This Criminal Appeal is preferred against the Judgment and sentence dated 28.09.2004 made in Special Sessions Case No.34 of 2004, on the file of the learned First Additional Sessions Judge, (PCR), Tiruchirappalli, whereby the appellant herein stands convicted under Section 3(1)(X) of SC/ST Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- in default, to undergo rigorous imprisonment for two months.
2. The appellant herein and two others faced trial for offence under
Section 323 of the Indian Penal Code and 3(1)(X) of the SC/ST Act. While the appellant herein was held guilty as above stated, the other two accused were absolved of all charges.
3. The case of the prosecution is as follows:-
The Deputy Superintendent of Police, Keeranur Sub Division laid a final report against accused 1 to 3 alleging that PW-1, Arumugam, who is a resident of Mettu Theru, Annavasal, belongs to Hindu, Pallar Community; that accused 1 to 3, who are residing at Sengapatti Village, belong to Hindu, Kallar Community; that on 24.06.2003, at about 04.45 PM, when PW-1 Arumugam, took snacks viz., picked up a 'Vadai' on his own from the tea stall of one Chokkan Alias Chokkanathan at Sengapatti Village, the first accused Sakthi scolded and degraded PW-1 Arumugam by saying "vd;dlh Bkl;Lj;bjU gs;sg;gay;fSf;F buhk;g jpkpuh Bghr;rp. ePahf tiliaj; bjhl;L vLf;fpwha;";. Thereafter, at about 05.15 PM, on the same day, when PW-1 Arumugam was standing in front of R.M.Muda Vaidiya Salai, due to previous enmity, the first accused Sakthi attempted to assault PW-1 Arumugam with stick and in resisting the same, PW-1 sustained injury on his hand. At that time, second accused Radha and third accused Sankar came there and fisted PW-1 hands and pushed him down, and thereafter, all the three accused kicked and fisted him. Thereby, the first accused is said to have committed offences under
Sections 294(b) and 323 of the Indian Penal Code and 3(1)(X) of the SC/ST Act and accused Nos.2 and 3 are said to have committed offences under
Sections 323 of the Indian Penal Code and 3(1)(X) of the SC/ST Act.
4. Since the offence is exclusively triable by the Special Court, the learned Judicial Magistrate, Keeranur, submitted the case records for trial. The learned Judicial Magistrate has also issued copies of documents to the accused 1 to 3 at free of cost under
Section 207 of the Criminal Procedure Code.
5. When the accused persons appeared before the Lower Court, on perusal of the documents and after hearing the counsel for both sides, the Lower Court was of the opinion that there are grounds to presume that accused 1 to 3 might have committed offence and a charge under Section 3(1)(X) of the SC/ST Act as against the first accused and a charge under
Section 323 of the Indian Penal Code against the accused 1 to 3 were framed, read over and explained to them in Tamil. The accused have denied the charges and claimed to be tried.
6. To substantiate the charges against accused 1 to 3, the prosecution has examined PWs 1 to 9 and marked Exs.P1 to P9. No material objects have been produced.
7. Brief evidence of the prosecution witnesses is as follows:- The complainant is Arumugam, PW-1, and Ex-P1 is the complaint. PW-1, who is an Ex-Serviceman, was residing along with his family at Mettu Theru, Annavasal. He has one daughter, studying Plus Two. PW-1 was working as a Security Man at Mariamman Kovil at Thennur. PW-1 belongs to Hindu, Pallar Community. He knows the accused 1 to 3, who belong to Hindu, Kallar Community. One Chockalingam has land near the land of PW-1 and P.W.2 Rajendran is his friend. On 24.06.2003, at about 4.00 PM, PW-2, Rajendran went to the house of PW-1 and both PWs-1 and 2 proceeded to Sengipatti Village in a TVS 50 vehicle to see one Chockalinga Thevar. They picked up 'vadai' from the tea stall belonging to Chockalingam. On seeing this, the first accused degraded PW-1 by saying "gs;sg;gay; eP vg;go tiliaj; bjhl;L vLf;fyhk;";. When it was questioned by PW-1, Arumugam, the first accused filthily abused him on caste lines. Thereafter, PW- 1 paid the cost for the snacks at the tea shop and after their return from Sengampatti, when they were in front of R.M.Muda Hospital, seven or eight persons, including accused 1 to 3, restrained them. The first accused, Sakthi, assaulted him with a stick on his hand and all the persons assaulted PW-1 and accused 2 and 3 fisted PW-1. The second accused pushed PW-1 from TVS 50 vehicle, due to which, PW-1 fell into a ditch, dug there by the Telephone Department. The accused 1 to 3, thereafter, kicked him on the private parts abusing him in filthily language and on caste lines. Thereafter, PW-2, Rejendran took PW-1 in an Auto to his house. Thereafter, PW-1 went to the hospital for taking treatment. The police came to the hospital and recorded his statement. Ex-P1 is the complaint given by PW-1. PW-1 was discharged from hospital on 27.08.2003. Thereafter, on 28.06.2003, PW-1 gave a complaint, Ex-P1 to the Police. PW-2 Rajendran corroborated the evidence of PW-1 with regard to the occurrence.
8. PW-3, Chockan alias Chockanathan and PW-4 Manikonar, who are said to be eye-witnesses to the occurrence, have been treated hostile by the prosecution. PW-5, Dr.Nehru, then Civil Assistant Surgeon, attached to the Government Hospital at Pudukkottai, evidence is that on 26.06.2003, when he was on duty at about 10.00 PM, PW-1 came for taking treatment and told him that he was assaulted by seven known persons and on examination, he found the following injuries on PW-1.
"No external injury was found. But the patient reported pain on the back and hip".
9. PW-5 was of the opinion that the injuries are simple in nature and could have been caused in the manner and time alleged by the prosecution. He issued wound certificate, Ex-P2.
10. PW-6, Mr.Pugalendhi, then Tahsildar, attached to Iluppur Taluk, issued a Community Certificate under Exs.P3 to P6 stating that PW-1 Arumugam belongs to Hindu, Pallar Community and that accused 1 to 3 belong to Hindu, Kallar Community.
11. PW-7, Mr.Rasu, was a witness to the Observation Mahazar, Ex-P7, prepared by the Police at the place of occurrence on 04.07.2003.
12. PW-8, Mr.Sakthivel, Inspector of Police, attached to Annavasal Police Station, evidence is that on 04.07.2003, when he was on-duty at about 9.00 AM, on receipt of complaint from one Arumugam, he registered a case in Crime No.158 of 2003 under
Sections 323 IPC and 3(1)(X) of the SC/ST Act and submitted First Information Report, Ex-P8 and complaint to the Lower Court and copies to the Deputy Superintendent of Police.
13. PW-9, Mr.Panchanathan, Deputy Superintendent of Police, Keeranur, Sub Division evidence is that on receipt of First Information Report, he proceeded to the place of occurrence, prepared Observation Mahazar and rough sketch, Ex-P9 in the presence of witnesses. He examined the witnesses and recorded their statements and gave a requisition to the Tahsildar to issue Community Certificate of PW-1 and the accused. He examined the Tahsildar, recorded his statement and obtained Community Certificates for PW-1 and the accused. He examined the Doctor, who treated PW-1, recorded his statement and obtained wound certificate. Thereafter, on 04.07.2003, at about 03.00 PM, he arrested accused 1 and 2 at Annavasal Bus Stop and sent them to judicial custody. On 08.07.2003, PW-9, arrested the third accused at about 04.30 PM in front of the tea stall belonging to Chockanathan at Sengapatti Village, and sent him to judicial custody. Thereafter, he examined the Inspector of Police, who registered the case and recorded his statement. After completion of investigation, he laid charge sheet against accused 1 to 3 on 31.07.2003.
14. On consideration of the evidence on record, the learned Sessions Judge held that accused 1 to 3 not guilty under
Section 323 of the Indian Penal Code and they were acquitted of the above said charge. The first accused/appellant was found guilty under Section 3(1)(X) of SC/ST Act and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- in default to undergo rigorous imprisonment for two months.
15. Challenging the said Judgment and sentence, the present Criminal Appeal has been filed.
16. The learned Counsel appearing for the appellant submits that Ex-P1 complaint was preferred only on 28.06.2003, while the alleged occurrence was of the date 24.06.2003. The delay of four days in preferring the compliant itself would render the complaint case doubtful. According to the complaint, the time of occurrence is stated as between 04.30 PM and 05.30 PM, whereas in the wound certificate of the complainant, Ex-P2 and in the evidence of PW-1, the time of occurrence is said to be around 06.00 PM. The prosecution case of PW-2 having been at the scene of occurrence and having accompanied PW-1 to the hospital is also doubtful, since even PW-2 states that though he was in the hospital when the police came, he was not questioned, nor had he stated anything about the occurrence, which according to the learned counsel, seemed be highly artificial. The learned Counsel for the appellant also refers to the evidence of PW-2, which is to the effect that he and PW-1 went to the hospital after PW-1 consumed liquor in his house, to ease the pain. Though PWs-3 and 4, who were eye- witnesses, turned hostile, their evidence still could be looked into and when so done, it could be seen that PW-1 was in an inebriated stage.
17. The learned counsel for the appellant submits that it is because of the evidence of PWs-3 and 4 that PW-1 was in an intoxicated state, being true, PW-2 tries to make out that PW-1 had liquor before going to the hospital. It is the admission of PW-1 that PW-2 is his friend. It is also the admission of PW-2 that he did not know the accused. In the above doubtful circumstances, the evidence of PW-1 that seven or eight persons came as a crowd and stopped his vehicle and the admission of PW-9, Deputy Superintendent of Police, who investigated the case that though the First Information Report informed of the attack by seven persons, the investigation did not reveal such an attack, renders the prosecution case doubtful.
18. I have heard the learned Government Advocate appearing for the respondent on the submissions of the learned counsel appearing for the appellant.
19. A perusal of the wound certificate Ex-P2 of PW-1 would show that he had hardly suffered any injury and even that suffered by him could be explained by the fact that it was clear from the evidence of PWs-2, 3 and 4 that he was in drunken state, which itself could have occasioned him some harm. When that is so, the evidence of attack on caste lines can hardly be countenanced. Even though PW-2 says that there was an occurrence on caste lines, he has not stated anything as to who said what. PW-1 also admits in his cross-examination that he usually used to visit the scene of occurrence and take tea therein and that there were no divisions on caste lines.
20. In such circumstances, I am of the view that the finding of conviction in respect of offence under Section 3(1)(X) of the SC/ST Act by the Trial Court suffers from misconstruction in the sense that the evidence of one, who admittedly was in a drunken state at the time of occurrence, has been acted upon.
21. For the reasons stated above, the Judgment and sentence dated 28.09.2004 made in Special Sessions Case No.34 of 2004, on the file of the First Additional Sessions Judge, (PCR), Tiruchirappalli, is set aside and this Criminal Appeal is allowed. Fine amount, if any, paid by the appellant herein shall be refunded. Consequently, connected Miscellaneous Petition is closed.
NB To
1.The Deputy Superintendent of Police, Keeranur.
2.The First Additional Sessions Judge, (PCR), Tiruchirappalli.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.