Madras High Court
Palani vs The State Of Tamil Nadu on 20 July, 2022
Author: D.Bharatha Chakravarthy
Bench: D.Bharatha Chakravarthy
Crl.A.Nos.550 and 551 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 20.07.2022
CORAM :
THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
Crl.A.Nos.550 and 551 of 2019
In Crl.A.No.550 of 2019:-
1. Palani
2. Chandran
3. Thambusamy … Appellants
Versus
The State of Tamil Nadu,
Represented by Deputy Superintendent of Police,
Ulundurpet Sub-Division,
Thirunavalur Police Station,
Ulundurpet Taluk,
Villupuram District.
(Crime No.433 of 2014) ... Respondent
In Crl.A.No.551 of 2019
1. Kathavarayan
2. Jayanthi
3. Meena ... Appellants
Versus
The State of Tamil Nadu,
Represented by Deputy Superintendent of Police,
Ulundurpet Sub-Division,
Thirunavalur Police Station,
Ulundurpet Taluk,
Villupuram District.
https://www.mhc.tn.gov.in/judis
1/13
Crl.A.Nos.550 and 551 of 2019
(Crime No.433 of 2014) ... Respondent
Prayer in Crl.A.No.550 of 2019: Criminal Appeal filed under Section
374(2) of Cr.P.C., to allow the appeal and thereby set aside judgment and
order of conviction and sentence passed in Special Sessions Case No.261
of 2015, dated 30.07.2019 on the file of the Special Sessions Court at
Villupuram by imposing fine of Rs.1000/- each on A-6 to A-8 under
Section 147 IPC, fine of Rs.1000/- each on A-6 to A-8 under Section
506(i) of IPC and imposing sentence of one year Rigorous Imprisonment
and fine of Rs.1000/- each on A-6 to A-8 under Section 3(1)(r)(s) of
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act.
Prayer in Crl.A.No.551 of 2019: Criminal Appeal filed under Section
374(2) of Cr.P.C., to allow the appeal and thereby set aside judgment and
order of conviction and sentence passed in Special Sessions Case No.261
of 2015, dated 30.07.2019 on the file of the Special Sessions Court at
Villupuram by imposing fine of Rs.1000/- each on A-1 to A-3 under
Section 147 IPC, fine of Rs.1000/- each on A-2 and A-3 under Section 323
of IPC and imposing sentence of one year Rigorous Imprisonment and fine
of Rs.1000/- each on A-1 to A-3 under Section 3(1)(r)(s) of Scheduled
Caste and Scheduled Tribes (Prevention of Atrocities) Act.
For Appellants : Mr.M.Himavanth
(in both Crl.As)
For Respondent : Mr.S.Vinoth Kumar
(in both Crl.As) Government Advocate (Crl. Side)
COMMON JUDGMENT
The Criminal Appeal No.550 of 2019 is filed by one Palani, Chandran and Thambusamy, who are the accused Nos.6, 7 and 8 in S.C.No.261 of 2015. The Crl.A.No.551 of 2019 is filed by Kathavarayan, Jayanthi and Meena, who are the accused Nos.1, 2 and 3 in the same case. As such, both the appeals are taken up together for disposal by way of this https://www.mhc.tn.gov.in/judis 2/13 Crl.A.Nos.550 and 551 of 2019 common judgment.
2. The gist of the allegations in the case of prosecution is that there is a land dispute between the victims, namely P.Ws.1 to 4 and the accused herein. According to P.W.1, the Survey No.500B, the panchami poramboke in which P.W.1 and his family is entitled to cultivate. The accused party who was granted patta in respect of Survey No.500A was measuring the land and was laying Varappu actually in Survey No.500B with the help of Surveyor. P.W.1 has already prayed, for issuance of patta or Enjoyment Certificate to him, with the Revenue authorities and before he could obtain the same, the accused party was indulging in laying of Varappu with the help of Surveyor and therefore, P.W.2, the wife of P.W.1 first went and attempted to physically stop them. At that time, the occurrence had happened whereunder it is alleged that all the accused hit P.Ws.1, 2 and 3 and caused injuries to them and also called P.W.2 with the caste name in the said public place.
3. On the strength of the said allegations, upon investigation by the respondent Police and filing of the Final Report and duly made over of the case to the Trial Court, the Trial Court framed charges under Section 148 https://www.mhc.tn.gov.in/judis 3/13 Crl.A.Nos.550 and 551 of 2019 of the Indian Penal Code against all the accused, under Section 323 of the Indian Penal Code against the accused Nos.1 to 3, under Section 324 (2 counts) of the Indian Penal Code against the accused Nos.1 and 4, under Section 324 (2 counts) of the Indian Penal Code against the accused No.5, under Section 506(i) of the Indian Penal Code and Section 3(1)(10) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the accused Nos.6 to 8. After trial, the Trial Court found all the accused Nos.1 to 8 as guilty of the offences under Section 147 of the Indian Penal Code and imposed a fine of Rs.1000/- each. The Trial Court acquitted all the accused Nos.1 to 8 under Section 148 of the Indian Penal Code. The Trial Court convicted accused Nos.2 and 3 for the offence under Section 323 of the Indian Penal Code and imposed a fine of Rs.1000/- each. The Trial Court further convicted the accused Nos.6, 7 and 8 for the offence under Section 506(1) of the Indian Penal Code and imposed a fine of Rs.1000/- each. The Trial Court convicted the accused Nos.1, 2, 3, 6, 7 and 8 for the offence under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and imposed a sentence of one year Rigorous Imprisonment and a fine of Rs.1000/- against all the six accused mentioned above. Aggrieved by the same, the present appeals are filed.
https://www.mhc.tn.gov.in/judis 4/13 Crl.A.Nos.550 and 551 of 2019
4. Heard Mr.M.Himavanth, learned Counsel appearing for the appellants in both the appeals and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side) appearing on behalf of the respondent in both the appeals.
5. Considering the fact that only fine amounts have been levied in respect of the other offences and the fine amounts have already been paid, the learned Counsel for the appellants restricted his arguments only as against the conviction for the offence under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The learned Counsel would submit that in this case, the occurrence took place in the year 2013 and therefore, it was only the pre-amended Section 3 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 which was in force and therefore, on the face of it, convicted the appellants under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was uncalled for as the same came into force only in the year 2016. Even prior to the year 2016, the charge was framed only in respect of the accused Nos.6, 7 and 8 in respect of Section 3(1)(10) of the Scheduled Castes and https://www.mhc.tn.gov.in/judis 5/13 Crl.A.Nos.550 and 551 of 2019 Scheduled Tribes (Prevention of Atrocities) Act, 1989 and therefore, the conviction of the accused Nos.1, 2 and 3, in this regard, is totally unsustainable.
6. As far as the conviction of the accused Nos.6, 7 and 8 is concerned, the learned Counsel would submit that firstly, the investigation was not carried on by the officer, who was appointed by the State Government or Superintendent of Police. Originally, one officer was appointed by the Superintendent of Police, who since retired and thereafter, when the present Investigating Officer took over the investigation, no such order of appointment has been passed. Therefore, Rule 7 is violated in this case and therefore, the appellants/accused Nos.6, 7 and 8 are entitled to acquittal. He would further submit that in this case, the occurrence did not happen in any public view and no other independent witness, who has witnessed about the calling of caste name, has been examined and therefore, the other ingredient for the offence to be made out on the part of the appellants, to intentionally humiliate the member of Scheduled Caste or Scheduled Tribe, is also not there. Therefore, he would submit that the accused Nos.6, 7 and 8 are also not liable to be convicted.
https://www.mhc.tn.gov.in/judis 6/13 Crl.A.Nos.550 and 551 of 2019
7. The learned Counsel, further taking this Court through the evidence on record, would submit that on the face of it, the allegation against the accused Nos.6, 7 and 8 cannot be sustained as P.W.1 stated that totally five persons uttered the same word at the same time. P.W.2, the wife of P.W.1, has given a different word as far as the accused Nos.6, 7 and 8 is concerned. Therefore, he would pray that all the six accused have to be acquitted in this case.
8. Per contra, the learned Government Advocate (Crl. Side) would submit that in this case, a reading of the evidence of P.Ws.1 and 2, the allegations are there as against all the accused and therefore, the Trial Court has rightly convicted the appellants. He would submit that originally, the Investigating Officer was duly appointed by the Superintendent of Police and there is complaince of Rule 7 and after his retirement, no such specific order was passed when the second Investigating Officer took over the investigation. Therefore, he would submit that there is nothing for this Court to interfere with this matter.
9. I have considered the rival submissions made on behalf of either https://www.mhc.tn.gov.in/judis 7/13 Crl.A.Nos.550 and 551 of 2019 side and perused the material records of the case. In this case, different charges have been made against different accused specifically and they are tried for the same. As far as the conviction in respect of other offences is concerned, the learned Counsel for the appellants submits that the fine amounts have already been paid by the respective accused. Now, coming to the arguments in respect of the offence under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, as rightly contended by the learned Counsel for the appellants, the said section came into force only from the year 2016 and by virtue of Article 20 of the Constitution of India, the accused persons cannot be charged or convicted in respect of the same. But, however, even prior to the year 2016, Section 3(1)(x) of the same Act was there in force which is pari materia and the ingredients before the year 2016 and after the year 2016, are one and the same. As a matter of fact, in this case, the charge was framed under the correct provision. It is only an error on the part of the Trial Court to mention Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in the judgment while convicting the appellants. Therefore, be that as it may, this Court has to consider whether the accused/appellants can be convicted for the said offence under Section 3(1)(x) of the Scheduled Castes and Scheduled https://www.mhc.tn.gov.in/judis 8/13 Crl.A.Nos.550 and 551 of 2019 Tribes (Prevention of Atrocities) Act, 1989.
10. As far as the accused Nos.1 to 3, namely appellants in Crl.A.No.551 of 2019 is concerned, they were not at all charged for the said offence. The offences under Sections 323, 324 etc., being distinct offences and the ingredients are different and calling the caste name and humiliating does not form part of the said charges. Therefore, it cannot be said that in this case, even without a charge, the accused Nos.1 to 3 can be convicted. The allegation of calling the caste name is a distinct allegation which is made and therefore, the accused Nos.1 to 3 have to be put on trial, by framing a specific charge, without which they cannot be convicted and the same would be a grave prejudice to them and therefore, straightaway the Crl.A.No.551 of 2019 has to be allowed in respect of the appellants therein.
11. Now, considering the case of the appellants in Crl.A.No.550 of 2019, who are the accused Nos.6 to 8, the allegation against them as per the version of P.W.1 is as follows:-
" vjpupfs; gHdp. re;jpud;. jk;g[rhkp. tp$p Mfpnahu; joahy; v';fs; K:tiua[k; moj;jhu;fs; (xxxxxxxx) v';fSf;F ,';F https://www.mhc.tn.gov.in/judis 9/13 Crl.A.Nos.550 and 551 of 2019 VJlh epyk; cs;sJ. capu;nky; Mir ,Ue;jhy; ,';F ,Ue;J XotpL. ,y;iy vd;why; c';fis ,';ifna bfhSj;jptpLnthk; vd;W kpul;o (xxxxx xxxxx) vd;W jpl;odhu;fs;/ "
Therefore, it may be seen that the general allegation by uttering the words is made against totally five accused.
12. In the evidence of P.W.2, she had stated as follows:-
"....vjpup re;jpud;. vjpup gHdp.
jk;g[rhkp Mfpa K:tUk;
(xxxxx xxxxx) cdf;F VJlh ,';F epyk;
vd;W brhy;yp moj;J ,';fpUe;J
XotpL';fs; ,y;iynay; c';fis
capunuhL bfhSj;jptpLnthk; vd;W
kpul;odhu;fs;////"
Therefore, it can be seen that the words alleged are different.
13. As a matter of fact, the words alleged by the victim P.W.2 cannot be attributed even for a female person. Therefore, in view of the same, it will not be safe to convict the accused Nos.6 to 8 based on their evidence, especially, when there is a dispute in respect of the ownership of the land and especially, the occurrence is said to be happened when the accused have been duly carrying out the survey with the help of Surveyor and laying down Varappu and it is only P.W.2 who went to the spot and attempted to physically stop them. In that background of the matter, I am https://www.mhc.tn.gov.in/judis 10/13 Crl.A.Nos.550 and 551 of 2019 of the view that on the strength of the evidence of P.Ws.1 and 2, which have major contradiction in respect of the material portion i.e., the nature of insult and intimidation, the accused Nos.6 to 8 are entitled to benefit of doubt and the appeal in Crl.A.No.550 of 2019 also deserves to be allowed.
14. In that view of the matter, the Crl.A.Nos.550 and 551 of 2019 are partly allowed on the following terms:-
(i) The conviction and sentence imposed by the Special Sessions Court at Villupuram, dated 30.07.2019 in Special Sessions Case No.261 of 2015 in respect of the appellants/accused Nos.1 to 3 and 6, 7 and 8 in respect of the offences under Section 3(1)(r)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Section 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989) and the sentence is set aside;
(ii) The fine amounts paid by the appellants/accused is ordered to be refunded to them;
(iii) The finding of the guilt and the sentence imposed on the appellants in respect of the other offences shall stand.
20.07.2022 https://www.mhc.tn.gov.in/judis 11/13 Crl.A.Nos.550 and 551 of 2019 Index : yes/no Speaking/Non-speaking order grs To
1. The Special Sessions Court, Villupuram.
2. The Public Prosecutor, High Court of Madras.
3. The Deputy Superintendent of Police, Ulundurpet Sub-Division, Thirunavalur Police Station, Ulundurpet Taluk, Villupuram District.
D.BHARATHA CHAKRAVARTHY, J.
grs Crl.A.Nos.550 and 551 of 2019 https://www.mhc.tn.gov.in/judis 12/13 Crl.A.Nos.550 and 551 of 2019 20.07.2022 https://www.mhc.tn.gov.in/judis 13/13