Madras High Court
Muthusamy vs State By on 25 February, 2010
Author: R.Mala
Bench: R.Mala
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.151 of 2003 Muthusamy .. Appellant Vs. State by Inspector of Police, Paramathi Police Station, Cr.No.205/2000, Namakkal District. .. Respondent Criminal Appeal against the judgment dated 29.10.2002 in S.C.No.112 of 2002 on the file of the Court of Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Namakkal. For appellant : Mr.S.Suresh, Amicus Curiae For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side) JUDGMENT
The Criminal Appeal arises out of the judgment passed by the learned Additional District and Sessions Judge-cum-Chief Judicial Magistrate, Namakkal, in S.C.No.112 of 2002, convicting the appellant-accused for the offence under Section 436 IPC and sentencing him to rigorous imprisonment for five years and imposing a fine of Rs.2,000/-, in default, to undergo rigorous imprisonment for six months.
2. The case of the prosecution is as follows:
(a) P.W.1 Sakunthala has put up her house at S.No.484/B.22, which was belonging to one Muruganantham. On 24.12.2000 at about 9.30 p.m., P.W.1 Sakunthala was sleeping at the house along with her sister Latha at Vellaampalayam Village.
(b) P.W.1 Sakunthala was doing household work in the house of P.W.2 Thavamani. P.W.2 wanted to call P.W.1 for doing some household work in her house on the next day, i.e. on 25.12.2000, since his son wanted to attend some religious work as he had to wear "maalai" for going to Sabarimala. (c) When P.W.2 reached P.W.1's house, at that time, she witnessed that the appellant-accused set fire to the house of P.W.1. Then P.W.2 raised an alarm and P.W.1 and her sister Latha came out of the house of Latha and they attempted to put out the fire. P.W.3 Dhanasekaran, who is the opposite house owner, also joined them to put out the fire. Even then, it was firing and the damages, according to the evidence of P.W.1, would be around Rs.10,000/- to Rs.15,000/-.
(d) On the very next day, i.e. on 25.12.2000 at 2 p.m., P.W.1 went to the Police Station and gave complaint Ex.P-1 before P.W.5 Head Constable, who received the same and registered a case in Cr.No.205 of 2000 for the offence under Section 436 IPC and prepared Ex.P-4 FIR.
(e) Then, P.W.5 Head Constable handed over the same to P.W.6 Inspector of Police, who took up the matter for investigation and went to the place of occurrence on 25.12.2000 at 2.30 p.m. and prepared observation mahazar Ex.P-2 in the presence of P.W.4 Lokidoss and others and drew rough sketch Ex.P-5 and seized M.Os.1 to 3 under mahazar Ex.P-3. He examined the witnesses and recorded their statements.
(f) On 25.12.2000 at 7 p.m., he arrested the accused near Siva Theatre junction and he sent the accused for judicial custody.
(g) After examination of the other witnesses, P.W.6 Inspector of Police concluded the investigation and filed the charge sheet against the accused for the offence under Section 436 IPC.
3. The trial Court has followed the procedures and framed charge against the accused for the offence under Section 436 IPC, to which the accused pleaded not guilty. On examining the witnesses P.Ws.1 to 6, marking Exs.P-1 to P-5 and M.Os.1 to 3, the trial Court posed incriminating evidence against the accused, which was denied by him. There was no evidence on the side of the accused. On considering the available oral and documentary evidence, the trial Court found the accused guilty of the offence under Section 436 IPC and sentenced him as indicated above.
4. Challenging the conviction and sentence passed by the trial Court, the learned Amicus Curiae has put forth the following points for consideration:
(i) The genuinity of Ex.P-1 complaint is doubtful. There is a delay in preferring the complaint. There are three versions available on the basis of the evidence of P.Ws.1, 2, 3 and 4, regarding the complaint. P.Ws.1 and 2 in their evidence stated that after consultation with others, Ex.P-1 complaint came into existence and so, the accused has been falsely implicated in the case and a false case has been foisted against the accused because of the enmity between P.W.1 and the accused.
(ii) The arrest of the accused was not proved by the prosecution.
(iii) The evidence of P.W.2 is not trustworthy and hence, the same is liable to be rejected.
(iv) There was enmity between P.W.1 and P.W.2 and so, it is possible for P.W.2 to have set fire to the house of P.W.1, since P.W.1 has put up the house on the land of P.W.2.
(v) If there are two versions possible, the version favouring the accused has to be taken into consideration.
(vi) Relying upon the decision of the Supreme Court reported in 1980 Cri.L.J. 446 = AIR 1980 SC 638 (Marudanal Augusti Vs. State of Kerala), learned Amicus Curiae submitted that since there is a delay in preferring the complaint, the entire prosecution case gets shattered and it cannot be relied upon.
(vii) Learned Amicus Curiae appearing for the appellant further relied on the decision of the Supreme Court reported in 2008 (1) SCC (Cri) 371 (Ajay Singh Vs. State of Maharashtra) and submitted that at the time of questioning of the accused under Section 313 Cr.P.C., incriminating evidence has not been specifically posed before the accused.
(viii) Hence, learned Amicus Curiae submitted that the "benefit of doubt" has to be given in favour of the accused and he prayed for acquittal of the accused.
5. Learned Government Advocate (Criminal Side) appearing for the respondent-Police submitted that P.Ws.1 and 2 are women folks from rustic village and merely because they have given two different versions, the genuinity of Ex.P-1 complaint cannot be doubted. In support of the same, learned Government Advocate also relied upon the decision of the Supreme Court reported in 2005 SCC (Cri) 1679 (State of Punjab Vs. Hakam Singh). Learned Government Advocate further submits that since P.W.1 is a widow lady residing alone in the house, and because of the threat made by the accused prior to the date of occurrence, she took her bed along with her sister Latha, which has clearly proved that the accused alone set fire to the house of P.W.1. The delay in preferring the complaint, is only meagre, which has been properly explained by P.Ws.1 and 2 and so, the argument advanced by learned Amicus Curiae for the appellant is liable to be rejected. Learned Government Advocate also submitted that the arrest has been proved by way of examining P.W.6 Inspector of Police and there is no discrepancy in the arrest. He further submits that P.W.2 is a solitary eye-witness and her evidence is cogent and natural and there is no reason for discarding the evidence of P.W.2. He further submitted that no motive has been suggested in this case and further stated that the motive is a double edged weapon, and even then, the motive has been proved by way of examining P.W.1. The trial Court considered all the aspects in proper perspective and there is no reason for interfering with the conviction and sentence passed by the trial Court and prayed for dismissal of the Criminal Appeal.
6. Now, this Court has to decide as to whether P.W.2 is an eye-witness and whether her evidence is reliable. While considering the nature and circumstances of the case, it is seen that P.W.2 is only a chance witness and in her evidence, she has stated that at 9.30 p.m., since his son wanted to wear 'Maalai' for going to Sabarimala on the very next day, i.e. on 25.12.2000, she wanted to give a call to P.W.1 for doing household work and so, she went to the place of occurrence and at that time, she witnessed that the accused has set fire to P.W.1's house. At this juncture, the argument advanced by learned Amicus Curiae for the appellant that there was enmity between P.Ws.1 and 2, since P.W.1 has put up her house in the land belonging to P.W.2 and so, there is a chance for P.W.2 to set fire to the house of P.W.1. The above argument does not merit acceptance, because P.W.1 herself stated that she was doing household work at P.W.2's house and naturally, there is a chance for P.W.2 to go to the place of P.W.1 for calling her. Moreover, while considering the evidence of P.W.2, both in chief examination and cross examination, it is natural, cogent and trustworthy and hence, the same is reliable. Moreover, during cross examination, a suggestion was posed to P.W.2 that P.W.1 and P.W.2 were having strained relationship and so, she is giving evidence against the accused, and the said suggestion was denied. Hence, the argument advanced by learned Amicus Curiae for the appellant, does not merit acceptance, because, both are women folks and there is no motive suggested as to why P.W.2 has given evidence against the accused. In such circumstances, I am forced to conclude that the evidence of P.W.2 is reliable.
7. Next point to be decided is as to whether Ex.P-1 complaint is true and genuine and as contended by learned Amicus Curiae, whether there are number of versions regarding complaint, as seen from the evidence of P.W.1. The first point to be decided is as to whether there is any delay. It is true that as per the evidence of P.Ws.1 and 2, the alleged occurrence has taken place on 24.12.2000 at about 9.30 p.m. and the complaint was admittedly given on 25.12.2000 at 2 p.m., which was corroborated by the evidence of P.W.5 Head Constable who received Ex.P-1 and registered a case in Cr.No.205 of 2000 for the offence under Section 436 IPC. P.W.1 is a widow lady and admittedly, P.W.1 and the accused were living together in the same house nearly for ten years and subsequently there was difference of opinion between the accused and P.W.1, and the accused left the place and even though the accused wanted to live with P.W.1, P.W.1 was not willing for the same. As per the evidence of P.W.1, the accused had a grudge that "he will see her". Since P.W.1 is a helpless widow, and even though P.W.1 had a son, he was away from his native place and he was at Trichy and so, after the incident, P.W.1 ought to have sought the help of the villagers and then only, P.W.1 gave a complaint. So, the delay in preferring the complaint is properly explained by P.W.1.
8. At this juncture, it is appropriate to consider the decision relied upon by the learned counsel for the appellant-accused reported in 1980 Cri.L.J. 446 = AIR 1980 SC 638 (Marudanal Augusti Vs.State of Kerala), in which it was held by the Supreme Court as follows:
" .... The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. ..."
9. In the said decision, it was a case registered for the offence under Section 302 IPC and the alleged occurrence has taken place on 23.6.1971 at 6.45 p.m. and even though the distance between the Police Station and the place of occurrence, was 20 Kms., the FIR has been lodged on the midnight of 23/24.6.1971 and the Magistrate received the same at 5.30 a.m. on 25.6.1971. Thus, there was a delay of 29 hours and since that was a case of graver offence under Section 302 IPC, the Apex Court came to the conclusion that the birth of the complaint is doubtful and when once complaint goes, the entire prosecution case goes. In the present case, the delay is only negligible; the occurrence took place on 24.12.2000 at 9.30 p.m. and the complaint was given on 25.12.2000 at 2 p.m. and the delay has been properly explained. So, the said decision is not applicable to the facts of the present case.
10. Next, this Court has to decide that as per the argument of the learned Amicus Curiae, whether there are three versions regarding the complaint given to P.W.5 Head Constable. Learned Amicus Curiae would cull out the portion of the evidence of P.W.1 in her cross examination, which is as follows:
VERNACULAR (TAMIL) PORTION DELETED Thus, P.W.1 herself has admitted that Women Association went to the Police Station and then she gave a complaint, which has been written by one Selvi and signed by nearly eight persons.
11. P.W.2 also in her cross examination, has stated that for giving a complaint, she also accompanied P.W.1 and at that time, she was also one of the signatories to the complaint, along with P.W.3 and others.
12. P.W.3 Dhanasekararn also in his evidence, in cross examination, has stated that he has also signed the complaint.
13. While perusing Ex.P-1 complaint, it is seen that it contains only the left thumb impression of P.W.1 herself. P.W.5 is the Head Constable who received Ex.P-1 and registered a case.
14. At this juncture, learned Government Advocate relied upon the decision of the Supreme Court reported in 2005 SCC (Cri) 1679 (State of Punjab Vs. Hakam Singh), in which it was held as follows:
"Sometimes while appreciating the testimony of rustic villagers, courts are liable to commit mistake by losing sight of their rural background and trying to appreciate testimony from our rational angle."
15. Relying on the said decision reported in 2005 SCC (Cri) 1679, learned Government Advocate submitted that P.Ws.1, 2 and 3 are rustic villagers and they do not know the technicalities of each and every aspect of the case and considering their evidence, some bonus has to be given to their evidence. It is true that P.Ws.1 and 2 are women folks and they are rustic villagers and they do not know the significance of each and every aspect of the case. Considering the ratio-decidendi in the said decision, since P.Ws.1, 2 and 3 are rustic villagers, that since P.W.1 is a helpless lady, she sought the help of Women Association and others and then went to Police Station and gave a complaint. The complaint contained only the left thumb impression of P.W.1 herself. In such circumstances, the argument advanced by learned Amicus Curiae for the appellant that there are three versions regarding complaint/statement given by P.W.1, which was stated to have been signed by the members of Women Association and other villagers, does not merit acceptance.
16. In the abovesaid circumstances, I am of the view that Ex.P-1 complaint is true and genuine document. So, the abovesaid decision (1980 Cri.L.J. 446 = AIR 1980 SC 638) relied on by learned Amicus Curiae for the appellant-accused, is not relevant to the facts of the present case.
17. In respect of arrest, learned Amicus Curiae for the appellant-accused would submit that P.Ws.1 and 2 have stated that at the time of their giving complaint, the accused was in the Police Station. Even though P.W.6 investigating officer has stated that he arrested the accused on 25.12.2000 at 7 p.m. near Siva Theatre junction, but the arrest will not in any way affect the case of the prosecution, since the case is based on the evidence of the eye-witness. Already, this Court has decided that the evidence of P.W.2 is trustworthy and reliable. P.W.2 in her evidence has categorically stated that with the head-light of the vehicle which passed through the eastern side of the road N.H.7 main Road to Vellore-Namakkal, she witnessed that the accused has set fire to P.W.1's house.
18. Learned Amicus Curiae for the appellant further contended that there was enmity between P.Ws.1 and 2. As already discussed, at the time of incident, P.W.1 was doing household work at P.W.2's house and so, the argument put forth by the learned Amicus Curiae does not merit acceptance.
19. Admittedly, as per the statement of the accused at the time of Section 313 Cr.P.C. questioning, the accused was having enmity with P.W.1 and they were living for about ten years and because of the difference of opinion, he is away and living with his mother at a different place. In such circumstances, it has reflected enmity between the accused and P.W.1. It is well settled principle of law that the motive is a double-edged weapon and since the case is based on the evidence of the eye-witness, the motive has not played vital role to prove the guilt of the accused.
20. Learned Amicus Curiae for the appellant also relied upon the decision of the Supreme Court reported in 2008 (1) SCC (Cri) 371 (Ajay Singh Vs. State of Maharasthtra), in which, it was held by the Apex Court as follows:
"The object of examination under Section 313 CrPC is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.
The word "generally" in sub-section (1)(b) of Section 313 CrPC does not limit the nature of questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way so as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 CrPC was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give."
21. Relying on the said decision (2008 (1) SCC (Cri) 371), learned Amicus Curiae appearing for the appellant submitted that during questioning under Section 313 Cr.P.C., the question posed before Court must be specific in respect of incriminating evidence against the accused. Learned Amicus Curiae further contended that in the present case, composite question has been posed before the accused and so, he was not able to give answer to the same and it is prejudicial to the accused and hence, the "benefit of doubt" has to be given in favour of the accused.
22. In this regard, it is worthwhile to refer the recent judgment of the Supreme Court reported in 2009 (2) SCC 758 (Harendra Nath Chakraborty Vs. State of W.B), wherein, the Apex Court held as follows:
"20. Submission of Mr.Rauf Rahim that the learned Special Judge should have specifically put the prosecution case to the appellant under Section 313 of the Code of Criminal Procedure that the stock register did not contain any entry of 502 litres, in our opinion, does not appear to be correct. The prosecution case based on the basic primary material which the prosecution had brought on record, namely, raid in the shop, the stock of kerosene oil found, the seizure of the display board, stock register, cash memo, etc., had been put to him. Apart from making a bald denial that measurement had not been taken or that no measurement chart had been prepared he had not explained the discrepancies in the stock or non-display thereof. ....
......
......
As all the material evidence brought on record by the prosecution had been brought to his notice, it has not been shown before us as to how he was prejudiced, particularly when his son was examined as a witness. He could have given his side of the story which, according to him, could have proved his defence, on the basis of the material brought on record. Submission of Mr.Rauf Rahim that the judgment of conviction and sentence stands vitiated by reason of non-compliance with the provisions of Section 313 of the Code of Criminal Procedure, thus, cannot be accepted."
23. In view of the abovesaid latest judgment of the Supreme Court (2009 (2) SCC 758), since the accused in the present case was given a fair opportunity for cross examining each and every witnesses in respect of incriminating evidence given by the witnesses, merely because no specific question has been posed before the accused in Section 313 Cr.P.C., will not vitiate the prosecution case.
24. Furthermore, in the present case, P.W.2 is the eye-witness and she has deposed in her chief examination and also in cross examination by the accused lengthily and in such circumstances, while perusing Section 313 Cr.P.C. questioning, it is simpliciter, and no complex or composite question was posed before the appellant-accused. The evidence of P.Ws.1 and 2 in length has been placed before the appellant-accused and he said that it is false. In such circumstances, I am of the view that the decision relied on by the learned Amicus Curiae for the appellant in 2008 (1) SCC (Cri) 371, (cited supra), is not helpful to the appellant-accused.
25. As discussed above, as per the evidence of P.Ws.1 and 2, the delay for preferring the complaint has been properly explained. P.W.2, who is the eye-witness, has categorically deposed before Court that the accused alone has set fire to the house of P.W.1. So, the trial Court has considered all the aspects in proper perspective and came to the correct conclusion that the accused is guilty of the offence under Section 436 IPC. Therefore, I do not find any infirmity in the conviction passed by the trial Court.
26. In respect of the quantum of sentence, since P.W.1 and the accused were residing together for nearly ten years, subsequently, because of misunderstanding between them, the accused was living alone with his mother in a different place and as per the evidence of P.W.1, often the appellant-accused approached P.W.1 and directed her to live with him, but she refused and so, the appellant-accused had a vengeance and as per the evidence of P.W.1, the damages due to the fire would be around Rs.10,000/- to Rs.15,000/-. In such circumstances, I find that the appellant-accused is not entitled to get any leniency in the sentence imposed by the trial Court.
27. Therefore, the conviction and sentence passed by the trial Court are sustainable and do not warrant any interference. The Criminal Appeal is liable to be dismissed.
28. In the result,
(a) the Criminal Appeal is dismissed.
(b) The conviction and sentence imposed on the accused by the trial Court are confirmed.
(c) Since the appellant-accused is on bail, the trial Court is directed to take steps to secure his custody to undergo the remaining period of sentence.
(d) The period of sentence already undergone by the appellant-accused shall be set-off under Section 428 Cr.P.C.
29. While appreciating the services rendered by the learned Amicus Curiae Mr.S.Suresh, who appeared for the appellant-accused, this Court fixes his fees at Rs.3,000/- (Rupees three thousand only), to be paid by the Tamil Nadu State Legal Services Authority, High Court Buildings, Chennai-104.
cs To
1. The Additional District and Sessions Judge-cum-
Chief Judicial Magistrate, Namakkal.
2. State by Inspector of Police, Paramathi Police Station, Cr.No.205/2000, Namakkal District.
3. The Public Prosecutor, High Court, Madras.
4. The Member Secretary, Tamil Nadu State Legal Services Authority, High Court Buildings, Chennai 104