the accused persons is situated near the land of Govinda Ayyer. The accused persons were cutting casuarina trees in their lands by using the labourers from other villages for 10 days. The other village labourers let excreta in the land of Govinda Ayyer. PW1 and PW2 were unable to put manure to the casuarina saplings. PW1 and PW2 asked the act of other village persons to the Page 2 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 accused persons. Hence, there was enmity between PW1 and PW2 and appellants/A1 to A4.
3. With the above previous enmity, on 14.06.2016 at 8.00am, PW1 and PW2 took urea to the land of Govinda Ayyer from the godown. They saw excreta let by the other village labourers in the land. PW1 and PW2 enquired the above matter to the accused persons. A4 scolded PW1 by using filthy language and threatened to kill PW1. A1 scolded PW1 by using the words, “ntl;ilf;fhu eha;” (Vettaikara dog). (It denotes the caste name of PW1) and threatened her. A1 pulled the hand of PW1 and beat in her back. A3 threatened to kill PW1. A3 stamp by the foot in the back of PW1. A1 and A3 beat PW2 by hands. When PW5 was preventing the accused persons A1 to A3 scolded by saying that why you were coming for “ntl;ilf;fhur;rp” (Vettaikara lady) and that they threatened to kill PW5.
4. Therefore, the respondent-Deputy Superintendent of Police, Villupuram Sub Division, Villupuram Taluk Police Station, filed charge Page 3 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 sheet alleging commission of the offence that A1 committed the offence punishable under Sections 352 and 506(ii) of the Indian Penal Code, 1860 r/w Section 4 of Tamil Nadu Women Harassment Act r/w Section 3(1)(r)(s) of the SC/ST (POA) Amendment Act, 2015; A2 committed the offences punishable under Section 506(ii) of the Indian Penal Code, 1860 r/w Section 3(1)(r)(s) of the SC/ST (POA) Amendment Act, 2015; A3 committed the offences punishable under Sections 352 and 506(ii) of the Indian Penal Code, 1860 r/w Section 3(1)(r)(s) of the SC/ST (POA) Amendment Act, 2015; and A4 committed the offences punishable under Sections 294(b) and 506 (ii) of the Indian Penal Code, 1860 r/w Section 3(1)(r)(s) of the SC/ST (POA) Amendment Act, 2015.
5. The alleged date of occurrence is 14.06.2016. In order to sustain the prosecution under Section 3(1)(x) of SC/ST Act, twin ingredients are ought to be satisfied viz., Page 4 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017
(a) the accused should be a member of the non SC community, while the defacto complainant should belong to SC/ST community.
(b)The accused ought to have uttered caste word in the public place in a public view.
6. As per the revenue witnesses, Ex.P2-Caste Report issued for PW1 and PW2 by the Revenue Divisional Officer [PW6], PW1 and PW2 belonged to Hindu Irular Community and as per Ex.P3-Caste Report issued by PW7-Vetrivel, Tahsildar, the accused A1 to A4 belongs to Most Backward Community and a non-member of Scheduled Caste community and accordingly, the 1st ingredient to maintain the prosecution case, is satisfied and as per Ex.P6-Proceedings of the Superintendent of Police, Villupuram District for nominating the Investigating officer dated 17.06.2016, the Superintendent of Police of the District has appointed PW10-Suruliraja, the Deputy Superintendent of Police, to investigate the same.
Page 5 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017
7. As per the endorsement found in Ex.P1-Complaint dated 15.06.2016, the FIR [Ex.P5] was registered at 22.00 hours on 17.06.2016 and as per Ex.P6, the Superintendent of Police has issued nomination empowering the investigation officer on the very same night.
8. PW1-Uma and PW2-Nagappan are husband and wife, the alleged victims. PW3-Revathi and PW4-Bharathi are the independent witnesses, alleged to have seen the occurrence and turned hostile. PW5- Vijayakrishnan, is the land owner wherein PW1 and PW2 does the work. PW6-Jeenathbanu and PW7-Vetrivel, are the revenue witnesses, who had issued Ex.P2 and Ex.P3, regarding the caste report of the accused and PW1 and PW2. Attester of the observation mahazar is PW8-Ilayaraja. PW9- Maruthu, is the Sub Inspector of Police, Villupuram Taluk Police Station, who has registered Ex.P5-FIR and PW10-Suruliraja, is the Deputy Superintendent of Police, Villupuram, who has conducted the investigation and filed the charge sheet.
Page 6 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017
9. The learned counsel for the appellants/accused could contend that there is an unexplained delay of 2 days. On the complaint given by the accused on 15.06.2016 immediately after the occurrence, only CSR was issued and FIR was registered after three days; the complaint [Ex.P1] was lodged by PW1 in consultation with the Social Rights Activists, Professor Kalyani and hence, it is a motivated complaint and also stated that the scene of occurrence is not a public place or public view and made submissions regarding several material contradictions.
10. The learned Government Advocate (Crl. Side) made submissions in support of the judgment of the trial Court.
11. After hearing the rival submissions and after perusing the typed set of papers and also the judgment and the findings thereon, I find that in the Sessions Case, appreciation of evidence is a necessary part of delivering the judgment. For appreciating the evidence, both the chief and cross examinations have to be taken into consideration and any material Page 7 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 contradiction elicited from the Investigation Officer has to be taken into consideration.
12. After perusing the judgment passed by the learned Sessions Judge, I find that the learned Sessions Judge has taken note of only the chief examination and converted the same as 313 questioning and also rendered a judgment as per the 313 questioning, without examining the cross examination.
13. The defacto complainants are the PW1 and her husband PW2. They have deposed in the chief examination in support of the charge. To appreciate the evidence of PW1 and PW2, whether they are reliable and trustworthy, the answers elicited in the cross examination have to be looked into and the chief and cross examination of the witnesses have to be read in consonance with each other and thereafter, a conclusion has to be arrived and finding has to be rendered, is the essence of various judgments of the Hon'ble Supreme Court in appreciation of evidence. Page 8 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017
14. The answers elicited in the cross examination of PW1 are as under
“...g[fhiu nguhrphpau; fy;ahzp vGjpf;bfhLj;jhu;/ mtu; v';fs; r';fj;jpw;F jiytu; Mthu;///// /////g[fhhpy; vd;d vGjg;gl;Ls;sJ vd;W vdf;F bjhpahJ////// /////rt[fF ; el;l ehspy; ,Ue;J 3 tUlj;jpy; mWtil bra;ayhk;/ rk;gtk; elf;Fk;nghJ rt[fF ; 1 tUc& gapuhf ,Ue;jJ/ me;j rt[fF ; epyj;jpy; xU Ms; ,Ue;jhy;
bjhpahJ/ me;j cauj;jpw;F ,Ue;jJ/////
/////vjphpfs; mtu;fs; epyj;jpw;F te;jhy; mtu;fs;
mtu;fs; ntiyia ghu;j;Jtpl;L nghthu;fs;/ eh';fs; v';fs; epyj;jpw;F te;jhy; eh';fSk; v';fs; ntiyia ghu;j;Jtpl;L nghnthk;///// /////15Mk; njjp md;W vjphpfs; v';fs; kPJ xU g[fhu; bfhLj;j tptuk; bjhpe;Jbfhz;nlhk;//// //////15/06/2016Mk; njjp fhiy 8 kzpf;F vjphpfis ehd; vd; fztu;. kw;Wk; epyj;J brhe;jf;fhuu; tp$afpUc;&zd; Mfpnahu; moj;jjhf xU g[fhu; fhty; epiyaj;jpy; v';fs; kPJ bfhLf;fg;gl;lJ//// ////rk;gtk; ele;jjw;F kWehs; fhiy 6 kzpf;F vy;yhk; nghyprhu; v';fs; kPJ g[fhu; ,Ug;gjhft[k;. fhty; epiyaj;jpw;F tUkhWk; brhd;dhu;fs;/ Mdhy; eh';fs; neuoahf fhty; epiyaj;jpw;F nghfhky; md;iwajpdk;Page 9 of 22
https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 fy;ahzp rhhplk; g[fhu; vGjpf;bfhz;L fhty; epiyaj;jpwF nghndhk;///// ///// ehd; nghyP!; !;nlrDf;F nghndd;/ vjphpfs; c';fs; nghpy; xU g[fhu; bfhLj;Js;shu;fs;/ eP'f ; s; vd;d brhy;fpwPuf ; s; vd;W nghyPrhu; vd;dplk; nfl;lhu;fs;/ ehd; nghyPrhhplk; CUf;Fs; ngrp rkhjhdk; bra;Jbfhs;fpnwhk;. v';fSf;F neuk; bfhL';fs; vd;W ehd; nghyPrhhplk; brhd;ndd;/ vjphpfs; v';fs; kPJ g[fhu; bfhLj;jjpy; Kjy; ehs; nghyPrhu; tubrhd;djw;F. Kjy;ehs; eh';fs; nghyP!; !;nlrDf;F nghftpy;iy/ nghyPrhhplk; vjphpfs; kPJ eh';fSk; xU g[fhu; bfhLf;f ntz;Lk; vd;W eh';fs; brhy;ytpy;iy//// ////rk;gtk; ele;j kWehs; fhiy 6 kzpf;F nghyPrhu; vd;id te;J Tg;gpl;lhu;fs;/ ehd; fhty; epiyaj;jpy; ngha; g[fhu; bfhLj;j nghJ cd; kPJk;. cdJ fztu; kw;Wk; kw;wtu;fs; kPJk; g[fhu; bfhLf;fg;gl;Ls;sJ eP vd;d brhy;fpwha; vd;W nghyPrhu; vd;id nfl;lhu;fs;//// nutjp kw;Wk; ghujp Mfpnahu;fis nghyPrhu; tprhhpj;jhu;fs;/ v';fs; rz;il rk;ke;jkhf mtu;fis nghyPrhu; tprhhpj;jhu;fs;/// mtu;fs; j';fSf;F rk;gtk; Fwpj;J bjhpahJ vd;W nghyPrpy; brhy;yptpl;lhft[k;. nutjpa[k;. ghujpa[k; vd;dplk; brhd;dhu;fs;/ mtu;fs; tprhhpj;j md;nw mtu;fs; vd;dplk; Twptpl;lhu;fs;///// nghyPrhu; vd;id tprhhpj;jnghJ kjpak; Rkhu; 3 kzp mstpy; 1tJ vjhp fnzrd; vd;id rhjp brhy;yp Page 10 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 mrp';fkhf jpl;o. ghk;g[. gy;yp Mfpatw;Wld; vd;id ,izj;J ngrpajhf ehd; brhy;ytpy;iy/ vd;id rhjpia brhy;yp jpl;oajhf ehd; nghyPrhu; tprhuizapy; brhy;ytpy;iy////”
15. The answers elicited in the cross examination of PW2 are as under:
“vjphpfs; nghyP!; !;nlrdpy; xU g[fhu;
bfhLj;jpUe;jhu;fs;/ eh';fs; g[fhu; bfhLg;gjw;F
Kd;ng vjphpfs; nghyP!; !;nlrdpy; g[fhu;
bfhLj;Jtpl;lhu;fs;///
////rk;gtk; ele;J 4 ehl;fs; fHpj;Jjhd; g[fhu;
bfhLj;njhk;/ g[fhiu fy;ahzp rhu;
vGjpf;bfhLj;jhu;////”
16. The alleged occurrence witnesses Revathi and Bharathi have turned hostile and not supported the case of the prosecution. It remains to be stated that even as per the admission made by PW1 in the witness box, though they have been termed as occurrence witnesses, during the police enquiry they have stated that nothing has happened and so the police have Page 11 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 also informed PW1 regarding the enquiry report made with the PW3 and PW4, assumes significance.
17. PW5 has not supported the case of the prosecution and in the chief examination, he has deposed that “mij ehd; nehpy; ghu;f;ftpy;iy////”
18. In the cross examination, PW5 has categorically admitted that during the investigation, the police has not enquired with him and he also admitted that in respect of the purchase of 2½ acres of land belonging to Udayar, which is adjacent to his land, he and the accused have competed with each other and the accused has purchased the Udayar land and therefore, they had enmity and even before filing of the complaint Ex.P1, the PW1, PW2 and PW5 have admitted that the complaint given by accused against PW1 and PW2, is pending with the police and so they have not entered the police station as could be seen from the cross examination, assumes significance.
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19. The PW9-Sub Inspector in his cross examination has admitted that “14/06/2016k; njjp kjpak; 3 kzpf;F ma;au; epyj;jpy; ve;j ,lj;jpy; jhd; ntiy bra;njd; vd;gija[k; ve;j ,lj;jpy; rk;gtk; eilbgw;wJ vd;gija[k; ckh jdJ g[fhupy; Fwpg;gpltpy;iy/ kjpak; 3 kzp rk;gtj;jpy; vjphpfs; jd;id rhjpia brhy;yp jpl;oajhfnth. jd;id moj;jjhfnth. jd;id khzg;g';fg; gLj;jpajhfnth ckh jdJ g[fhhpy; Twtpy;iy///// ///ckh jdJ g[fhhpy; 2 Kjy; 4 vjphpfs; rhjp brhy;yp jpl;oajhf ckh jdJ g[fhhpy; Fwpg;gpltpy;iy/////”
20. The investigation officer PW10 in the cross examination has admitted that the charge sheet has been filed after 30 days beyond the statutory period and he has not obtained any leave or extension of time for filing the charge sheet. He has also admitted that “Kjy; jfty; mwpf;ifapy; rk;gtk; ele;j neuk;
fhiy 8 kzp Kjy; khiy 3 kzp tiu vd;W
Fwpg;gplg;gl;Ls;sJ/ Mdhy; vd;Dila tprhuizapy;
bjhlu;r;rpahf rk;gtk; ele;jjhf bjhpatpy;iy/ vd;Dila
tprhuizapy; rk;gtk; ve;j ,lj;jpy; ele;jJ vd;W
Fwpg;ghf mrh1 kw;Wk; kw;w rhl;rpfs; Twtpy;iy//” Page 13 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 and hence, as per the admission made by the police witnesses, PW9 and PW10, the PW1 has not whispered anything in Ex.P1-complaint, regarding the utterance of caste word or caste name or making any statement touching upon the modesty of the women. As per the admission of PW9 in the cross examination, A2 and A4 have not uttered any caste word against the accused in the Ex.P1-complaint. So also as per the admission made by PW10. Even in the Ex.P1-complaint, the first incident was only after the complaint given by the accused against PW1 and in the complaint, the scene of crime was not mentioned. With regard to the scene of crime as extracted supra, the PW1 has categorically admitted that casuarina trees are one year old and it is more than a man's height and if a person stands inside, a person from outside cannot see, also assumes significance.
21. On perusal of Ex.P8-Rough Sketch, I find that if two persons are standing in the casuarina trees it could not be seen from outside as admitted by PW1, assumes significance.
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22. On a comparative analysis of the answers elicited with the chief and cross examination of PW1, I find that there is material contradiction on the material facts, so also the evidence of PW2. On a combined reading of chief examination of PW1 and PW2, I find that the material contradiction on the material fact.
23. On consideration of the version of PW1 and PW2 in the chief examination with the answer elicited with PW9 and PW10, police witnesses, I find that the evidence of PW1 and PW2 suffers from embellishment amounting to material contradiction in respect of material facts, as to the alleged date of occurrence and scene of crime and alleged utterance of caste word was not mentioned either in Ex.P1-complaint or during the investigation by the police.
24. Therefore, I find that the evidence of PW1 and PW2 are totally unreliable and untrustworthy and on a combined reading of evidence of PW1 and PW2 with the police witnesses PW9 and 10, I find that it is totally Page 15 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 unworthy to rely upon their evidence as they suffers from embellishment amounting to material contradiction on the material particulars and besides their own version in the chief examination is found to be at vital variation in the cross examination.
25. It remains to be stated that the chief examination of PW1 and PW2 and the answer elicited during the cross examination of PW9 and PW10 probabilise the suggestive case in all aspects.
26. The police have not investigated the earliest complaint given by the accused against the PW1 and PW2 and when PW1 and PW2 were called to attend the enquiry on the complaint given by the accused, they were affected and they have consulted the communal leader and thereafter they have drafted a complaint. The scribe of the Ex.P1 complaint was not examined by the police.
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27. Furthermore, the police have also informed the PW1 and PW2 regarding the complaint given by the accused and the same is kept pending. When Ex.P1-Complaint was lodged after a delay of 3 days and Ex.P1 was drafted by community leader of the PW1, I find that it is a consulted complaint. Furthermore, even on the complaint enquiry, the alleged PW3 and PW4, Revathi and Bharathi have categorically stated that no such incidence has taken place and the PW1 herself has admitted in the cross examination that while the police have enquired the PW3 and PW4, Revathi and Bharathi respectively, who also belongs to the very same caste have denied any such happening of the occurrence, probabilise the suggestive case on all spheres.
28. In Ramesh Chandra Vaishya Vs. State of Uttar Pradesh and Another, reported in 2023 SCC Online SC 668, our Hon'ble Supreme Court has held as follows;
“....Since the utterances, if any, made by the appellant were not “in any place within public view”, the basic ingredient for attracting section 3(1)(x) of the SC/ST Act was missing/absent. We, therefore, hold that at Page 17 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 the relevant point of time of the incident (of hurling of caste related abuse at the complainant by the appellant), no member of the public was present.
18. .....We have noted from the first F.I.R. as well as the charge- sheet that the same makes no reference to the utterances of the appellant during the course of verbal altercation or to the caste to which the complainant belonged, except for the allegation/observation that caste- related abuses were hurled...”
29. Therefore, I find that Ex.P1 complaint is a coloured complaint and it is fabricated version and the same is lodged after a delay of three days and there is a deliberation in not registering the complaint given in earlier point of time by the accused and scene of occurrence as shown in Ex.P8-Rough Sketch is not a public place and hence, I find that the basic ingredient of Section 3(1) and 3(1)(x) of Special Act is not made out.
30. Yet another point is with regard to the alleged physical assault.
31. On the contrary in the evidence, PW1 has stated that the appellants armed with wooden stick had bet the complainant with hands Page 18 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 which is totally in contrary. Further, the same would establish that PW1 is not speaking the truth. PW1 in her cross had admitted that there is no enmity or previous quarrel between the appellants and PW1 and there was no interaction between them while they work and further more, PW1 admits that she had the knowledge of the previous complaint given by the appellant, in the police enquiry has stated that was taking steps to amicably settle the complaint and at that time did not inform the police about the present complaint which shows that the present complaint is only a counter blast for the complaint given by the appellants and not the real incident.
32. Hence, I find that the case of the prosecution is bristled with infirmities and the version of PW1 and PW2 with their respective cross examinations are found to be of vital variation with each other with vital facts and the version of the private prosecution witnesses PW1 and PW2 are found to be on material contradiction with the police witnesses PW9 and PW10, on the essential ingredients touching upon the charge and therefore, I find that the version of PW1 and PW2 are totally unreliable and Page 19 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 untrustworthy. The suggestive case of the prosecution is more probable based upon the admission of PW1 and PW2.
33. Accordingly, I hold that the prosecution has failed to prove the charges framed against the Accused beyond reasonable doubt and giving the benefit of doubt, the appellants/accused 1 to 4 are acquitted of all the charges. Consequently, the conviction and sentence passed by the learned Sessions Judge, Special Court for Exclusive Trial of cases registered under the SC/ST (POA) Act, Villupuram, in Special Case No.90 of 2016, dated 28.03.2017, as against the appellants/accused 1 to 4 herein, is set aside. Fine amount is ordered to be refunded. Bail bond stands cancelled. The Criminal Appeal is allowed.
30.06.2023 Index: Yes / No Speaking/Non-Speaking order Neutral Citation: Yes/No. ars Page 20 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 To
1. The Sessions Judge, Special Court for Exclusive Trial Cases Registered under the SC & ST (POA) Act, Villupuram.
2. The Deputy Superintendent of Police, Villupuram Sub Division, Villupuram Taluk Police Station, Villupuram District.
3.The Public Prosecutor, High Court, Madras.
Page 21 of 22 https://www.mhc.tn.gov.in/judis Crl.A.No.193 of 2017 RMT. TEEKAA RAMAN, J.
ars Pre-delivery Judgment made in CRL.A.No.193 of 2017 30.06.2023 Page 22 of 22 https://www.mhc.tn.gov.in/judis