Madras High Court
Sathiyamoorthy vs The Deputy Superintendent Of Police
Author: V.Sivagnanam
Bench: V.Sivagnanam
Crl.A.No.103 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 05.12.2022
PRONOUNCED ON: 23.12.2022
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
Crl.A.No.103 of 2021
1.Sathiyamoorthy
2.Sumathi ... Appellants
Vs.
1.The Deputy Superintendent of Police,
Vikravandi Police Station,
Villupuram District,
Crime No.545 of 2018.
2.Shakthi ... Respondents
PRAYER: This Criminal Appeal has been filed under Section 374(2) of
the Code of Criminal Procedure against the judgment of conviction by the
learned Sessions Judge, Special Court for SC/ST Act Cases Court –
Villupuram dated 29.01.2021 in S.S.C.No.50 of 2019.
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Crl.A.No.103 of 2021
For Appellants : Mr.A.Arasuganesan
For Respondent : Mr.C.E.Pratap
No.1 Govt.Advocate (Crl.side)
For Respondent : C.Raja
No.2
JUDGMENT
The criminal appeal has been filed against the judgment of conviction passed by the learned Sessions Judge, Special Court for SC/ST Act Cases Court , Villupuram dated 29.01.2021 in S.S.C.No.50 of 2019.
2.The appellants are the accused in S.S.C.No.50 of 2019 on the file of the Sessions Judge, Special Court for SC/ST cases Villupuram. The respondent police prosecuted the accused for having committed offences punishable under Sections 341 IPC, 324 IPC r/w3(2)(va) of SC/ST (POA) Amendment Act, 506(i) IPC r/w 3(2)(va) of SC/ST (POA) Amendment Act, 3(1)(r) of SC/ST (POA) Amendment Act, 3(1)(s) of SC/ST (POA) Amendment Act.
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3.The prosecution case is that the complainant Shakthi (PW1) belongs to Irular community (ST) and her husband Selvakumar (PW2) belongs to Yadava Community. They made love to each other and married. They lived together in the house of the complainant/PW1's father. On 18.08.2018 at about 8.30 a.m. the complainant/PW1 and her husband Selvakumar (PW2) went to their allotted place at Avudaiyarpattu Murugan temple street which was given to PW2 in family arrangement, the accused prevented them, scolded with filthy language, insulted PW1 by using her caste name and the first accused assaulted PW1 with Poovarasu stick on her hands. The second accused assaulted on her forehead, thus caused injuries. Thereafter, she was admitted in the Mundiampakkam Govt. Hospital as inpatient, where she was enquired by the Vikravandi police and according her statement, then the respondent police registered a case in Crime No.545 of 2018 for offences punishable under Sections 294(b), 341, 323, 506(i) IPC r/w 3(1)(r), 3(1)(s), 3(1)(h) SC/ST(POA) Amendment Act- 2015 and after investigation, filed charge sheet against the accused. Page 3 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021
4.The trial Court, after trial, found the accused guilty for the following offences and convicted and sentenced them as follows;
Section Conviction and sentence
341 IPC A fine of Rs.500/- in default sentence of one
month simple imprisonment against each
appellants/accused.
324 IPC r/w Sentenced to one year Rigorous imprisonment
3(2)(va) of SC/ST and a fine of Rs.1000/- in default sentence of (POA) Amendment three months simple imprisonment against Act each appellants/accused.
506(i) IPC r/w Sentenced to one year Rigorous imprisonment 3(2)(va) of SC/ST and a fine of Rs.1000/- in default sentence of (POA) Amendment three months simple imprisonment against Act each appellants/accused.
3(1)(r) of SC/ST Sentenced to one year Rigorous imprisonment (POA) Amendment and a fine of Rs.1000/- in default sentence of Act three months simple imprisonment against each appellants/accused.
3(1)(s) of SC/ST Sentenced to one year Rigorous imprisonment (POA) Amendment and a fine of Rs.1000/- in default sentence of Act three months simple imprisonment against each appellants/accused.
Aggrieved by this conviction and sentence, the accused have filed this present criminal appeal.
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5.The learned counsel for the accused submitted that the judgment of the trial Court is contrary to law and weight of evidence and probabilities of the case. He further submitted that the defacto complainant Sakthi (PW1) in her evidence stated that she was assaulted by the accused at a place opposite to Mariyamman Kovil, where, she claimed that a house site was allotted to them, whereas other prosecution witnesses her husband Selvakumar (PW2) and Palani (PW3) deposed that she was assaulted in the accused house for the reason that she belongs to ST community and the defacto complainant (PW1) and Selvakumar (PW2) made love marriage 20 years back in the presence of the family members of the accused persons. They accepted the marriage and they also participated in other family functions. Therefore, the defacto complainant's statement that she was insulted based on her community is wrong. There is a counter case given by the accused person. This case is only for revenge. The prosecution has not examined any independent witness and the prosecution witnesses are interested witnesses. There is a contradiction in the evidence of the prosecution. The trial Court failed to consider them. The trial Court wrongly observed Palani (PW3) as eye witness, he did not witness the Page 5 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021 occurrence. There is a strong motivation for false implication. Admittedly, a civil case for partition is pending between them. Dr.Jai Anand (PW4), who treated the injured, did not see any of the weapons used by the accused. Further, Sridhar (PW5) and Nagappan (PW6) are observation Mahazer witnesses and deposed that they signed the papers at Police Station. The relevant decision relied on by the trial Court is not relevant to the fact of this case. The trial Court improperly considered the evidence and applied the Law. Therefore, the conviction and sentence imposed by the trial Court is to be set aside and the accused are to be acquitted and the criminal appeal is to be allowed. Thus, pleaded to allow the criminal appeal.
6.The learned Government Advocate (Crl.side) for the first respondent as well as the learned counsel for the second respondent supported the judgment of the trial Court and submitted that the prosecution examined ten witnesses and marked eleven documents. The defacto complainant Shakthi (PW1) being an injured witness clearly deposed about the overtact of the accused persons and her husband Page 6 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021 Selvakumar (PW2) was with her at the time of incident. His evidence corroborated with the evidence of Shakthi (PW1). Palani (PW3) though not an eyewitness to the occurrence, immediately went to the place of occurrence and brought the injured to the hospital for treatment. Non support of witnesses, Sridhar (PW5) and Nagappan (PW6) will not affect the prosecution case and non production of weapons also will not affect the prosecution case. The evidence of Shakthi (PW1) is enough to bring home the guilt of the accused. The charges against the accused are proved. The trial Court rightly convicted the accused persons and there is no reason to disbelieve the evidence of Shakthi (PW1) and Selvakumar (PW2). Under these circumstances, no merit in the criminal appeal and thus, pleaded to dismiss the criminal appeal.
7.I have considered the matter in the light of the submissions made by the learned counsel for the parties.
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8.On perusal of the records, it is seen that in the trial Court, the prosecution examined ten witnesses and marked eleven documents. Shakthi (PW1) is the complainant and injured person. In her evidence, she deposed that the accused are the brother's son and wife of her husband Selvakumar (PW2). After marriage, she and her husband stayed at her father's house. Her husband demanded allotment of some of his family properties. Therefore, his brother allotted some properties by way of Consent Form in the presence of some villagers on 21.06.2018. Thereafter, on 18.08.2018 at about 8.30 a.m. she along with her husband went to their allotted portion, there the accused were standing, on seeing them, they informed that they would not give any land to them, on questioning the same by Shakthi (PW1), the first accused assaulted her with Stick (thadi) on her left forearm and right ring finger and the second accused Sumathi A2 assaulted with Stick (thadi) on her right forehead and both the accused pulled her hair and assaulted, as a consequence, she fell down. Thereafter, the accused threatened them with dire consequences and insulted them by using her Irular community (ST). Thereafter, her husband and her father went to Vikravaandi Police Station to give a complaint and they were Page 8 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021 informed to go to the hospital. Hence, she went to the Mundiampakkam Govt.hospital and in the hospital, she gave a complaint Ex.P1. During her cross examination, she stated that she gave a complaint at Vikravandi Police Station. Thereafter, she went to the hospital. The relevant portion of her evidence of cross examination is as follows:
“ “// / / / / / tpf;fputhz;o fhty; epiyak;
brd;W g[fhh; bfhLj;J tpl;L mjd;gpwF jhd;
kUj;Jtkidf;F eh';fs; nghndhk; vd;why;
rhpjhd;// / / / /”
”
9.It reveals the fact that she gave a complaint to Vikravandi police station. Thereafter, she went to the hospital but in fact, Ex.P1 is seen as so it was recorded at Government Hospital Mundiyampakkam. The alleged complaint given by the complainant Sakthi (PW1) is not produced before the trial Court by the police. It raised a serious doubt about the genuineness of the Ex.P1 complaint. The trial Court in its judgment had not discussed the evidence of Shakthi (PW1) and overlooked this fact.
Further, Shakthi (PW1) in her cross examination, deposed that she did not write the complaint and the Sub Inspector of Police, wrote the complaint Page 9 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021 and before recording her statement Ex.P1, she gave a complaint in writing at Vikravaandi Police Station. For better appreciation, relevant portion of her evidence reproduced as follows:
“ / / / rhl;rp g[fhiu th';fp ghh;j;Jtpl;L me;j g[fhh; m/rh/M 1 jhd; vGjtpy;iy vd;Wk; v!;/I jhd; vGjpdhh; vd;Wk; kUj;Jtkidapy; itj;J jd;id tprhhpj;J thf;FK:yk; gjpt[ bra;jhh;
vd;Wk; Twpdhh;/ g[fhh; thf;FK:yk; v!;/I gjpt[
bra;tjw;F Kd;dhy; ehd; tpf;fputhz;o fhty;
epiyak; brd;W ehd; vGj;J K:ykhd g[fhhpid
bfhLj;njd; vd;W brhd;dhy; rhpjhd;/ ehd; fhty; epiyak; bry;Yk; nghJ fhty; epiyaj;jpy; vjphp rj;jpaK:h;j;jp kw;Wk; mtUila jhahh; ,Ue;jhh; vd;why; rhpjhd;/ fhty; epiyaj;jpy; nghyPrhh; vd;
uj;jfhaj;ij ghh;j;Jk; bkof;fy; bknkh
bfhLf;ftpy;iy// / / / / /”
”
So, this evidence raised serious doubt about the genuineness of the complaint.
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10.At the time of occurrence, her husband Selvakumar (PW2) was with her. On perusal of records, it is seen that his evidence does not corroborate with the evidence of his wife Shakthi (PW1) with regard to overtact of the accused. Shakthi (PW1) deposed that the first accused Sathiyamoorthy assaulted with stick (thadi) on her left forearm and right ring finger and the second accused Sumathi assaulted with stick (thadi) on her right forehead. The relevant portion of her evidence runs as follows;
“””. . . rj;jpaK:h;j;jp vd;id joahy; vd;id ,lJ Kd;ifapYk;. tyJ nkhjpu tpuypYk;
moj;Jtpl;lhh;/ Rkjp joahy; vd;Dila tyJ
gf;f bew;wpapYk; moj;Jtpl;lhh;/ ehd; fPnH
tpGe;Jtpl;nld;/ / / / /”” ”
But Selvakumar (PW2) in his evidence, stated that the first accused Sathyamoorthi assaulted his wife with a stick (thadi) on her forehead and not deposed that the first accused Sathiyamoorthy assaulted his wife on her left hand and right ring finger. The relevant portion of his evidence runs as Page 11 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021 follows:
“ // / / / ngrpf;bfhz;oUf;Fk;nghnj
rj;jpaK:h;j;jp vd; kidtpia joahy; bew;wpapy;
moj;jhh;/ mjd;gpwF vd; mz;zp vd; kidtpia
Koia ,Gj;J Rw;wpajhy; vd; kidtpf;F
kaf;fk; te;J fPnH tpGe;J tpl;lhh;/ / / / ”
11.In his evidence, he did not state that the second accused Sumathi assaulted his wife. With regard to overtact of the accused, his evidence is not corroborated with the evidence of his wife Shakthi (PW2). In the prosecution case, these two witnesses alone stand to speak about the occurrence and remaining witnesses are not the eyewitnesses to the occurrence. These two witnesses (PW1 & PW2) are not consistent with regard to the incident. Further, on perusal of evidence of Dr.Jai Anand (PW4), it is seen that he had recorded that the occurrence took place before the house of the injured Shakthi (PW1). This version is totally contrary to the evidence of Shakthi (PW1), her husband Selvakumar (PW2), according to them, the incident took place before the allotted place at Avudaiyarpattu Murugan Temple street, thus, the place of occurrence as stated by the Page 12 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021 prosecution evidence is also not consistent. The prosecution witnesses Sridhar (PW5), Nagappan (PW6) are not in support of the prosecution case, so, they were treated as hostile witnesses. The remaining witnesses did not speak about the accused to connect with the crime.
12.Thus, in this case, the original complaint given by Shakthi (PW1) before the police was not placed before the Court and the place of occurrence is also doubtful. Under these circumstances, the prosecution failed to prove the charges against the accused persons and the finding of the trial Court is not based on evidence.
13.Therefore, where there is an element of genuine doubt, then there must be an acquittal as a matter of right, and not as a matter of grace or favour. In this case, it is unsafe to hold that the accused are necessarily guilty. Therefore, the prosecution failed to prove the charges against the accused persons beyond reasonable doubt and the accused are entitled for acquittal and the finding of the trial Court is liable to be set aside. Page 13 of 15 https://www.mhc.tn.gov.in/judis Crl.A.No.103 of 2021
14.Accordingly, the conviction and sentence passed by the trial Court is hereby set aside and the accused are acquitted from all the charges. Fine amount, if any, paid by the accused shall be refunded. If the accused are on bail, the bail bond executed by the accused are hereby cancelled.
Index: Yes/No 23.12.2022
Internet:Yes/No
sms
To
1.The learned Sessions Judge,
Special Court for SC/ST Act Cases Court,
Villupuram.
2. The Deputy Superintendent of Police,
Vikravandi Police Station,
Villupuram District,
Crime No.545 of 2018.
3.The Public Prosecutor,
High Court, Madras.
V.SIVAGNANAM, J.
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Crl.A.No.103 of 2021
sms
.
Pre-delivery Judgement in
Crl.A.No.103 of 2021
23.12.2022
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