Madras High Court
Karuvayan Alias Kanagaraj vs State Rep. By Sub Inspector Of Police on 1 October, 2015
Author: A.Selvam
Bench: A.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 01.10.2015 CORAM: THE HONOURABLE MR.JUSTICE A.SELVAM Criminal Appeal No.576 of 2005 --- Karuvayan alias Kanagaraj ... Appellant vs. State rep. By Sub Inspector of Police, Rasipuram Police Station Namakkal District ... Respondent Criminal Appeal filed under Section 374(2) of Cr.P.C., to allow this appeal and set aside the judgment in S.C.No.147 of 2003 by Additional Sessions Judge, Namakkal (F.T.C.No.3, Namakkal) by judgment dated 25.02.2004. For appellant : Mr.B.Vasudevan For Respondent : Mr.P.Govindarajan, Additional Public Prosecutor. JUDGMENT
This Criminal Appeal has been directed against the convictions and sentences dated 25.02.2004 passed in Sessions Case No.147 of 2003 by the Additional District and Sessions Court (Fast Track Court No.3), Namakkal).
2. The case of the prosecution is that on 10.9.1997 at about 8.30 p.m., in Rasipuram Sivanandha Road, near Government Higher Secondary School, the accused Nos.1 to 9 are armed with deadly weapons and wrongfully restrained the auto driven by one Sundaram. The first accused has attacked him indiscriminately and thereby attempted to commit murder. The accused Nos.2 to 9 have lent their support to the first accused in attacking the said Sundaram. During the course of occurrence, the accused Nos.1 to 9 have caused damage to autos belonging to Sundaram, Murugesan and Karthikeyan. After occurrence, the said Sundaram, as defacto complainant, has given the complaint in question and the same has been registered in Crime No.834 of 1997. The complaint alleged to have been given by the said Sundaram has been marked as Ex.P.9
3. On receipt of Ex.P.9, the Investigating Officer, viz., P.W.11 has taken up investigation, examined connected witnesses and after completing the same, has laid a final report on the file of Judicial Magistrate Court, Rasipuram and the same has been taken on file in P.R.C.No.41 of 2000.
4. The Judicial Magistrate, Rasipuram, after considering the facts that the offences alleged to have been committed by the accused are triable by Sessions Court, has committed the case to the Court of Sessions, Namakkal Division and the same has been taken on file in Sessions Case No.147 of 2003 and thereafter made over to the trial court.
5. The trial court, after hearing arguments of both sides and upon perusing relevant documents has framed the first charge against all the accused under Section 148, second charge against them under section 341, third charge against the first accused under section 307, fourth charge against the accused Nos.2 to 9 under section 307 r/w 149 and fifth charge against all of them under section 427 of the Indian Penal Code and the same have been read over and explained to them. The accused have denied the charges and claimed to be tried.
6. On the side of the prosecution, P.Ws.1 to 11 have been examined and Exhibits P.1 to 12 and Material Objects 1 to 3 have been marked.
7. When the accused have been questioned under Section 313 of the Criminal Procedure Code, as respects the incriminating materials available in evidence against them, they denied their complicity in the crime. No oral and documentary evidence have been let in on the side of the accused.
8. The trial court, after hearing arguments of both sides and upon perusing the relevant evidence, has found the first accused guilty under Section 427 of the Indian Penal Code and sentenced him to undergo 2 years Rigorous Imprisonment and also imposed a fine of Rs.500/- with usual default clause. The trial court has also found the first accused guilty under section 506(ii) of the Indian Penal Code and sentenced him to undergo 4 years rigorous imprisonment and also imposed a fine of Rs.1,000/- with usual default clause. Against the convictions and sentences passed by the trial court, the present Criminal Appeal has been preferred at the instance of the first accused as appellant.
9. The learned counsel appearing for the appellant/first accused has meticulously contended to the effect that the specific case of the prosecution is that in the place of occurrence, all the accused are armed with deadly weapons and wrongfully restrained the defacto complainant and during the course of occurrence, the first accused has attacked him and all the accused have attacked the autos belonging to the defacto complainant, P.W.2, and one Karthikeyan, but, for the purpose of proving the specific charge framed under section 427 of IPC, the prosecution has not seized the damaged articles of the autos and on the side of the prosecution, simply Material Objects 1 to 3 have been marked and they are not relevant for the purpose of proving the offences punishable under section 427 of IPC and further the trial court has not framed any charge under section 506(ii) of IPC and therefore, the entire convictions and sentences passed by the trial court are liable to be interfered with.
10. Per contra, the learned Additional Public Prosecutor has contended that in the instant case, the defacto complainant, by name Sundaram has become hostile witness and the remaining witnesses P.Ws.2 to 4 have given clear evidence to the effect that in the place of occurrence, all the accused have caused damage to the autos belonging to the defacto complainant, P.W.2 and one Karthikeyan and on that basis, the trial court has invited convictions and sentences against the first accused and further on the side of the prosecution, a photographer has been examined as P.W.9 and he has filed the relevant photos for the purpose of showing damage alleged to have been caused by all the accused and therefore, the convictions and sentences passed by the trial court need not be set aside.
11. As stated earlier, after considering the available evidence on record, the trial court has found the first accused guilty under sections 427 and 506(ii) of IPC. Before analyzing the conviction and sentence passed under section 427 of IPC, it would be appropriate to look into the conviction and sentence passed under section 506(ii) of IPC. As rightly pointed out on the side of the appellant/first accused, the trial court has not at all framed any charge under section 506(ii) of IPC. Since there is no charge with requisite materials under section 506(ii) of IPC, the conviction and sentence passed under the said section by the trial court are not factually and legally sustainable and therefore, the same are liable to be set aside.
12. Now the Court has to meticulously analyze the conviction and sentence passed under section 427 of IPC. The charge framed against all the accused is that during the course of occurrence, all the accused have attacked the autos belonging to the defacto complainant, P.W.2 and one Karthikeyan. For the reasons best known to the prosecution, the said Karthikeyan has not been examined. The defacto complainant has not supported the case of the prosecution and virtually he has become hostile. The only witness, who supports the case of the prosecution is P.W.2 and his specific evidence is that in the place of occurrence, all the accused have attacked three autos belonging to him, P.W.1 and one Karthikeyan.
13. It is seen from the judgment rendered by the trial court that on the side of the prosecution, M.Os.1 to 3 have been marked and the same are not totally relevant for the purpose of proving the charge framed under section 427 of IPC. The specific case of the prosecution is that in the place of occurrence, all the accused have attacked the autos belonging to P.Ws.1 and 2 and one Karthikeyan. But, for the purpose of proving the nature of the damage, no Material Objects have been seized by the prosecution. Unless the prosecution has seized the damaged articles by way of relying upon the evidence given by P.W.9, Photographer, the Court cannot come to a conclusion that the photos alleged to have been taken by P.W.9 are related to damaged autos. The trial court, without considering the vital lapses on the part of the prosecution, has erroneously found the appellant/first accused guilty under section 427 of IPC. In view of the discussions made earlier, this Court has found considerable and acceptable force in the contentions put forth on the side of the appellant/first accused. Altogether, the present Criminal Appeal is liable to be allowed.
In fine, this Criminal Appeal is allowed. The convictions and sentences passed in Sessions Case No.147 of 2003 by the Additional District and Sessions Court (Fast Track Court No.3), Namakkal) are set aside. Bail bonds, if any executed by the appellant/first accused shall stand cancelled. Fine amounts, if any, paid by the appellant/first accused are ordered to be refunded.
Index:Yes/No 01.10.2015
ajr
To :
1.Additional District and Sessions Court
(Fast Track Court No.3), Namakkal)
2. The Sub Inspector of Police,
Rasipuram Police Station
Namakkal District
3.The Public Prosecutor, High Court, Chennai
A.SELVAM, J.
ajr
Crl.A.No.576 of 2005
01.10.2015