Madras High Court
Sathivelu vs The State Rep By on 3 August, 2018
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 24.07.2018 PRONOUNCED ON : 03.08.2018 CORAM:
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN CRL.A.No.739 of 2013
1. Sathivelu
2. Kutty @ Chinnasamy
3. Senthil Kumar
4. Mahalingam ... Appellants Vs The State Rep by The Inspector of Police, Arachalur Police Station, Erode District.
Crime No.80 of 2012 ... Respondent Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C., to set aside the conviction imposed in judgment dated 08.10.2013 made in S.C.No.53 of 2013 on the file of the learned Principal District and Sessions Court, Erode by allowing this Criminal appeal.
For Appellants : Mrs.R.Shase for Mr.M.Guruprasad For Respondent : Mr.R.Ravichandran Government Advocate (Crl. Side) J U D G M E N T This appeal is directed as against the judgment dated 08.11.2003 made in S.C.No.53 of 2013 on the file of the learned Principal District and Sessions Judge, Erode, thereby convicted and sentenced the appellants to undergo six months rigorous imprisonment each and to pay a fine of Rs.500/- in default of payment to undergo simple imprisonment of one month each for the offence under Section 148 IPC and the appellants are sentenced to undergo three months rigorous imprisonment each and to pay a fine of Rs.500/- in default to undergo simple imprisonment for one month each for the offence under Section 448 of IPC and the appellants are sentenced to undergo one year rigorous imprisonment each and to pay a fine of Rs.500/-in default to undergo simple imprisonment of one month each for the offence under Section 3(1) of Tamil Nadu Properties (Prevention of Damages and Loss) Act (herein after referred to as TNPPDL Act).
2. The case of the prosecution is that on 15.03.2012 at about 5.30 p.m., P.Ws.1 and 2 who are the husband and wife were about to leave their house to attend the condolence of their relative. At that juncture, the accused persons about 8 to 9 persons came by their two wheelers and shouted in front of their house. They called P.W.1 as bastard and asked them to come out from the house. Out of fear and scare, P.Ws.1 and 2 went inside the house and closed the door and windows. When they were watching through window noted that the accused 1 to 4 had come with sticks and others come with stones and all of them entered into their house. Thereafter, immediately P.Ws.1 and 2 came out of the house through the rear door. The accused 1 to 4, damaged the motor cycle belonging to P.W.1 and they have also broken the glasses of the window and went inside the house and damages the household articles. Immediately P.Ws.1 & 2, informed to the villagers and the village people about 10 persons came to their house. Thereafter, the accused came out from the house of P.W.1 and threatened P.W.1 with dire consequences to his life. They left from P.W.1's house leaving their motor vehicles, sticks and stones.
3. On the same day evening P.W.1 went to the police station and lodged complaint and it was marked as Ex.P.1. The accused caused damages to their household articles to the tune of Rs.2,00,000/- After receipt of the same P.W.9, registered a case in Crime No. 80 of 2012 for the offences under Sections 147, 148, 294(b), 448 and 506(ii) of IPC and Section 3(1) of TNPPDL Act against the nine persons. P.W.9 took up the investigation and filed charge sheet for the above said offences against the accused.
4. On the appearance of the accused they were furnished copies of the relevant documents under Section 207 of Crl.P.C., and committed to the sessions Court for trial. The trial Court framed charges against the accused 1-8 for the offence under Section 148 of IPC and as against the nine accused for the offence under Section 147 of IPC and as against the accused 1-9 for the offences under Sections 294(b), 448 and 506(ii) of IPC and Section 3(1) of TNPPDL Act. The accused 1-9 were denied the charges and claimed trial.
5. In order to prove the guilt of the accused the prosecution has examined P.W.1 to P.W.10 and marked Ex.P.1 to Ex.P.8 and produced material objects M.O.1 to M.O.12. The trial Court based on the incriminating evidence, questioned the accused under Section 313 of Cr.P.C. and they denied the same. However, the accused did not choose to lead any defence witness. After considering the oral and documentary evidence, the trial Court convicted and sentenced the appellants/accused 1 to 4 alone as stated above and acquitted the accused 5 to 9 for the above said offences. Aggrieved by the same the appellants/accused1-4 preferred this appeal.
6. The learned counsel appearing for the appellants contend that the prosecution failed to examine any independent witnesses to prove the charges against the accused. There is a clear contradiction between the evidence of P.Ws.1 and 2, in respect of the overt act against each of the accused. According to them, they are eye witnesses to the occurrence, but the place of their watching the occurrence differs and their evidence are not supported the case of the prosecution. Further he would contend that there is a delay in lodgment of complaint. The occurrence took place at about 5.30 p.m., and P.W.1 lodged the complaint only at 11.30 p.m. Further P.W.1 did not whisper about the damages caused to the household articles and in his evidence he deposed only after thought and as such his evidence is not believable one.
7. Further The learned counsel appearing for the appellants contended that the trial Court acquitted the accused 4 to 9 for the reason that there was no evidence to show the participation of the accused 4 to 9 and the prosecution failed to identify them before the Court. As per the evidence of P.Ws.1 and 2, the accused 1 to 9 had come by their motor cycle and attacked the house and household articles. When it being so, all the accused have stand in the same footings and there cannot be single out the appellants alone and convict them. In the absence of specific identification of the accused, all are liable to be acquitted.
8. Per contra, the learned Government Advocate (Crl. Side) appearing for the State submitted that the evidence of P.Ws.1 to 3 have clearly proved the case of the prosecution and the trial Court considering all the evidence in perspective manner and rightly convicted the appellants. Further he would submit that there is no delay in lodgment of the complaint and immediately after the occurrence, i.e., 15.03.2012 at about 5.30 p.m., P.W.1 lodged the complaint at about 11.30 p.m., and the delay is properly explained by the prosecution. Further, the trial Court rightly acquitted the accused 5 to 9 for the reason that they were not identified by P.Ws.1& 2, as such he prayed for dismissal of this appeal.
9. Heard the arguments advanced by Mrs.R.Shase, learned counsel appearing for the appellants and Mr.R.Ravichandran, learned Government Advocate (Crl.Side) appearing for the State and perused the materials placed before this Court.
10. It is seen from the records, P.W.1 deposed that the accused 1 to 4 were standing with sticks and remaining four accused standing with stones. All of them trespassed to their house and caused damage to their house and all household articles. Whereas he did not even whisper about the damages caused to the household articles in the complaint Ex.P.1. When it being so, the trial Court concluded that except the appellants, other accused persons are not identified by P.Ws.1 and 2, therefore, the benefit of doubt goes in favour of the accused 5 to 9.
11. The categorical evidence of P.Ws.1 and 2 before the trial Court that they had seen the accused through window is highly improbable, since there is no window available in the house. It is also corroborated by the evidence of Investigating Officer, as he did not note any windows in the observation mahazar and he noted the presence of window in the hall only. Therefore, P.Ws.1 and 2 have no chance to see any of the accused, while they allegedly caused damage to the house and household articles.
12. The trial Court disbelieved the evidence of P.Ws.5 to 7 and concluded that the findings of the damages of household articles is highly improbable, therefore, the evidence cannot be relied upon, since their estimation on 17.04.2012 in respect of the damaged household articles, i.e, after the period of one month from the occurrence. When it being so, the appellants alone cannot be convicted and they are also entitled for the benefit of doubt in their favour.
13. Admittedly, except P.Ws.1 & 2 no one was examined as independent witnesses by the prosecution. The specific case of the appellants that P.W.1 foisted this false case against them due to the complaint given by one of the accused as against P.W.1 and his relative with regard to possession of Public Distribution System(PDS) rice. It is also corroborated by the evidence of the Investigating Officer P.W.10. The relevant portion of the P.W.10's evidence as follows :-
"1k; vjphp rf;jpntiy flj;jp jhf;fpajhf Fknurd; kw;Wk; bgah; bjhpahj egh; bgahpy; Fw;w vz;.81/12y; Fkunty; kw;Wk; Fl;o vd;w Rjh;rd; bgahpy; tHf;F jhf;fy; bra;ag;gl;Ls;sJ. me;j tHf;F epYiyapy; cs;sJ. vd; tprhuizapy; m.rh.1/ kw;Wk; mtUila mf;fh kfd; Fknurd; bgahpy; nurd; mhprp gJf;fp itj;jjhf tHf;F cs;sJ gw;wp bjhpe;J bfhz;nld;. M$h; vjphpfs;jhd; rptpy; rg;is rp$of;F g[fhh; bfhLj;jhh;fs; vd;gjdhy; m.rh.1f;Fk; mtUila mf;fh kfDf;Fk; vjphpfSf;Fk; Kd; tpnuhjk; ,Ue;jJ vd;W bjhpa te;jJ vd;W brhd;dhy; Kd; tpnuhjk; ,Ue;jJ bjhpa te;jJ. mjdhy;jhd; m.rh.1d; mf;fh kfd; Fknurd; 1k; vjphpia flj;jp brd;W moj;J tpl;lhh; vd;why; moj;J tpl;ljhf bjhpe;J bfhz;nld;."
Therefore, already a criminal case is pending against P.W.1 and his relative. The case in Crime No.81 of 2012 was registered as against one Kumaresan and others for the attack on the first accused. Even though it is subsequent to the present occurrence, P.W.10, being the Investigation Officer ought to have been produced the same before the Court to rule out the distinct case.
14. The evidence of P.W.3 is only a hearsay evidence as such it is also not supported the case of the prosecution. Therefore no evidence is corroborated with the evidence of P.Ws.1 and 2 and the entire case of the prosecution is not believable one. The trial Court when concluding that though the evidence is lacking against the other accused, the accused 1 to 4 can be convicted for the above said offences. When there is no evidence to prove the charges against the other accused, similarly as to the appellants/accused 1 to 4 are also liable to be acquitted. As such the prosecution has failed to prove the charges made against the appellants beyond any reasonable doubt and they are entitled for acquittal.
15. As a result, the Criminal Appeal is allowed. The conviction and sentence imposed by the learned Principal District and Sessions Judge, Erode in S.C.No.53 of 2013, dated 08.10.2013 is hereby set aside. Appellants/accused are acquitted of all charges. Fine amount, if any paid, shall be refunded to the appellants forthwith. Bail bonds, if any executed, shall stand cancelled.
03.08.2018 Index:No Internet:Yes Speaking order rts To
1. The Presiding Officer, The Principal District and Sessions Court, Erode
2. The Inspector of Police, Arachalur Police Station, Erode District.
3. The Public Prosecutor, High Court, Madras.
G.K.ILANTHIRAIYAN, J., rts JUDGMENT IN CRL.A.739 OF 2013 03.08.2018