Madras High Court
Nagaraj vs The State on 5 January, 2023
Author: V. Sivagnanam
Bench: V.Sivagnanam
Crl.A.No.175 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 05.01.2023
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.A.No.175 of 2021
1. Nagaraj
2. Ayyappan
3. Kamaraj
4. Ganapathi
5. Ayyanar
6. Mahalingam ... Appellants
Vs.
1. The State, Rep. by its
Deputy Superintendent of Police,
Tirukoilur Police Station,
Villupuram District.
2. Vasantha Kumar ... Respondents
PRAYER: Criminal Appeal filed under Section. 374 (2) of Cr.P.C., to set aside
the conviction and sentence against the appellants in Special Sessions Case
No.259 of 2015 passed by the learned Sessions Judge, Special Court for SC/ST
Act Cases, Villupuram, dated 24.03.2021 and allow the appeal.
For Appellants : Mr. S. Saravanakumar
1/15
https://www.mhc.tn.gov.in/judis
Crl.A.No.175 of 2021
For Respondents : Mr. C.E. Pratap,
Govt. Advocate (crl.side) for R1
R2-Notice served, none appeared
JUDGMENT
This Criminal Appeal is filed challenging the judgment of conviction and sentence imposed against the appellants in Special S.C.No.259 of 2015 by judgment dated 24.03.2021 of the learned Sessions Judge, Special Court for SC/ST Act Cases, Villupuram.
2. The appellants are accused in Spl.S.C.No.259 of2015 on the file of Special SC Court, Villupuram.
3. The facts leading to filing of this Criminal Revision Case is as follows;
(i) On 11.04.2014, a complaint was lodged before the respondent police by one Vasanthakumar alleging that already there was previous enimity between the complainant who belong to Adi Dravida Community and the accused persons belonging to Vanniyar community, in respect of installation of flags of their respective parties and on 11.04.2014, while the complainant along with other persons were going to attend the temple festival at Murugan Temple situate at 2/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 North Nemili Village, the accused persons along with 15 other people, wrongfully restrained them and thereafter they chased them and took an iron rod and a wooden log from a shop belonging to one Prabhu and attacked the complainant, one Rajkumar and Mallika and also abused them in a filthy language by calling their caste name. They also threatened them with dire consequenses stating that if they enter into their village, they will kill them. Further, one of the accused viz., Ayyappan assaulted him with a bottle on his left leg, one of the accused Mahalingam attacked the said Rajkumar on his back and Ajith attacked Rajkumar with wooden log on his back. On hearing the noise, one of the victims viz., Mallika came out of her house for their rescue, whileso, one of the accused Raguvaran attacked the said Mallika on her right leg. Thereafter, one Ravi took Rajkumar and the complainant to hospital and in the hospital itself, he gave his complaint to Sub Inspector of Police.
(ii) Pursuant to which, an FIR was registered in Cr.No.104 of 2014 for the offences punishable under sections 147, 148, 294(b), 323, 324, 506(ii) IPC, r/w.3(1)(X) of SC/ST (PoA) Act, 1989 against the accused persons. After investigation, a final report was filed, pursuant to which, the case was committed to Special Court for SC/ST Act Cases, Villupuram and thereafter the sections were altered to sections 147, 148, 294(b), 434, 435, 506(ii) IPC, r/w.3(1), (r), 3/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021
(s)/SC/ST (POA) Act 1989 & Amended Ordinance 2014.
(iii) The case was taken on file before the Sessions Judge, Special Court for SC/ST Act Cases, Villupuram in Special Sessions Case No.259/2015. Charges were framed against the accused for the alleged offences punishable under section 148 of IPC against all the accused, u/s.324 IPC against A1 and A2, u/s.324 IPC against A4 and A6 and u/s.506(ii) IPC and 3(1)(x) of SC/ST Act against all the accused. Against A7 and A8, who are juveniles, the case was split up and committed to Juvenile Justice Court. When A1 to A6 were questioned by the learned Spl. Judge u/s.131 Cr.P.C., they pleaded not guilty.
(iv) On the side of the prosecution, witnesses P.W.1 to P.W.19 were examined and exhibits Ex.P.1 to Ex.P.13 were marked and material objects M.O.1 to M.O.6 were marked.
(v) The trial court, after examining the winesses produced and analysing the documents marked, found the accused guilty u/s.148, 506(ii) and 3(1)(x) of SC/ST Act, 1989 and convicted and sentenced the accused as follows;
Rank of Conviction sentence
accused
A1 to A6 U/s.148 IPC Each to undergo 2 years RI and each
4/15
https://www.mhc.tn.gov.in/judis
Crl.A.No.175 of 2021
Rank of Conviction sentence
accused
to pay a fine of Rs.1000/-, in default,
each to undergo 3 months SI
U/s.506(2) IPC Each to undergo 2 years RI and each
to pay a fine of Rs.1000/-, in default,
each to undergo 3 months sI
U/s.3(1)(x) of SC/ST Each to undergo 2 years RI, and each Act, 1989 to pay a fine of Rs.1000/-, in default, each to undergo 3 months Si, A1, A2, A4 and A6 were acquitted from the charge u/s.324 IPC as they were not found guilty under such section. The sentence of imprisonments imposed on the accused were ordered to run concurrently.
(vi) Aggrieved against the conviction and sentence imposed by the trial court, the appellants/A1 to A6 have filed this present criminal appeal .
4. The learned counsel for the appellant challenged the conviction and sentence impposed by the trial court on the following grounds.
(a) In this case, as per the prosecution case, the allegation is that the accused persons, at the time of the alleged occurrence, stored the weapons in one 5/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 Prabu's shop and using the said weapons, they assaulted and caused injury to the victims viz., Vasanthakumar-PW1, Rajkumar-PW2 and Mallika-PW3. But the prosecution failed to examine the abovesaid Prabhu as one of the witnesses before the trial court to support its case. Thus, regarding the above aspect, the prosecution failed.
(b) Before the trial court, the prosecution produced material objects MO- 1 to MO-6 which are the weapons used for assaulting the injured persons Vasanthakumar, Rajkumar and Mallika, who are PW1 to PW3 in this case and in order to establish the commission of the offence, the prosecution examined two mahazar witnesses PW14 - Kothandapani and PW15-Sivakumar. However, those two witnesses did not identify the 6 weapons alleged to have been used to attack the victims. Further, PW14 Kothandapani identified only MO1 and MO-
2. Thus, in this aspect also, the prosecution failed to prove the commission of alleged offence.In his evidence, PW14, has stated as follows;
"jw;nghJ ePjpkd;wj;jpy; fhl;lg;gLk;
bghUl;fisj;jhd; nghyPrhh; rk;gt ,lj;jpy;
,Ue;J vLj;jhh;fs;/ Ks;jo xd;W rh/bgh/1/
fz;zho Jz;Lfs; rh/bgh/2 MFk;/ ,J
rk;ke;jkhf nghyPrhh; vd;id tprhuiz
bra;jhh;fs; "
The remaining weapons were not identified either by PW14-Kothandapani or PW15-Sivakumar. In this aspect also the prosecution fails to prove its case. 6/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021
(c) Further the prosecution witnesses PW2 to PW9, in their evidence before the Court, stated that the police examined them on 11.04.20214 itself. But the police registered the FIR Ex.P-9 only on 12.4.2014 at 23.00 hours on the next day, as though they recieved a complaint statement from PW1- Vasanthakumar from the hospital. Thus the registration of FIR itself would create doubt about the genuineness and truthfulness of the prosecution case and the same is not supported by the prosecution witnesses.
(d) Further, the trial couirt in its judgment, nowhere, explained as to which prosecution witness identified all the weapons MO1 to MO6. In the trial court judgment at page 30, the judicial officer has stated that the accused persons used the weapons MO.1 to MO.6, hence they were found guilty under section 148 of IPC. This finding is without any evidence. In the absence of any evidence with regard to identification of weapons used for assault, the finding rendered by the trial judge is unsustainable.
(e) It is further contended that with regard to injuries sustained by witnesses PW1 to 3, the trial court disbeleived the evidence of PW1 to PW3 and also disbelieved the evidence of alleged eye witness PW6-Kumaravel, PW7-Panchamoorthy, PW8-Ilango and PW9-Kamalam. All witnesses can either be totally believed or totally disbelieved. In the instant case, the trial 7/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 court believed their evidence partially and disbelieved them partially. In this aspect, also, the finding of the trial court is unsustainable.
5. Considering all the above aspects, the prosecution has miserably failed to prove its case. Therefore, the appellants are entitled for acquittal. Hence he pleaded to set aside the impugned judgment and prayed for allowing the appeal.
6. The learned Additional Public Prosecutor appearing for the respondent police, on the other hand, supporting the judgment of the trial court, contended that the prosecution witnesses have stated about the overtact attributed against the accused persons and the injury caused by them to the witnesses Vasanthakumar-PW1, Rajkumar-PW2 and and Mallika-PW3. Even though, the weapons MO.1 to MO.6 were not identified by the witnesses, it was marked through the investigation officer, who seized the weapons from the place of occurrence. PW19-Rajendran and all the witnesses, in their evidence, have spoken about the threatening made by the accused as well as the abusive language used by them calling their caste name. Therefore, the offence has been clearly made out as against the appellants and hence there is no reason to interfere with the finding of the trial court. Thus, he pleaded for dismissal of 8/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 the appeal.
7. Heard the arguments advanced on both sides and perused the evidence of witnessess and entire material evidence placed on record.
8. In the light of the submissions made by the learned counsels and perusal of records, it is seen that the respondent PW1-Vasantha kumar lodged a complaint before the respondent police and the same was registered in Cr.No.104 of 2014 for the offences punishable under sections 147, 148, 294(b), 323, 324, 506(ii) IPC, r/w.3(1)(X) of SC/ST (POA) Act, 1989 on 12.4.2014. After completing investigation, the police filed a final report for the offences under sections 147, 148, 294(b), 323, 324, 505(ii) IPC r/w.3(i)(r), K(S)/SC/ST (PoA) Act 1989 and Amendment Ordinance 2014. Before the trial court, the prosecution examined 19 witnesses PW1 to PW19 and also marked 13 documents Ex.P.1 to Ex.P.13 and marked six material objects. The trial court, on perusal of witnesses and documents, convicted and sentenced the accused as stated above.
9. The finding of the trial court is challenged mainly on the above stated 9/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 grounds. Admittedly, the prosecution case is that at the time of occurrence i.e., on 11.4.2014, the accused have stored the weapons at one Prabu's shop and at the time of occurrence, as per the version of prosecution witnesses, they took the weapons from Prabhu's shop and assaulted the witnesses Vasanthakumar, Rajkumar and Mallika. But in this case, Prabhu was not examined by the trial court by the prosecution. For non examination of Prabhu, the prosecution has not assigned any valid reason. The prosecution case is mainly based upon the evidence given by the witnesses that the accused have stored the weapons MO.1 to MO.6 in Prabhu's shop and they took them from the Prabhu's shop and assaulted the victims. In the absence of examination of the abovesaid Prabhu, a reasonable doubt arises with regard to prosecution story that the accused persons stored the weapon at Prabhu's shop and took the weapons from his shop and assaulted the victims at the time of occurrence. Further, according to the prosecution, during the time of occurrence, the accused persons used iron rod and Thadi and beer bottles for attacking.
10. According to the prosecution, the investigating officer PW19
-Rajendran seized all the material objects marked as MO.1 to MO.6 from the place of occurrence in the presence of witnesses Kothandapani-PW14, Sivakumar-PW15 and on perusal of the evidence of PW14 amd PW15, it is seen 10/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 that these two witnesses have not identified all the 6 material objects which were alleged to have been seized by the prosecution from the place of occurence. They have identified only MO1 and MO2, the remaining four material objects remained as unidentified by seizure mahazar witnessess. Apart from this, there is a specific case focussed by the prosecution that the Ayyappan/A2 assaulted with bottle, A1-Nagaraj assaulted with wooden log and Mahalingam assaulted with iron rod. All the three injured persons viz., Vasanthakumar- PW1, Rajkumar- PW2, and Mallika-PW3 have not identified the weapons, by which they were allegedly assaulted by the accused persons, even though the material objects were marked as evidence before the trial court. Apart from this, on perusal of the proseuction witnesses, Vasantha kumar - PW1, during his cross examination, has stated that on the date and time of the occurrence itself, they gave statement before the police, but the police did not record the complaint. His evidence runs as follows; "
"11/04/2014 md;W ,t;tHf;F rk;gtk; ele;jJ/ rk;gtk; elf;Fk; nghJ ,ut[ 10/30 kzp ,Uf;Fk;/ ,ut[ 11 kzpf;F utp fhty; epiyaj;jpw;F nghd;
bra;jhh;/ nghyPrhh; ,ut[ 11/30 kzpf;F rk;gt
,lj;jpw;F te;jhh;/ vd;d gjtpapy; cs;s
nghyprhh; te;jhh; vd;gJ vdf;F bjhpahJ/
m';F te;j nghyprhhplk; tha;bkhHpahf g[fhh;
brhd;ndhk;/ eh';fs; brhd;d tha; bkhHp
g[fhiu m';F te;j nghyprhh; vGjtpy;iy/ "
11/15
https://www.mhc.tn.gov.in/judis
Crl.A.No.175 of 2021
11. Another witness PW3 Mallika, in her cross examination, has stated that at 11.30 pm., they gave a complaint at Police Station, thereafter, went to hospital for taking treatment and also stated that Vasanthakumar and Rajkumar also gave a complaint at Police Station. Her evidence runs as follows;
"
fhty; epiyaj;jpy; ,ut[ 11/30 kzpf;F g[fhh; bfhLj;J tpl;L kUj;Jtkidf;F rpfpr;irf;F te;njhk;/ tre;jFkhh; kw;Wk; uh$;Fkhh;
fhty; epiyaj;jpy; g[fhh; bfhLj;J tpl;L
kUj;Jtkidf;F te;jhh;fs;/ g[fhiu ahh; vGjpaJ
vd;W vdf;F bjhpahJ/"
The other witness aslo in their cross examination, stated before the trial court that the police examined on the date itself.
12. On perusal of the FIR, Ex.P.9, it is seen that the case has been registered only on 12.4.2014 at 23 hours. This goes to the route of the prosecution and raises serious doubt about the genuineness of the prosecution case. Apart from this, the witnesses while deposing before the trial court, have not deposed about the alleged threatening made by the accused persons.
13. Thus, from the over all evidence, as stated above, the prosecution has faled to prove the charges against the appellants beyond reasonable 12/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 doubt. Hence the accused are entitled for benefit of doubt and accordingly extending the benefit of doubt, they are entitled for acquittal. The trial court without any proper evidence, found them guilty for the charges under sections 148, 506(ii), and section 3(1)(x) of SC/ ST Act 1989. The finding of the trial court is unsupported by the evidence, thereby, it is liable to be set aside. Accordingly, the judgment of conviction and sentence imposed by the trial court is hereby set aside.
14. In the result,
(i) The Criminal Appeal is allowed.
(ii) the judgment of conviction and sentence imposed by the trial court is hereby set aside. The appellants are acquitted from the charges levelled against them.
(iii) The fine amounts, if any, already paid by the accused/appellants are directed to be refunded to them.
(iv) The bail bonds, if any, executed by the accused/appellamts are hereby cancelled.
05.01.2023 Index:Yes/No Internet:Yes/No msr 13/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 To
1. The Deputy Superintendent of Police, Thirukoilur Police Station, Villupuram District.
2. The Sessions Judge, Special Court for SC/ST Act Cases, Villupuram.
3. The Public Prosecutor, High Court, Madras.
V. SIVAGNANAM, J.
msr Cr.A.No.175 of 2021 14/15 https://www.mhc.tn.gov.in/judis Crl.A.No.175 of 2021 05.01.2023 15/15 https://www.mhc.tn.gov.in/judis