Madras High Court
S.Moorthy vs The State By The on 21 December, 2023
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl. Appeal No. 327 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Judgment Reserved on 07.07.2023
Judgment Pronounced on 21.12.2023
Coram:
The Honourable Mr.Justice Sathi Kumar Sukumara Kurup
Crl. Appeal No. 327 of 2017
S.Moorthy .. Appellant
Vs
The State by the
Deputy Superintendent of Police,
Gingee Sub Division,
Kedar Police Station,
Villupuram District
Crime No.63 of 2014 ..
Respondent
Criminal Appeal filed under Section 374 (2)Cr.P.C to call for the
records relating to the conviction and sentence imposed in the judgments
dated 19.05.2017 made in Spl.S.C.No.231 of 2015 on the file of the learned
Sessions Judge, Special Court for exclusive trial of cases registered under
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, Villupuram and set aside by allowing the criminal appeal.
For Appellant .. Mr.N.Manokaran
For Respondent .. Mr.S.Sugendran
Additional Public Prosecutor
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https://www.mhc.tn.gov.in/judis
Crl. Appeal No. 327 of 2017
JUDGMENT
The Appellant has preferred the instant criminal Appeal as against the judgment dated 19.05.2017 made in S.C.No.231 of 2015 passed by the learned Sessions Judge, Special Court for exclusive trial of cases registered under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Villupuram
2.The learned Counsel appearing for the Appellant invited the attention of this Court to the evidence of the witnesses P.W-1 to P.W-5 who are all related. P.W-12 is only the independent evidence.
3.The brief facts, which are relevant to decide the case, are as follows:
3.1.As per the Prosecution case, a complaint was given by Arumugam, S/o Mani, Pallar Street, Porur, Villupuram. As per the said Complaint of Complainant/Arumugam, on 28.05.2014 by around 4.30 p.m., a phone call was received on the mobile phone of the Complainant's sister's husband-P.W-5. The person who called directed the Complainant's sister 2/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 husband-P.W-5 to handover the mobile phone of the Complainant's sister husband-P.W-5 to his sister in law, for which, he refused. Immediately, the person who called on the mobile phone threatened him that he will kidnap the sister in law-Thangam and no one can prevent him. Further, he had used abusive words against the person who attended the phone call and scolded his entire family members in abusive language. On enquiry, it was found out that it was the call from the mobile of one Chinnadurai. Therefore, they had gone to the house of Chinnadurai to complain to the mother of Chinnadurai.
When they reached the house of Chinnadurai, 1.Chinnadurai, S/o Varadharaj; 2. Gajendiran, S/o Varadharaj and 3.Moorthy, S/o Sekar, had attacked them, abused in filthy languages and also pushed and kicked the younger sister of Arumugam-P.W-1, Mariyammal-P.W-4, wife of Kathavarayan-P.W-5 who was pregnant. Therefore, a complaint was lodged by P.W-1 Arumugam. Based on the complaint of P.W-1-Arumugam, P.W-10 Srinivasan, the Sub-Inspector of Police, Kedar Police Station, Villupuram had registered FIR in Crime No.63 of 2014 for the offences under Sections 294(b), 323 of IPC and Section 4 of Tamil Nadu Prohibition of Women Harassment Act against the Accused persons viz., 1.Chinnadurai, S/o 3/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 Varadharaj; 2.Gajendiran, S/o Varadharaj and 3.Moorthy, S/o Sekar.
4.On proceeding with the investigation it was found out that the Accused belongs to Chettiyar Community and the witnesses belongs to Irular (ST) community. Therefore, an alteration report was filed attracting offence under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. Therefore, the investigation file was handed over to Muralidharan-P.W-11 the Deputy Superintendent of Police who is the Investigation Officer as per the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 1989. The Deputy Superintendent of Police proceeded with the investigation and laid the final report.
5. Based on the final report, the learned Sessions Judge, Special Court for exclusive trial of cases registered under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Villupuram had taken cognizance of the final report and issued summons to the Accused. The Accused entered appearance. They were furnished with copies and trial 4/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 commenced with framing of the charges. Charges were framed for the offences under Section 294(b), 323 of IPC and Section 4 of Tamil Nadu Prohibition of Women Harassment Act and Section 3 (2) (Va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Amendment Act, 1989. The Accused denied the charges. Therefore, the learned Sessions Judge, Special Court for exclusive trial of cases registered under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Villupuram had ordered trial.
6.During trial, the Prosecution Witnesses were examined as P.W-1, Arumugam/Complainant, P.W-2-Complainant's Sister, P.W-3-Complainant's sister in law, P.W-4 also sister in law, P.W.5-complainant's brother in law, Kathavarayan, P.W-6 is Arumugam, who is the Mahazar Witness, and for the Observation Mahazar prepared by the Investigation Officer. P.W-7 is Doctor Vijay who had examined the injured witnesses who had treated P.W- 4-Mariyammal for the injury suffered by her and issued wound certificate under-Ex.P-3. P.W-8-Ravikumar/Tahsildar who had issued Community Certificate to the Prosecution Witnesses that they belong to Irular Caste 5/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 (ST) under Ex.P-4. P.W-9 who is the witness to the observation Mahazar, P.W-10-Sub Inspector of Police, Srinivasan, who had registered FIR in Crime No.63 of 2014. P.W-11-Muralidharan, the Deputy Superintendent of Police who had conducted the investigation after the alteration report in Crime No.63 of 2014. P.W-12 Mani is the father of P.W-1.
7.On closing of the Prosecution evidence, the Accused was questioned regarding incriminating evidence against them. The Accused denied the incriminating evidence. No defence witness were examined by the Accused. Arguments were heard and the learned Judge, on appreciation of evidence, recorded a finding of guilt against the Accused for the offences under Section 3(1) (r) and 3(1) (s) of the SC/ST (Prevention of Atrocities) Amendment Act. The Accused persons were acquitted of the offences under Section 294(b), 323 of IPC and Section 4 of Tamil Nadu Prohibition of Women Harassment Act. Aggrieved by the same the appeal had been preferred.
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8.On appreciation of evidence, the learned Sessions Judge had convicted the Accused for the offence under Section 3(1) (r ) and 3(1) (s) of the SC/ST (Prevention of Atrocities) Amendment Act and sentence to undergo Simple Imprisonment of one year and fine of Rs.5000/- in default to under Simple Imprisonment for three months. Aggrieved by the same the accused had filed this appeal.
9.The learned Counsel for the Appellant invited the attention of this Court that originally the FIR was registered for the offence under Sections 294(b), 323 of IPC and Section 4 of Tamil Nadu Prohibition of Women Harassment Act but only in the course of investigation, alteration report was filed invoking the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. All the witnesses in this case are related to each other. P.W.1 is the Complainant. As per the complaint, somebody called on mobile of his brother in law directing the brother in law to hand over brother in law's mobile phone to the younger sister of the person who attended the mobile phone. Kathavarayan, in the complaint nowhere stated that person who called from the other side abused them 7/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 invoking the caste name. The prosecution witness except Dr. Vijay and the Investigation Officer all others are relatives belonging to same family. The mobile phone was not seized by the police and marked as material object during the trial. The mobile phone of said Kathavarayan was also not taken or seized by the Investigation Officer. The intercept between two mobile phones were not produced as document before the trial Court, to invoke the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. In short, the Prosecution miserably failed to prove the charges. Originally, the case was registered under Sections 294(b), 323 of IPC and Section 4 of Tamil Nadu Prohibition of Women Harassment Act and those offences were not proved through the evidence of the prosecution. Therefore, the Accused was acquitted.
10.The learned Counsel appearing for the Appellant invited the attention of this Court to the cross examination of P.W-1 who is the Complainant. It is the defence of the Accused that A-1 Chinnadurai is married to the younger sister of P.W.1 Thangam. It had been admitted in cross examination. The same fact had been admitted in cross examination 8/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 by P.W.2-Thenmozhi who is the wife of P.W.1 she had also admitted the same. In the evidence of the prosecution witnesses they had stated in their chief examination that the person called on the mobile had used abusive words what was the abusive words used had not been deposed by them. To attract the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. The Accused who is alleged to have used abusive words against members of Scheduled Caste should have invoked the caste name in a public place. Here the Complainant proceeds as though somebody called on the mobile phone of the Complainant's brother in law Kathavarayan asking to hand over the mobile phone to his sister in law (Complainant's younger sister) which Kathavarayan refused. Therefore, the person who called from the other side abused him in filthy language. What were the words used is not mentioned anywhere. That is to say, what are the slur or obscene words invoking caste is connotation are used by the other person. Therefore, the learned Counsel for the Appellant sought to set aside the judgment of conviction recorded by the learned Sessions Judge, Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
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11.The learned Additional Public Prosecutor vehemently objected the same stating that the evidence of the prosecution witnesses speaks about P.W.1, P.W.4 and P.W5. They had in the deposition stated clearly that the person speaking from the other side had used caste remark attracting the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It is the defence of the Accused persons that the A1 had married the Complainant's younger sister Thangam which is an intercaste marriage and only to settle score, with an intention they had filed a false complaint. Further, the learned Additional Public Prosecutor invited attention of this Court to the observation of the learned Sessions Judge in Paragraph K quoting the Hon'ble Supreme Court and arriving at conclusion that the charges framed under Section 3(1) (r ) and 3(1) (s) of the SC/ST (POA) Act had been proved:
''K. Section 31(r)(s) of the SC/ST (POA) Act reads as follows:
Punishments for offences of atrocities:- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribes,
(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;
(s) abuses any member of a scheduled Caste or a Scheduled Tribe by caste name in any place within public view;10/16
https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 Point for consideration:
Whether the judgment of conviction recorded by the learned Sessions Judge, Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Villupuram in S.C.No.231 of 2015, dated 19.05.2017, is to be set aside as perverse?
12.On consideration of the rival submissions and on perusal of the deposition of PW.1 to P.W.6 and P.W.12, it is found that P.W1 to P.W.6 and 12 belong to the same family. Even though they belong to Irular caste (ST), A-1 has married the younger sister of Arumugam (P.W.1). Therefore, there cannot be inhibitions or feeling of hatred towards Irular tribe community group by the Accused who is none other than the brother in law of prosecution witness. All the witnesses have admitted in their cross examination that Thangam the younger sister of P.W-1 Arumugam and the younger daughter of P.W-12. Thangam is married to A-1. The appeal has been preferred by A-3 alone. As per the FIR and as per the charges framed by the trial Court A-1 is Chinnadurai, the brother in law of P.W-1 is Arumugam, S/o Mani, P.W-2 is Thenmozhi, W/o Arumugam-P.W-1, P.W-3 11/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 Poorani mother of P.W-1, P.W-4 is Mariyammal is also the younger sister of P.W-1. P.W-5 is Kathavarayan the Husband of P.W-4 and P.W-6-Arumugam is a Mahazar witness who was treated hostile by the prosecution. He is a witness to the Observation Mahazar. He had denied the contents of the Mahazar. He had accepted only the signature. Similarly, P.W.9 is also a Mahazar witness to the Observation Mahazar he had only accepted his signature in the Observation Mahazar. He too was treated hostile by the prosecution. From the deposition of the witnesses, It is found that all the prosecution witnesses are related to each other belonging to the same family and the alleged occurrence is through mobile phone to mobile phone contact. Then it is not in the public domain. In the public place a member of the Scheduled Caste is abused by using abusive words describing their caste causing mental agony and pain to the member of the Scheduled Caste attracts Section 3(1)(r) and 3(1)(s) of the SC/ST (Prevention of Atrocities) Amendment Act. Here the prosecution failed to prove the same by producing the mobile transcript between two mobile phones, viz., the mobile phone of Kathavarayan as well as the mobile phone of the Appellant herein before the trial Court. The trial Court had convicted the accused 12/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 based on the evidence of P.W.1, P.W.4 and P.W.5. That cannot at all be accepted in the light of the fact that they had stated only about the occurrence which took place First in their residence, Second occurrence is in the place of the house of the Accused where they had gone to complain to the mother of the Accused. In both cases, it is in the private residence and not a public place. The learned Judge failed to appreciate the fact that the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act has to be invoked only when there is evidence that the Accused used abusive language invoking the caste name of the member of the SC/ST Community in a public place in the presence of members of the public. Here it cannot at all be accepted merely based on the evidence of P.W.1,4 & 5. There are two occurrences alleged in their deposition – one is in the house of the Complainants, when the Accused is alleged to have called Kathavarayan on his mobile and asked him to hand over the mobile to his sister-in-law, wife's younger sister. Kathavarayan is the brother in law of P.W-1- Arumugam. When the entire family had gone to the residence of A-1 to complain to the mother of A-1, there A-1 to A-3 are alleged to have attacked them which is the second incident. Therefore, both the occurrences 13/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 are alleged to have taken place in the private place, not in a public place. Further, as rightly pointed out by the learned Counsel for the Appellant, the transcript was not produced before the trial Court as a document. The mobile phones were not seized and marked as material objects. Therefore, the Prosecution had miserably failed to prove the charges framed against the Accused before the trial Court. In the light of the above, the conviction recorded by the learned Sessions Judge is found to be misconceived. Therefore, the same is to be set aside.
13.The point for consideration is answered in favour of the Appellant/A-3 and against the Prosecution. The judgment of conviction recorded by the learned Sessions Judge, Special Court for Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Villupuram in S.C.No.231 of 2015, dated 19.05.2017, against the Appellant/A-3 is to be set aside.
14.In the result, the Appeal is allowed. The Appellant/A-3 is not found guilty to the charges under Section 3(1)(r) and 3(1) (s) SC/ST of the (Prevention of Atrocities) Amendment Act, and the Appellant/A-3 is 14/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 acquitted under Section 235 Cr.P.C. The bail bond executed by the Appellant/Accused-3 before the trial Court shall stand cancelled. The fine amount already paid by the Appellant/Accused-3 is to be refunded.
21.12.2023 vsn Internet:Yes/No Index:Yes/No Speaking/Non-speaking order To
1. The Sessions Judge, Special Court for exclusive trial of cases registered under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, Villupuram
2. The Deputy Superintendent of Police, Gingee Sub Division, Kedar Police Station, Villupuram District.
3.The Public Prosecutor, Madras High Court, Chennai.
15/16 https://www.mhc.tn.gov.in/judis Crl. Appeal No. 327 of 2017 SATHI KUMAR SUKUMARA KURUP,J, vsn/srm Judgment made in Crl. A. No.327 of 2017 21.12.2023 16/16 https://www.mhc.tn.gov.in/judis