Madras High Court
Mani @ Appusamy vs The State Represented By on 7 December, 2022
Author: P.Velmurugan
Bench: P.Velmurugan
CRL A No.380 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 07.12.2022
Coram:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Criminal Appeal No.380 of 2020
Mani @ Appusamy ... Appellant
Vs.
The State Represented by
The Deputy Superintendent of Police
Tiruchengode Sub Diviison, Tiruchengode
Namakkal District
in Cr.No.462 of 2010 of
Tiruchengode Rural P.S. ... Respondent
Prayer : Criminal Appeal filed under Sections 374 (2) of Criminal
Procedure Code and Section 14A of the SC & ST (PoA) Act, 1989
praying to set aside the Judgment dated 20.08.2020 in S.C.No.115 of
2018 on the file of the learned Special Court for SC & ST (PoA) Act
cases, Namakkal in so far as it holds the appellant/1st accused guilty of
offences under Section 147 and 323 read with 149 and Sentencing him to
undergo simple imprisonment for one year and to pay a find of Rs.1000/-
in default to undergo simple imprisonment for one month for the offence
under Section 147 IPC sentencing him to undergo simple imprisonment
for one year and to pay a fine of Rs.1,000/-, in default to undergo simple
imprisonment for one month for the offence under Section 323 read with
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CRL A No.380 of 2020
149 IPC (Totally Rs.2,000/-), the direction to pay compensation of
Rs.25,000/- to PW.1 under Section 357 of Cr.P,.C. and upholding the
Judgment of acquittal of the appellant/1st accused with respect to the
offences punishable under Sections 294(b), 324 IPC and 3(1)(x) of
SC/ST (PoA) Act 1989.
For Appellant : Mr.T.S.Arthanareeswaran
For Respondent : Mr.R.Murthi
Government Advocate (Crl. Side)
JUDGMENT
This Criminal Appeal has been filed seeking to set aside the Judgment dated 20.08.2020 in S.C.No.115 of 2018 on the file of the Special Court for SC & ST (PoA) Act Cases, Namakkal, in so far as holding the appellant/1st accused guilty of offences under Section 147 and 323 read with 149 IPC and upholding the Judgment of acquittal of the appellant/1st accused with respect to the offences punishable under Sections 294(b), 324 IPC and 3(1)(x) of SC/ST (PoA) Act 1989.
2. The respondent police registered the case in Crime No.462 of 2010 initially against the appellant for the offences under Sections 294(b), 323 read with Section 3(i)(x) SC/ST (PoA) Act on 17.10.2010 2/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 and during enquiry, found that six other accused are involved in this case and after investigation, the respondent police laid charge sheet before the learned Judicial Magistrate, Tiruchengode, against the appellant for the offences under Sections 147, 294(b), 324 IPC read with 149 IPC, 323 IPC read with 149 IPC and 3(1)(X) of SC/ST Act, 1989 and also filed absconding charge sheet against the other six accused since they were absconding. The trial Court took the charge sheet on file against the appellant alone and split up the case against the other six accused. Since the offences involved in this case are exclusively triable by the Court of Session, the case was committed to the Principal District and Sessions Court, Namakkal, and the learned Principal District and Sessions Judge, taken the case on file in S.C.No.115 of 2018 and after establishment of the Special Court, made over the case to Special Court for SC & ST (PoA) Act Cases, Namakkal. The learned Special Judge, after completing the formalities, framed the charges against the appellant for the offences under Sections 147, 294(b), 324, 323 read with 149 IPC and Section 3(1)(x) of (PoA) Act 1989.
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3. After framing the charges, in order to prove the case of the prosecution, during trial before the trial Court, totally 10 witnesses were examined as P.W.1 to P.W.10 and 12 documents were marked as Exs.P.1 to P.12 and no material object was exhibited.
4. After completing the examination of the prosecution witnesses, incriminating circumstances culled out from the evidence of the prosecution witnesses were put before the first accused by questioning under Section 313 Cr.P.C. However, the first accused denied the same as false and pleaded not guilty. On the side of the defence, no oral evidence was let in however, one document was marked as Ex.D1 besides one Court document was marked as Ex.C1.
5. On conclusion of trial after hearing the arguments advanced on either side and also considering the materials, the Special Court found the the appellant/first accused not guilty for the offences under Sections 294(b), 324 IPC and 3(1)(x) of SC/ST (PoA) Act 1989 and thereby, acquitted him from the above said charges. However, the Special Court found the appellant guilty for the offences under Section 323 read with 149 IPC and 147 IPC and therefore, convicted and sentenced him to 4/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 undergo simple imprisonment for one year and to pay a fine of Rs.1,000/- in default, to undergo simple imprisonment for a further period of one month for the offence under Section 147 IPC; to undergo simple imprisonment for one year and to pay a fine of Rs.1,000/-, in default, to undergo simple imprisonment for a further period of one month for the offence under Section 323 read with 149 IPC. Further, the appellant/first accused was directed to pay compensation of Rs.25,000/- to the victim/PW.1.
6. The case of the prosecution is that the victim belongs to Arunthathiyar community and the appellant belongs to Kongu Vellalar community. On 16.10.2010 at about 8.30 p.m., the victim/P.W.1 went to the hotel of the appellant along with one Arumugamm and Mani @ Marimuthu wherein, they were not supplied food by the persons in the hotel. When the victim/P.W.1 questioned the same, they scolded with their caste name and the appellant/A1 directed his hotel employees to assault them in order to get away from the place. Hence, the employees of the appellant/A1 assaulted the victim/P.W.1 with firewood due to which, the victim/P.W.1 sustained injuries on his head, face, stomach etc. 5/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 The neighbours in that place telephoned to his house and the victim was admitted in the Government Hospital, Tiruchengode.
7. The learned counsel for the appellant would submit that no one would attack or utter caste name while a person going to have food. Further, the appellant is the owner of the hotel. A person who is doing hotel business would only concern about the profit and they would serve food whoever comes to their hotel irrespective of caste, religion and status and for one or other reason, the defacto complainant has foisted the false case against the appellant.Though P.W.2 alleged to have accompanied P.W.1/victim, he has not supported the case of the prosecution and he has stated that he left the victim and one Mani in the hotel and went to fill petrol to his vehicle and when he returned, he heard about the occurrence. Further, the said Mani, who is alleged to have accompanied the victim/P.W.1 and P.W.2 to the hotel, was not examined which is fatal to the case of the prosecution. Further, PW.2 has stated that on earlier occasion also, he went to the same hotel and had food. If that be the case, the appellant could have shown discrimination and uttered 6/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 caste name even on the earlier occasion. But it is not the case of the prosecution that the appellant uttered caste name in the earlier occasion also. Therefore, the prosecution failed to prove its case beyond all reasonable doubts. Even in the findings, the trial Court has observed that the prosecution failed to prove its case beyond all reasonable doubt in respect of uttering obscene words under Section 294(b) IPC and Scheduled Caste discrimination atrocity word in public view as stipulated under Section 3(1)(x) of SC/ST (PoA) Act, 1989 and the appellant/A1 caused injuries with dangerous weapon under Section 324 IPC and thereby, acquitted the appellant/A1 for the above said charges. However, the trial Court has stated that the appellant/A1 assaulted the prosecution witness and therefore, he is liable to be punished under Section 323 read with 149 IPC, being the member of the unlawful assembly, he is also liable to be punished under Section 147 IPC. He would submit that since the other accused are imaginary figures, the respondent police still not arrested the other accused. Only in order to bring home of the offence under Section 147 and 149 IPC, the prosecution has foisted a false case against the appellant. Even P.W.1/injured witness has not stated that the 7/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 appellant attacked him. He has only stated that the appellant asked the other accused to attack him. Further there is no specific overt-act against the appellant. Though the trial Court rightly found that the prosecution not proved the charges for the offences under Section 294(b), 324 IPC and Section 3(1)(x) of SC/ST (PoA) Act, from the very same materials and evidence, erroneously convicted the appellant for the offences under Section 323 read with 149 IPC and 147 IPC which warrants interference.
8. The learned Additional Public Prosecutor appearing for the respondent police would submit that P.W.1 is the inured witness. The doctor who gave treatment to the injured witness/P.W.1 and made entry in the Accident Register/Ex.P.3 was examined as P.W.5 and he has clearly spoken about the injuries sustained by P.W.1. A combined reading of the evidence of P.W.1/injured witness, P.W.5/doctor and the copy of the Accident Register/Ex.P.3 and also the wound certificate/Ex.P.3 would show that the prosecution proved its case beyond all reasonable doubts. The trail Court rightly convicted the appellant/A1 and there is no merit in the appeal and the appeal is liable to be dismissed. 8/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020
9. Heard the learned counsel for the appellant/A1 and the learned Additional Public Prosecutor appearing for the respondent police and also perused the materials on records.
10. Admittedly the case was initially registered against the appellant alone and subsequently, after investigation, the respondent police found that six other accused are involved in this case and thereby, the prosecution agency laid charge sheet against seven persons out which, the appellant herein was shown as A1 and he is a named accused even in the FIR and in the complaint. Since the other six accused were absconding, the respondent police laid absconding charge sheet against those accused. The trial Court after completing the formalities, split the case as against the absconding accused and taken the case on file against the appellant herein and tried the case for trial.
11. In order to substantiate the charges against the appellant, on the side of the prosecution totally 10 witnesses were examined and 12 documents were marked. On the side of the defence, one document was marked as Ex.D1 besides one Court document was marked as Ex.C.1 9/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020
12. Out of the 10 witnesses, the victim who is the injured witness was examined as P.W.1 and he has stated that on the date of occurrence i.e. 16.10.2010 at about 8.30 p.m., he went to the hotel of the appellant for taking dinner along with his friends wherein, they were refused to serve food and they were also scolded with caste name. When they questioned the same, the appellant asked his employees to attack and pull them out. Accordingly, the employees of the appellant attacked them due to which, P.W.1 sustained injuries in his head, stomach, hands and cheek. Subsequently, he was taken to Thiruchengode Government hospital in 108 Ambulance from where, he was referred to Erode Government Hospital.
13. P.W.5 is the doctor one who attended the injured witness/P.W.1 in the Thiruchengode Government Hospital and made entry in the Accident Register/Ex.P3 and also referred the injured to the Erode Government Hospital for further treatment. He has clearly stated that on 16.10.2010 at about 11.20 p.m., while he was on duty, P.W.1 was brought to the hospital by his wife. At that time, P.W.1 informed him that 7 10/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 unknown persons attacked him with hands and sticks and the doctor/P.W.5 also spoken about the injuries sustained by P.W.1. He has further stated that after treatment was given to the injured/P.W.1 at Erode Government Hospital, based on the report, he issued Ex.P.4/wound certificate and given opinion that the injuries sustained by P.W.1 are simple in nature.
14. Though P.W.2 who is the friend of P.W.1 alleged to have accompanied the injured witness/P.W.1 to the hotel, he has stated that he left the injured/P.W.1 and one Mani in the Hotel and went to fill petrol to his vehicle and when he returned, he heard that the hotel inmates assaulted P.W.1. Even P.W.4 who is the wife of the injured witness/P.W.1, has stated that on hearing about the quarrel, she went to the occurrence place and admitted her husband/P.W.1 in Tiruchengode Government Hospital and thereafter, in Erode Government Hospital. Therefore, both P.W.2 and P.W.4 are not eyewitnesses to the occurrence and they are only hearsay witnesses.
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15. Since the prosecution not proved the charges for the offences under Sections 294(b) and 324 IPC and also Section 3 (1) (x) of SC/ ST (PoA) Act, the trial Court rightly acquitted the appellant/A1 from the said charges. However from the evidence of P.W.1/injured witness, P.W.5/ doctor and also Ex.P.4 wound certificate, the trial came to the conclusion that the appellant/A1 committed offences under Section 323 read with 149 IPC since the appellant is the one who gave direction to his employees to attack the P.W.1/injured witness and therefore, the other accused attacked P.W.1/injured witness due to which, P.W.1 sustained injuries. The evidence of the doctor/P.W.5 and Ex.P.4 clearly shows that P.W.1 sustained injuries. Since more than 5 person are involved in this case and the appellant is the one among them who assembled unlawfully, the trial Court also convicted the appellant/A1 for the offence under Section 147 IPC.
16. This Court being an Appellate Court as a final Court of fact finding, it has to necessarily re-appreciate the entire evidence and to give its findings independently. Accordingly, this Court re-appreciated the entire evidence and gives its findings independently. 12/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020
17. From the evidence of P.W.1/injured witness, P.W.5/doctor, Ex.P.3/copy of Accident Register and Ex.P.4/Wound certificate, this Court finds that the appellant/A1 has committed the offence under Section 323 read with 149 IPC and also under Section 147 IPC. Therefore, this Court does not find any perversity in the appreciation of evidence and findings of the trial Court. Therefore, there is no merit in the appeal and the appeal is liable to be dismissed.
18. Accordingly, this Criminal Appeal is dismissed.
19. The Investigating Officer is directed to secure all the other accused within 15 days from the date of receipt of a copy of this order and produce before the trial Court to enable the trial Court to proceed with the split up case failing which, the Superintendent of Police, Namakkal, is directed to take action against the concerned Investigating Officer and file action taken report before this Court on 03.01.2023. 13/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020
20. List the matter on 03.01.2023 “for reporting compliance”.
07.12.2022 ksa-2 Index:Yes/No NOTE: Issue order copy on 13.12.2022 14/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 To
1. The Special Court for SC & ST (PoA) Act cases, Namakkal
2. The Deputy Superintendent of Police Tiruchengode Sub Diviison, Tiruchengode Namakkal District Tiruchengode Rural P.S.
3. The Public Prosecutor Officer, High Court, Madras
4. The Section Officer, Criminal Section, High Court, Madras. Copy To The Superintendent of Police, Namakkal 15/16 https://www.mhc.tn.gov.in/judis CRL A No.380 of 2020 P.VELMURUGAN, J ksa-2 Criminal Appeal No.380 of 2020 07.12.2022 16/16 https://www.mhc.tn.gov.in/judis