Madras High Court
P.Arunkumar vs The Deputy Superintendent Of Police
Author: P.Velmurugan
Bench: P.Velmurugan
CRL.A.No.366 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON :01.09.2021
PRONOUNCED ON: 10.02.2022
CORAM:
THE HON'BLE MR.JUSTICE P.VELMURUGAN
CRL.A.No.366 of 2020
1.P.Arunkumar
2.N.Madusoothanan
3.P.Kirankumar
4.K.Ragavan ...Appellants/ Accused
Vs.
The Deputy Superintendent of Police
Rasipuram Sub Division,
Namakkal District.
(Crime No.59/2019) ... Respondent/Complainant
PRAYER: Criminal Appeal filed under Section 374 of the Code of
Criminal Procedure, 1973, against the sentence and order dated
20.08.2020 passed in Special S.C.No.22 of 2019, by the Special Court
for SC & ST (POA) Act Cases, Namakkal.
For Appellant : Mr.C.Vidhusan
For Respondent : Mr.S.Sugendran
Government Advocate, (Criminal Side)
Page No.1 of 14
https://www.mhc.tn.gov.in/judis
CRL.A.No.366 of 2020
JUDGMENT
This Criminal Appeal has been filed to set aside the sentence and order dated 20.08.2020 passed in Special S.C.No.22 of 2019, by the Special Court for SC & ST (POA) Act Cases, Namakkal.
2.The respondent police registered a case in Crime No.59 of 2019 against the appellants/accused for the offence under Sections 294(b) IPC and Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989, and Section 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts). After the investigation, laid a charge sheet before the learned Magistrate, Rasipuram. The learned Magistrate taken the charge sheet on file. After completing the formalities under Section 207 Cr.P.C., committed the case to the Principal Sessions Judge, Namakkal, since the offense is exclusively triable by a Court of Session and the Case was committed to the Court of Session under Section 209 of Cr.P.C. The learned District Sessions Judge taken the case on file in S.C.No.22 of 2019 and made over to the Special Court for SC/ST(POA) Act. The learned Special Judge, after receiving the records and completed the formalities, framed the charges against the appellants/accused under Sections 294(b) IPC and Section 3(1)(r) of SC/ST (POA) Act, 1989, Page No.2 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 3(1)(s) of SC/ST (POA) Act, 1989, and Section 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts).
3.After completing the formalities, in order to substantiate the charges, on the side of the prosecution, 16 witnesses were examined as P.W.1 to P.W.16 and 14 documents were marked as Ex.P.1 to Ex.P.14 and no material object was produced. After completing the examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of prosecution witnesses were put before the appellants/accused, by questioning under section 313 Cr.P.C, they denied the same as false and pleaded not guilty. On the side of the defence, no oral evidence was let in and 2 documents were marked as Ex.D.1 and Ex.D.2.
4.On completion of trial, after hearing the arguments advanced on either side, the trial Court found not guilty for the offence under Sections 294(b) and Section 294(b) IPC and Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989. However, found guilty for the offence under Sections 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts) and they were convicted and sentenced to undergo simple Page No.3 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 imprisonment for a period of one year each and pay fine of Rs.1,000/- each, in default to undergo simple imprisonment for further period of one month each for two counts each and further the trial Court directed the accused to pay a sum of Rs.10,000/- each to the victim. Challenging the said judgment of conviction and sentence, the appellants/accused filed the present appeal before this Court. However, neither the de-facto complainant/victim nor the State filed any appeal against the judgment of acquittal for the offence under Sections 294(b) IPC and Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989.
5.The case of the prosecution is that de-facto complainant is the the victim viz., Yogalingam, belongs to Arunthathiyar Community, which has been classified as Scheduled Caste. The appellants/accused are all belong to Agamudaiyar Community. On 01.05.2019 at about 08.00 p.m., during the celebration of Periya Mariamman Festival, Maavilakku procession was going on. At that time, the de-facto complainant and his friend Yuvaraj were dancing before the Drum Set, at that time the appellants/accused used filthy language against the caste of the de-facto complainant, thereby the appellants/accused humiliate the caste of the de- Page No.4 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 facto complainant and also caused injuries to his friend Yuvaraj and thereby the appellants/accused 1 to 4 committed the offence punishable under Section 294(b) IPC r/w Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989. During that time, the appellants/accused assaulted the de-facto complainant Yogalingam and his friend Yuvaraj, to hands upon the left side forehead, left side chine and abdomen and implication of simple injuries and assaulted with hands in the right side chest and left side forehead of Yuvaraj, thereby all the appellants/accused have caused simple injury which is an offence punishable under Section 323 IPC.
6.Since this Court is an appellate Court, which is the final Court of fact finding, it has to re-appreciate the entire evidence and gave independent findings regarding the above said charges.
7.The learned counsel appearing for the appellants/accused would submit that the appellants/accused never used filthy language on the de- facto complainant and his friend Yuvaraj. Though the trial Court not believed the evidence of the prosecution witnesses and acquitted all the Page No.5 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 appellants/accused for the offences under Sections 294(b) IPC r/w Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989, however, convicted the accused for the offence under Section 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts). From the very same evidence, the trial Court had taken two stands that three charges were not proved, however, from the very same evidence, one of the charges was proved. Therefore, the judgment of the trial Court is perverse and also failed to consider the interested witnesses viz., P.W.1 and P.W.2 have turned hostile. The learned counsel would further submit that the trial Court, while relying upon the evidence of doctor/P.W.11, came to the conclusion that the appellants/accused have committed the offence and there is no specific overt act against the appellants, but in the FIR, the appellants/accused names were not found and in this regard, the prosecution does not give any possible reason. During the cross- examination, the de-facto complainant/P.W.1 has clearly deposed that the complaint/Ex.P.1 was changed by the respondent police by themselves and the complaint given by P.W.2 was suppressed by the prosecution and there is no offence made out against the appellants. Though the trial Court rightly found that the appellants/accused have not committed other Page No.6 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 charges, wrongly convicted the appellants/accused one charge as stated above. Even though all the eye witnesses, except P.W.1 and P.W.2, have turned hostile and not supported the case of the prosecution, the trial Court convicted the appellants for the offence under Sections 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts), which warrants interference of this Court.
8.The learned Government Advocate (Crl.side) appearing for the State would submit that the evidence of Doctor/P.W.11 has clearly deposed that P.W.1 and P.W.2 were admitted in the hospital and they informed that known persons assaulted them, due to which, they sustained injuries. The Doctor also gave wound certificate, which clearly shows that P.W.1 and P.W.2 sustained simple injuries. Therefore, the respondent police registered a case against the appellants/accused for the offence under Section 294(b) IPC r/w Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989, since P.W.1 and P.W.2 are belongs to the members of the Scheduled Caste community, especially, Arunthathiyar Community. Therefore, the trial Court rightly convicted the appellants/accused and since the victims have not stated anything about Page No.7 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 the humiliation of their caste name, so that acquitted the appellants/accused for the offence under Section 294(b) IPC r/w Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989. Therefore, the trial Court only based on the evidence of P.W.1 and P.W.2 acquitted the appellants/accused from the above said charges, which does not require to interference and the appellants/accused automatically convicted for the other offences viz., 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts). When P.W.1 and P.W.2 were admitted in the hospital, the hospital authority made AR entry, which was marked as Ex.P.3. Subsequently, the Doctor gave treatment to P.W.1 and P.W.2 and gave wound certificate, which was marked as Ex.P.4 and Ex.P.5 is the community certificate of Yogalingam. Ex.P.6 is the Community Certificate of Ragavan, Ex.P.7 is the Community Certificate of Arunkumar, Ex.P.8 is the Community Certificate of Kirankumar, Ex.P.9 is the Community Certificate of Madusoodhanan, which were clearly proved that the appellants are the known members of the Scheduled Caste Community and therefore, they committed the offence as stated by the prosecution. Therefore, the trial Court rightly appreciated the evidence and convicted the appellants/accused and there is no merit in the revision and the same Page No.8 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 is liable to be dismissed.
9.Heard Mr.C.Vidhusan, learned counsel appearing for the appellants and Mr.S.Sugendran, learned counsel appearing for the respondent and perused the materials placed before this Court.
10.The appellate Court is the final Court of fact finding, it has to re-appreciate the entire evidence and gave findings independently. Based on the charge sheet, the trial Court framed the charges against the appellants/accused as stated above. In order to substantiate the said charges, on the side of the prosecution, totally 16 witnesses were examined and 14 documents were marked. Out of 16 witnesses, the de- facto complainant was examined as P.W.1 and his friend Yuvaraj/ injured witness was examined as P.W.2. Both P.W.1 and P.W.2 have categorically stated that, during the celebration of Periya Mariamman Festival, while Maavilakku procession was going on, at that time P.W.1 and P.W.2 were dancing before the Drum Set and on seeing them, the appellants/accused scolded them with filthy language and humiliate the caste of the de-facto complainant and caused injuries. Subsequently, the Page No.9 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 evidence of P.W.11/Doctor corroborated the same. The evidence of P.W.11/Doctor has clearly stated that P.W.1 and P.W.2 sustained the following injuries:
“1.One cut injury on back side of his right chest.
2.One lacerated injury on back side of his right chest.
Further stated that the injuries sustained by Yuvaraj are simple in nature and the wound certificate is marked as Ex.P.3.
Further stated that on the same day he has examined one Yogalingam and found the following injuries on him:
1.Swelling on his left side forehead.
2.Swelling on his left cheek.
3.He sustained pain on stomach.
He opined that the injuries 1and 2 are simple in nature and for the third injury, he could not give opinion, since the injured has not chosen to take scan for the same. The Accident Register is marked as Ex.P.4.”
11.The learned counsel for the appellants/accused vehemently contended that P.W.1 and P.W.2 are the interested witnesses and except them, others were turned hostile. From the reading of the evidence of P.W.1 and P.W.2, it is seen that the offence committed by the appellants. Page No.10 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 A careful perusal of the deposition of P.W.1, was examined in chief on 04.10.2019, he has clearly deposed about the commission of offence and he was not cross examined by the defence side on the same day, but he was examined only on 11.10.2019 after one week. P.W.2 was also examined in chief on 04.10.2019 and he was not cross examined by the defence side on the said date, but, he was cross examined only on 11.10.2019. On reading of the entire evidence of P.W.1 and P.W.2, they have categorically stated that the appellants have committed the offence. Though the trial Court not found guilty of the appellants/accused for the offence under Section 294(b) IPC r/w Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989, but no appeal was filed either by the prosecution or by the de-facto complainant, against the acquittal of the appellants/accused. Therefore, this Court cannot go beyond the scope of the appeal. However, the trial Court convicted the appellants for the offence punishable under Section 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts). The Tahsildar, who were examined as P.W.12 and P.W.13, issued community certificate to prove that P.W.1 and P.W.2 belong to the members of the Scheduled Caste Community and the appellants are the known non-members of the Page No.11 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 Scheduled Caste community. P.W.1 and P.W.2 further stated that they were attacked by the appellants/accused and subsequently, P.W.11/Doctor corroborated the same and Ex.P.3 and Ex.P.4 also corroborated the injuries sustained by P.W.1 and P.W.2. Therefore, the offence committed by the appellants under Section 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts) are proved.
12.Therefore, the trial Court has rightly appreciated the entire evidence and acquitted the appellants for the offence under Section 294(b) IPC r/w Section 3(1)(r) of SC/ST (POA) Act, 1989, 3(1)(s) of SC/ST (POA) Act, 1989, however, convicted the appellants for the offence under Section 323 IPC r/w Section 3(2)(va) of SC/ST (POA) Act (2 counts). As the appellate Court this Court has re-appreciated the entire evidence, does not find any perversity in appreciation of the evidence and this Court also independently has come to the conclusion that the appellants/accused have committed the offence as stated above. Hence, this Court does not find any merit in the appeal and the same is liable to be dismissed. Accordingly, this Criminal Appeal is dismissed. The trial Court is directed to secure the accused to serve for remaining period of Page No.12 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 concerned sentence imposed by the trial Court.
10.02.2022 Index:Yes/No Internet:Yes/No Ns To
1.The Special Court for SC & ST (POA) Act Cases, Namakkal.
2.The Deputy Superintendent of Police Rasipuram Sub Division, Namakkal District.
3. The Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Page No.13 of 14 https://www.mhc.tn.gov.in/judis CRL.A.No.366 of 2020 P.VELMURUGAN, J.
Ns Pre-Delivery Judgment in CRL.A.No.366 of 2020 10.02.2022 Page No.14 of 14 https://www.mhc.tn.gov.in/judis