This Criminal Appeal is directed against the judgment passed by the II Additional Sessions Judge, Tirunelvelli, made in S.C.No.80 of 2006, dated 11.11.2009.
2.The case of the prosecution is that the witness Subramani belonged to Hindu Arunthathiyar community of Schedule Caste and that on 08.06.2006 at 11.30 am, when he was returning from one Sampathy Shop at Velayuthapuram through the way of community Marriage Hall, A1 to A6 were standing in front of the said Hall and the accused abused him by saying his caste name and also assaulted with hands. The Additional Superintendent of Police attached to Tuticorin Police Station has filed a final report against the accused.
3.In the trial court, 8 witnesses were examined and 14 Exhibits were marked. When the accused were questioned about the incriminating circumstances, they denied the same. The trial court convicted A1 to A6 for the offence under
Section 147 IPC and imposed a fine of Rs.1,000/- each accused, in default to suffer SI for one month each; convicted A1 under
Section 323 IPC and imposed http://www.judis.nic.in 3 a fine of Rs.500/- and in default, to suffer SI for one month and convicted A1, A4 and A5 for the offence under Section 3(1)(x) of SC/ST (POA) Act and sentenced them to undergo 6 months RI each and also imposed a fine of Rs.500/- each, in default to suffer SI for one month against each of them. Challenging the Judgment of the trial court, the appellants/A1 to A6 are before this court.
4.The learned counsel for the appellants submitted that there are material discrepancies and inconsistencies between the complaint (Ex.P1) and the evidence of PW1 and in this case, PW1 says that the Inspector of Police, Kalugumalai came to the Hospital on information and got the complaint (Ex.P1), whereas the Doctor (PW4) who treated PW1 says that PW1 came with Medical Memo issued by the Inspector of Police and this discrepancy was not cleared by the prosecution and PW1 has deposed that the alleged occurrence had taken place when he returned back after sending the relatives who had come for festival in a bus, whereas in Ex.P1, he has stated the alleged occurrence took place, when he returned back from the shop of one Sampath, which was located on the west of the village and in this case, as soon as the occurrence was over, PW1 reported the occurrence to his wife and the son, who were in http://www.judis.nic.in 4 his house upon their enquiry and they only took him to the hospital and the investigating agency failed to examine and cite them as witnesses and the Doctor (PW4) has deposed that all the injuries are only complaint of pain, but the learned Judge has observed that the Doctor has seen tenderness over the neck of PW1 and the evidence of PW1 has not been corroborated by PW2, who is said to be the only eye witness to the alleged occurrence and PW2 has not spoken anything about the over-acts of the accused and on the other hand, his evidence is faint and obscure and in this case, the name of PW2 was not stated in the complaint, but PW1 has said that his name was stated in Ex.P1 and the prosecution failed to prove that the alleged occurrence was taken place within the public view and the prosecution has failed to prove that the alleged assault on PW1 was with mens rea within the purview of Section 3(1)(x) of SC/ST (Prevention of Atrocities) Act. In view of the above circumstances, the judgment of the trial court has to be set aside and the appeal has to be allowed.
5.On the other hand, the learned Government Advocate (Criminal side) appearing for the respondent/State submitted that the trial court appreciated the evidence in a proper manner and http://www.judis.nic.in 5 believed the evidence and having regard to the nature of the offences, convicted the appellants and passed proper sentence, which do not require any interference by this court and the accused is not entitled for acquittal and prays that the criminal appeal has to be dismissed.
6.Heard both sides and perused the materials available on record.
7.The main contention raised on the side of the appellants/accused is that there are contradictions in respect of the motive and there are material discrepancies and inconsistencies between Ex.P1 and the evidence of PW1 and there are cloud surrounded over Ex.P1 and the prosecution failed to prove that the alleged assault on PW1 was with mens rea within the preview of Section 3(1)(x) of the SC/ST (POA) Act.
8.PW1 in his complaint and evidence stated that on 08.06.2006 at 11.30 am, when he was returning from Sampathy shop at Velayuthapuram through the way of Community Marriage Hall, A1 to A6 were standing in front of the said Hall and A1 abused http://www.judis.nic.in 6 him by uttering new;W cd; bjU tHpahf khL gj;jpl;L te;jtq;fis jpl;odhah> vd;dlh rf;fpspad; Tjp kfnd if ePl;oah ngRnwh and thus A1 insulted him in his caste name and also assaulted him with hands over back of his head and A4 abused him in his caste name by uttering rf;fpyp Tjp kfid tplhjpq;flh and kicked him over his right flank and therefore, he fell down and A3 insulted his caste by uttering rf;fpspag;gaYf;F nfhtpy; bfhil vd;dlh ntz;of; fplf;F and also kicked him with his right leg over his head and A5 pulled him with his hand by holding his shirt and assaulted him over his cheeks and A6 and A2 assaulted him with hands over his stomach, flank and back repeatedly and caused simple injuries and when he came and reported the matter to the Village Head, at that time, A7 and A8 abused him and insulting in his caste name by uttering Xog;nghny rf;fpspad; Tjp kfnd and hence, PW1 came to his house and reported the occurrence to his family members and therefore, his wife and son took him to Government Hospital at Kovilpatti. The police came there and obtained a complaint from him and the complaint lodged by him is Ex.P1. http://www.judis.nic.in 7
9.On careful perusal of Ex.P1 and the evidence of PW1, it reveals that even though PW1 has not stated in the complainant as well as in the evidence that there was previous enmity between him and the accused, but stated in Ex.P1 and in his evidence that due to the objection shown by him in bring the cattle of the accused through his street and due to it, the accused called his caste name and assaulted him.
10.On the side of the appellants/accused, it is stated that at the instigation of the Community Leader and with the support of the Inspector of Police, only PW1 lodged a false complaint against the accused. It was not stated by the appellants/accused what was the previous enmity between the accused and the political leader and the accused. To prove it, no document was filed. Hence, argument put forth on the side of the appellants/accused stating that at the instigation of the Community Leader and with the support of the Inspector of Police only, PW1 had falsely foisted the complaint is not at all acceptable. Hence, it is held that due to the objection by PW1 in bringing the cattle of the accused through his street only the occurrence took place.
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11.The next contention raised on the side of the appellants/accused is that there was gap between the signature of PW1 and the contents found in Ex.P1 and at first instance only the signature of the PW1 alone obtained in the blank paper and later point of time, it was prepared and Ex.P1 is doubtful and it cannot be relied upon.
12.It is seen that PW1 did not know to write and he had prepared the complaint with the help of another person and he knew to put his signature only and he can read with difficulty. Therefore, when the complaint was prepared by another person, it is quite natural that some gap would be given for putting the signature of the appellants and in this case also, there is little gap in between signature of PW1 and the contents in Ex.P1, it had occurred due to the above circumstances only and not because of foisting of false complaint at a latter point of time. The occurrence had taken place at 11.30 am and immediately after taking some rest due to the shock of the occurrence, PW1 had straightaway gone to the hospital and where the police had called on him at 4.30 pm and obtained the complaint. At the hospital only PW1 had prepared Ex.P1 and therefore, there was no possibility for http://www.judis.nic.in 9 instigation or tutoring by some other persons. In these circumstances also, Ex.P1 can be believed as genuine one. Moreover, the case was registered by the Inspector of Police at 5.30 pm and reached the court in the night on the same day. Therefore, there is no possibility for fabricating Ex.P11 with false allegations. Thus, the complaint has become trustworthy document and therefore, the case arose out of Ex.P1 can also be believed and acted upon.
13.The next contention raised by the learned counsel for the appellants is that the occurrence had not taken place in the presence of public or in the public view place audible to members of public and therefore, no offence under Section 3(1)(x) of SC/ST (POA) Act is made out and the accused could not be found guilty under the above charge. In support of his contention, the learned counsel appearing for the appellants relied upon the judgment reported in 2009-Crl.L.J 3831 Bombay. In Ex.P1 itself, it has been specifically stated that the occurrence had taken place in front of Kalyana Mandapam belonged to Reddiar Community. In his evidence also, PW1 has specifically stated as follows:-
tpyf;fpy; te;J bfhz;oUe;jnghJ M$h; ......
mth;fsJ rKjhaf; Tlj;jpw;F gf;fj;jpy; cl;fhh;e;jpUe;jhh; mth;fspy; kzpfz;ld; vd;gth; vd; gl;l bgauhd bkf;fd; ,sq;nfthlh vd;W miHj;jhh;.
14.PW2 in his evidence deposed that when he was returned back to his house, he witnessed the occurrence. In Ex.P2, Observation Mahazar also, it has been mentioned that the occurrence has taken place in front marriage Hall/Samuthaya Nala Koodam of Reddiar Community. Ex.P14 (Rough Sketch) would also confirm that the occurrence had taken place in front of Samuthaya Koodam.
15.PW3 Saravanan also confirm the contents in Ex.P2 with regard to the occurrence place. As per Section 3(1)(x) of SC/ST (POA) Act, if any person insults a member of Scheduled Caste in a public place or within public view, such person can be held under the said provision. In this case, it has been categorically proved that the place of occurrence is a public place, which is situated http://www.judis.nic.in 11 within public view and therefore, the above contention raised by the learned counsel for the appellants/accused cannot be accepted.
16.The next contention raised by the learned counsel for the appellants is that no one other than PW1 speaks about the occurrence and the name of PW2 has not been mentioned in Ex.P1 and therefore, solitary evidence and uncorroborated evidence PW1 alone could not be relied upon. To substantiate his contention, the learned counsel for the appellants would submit that the name of other eye witnesses did not find place in the First Information Report. The First information report is not the encyclopedia of all the facts of this case and it has to be considered only as first information laid before the police, so as to initiate criminal action against the culprits.
17.It is not the case of the appellants that the name of the witnesses had not been stated before the Investigating Officer and nothing had been elicited through the Investigating Officer about the presence of PW2 and other witnesses. PW2 also did not say that he witnessed to the entire occurrence as stated by PW1. http://www.judis.nic.in 12
18.PW1 merely stated that the occurrence is known to his wife and PW2 Palsamy. Therefore, the presence of PW2 at the scene of occurrence could not be doubted and non-examination of other independent witnesses would not affect the case of the prosecution. Since the evidence of PW1 inspires confidence, PW1 had launched his complaint only to report the incident, which took place on the date of occurrence and not due to any other previous enmity and as such, the evidence of PW1 alone can be considered.
19.PW1 in his evidence deposed that when he was returning towards his house, A1 to A6 stood there and called them and asked him how he can be questioned the act of bringing the cattle through his street and when PW1 refused, A1 abused him rf;fpypa njtoah kfnd> refused and assaulted him over him back near neck. Before the Doctor (PW4) also, PW1 had stated that he was assaulted by known persons with hands at about 11.30 am and the Doctor has seen pain over his neck on the back.
20.PW1 has also stated before the Doctor that the occurrence had taken place at Velayuthapuram near Kalyana Mandapam. In his cross examination also, Doctor has confirmed http://www.judis.nic.in 13 that on examination, tenderness was present on the back of the neck of PW1 and therefore, we can hold that due to assault by A1 with hands only Doctor found tenderness and pain on the back of PW1 and therefore, A1 can he held guilty under
Section 323 IPC.
21.PW1 in his evidence deposed that A4 also abused him in his caste name by uttering rf;fpypa njtoah kfnd ifia ePl;o ngrhnj and also kicked him with leg. It is contended by the appellants/accused that PW1 had not stated before the Doctor he was kicked by any person with leg. It is true that PW1 had not stated before the Doctor that he was also kicked with legs by any persons. Doctor had also not seen any injury on the flank of PW1. Therefore, except the insulting words other act committed by A4 cannot be said to be proved.
22.PW1 in his evidence deposed that A3 kicked him with legs over his back. But he has not stated before the Doctor that he was kicked by any person with leg. PW1 further stated that A5 abused him in his caste name by uttering rf;fpypa njtoah kfDf;F vt;tst[ jpkph; and assaulted him in both of his cheeks indiscriminately. But the Doctor had not seen any injury or http://www.judis.nic.in 14 tenderness over his cheek. Therefore, the act of assault committed by A5 cannot be said to be proved. But the obscene words can be believed. PW1 further deposed that A2 and A6 assaulted him over his back and front with hands. But he has not specified the part of the body, on which the accused assaulted. Hence, the assault committed by A2 and A6 has not been proved by the prosecution. But the presence of A2 and A6, at the scene of occurrence and questioning PW1 in common and also assault by some of them in prosecution of their common object on PW1 have been proved. The act of A1 to A6 would attract the commission of offence of under
Section 147 IPC. In Ex.P1 also, it has been categorically stated that A1 to A6 joined together and assaulted PW1 by surrounding him. Hence, this court is of the view that the charge under
Section 147 IPC against A1 to A6 and the charge under
Section 323 IPC against A1 have been proved by the prosecution beyond all reasonable doubts.
23.PW1 in his evidence categorically stated that A1 insulted him in the public place by calling him as rf;fpypa njtoah kfnd and A4 also insulted him by calling as rf;fpypa njtoah kfnd and A5 also insulted him by calling him http://www.judis.nic.in 15 rf;fpypa njtoah kfDf;F vt;tst[ jpkpU and the above insulting words have humiliated his feelings and therefore, this court is of the considered view that the offence under Section 3(1)
(x) of SC/ST (POA) Act has been proved against A1, A4 and A5 beyond all reasonable doubts by the prosecution.
24.For all the reasons stated above, this court is of the considered view that the prosecution has proved the case beyond reasonable doubt and hence, the judgment of the trial court does not call for any interference by this court. However, considering the facts and circumstances of the case and also considering the family circumstances of the case, the punishment imposed on the appellants requires modification.
25.It is seen from the records that the appellants 1 and 5/A1 and A5 died during the pendency of the appeal and death certificate also filed to that effect. Hence, the charges against the appellants 1 and 5/A1 and 5 are abated and accordingly, this criminal appeal is dismissed as abated as against Appellants 1 and 5/A1 and A5.
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26.In the result, the Criminal Appeal is partly allowed. The punishment imposed on the 4th appellant/A4 for the offence under Section 3(1)(x) of the SC/ST (POA) Act is modified and he is directed to undergo three months RI for the said offence and in respect of fine amount, the findings of the trial court is confirmed for the said offence. In respect of the offence under
Section 147 IPC, the findings of the trial court is confirmed. The period of sentence, if any, already undergone by the 4th appellant/A4 is set off under Section 428 of Cr.P.C. The 4th appellant/A4, after adjusting the period of imprisonment already undergone, shall undergo imprisonment for the remaining period. Consequently, connected Miscellaneous Petition is closed.
26.04.2019 Index:Yes/No Internet:Yes/No er http://www.judis.nic.in 17 T.KRISHNAVALLI,J er To,
1.The II Additional Sessions Judge, Tirunelveli.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
Judgment made in Crl.R.C(MD)No.392 of 2009 26.04.2019 http://www.judis.nic.in 18 http://www.judis.nic.in 19 In the result, the conviction and sentence of fine imposed by the lower court is confirmed and sentence of imprisonment is modified and reduced from 6 months into 3 months R.I. and the appeal is partly allowed.
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