Madras High Court
Balasubramanian vs The State Represented By The Inspector ... on 20 October, 2021
Crl.R.C.No.827 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.08.2021
PRONOUNCED ON : 20.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
Crl.R.C.No.827 of 2015
1.Balasubramanian
2.Indira ... Petitioners/Accused
Vs.
The State represented by the Inspector of Police,
P.C.R. Cell Police Station,
Pondicherry.
(Crime No.21 of 2012) ... Respondent/Complainant
Prayer: This Criminal Revision Case has been filed under Section 397 read
with Section 401 of Cr.P.C. against the order dated 14.07.2015 passed in
Crl.A.No.15 of 2015, on the file of the learned III Additional Sessions Judge, at
Puducherry, which confirming order dated 19.03.2015, passed in STC.No.37 of
2013, on the file of the learned Chief Judicial Magistrate, Puducherry.
For Petitioner : Mr.Prakash Adiapadam
For Respondent : Mr.Bharatha Chakravarthy
Public Prosecutor (Pondicherry)
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Crl.R.C.No.827 of 2015
ORDER
(The case has been heard through Video Conference) The convicted accused 1 and 2 are the revision petitioners herein.
2.This Criminal Revision Case has been filed against the order dated 14.07.2015, passed in Crl.Appeal.No.15 of 2015, on the file of the learned III Additional Sessions Judge, at Puducherry, which confirming the order dated 19.03.2015, passed in STC.No.37 of 2013 on the file of the learned Chief Judicial Magistrate, at Puducherry, which confirming order dated 19.03.2015 passed in STC.No.37 of 2013, on the file of the learned Chief Judicial Magistrate, at Puducherry.
3.The respondent police filed charge sheet against the accused alleging that on 27.12.2012 at about 06.00 hours at No.29, Nilaya street, Shanmugapuram, Puducherry the accused persons viz., A1 & A2, who belonged to Marudhuvar Caste, infurtherance of common intention joined together, insulted the complainant viz., Chitradevi, who belonged to Scheduled Caste Community by mentioning her caste name on the grounds of untouchability by saying gu njtoah ehna eP vg;go vd; tPlL ; thrypy;
nfhyk; nghlyhk; and also criminally intimidated her due to wordy quarrel and http://www.judis.nic.in 2/16 Crl.R.C.No.827 of 2015 therefore, the accused have committed offences punishable under Sections 506(I) of IPC and 7(1)(d) of PCR Act, 1955 read with 34 IPC.
4.The victim girl/defacto complainant was examined as PW1; husband of PW1 is PW2; friend of PW2 is PW3 &PW5; PW4 is the Deputy Tahsildhar, who had issued the community certificate; PW6 is the Investigating Officer. PW3 & PW5 are the attestors of the Observation Mahazar. Ex.P1 is the complaint; Ex.P2 is the Caste Certificate; Ex.P3 is FIR; Ex.P4 is Crime detail form. The requisition letter given by PW6/Investigating Officer for the community certificate of the accused and PW1 is marked as Ex.P5.
5.The Trial Court viz., the learned Chief Judicial Magistrate, Puducherry, taken the case as STC.No.37 of 2013 and held that the charge under Section 506(ii) of IPC is not made out and accordingly, acquitted the accused however, chosen to convict the accused for the offence under Section 7(i)(d) of Protection of Civil Act, 1955 and imposed sentence for six months simple imprisonment and to pay a fine of Rs.500/- by each accused, in default to pay the fine amount, to undergo further simple imprisonment for one month by each accused. On appeal in Crl.A.No.15 of 2015, the learned III Additional Sessions Judge, Puducherry, had confirmed the conviction and sentence as stated supra http://www.judis.nic.in 3/16 Crl.R.C.No.827 of 2015 and hence, the Criminal Revision Case.
6.Heard both the learned counsels and perused the materials placed on record.
7.The points that arise for consideration in this Criminal Revision Case is:
(i)Whether the conviction passed by both the Courts below under Section 7(1)(d) of Protection of Civil Rights Act,1955 is sustainable.
(ii)Whether the sentence is excessive.
8(a).After hearing rival submissions and also perusing the Lower Court records, the case of the prosecution is that the defacto complainant belongs to the Schedule Caste, two years before she married PW2, who belongs to OBC, while A1 is the brother of PW2 and A2 is the wife of A1. PW1 & PW2 and accused persons were living in the same house at separate portions. As PW2 married PW1, she belongs to Schedule Caste, the accused persons quarreled with them and insulted PW1 by mentioning her caste name and giving trouble to vacate the house where PW1 is living. In this regard, a civil case is pending before Puduchery Court.
http://www.judis.nic.in 4/16 Crl.R.C.No.827 of 2015 8(b).On 27.12.2012 at 6.00 hrs while PW1 was putting Rangoli at the entrance of the house, the accused persons came and scolded her with filthy language and also insulted her by mentioning her caste name on the ground of untouchability by saying gu njtoah ehna eP vg;go vd; tPlL ; thrypy;
nfhyk; nghlyhk; and also criminally intimidated her with dire consequences. When PW2/husband of PW1 asked about this, A1 slaped on his face and caused injuries to the right eye brow. Since it was a raining season, after three days PW1 gave complaint at the police station i.e., on 31.12.2012.
9.The suggestive case of the defence is that there is a civil suit between the brothers viz., PW2 and A1. In view of the civil case, which is pending between PW2 and A1, PW2 had instigated his wife PW1, who is member of Schedule Caste Community to give a false case against the accused persons so that he can take away property, which is the subject matter of the Civil Suit.
10.The admitted factual matrix of the case are as under:
(a).The first petitioner/first accused is the husband of the second petitioner/second accused; PW1/defacto complainant is the wife of PW2, who is none other than the brother of first petitioner/first accused, the http://www.judis.nic.in 5/16 Crl.R.C.No.827 of 2015 petitioners/accused persons (A1 & A2) and PW2 are belongs to “Muruthuvar Community” and PW2 married PW1 about two and half years ago i.e., around in the year 2010, who hailing from Manaparai (Tamil Nadu) and said to be belongs to “Parayan Caste”, which fall under “Schedule Caste Community”.
(b)The petitioners/A1 & A2, PW1 &PW2 are residing in the same house which situated at No.29, Nilaya Street, Shanmugapuram, Puducherry. The petitioners/accused Nos.1 and 2 are residing in the house by occupying front portion and PW1 & PW2 are residing in the house by occupying back portion.
Allegation:
(c)On 27.12.2012 at about 06.00 a.m., when PW1 (defacto complainant) was drawing “Rangoli” in front of the house in furtherance of common intention both the petitioners/accused Nos.1 & 2 were jointly abused PW1 with filthy language and they insulted PW1 by mentioning her caste and consequently, they threatened her life with dire consequences. On 31.12.2012, PW1 went to the respondent police station lodged a complaint against the petitioners/accused Nos.1 & 2 and based on her complaint, the respondent police herein has registered a case in Crime No.21 of 2012, dated 31.12.2012, for the offence under Section 506(i) and Section 7(1)(d) of Prevention of Civil Rights Act, 1955 read with Section 34 of IPC.
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(d)The learned Chief Judicial Magistrate, Pudhucherry, took the case as STC.No.37 of 2013, after recording of the prosecution side evidence, the petitioners/accused were questioned under Section 313 of Cr.P.C., as to the incriminating circumstances found in the evidence of prosecution witnesses, wherein, it is specifically stated by the accused that in order to wreck vengeance on the first accused for filing a Civil Suit against PW2 (husband of PW1). The said suit number is O.S.No.13 of 2012, before the learned Principal District Judge, Pudhucherry. PW2 had instigated PW1 to give false complaint.
11.It is seen from the cross examination of PW1 & PW2 that it was suggested that the present case is false complaint, which has been filed with a malafide intention to vacate the accused from the house since the partition suit is pending between the accused and the defacto complainant. As per the first accused in the said O.S.No.13 of 2012, on the file of the learned Principal District Judge, Pudhucherry, wherein, he claims 1/4th share, two shares for the brothers viz., A1 & PW2 and other share is for the sisters. According to PW2 the sister has no share in the property. The property has to be divided by 1/2 share between the brothers only.
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12.The relationship between the parties, as extracted supra is not disputed. The content of Civil Suit in O.S.No.13 of 2012 has also not disputed. The suit is earlier point of time, suit ready for recording of evidence. The allegation as stated in the complaint is at the relevant point of time. It is also not disputed that the accused 1 & 2/revision petitioners1 & 2 are residing in the front portion of the house while PW1 & PW2 residing back portion of the house.
13.The alleged date of occurrence is 27.12.2012 at about 06.00a.m., during the Marghazhi Festival celebrated both in the Tamil Nadu and Puducherry, it is tradition and customary to have the house decorated by putting kolam and rangoli, it is not only confine to the single persons but also in the entire state assumes significance.
14.On 27.12.2012 at about 6.00 a.m. when PW1 (defacto complainant) was drawing “rangoli” in front of the house in furthernce of common intention both petitioners/accused Nos.1 & 2 were jointly abused PW1 with filthy language and they insulted PW1 by mentioning her caste and consequently they threatened her life with dire consequences. But during cross examination both PW1 & PW2 categorically admitted that “the Petitioners/Accused Nos.1 & 2 http://www.judis.nic.in 8/16 Crl.R.C.No.827 of 2015 were not residing in the house, where the occurrence is allegedly said to have been taken place, and further she admitted that the Petitioners/Accused Nos.1 & 2 were shifted their place of residence somewhere else”. This deposition “ipso facto” proves that PW-1 (defacto complainant) had lodged false complaint against petitioners/accused with ulterior motive to wreak vengeance on the petitioners/Accused Nos.1 & 2 for initiating civil case against them.
15.Both the Courts rightly came to the conclusion that “PW3 to PW5 are friends of PW2 and they deposed that they had also seen the occurrence. But as per prosecution they are not the occurrence witnesses. Therefore no possibility to give much importance to their evidence. Therefore the only available evidence for the occurrence is the evidence of PW1 and PW2, who are none other than defacto complainant and her husband”. On relying the evidence of PW1 & PW2 the Courts below were wrongly convicted the petitioners/accused Nos.1 & 2 as discussed infra.
16.During cross examination of PW1, she categorically admitted & deposed that “the occurrence was took place at the public place and several neighbours were watching the incident and further, she categorically deposed that the mother-in-law of PW1 is also residing in the room, which is adjacent to http://www.judis.nic.in 9/16 Crl.R.C.No.827 of 2015 her portion. But the prosecution neither examined mother-in-law of PW1 nor other neighbours, who were all residing in that area and watching the incident at that time, which is allegedly said to have taken place on 27.12.2012 about 6.00 a.m. The non examination of mother-in-law of PW1 or other neighbours, who were all residing in that area and watching the incident at that time, which is allegedly said to have taken place on 27.12.2012 about 6.00 a.m., is fatal.
17.Both the Courts below have not appreciated the basic facts as projected by the prosecution. The alleged date of occurrence is on 27.12.2012. During the Marghazhi festival when PW1 was putting rangoli kolam in front of their house at 06.00 a.m., there is every possibility that the others who are putting kolam in the neighbouring houses would also been present. Both the Courts below have simply negatived the plea projected by the accused that had such incident been happened definitely the family members and the neighbors, who are putting kolam at the similar point of time would have noticed the occurrence.
18.This Court finds force in the said contention taking note of the subject that 27.12.2012 falls during the festival time of Marghazhi, where it is customary practice to put rangoli and hence, non-examination of the http://www.judis.nic.in 10/16 Crl.R.C.No.827 of 2015 independent witness is also fatal, caused serious doubt in the prosecution theory.
19.It remains to be stated that Civil Suit is pending which is prior in time. Admittedly, PW2 claims 100% higher share as he is entitled to win the Civil Suit and non-examination of the independent witness also cause serious doubt as to the presence of the accused.
20.Utterance of the caste word in public place in order to humiliate the person in the name of the caste is made offence which essence of Section 7(1)(d) of Protection of Civil Rights Act, 1955. Section 7(1)(d) of the PCR Act, 1955, reads as “insults or attempts to insult, on the ground of “untouchability”, a members of a Scheduled Caste”.
21.If no one is present, the question of humiliation of PW1 does not arise. PW2 is none other than the own brother of the accused. With regard to the partition, they are on logger head with the first accused.
22.It is admitted by PW2, in the cross-examination that the relationship between the brothers PW2 and A1 is strained due to the partition suit pending http://www.judis.nic.in 11/16 Crl.R.C.No.827 of 2015 before the Court. In the cross examination, she has also admitted that the accused are residing in some other place and hence, the version of PW2 found to be tainted with malafide.
23.The suggestive case of the defence is that due to the ill motive generated after filing of the Civil Suit, there is enimity between the brothers. Previous enimity as a motive is a double edged weapon it may be used to create an offence or it may be misused to falsely implicate the accused. In such circumstances, the duty is cast upon the Court to weigh the evidence in all probability.
24.Taking note of the fact that PW3 & PW5, who are projected as attestor of the Observation Mahazar have deposed as if they are occurrence witnesses, this Court finds that such an extended statement of PW3 and PW5 is suffers from improvement amounting to embellishment of material facts. Both the Courts below have rightly come to the conclusion that PW3 & PW5 attestor of the Observation Mahazar and furthermore, the reason assigned by PW3 and PW5 to visit house of PW2 is found to be artificial. In view of the answer elicited in the cross examination, the reasons appears to be lame and also lacks reliability, both the Courts below have rightly concluded that the evidence of http://www.judis.nic.in 12/16 Crl.R.C.No.827 of 2015 PW3 and PW5 has to be eschewed from consideration and hence, the evidence of PW1 and PW2 alone are need to be analyzed. Admittedly PW2 is having previous enmity being brother has grievance over the partition suit as it is self proclaimed claim of 1/2 share in the suit property in stead of 1/4th share. PW2 wanted to deny the share of the daughters. The first accused want to give share to the daughters.
25.In view of the discussion in the preceding paragraphs that had their been any such incident as projected by the prosecution viz., “ at 06.00 a.m., during the Marghazhi Festival time on 27.12.2012 definitely, the neighbors could have witnessed the scene”. For the reasons best known, PW1 and PW2 have not mentioned any one of the neighbours or witnesses, witnessing the occurrence. The Investigating Officer has also not let any attempt to enquire the neighbours. In view of the specific plea raised by the prosecution about the date which squarely falls on the Marghazhi Festival time and had there been any such occasion as projected by the prosecution, it could have been very well be witnessed by the neighboring house owners, who will be putting rangoli or kolam as per the tradition and hence, from genesis of the crime it appears to be shaky coupled with the previous enmity of PW2 in respect of the Civil Suit in O.S.No.13 of 2012 pending before the learned Principal District also cause http://www.judis.nic.in 13/16 Crl.R.C.No.827 of 2015 serious doubt as to the prosecution theory.
26.In view of the infirmities found in the version of PW1 & PW2 and non examination of the neighbouring people who alleged to have been put rangoli and kolam during the Marghazhi festival also cause serious doubt as to the prosecution theory and hence, I find that the suggestive case of the defence is more probable than the prosecution theory. The evidence adduced by the prosecution does not form a positive evidence to prove the prosecution theory beyond reasonable doubt. Consequently, benefit of doubt goes to the accused. Giving benefit of doubt to the accused, I hold that charge under Section 7(1)(d) of the Protection of Civil Right not made out.
27.Accordingly, this Criminal Revision Case is allowed. The order passed in Crl.A.No.15 of 2015, by the learned III Additional Sessions Judge, Puducherry, dated 14.07.2015, which confirming the order passed in STC.No.37 of 2013, by the learned Chief Judicial Magistrate, Puducherry, dated 19.03.2015 is hereby set aside.
20.10.2021 Index:yes/no Speaking order/non speaking order dua http://www.judis.nic.in 14/16 Crl.R.C.No.827 of 2015 To:
1.The III Additional Sessions Judge, Puducherry.
2.The Chief Judicial Magistrate, Puducherry.
3.The State represented by the Inspector of Police, P.C.R. Cell Police Station, Pondicherry.
4.Public Prosecutor, Pondicherry.
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dua Pre-delivery order made in Crl.R.C.No.827 of 2015 20.10.2021 http://www.judis.nic.in 16/16