Madras High Court
Narasimman vs The State Represented By on 15 March, 2017
Author: C.T.Selvam
Bench: C.T.Selvam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 15.03.2017
C O R A M
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Criminal Appeal No.240 of 2013
1.Narasimman
S/o.Seethappan
2.Sambangi
S/o.Seethappan
3.Seenivasan
S/o.Seethappan
4.Chinnappa
S/o.Seethappan
5.Kesavan
S/o.Venkatasamy
6.Murugesan
S/o.Kalappa
7.Seenivasan
S/o.Govindhappan
8.Perumal
S/o.Nedhappa
9.Ravi
S/o.Venkatesappa
10.Murali
S/o.Billappa ... Appellants/A1 to A10
-vs-
The State represented by
Inspector of Police,
Veppanapalli Police Station,
Krishnagiri District.
Crime No.57/2010 ... Respondent/Complainant
Criminal Appeal filed under Section 374 r/w 382 of the Code of Criminal Procedure against the judgment of learned Principal District and Sessions Judge, Krishnagiri, passed in S.C.No.35 of 2012 on 18.03.2013.
For Appellants : Mr.S.Ananthanarayanan, senior counsel for
Mr.S.Ramesh Kumar
For Respondent : Mr.M.Mohammed Riyaz
Government Advocate [Crl.side]
*****
J U D G M E N T
This appeal arises against the judgment of learned Principal District and Sessions Judge, Krishnagiri, passed in S.C.No.35 of 2012 on 18.03.2013, convicting appellants for offences u/s.147, 341, 325 r/w 149 IPC and 3(1)(x) of the Scheduled Castes and Scheduled Tribes Act and 307 IPC r/w 3(ii)(v) of the Scheduled Castes and Scheduled Tribes Act and sentencing them as follows:
Accused Sections of Law Sentence A1 to A10 147 IPC 1 year S.I. and fine of Rs.2,000/- each i/d 3 months S.I. A1 to A10 341 IPC 15 days S.I. and fine of Rs.300/- i/d 1 week S.I. A2 to A10 323 IPC 6 months S.I. and fine of Rs.500/- each i/d 1 month S.I. A1 307 IPC and 3(ii)(v) of the SC/ST Act 10 years R.I. and fine of Rs.25,000/- i/d 1 year R.I. A2 to A10 307 r/w 149 IPC 10 years R.I. and fine of Rs.25,000/- each i/d 2 years R.I. A1 to A10 3(i)(x) of the SC/ST Act 1 year R.I. and fine of Rs.5,000/- i/d 1 month R.I.
2. The case of the prosecution is that on 03.03.2010 at about 12.00 a.m., the accused, with intent to assault PW-1, formed an unlawful assembly in front of the house of A1 and when PW-1 requested for a glass of water from A1's house, accused abused him using bad language and assaulted him resulting in his suffering intestinal injury. PW-1's father preferred Ex.P1, complaint, on 05.03.2010 at 21.00 hours. PW-8, Head Constable, registered a case in Crime No.57 of 2010 on the file of respondent for offences u/s.147 and 323 IPC. First Information Report is Ex.P15. PW-10, Sub-Inspector of Police, took up investigation on 06.03.2010, visited the place of occurrence in the presence of PW-3 and another, prepared Ex.P2 Observation Mahazar and Ex.P17 Rough Sketch. He examined PWs.1, 2, 3 and others and recorded their statements. He handed over investigation to PW-11, Inspector of Police. PW-11 took up investigation on 03.04.2010, examined PW-1 and recorded his statement. He altered the FIR to reflect offences u/s.147 and 323 IPC and 3(i)(x) of the SC/ST Act and forwarded the same to Court. Alteration Report is Ex.P18. Thereafter, the Deputy Superintendent of Police took up further investigation on 04.04.2010. He examined PWs.1, 2, 3 and others and recorded their statements. On 05.04.2010, at 03.00 p.m., he arrested A5 and A8 at Boothimutlu Police Station and sent them to judicial custody. He examined PW-4, Doctor, and recorded his statement. He sent a requisition to the Tahsildar, Krishnagiri, to ascertain the community of PW-1 and accused. Thereafter, he handed over investigation to PW-13, Superintendent of Police. On 17.04.2010, PW-13 examined PW-5, Doctor, and recorded his statement and obtained Ex.P3, wound certificate. On 20.04.2010, PW-13 examined PW-6, Additional Tahsildar, and recorded his statement and obtained Exs.P4 to P13, community certificates of the accused. PW-13 examined PW-7, Tahsildar, recorded his statement and obtained Ex.P14, community certificate of PW-1. Upon completion of investigation and filing of charge sheet informing commission of offences u/s.147, 341, 325 r/w 149, 307 r/w 149 IPC and 3(i)(x) and 3(ii)(v) of the Scheduled Castes and Scheduled Tribes Act, the case was tried in S.C.No.35 of 2012 on the file of learned Principal District and Sessions Judge, Krishnagiri.
3. To substantiate its case, prosecution examined PWs.1 to 13 and marked Exs.P1 to P20. None were examined on behalf of the defence nor were any exhibits marked. On questioning u/s.313 Cr.P.C., the accused denied charges. Learned trial Judge, on appreciation of the evidence, under judgment dated 18.03.2013, convicted the accused and sentenced them as above.
4. Heard learned counsel for appellant and learned Government Advocate [Crl.side] as also perused the records.
5. Learned senior counsel for appellants submitted that the very occasion for PW-1 seeking a glass of water from the accused did not arise since it is the evidence of PW-10, Sub-Inspector of Police, who initially took up investigation that the occurrence had taken place in front of PW-1's house. PW-1, in cross, had admitted to not having informed the police when he was examined at Krishnagiri Government Hospital wherein he was undergoing treatment between 03.03.2010 and 06.03.2010 that he was abused on communal lines. The very genesis of the occurrence was in doubt inasmuch as the occurrence allegedly took place on 03.03.2010 at 12.00 a.m., the complaint had been allegedly preferred on 05.03.2010 and the same had reached the jurisdictional Magistrate only on 08.03.2010. A perusal of Ex.P15, First Information Report, made clear that the same did not inform any utterances by the accused on communal lines. Learned senior counsel submitted that it was only after PW-11, Inspector of Police, took up investigation and on his recording a statement from PW-1 that the First Information Report had been altered to include offences u/s.3(i)(x) of the Scheduled Castes and Scheduled Tribes Act. An offence u/s.307 IPC was alleged since PW-1 had suffered a rupture of the intestine. PW-5, Doctor, had admitted that such injury could have been suffered by PW-1 if he had fallen forcibly upon a thorn bush. Learned senior counsel pointed out that according to Ex.P3, PW-1 had been assaulted by a group of 15 unknown persons near Boothimutlu village. Learned senior counsel submitted that as the accused party were well to do, a false case has been foisted upon them with intent to extort money from them. Learned senior counsel submitted that even according to PW-1 it was the first accused who had set upon him when PW-1 asked first accused not to speak on communal lines and it was only thereafter that the other accused beat him. In such circumstances, it cannot be said that the accused had formed an unlawful assembly. Learned senior counsel placed reliance on the judgment of Apex Court in Gorige Pentaiah v State of Andhra Pradesh and others [2008 (12) SCC 531] and judgments of this Court in N.Anthony Iruthayaraj v State [2013 MLJ (Cri) 385] and Thesappan v State represented by Inspector of Police [2013 (3) MLJ (Crl) 661].
6. Heard learned Additional Public Prosecutor on the above submissions.
7. It is far-fetched to inform that the accused party formed an unlawful assembly with the common object of setting upon PW-1 when it is the admitted prosecution case that PW-1 chanced to stop at the house of first accused to seek a glass of water. His doing so could not have been foreseen by accused so as to render amenable the forming of an unlawful assembly. In cross, PW-1 has admitted that in his complaint to the police he had not informed of first accused casting communal aspersions and beating him. The alleged occurrence is of 03.03.2010. Ex.P1, complaint, allegedly was preferred on 05.03.2010 and the same has reached the Magistrate on 08.03.2010. While PW-1's admission of first accused not having cast aspersions on caste lines makes inclusion of offence under the Scheduled Castes and Scheduled Tribes Act false, the fact of Ex.P15, First Information Report, reaching Magistrate only on 08.03.2010 casts a shadow over the very truth of the complaint. In Gorige Pentaiah's, the Apex Court had informed thus:
'6. ... In the entire complaint, nowhere it is mentioned that the appellant-accused was not a member of the Scheduled Caste or a Scheduled Tribe and he intentionally insulted or intimated with intent to humiliate Respondent 3 in a place within public view. When the basis ingredients of the offence are missing in the complaint, then permitting such a complaint to continue and to compel the appellant to face the rigmarole of the criminal trial would be totally unjustified leading to abuse of process of law.' In the instant case, the time of alleged occurrence is 12 a.m. The very hour provides a shield against public view and the very occurrence alleged is a chance one. As in the case before Supreme Court in the present case also there is no allegation in the complaint of the accused not belonging to scheduled caste/scheduled tribe. The decision of this Court in N.Anthony Iruthayaraj informed that there is inordinate delay in sending the First Information Report to the jurisdictional Magistrate and the same creates grave doubt on the truth of the prosecution case. Even that apart, in the instant case, Ex.P3, Wound Certificate, informs of an attack by 15 unknown persons, the possibility of the very complaint being the product of deliberations cannot be ruled out. The benefit of doubt must flow to the accused.
For the aforesaid reasons, this Criminal Appeal shall stand allowed. The conviction and sentence passed by learned Principal District and Sessions Judge, Krishnagiri, passed in S.C.No.35 of 2012 on 18.03.2013, are set aside and appellants are acquitted of all charges. Fine amount, if any, paid shall be refunded to them. Bail bond(s), if any, executed by them shall stand cancelled.
15.03.2017 Index: Yes / No Internet: Yes gm To
1.The Principal District and Sessions Judge, Krishnagiri.
2.The Inspector of Police, Veppanapalli Police Station, Krishnagiri District.
3.The Public Prosecutor, High Court, Chennai.
C.T.SELVAM, J gm Criminal Appeal No.240 of 2013 15.03.2017