IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 03.10.2017 CORAM THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Criminal Appeal Nos. 214 & 229 of 2010
1. Manikandan
2. Vijayakumar .. Appellants in Crl.A.214/2010 / A5 & A7
1. Desingh
2. Sathish
3. Aruldas @ Arulkumar
4. Arumugam
5. Murugan
6. Velu ..Appellants in Crl.A.229/2010 / A.1 to 4, 6 & 9 vs State represented by Deputy Superintendent of Police, Kottakuppam Sub-Division, Vanoor Police Station, Villupuram District.
Crime No.172 of 2008. .. Respondent in both Crl.As.
Common Prayer in both Criminal Appeals:- These Criminal Appeals have been filed under Section 374 (2) Cr.P.C., to set aside the conviction and sentence passed by the Special Judge (Principal Sessions Judge) Villupuram Division, Villupuram made in S.C.No.81 of 2009, by its judgment dated 24.03.2010.
In Crl.A.No.214 of 2010:-
For Appellant : Mr. S.Shanmugavelayutham, Senior Counsel for T.Vijayaraghavan For Respondent : Mr.V.Arul, Additional Public Prosecutor In Crl.A.No. 229 of 2010:-
For Appellant : Mr.S.Karthikeyan, for N.S.Sivakumar For Respondent : Mr.V.Arul, Additional Public Prosecutor COMMON JUDGMENT The appellants in Crl.A.No.214 of 2010 are A5 & A7; and the appellants in Crl.A.No.229 of 2010 are A1 to A4 and A6 & A9 in S.C.No.81 of 2009 on the file of the Special Court, (Principal Sessions Judge), Villupuram Sessions Division, Villupuram. Totally there are 9 accused. A1 to A9 stood charged for an offence under Section 147 IPC and Section 3(1)(x) of SC/ST Act , A1, A4 and A5 stood charged for an offence under Sections 323(2 counts) IPC and A2, A3, A6 and A9 stood charged for an offence under Section 323 IPC and A7 stood charged for an offence under Section 325 IPC. Pending trial, A8 died. After trial, by judgment dated 24.03.2010, the trial Court found guilty of all the accused, as detailed below:-
The trial Court ordered the above sentences to run concurrently. Challenging the above said conviction and sentence, the appellants are before this Court with these Criminal Appeals.
2. The case of the prosecution, in brief, is as follows:-
One Babu, P.W.3 is the brother of P.W.2. On 14.09.2008 at about 7.00 p.m., while P.W.3 went to answer his natures call, all the accused were sitting near a bridge, A1 questioned him and scolded him by calling his caste name and A1 to A4 attacked him with wooden log. Immediately, P.W.3 went back to his house and informed the same to his brother P.W.2, where P.W.1, who is a friend of P.W.2, was also present. Immediately, P.W.1 and P.W.2 went to the scene of occurrence, found all the accused were sitting there. While P.W.2 questioned them, A6 attacked him with a wooden log on his head, A1 attacked him with a wooden log on the backside of his neck. A5 also attacked him on his head. A7 attacked him with a wooden log on his mouth and broken his teeth. A4 and A8 also joined with them and attacked him indiscriminately with wooden log. When P.W.1 was trying to interfere, A1 scolded him by calling his caste name and A2 attacked him with a wooden log on his head. A3 also attacked him on his lips. A9 scolded him with filthy language and abused him by calling his caste name also attacked him with a wooden log on his forehead. All the 3 injured witnesses were immediately taken to JIPMER Medical College Hospital, Pondicherry. P.W.8, Doctor, examined them and issued wound certificates (Ex.P.4 to 6). Thereafter, on the next day, i.e., 15.09.2008, P.W.1 went to the respondent police and lodged a complaint (Ex.P.1) at about 9.30 a.m.
3. P.W.9, Sub-Inspector of Police, working in the respondent police, on receipt of the complaint, registered a case in crime No.172 of 2008, for the offences under Sections 147, 323, 506(ii) IPC and Section 3(1)(x) of the SC/ST Act and prepared the First Information Report (Ex.P.7). Then, he handed over the First Information Report to the Deputy Superintendent of Police, for investigation.
4. On receipt of the First Information Report, P.W.10, Deputy Superintendent of Police, commenced the investigation, proceeded to the scene of occurrence and prepared an Observation Mahazar (Ex.P.3) and drew a rough sketch(Ex.P.8) in the presence of the witnesses and he also recorded the statement of the witnesses. Then, he examined the Doctor, who was working in the JIPMER Medical College Hospital, Pondicherry, and on 18.09.2008, he arrested the accused near Rawuthan Kuppam bus stop and remanded them to Judicial custody. After completion of investigation, he laid charge sheet against the accused.
5. Based on the above materials, the trial Court framed charges as detailed in the first paragraph of this judgment. In order to prove the case of the prosecution, as many as 10 witnesses were examined and 8 documents were exhibited.
6. Out of the witnesses examined, P.W.1 is the injured witness. According to him, he is the friend of P.W.2. On the date of occurrence, when he was sitting in the house of P.W.2, P.W.3, brother of P.W.1 came there and complained that some known persons have attacked him. Then, both P.Ws.1 and 2 went to the scene of occurrence, where P.W.2 questioned the accused, the accused attacked them with wooden logs indiscriminately and they abused them by calling his caste name as all the 3 eye-witnesses belong to Schedule Caste community, A2, A3 and A9 attacked him and also abused him calling by caste name. P.W.2 is also yet another injured witness. According to him, when he questioned the accused for attacking his brother/ P.W3, A1, A5, A6 attacked him with a wooden log on his head and A7 attacked him on his mouth and broken his teeth and A4 and A8 attacked him with a wooden log indiscriminately and thereafter, they were taken to the hospital.
7. P.W.3 is the brother of P.W.2. According to him, on the date of occurrence, at about 7.00 p.m., while be went to answer his natures call, all the accused were sitting there and consuming liquor. A1 abused him with filthy language, by calling his caste name and A1 and A4 attacked him with a wooden log, thereafter, he informed the same to his brother P.W.2.
8. P.W.4 is the Tahsildar, Vanoor. He issued community certificates to P.Ws.1, 2 and 3 as they belong to schedule caste community and the accused belong to the Vanniyar backward community. P.Ws.5 and 6, turned hostile.
P.W.7 is a witness for the observation mahazar. P.W.8 is the Doctor, who examined P.Ws.1 to 3 and has given wound certificates (Ex.P.4,5,6) and given opinion that all the injuries are simple in nature. P.W.9 Sub-Inspector of Police, has spoken about the registration of the complaint. P.W.10, the Deputy Superintendent of Police, who conducted investigation, recorded the statement of the witnesses and after completion of investigation, he laid final report.
9. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., they denied the same as false. However, they did not choose to examine any witness or mark any documents, on their side.
10. Having considered all the above, the trial Court convicted both the accused as detailed in the first paragraph of this judgment. Challenging the same, the appellants/accused are before this Court with these Criminal Appeals.
11. I have heard Mr.S.Shanmugavelayutham, senior counsel, appearing for appellant in Crl.A.No.214 of 2010, Mr.S.Karthikeyan, learned counsel appearing for the appellant in Crl.A.No.220 of 2010 and Mr.V.Arul, learned Additional Public Prosecutor appearing for the State in both the appeals.
12. The learned senior counsel appearing for the appellant in Crl.A.No.214 of 2010 would contend that the appellants have been falsely implicated in this case. Immediately after the occurrence, all the 3 injured witnesses were taken to JIPMER Medical College Hospital and P.W.8,Doctor, examined the 3 injured witnesses, and they informed him that they were attacked by 10 unknown persons and he also issued wound certificate Ex.P.4, 5 and 6 to that effect. Subsequently, on the next day morning, at about 09.30 a.m., with a delay of 14 hours, they have given a complaint, wherein also he has mentioned 6 named accused and some known persons. Even though the complaint was registered on 15.09.2008, at about 9.30 a.m., the First Information Report was sent to the Court only on 16.09.2008 at about 11.30 a.m., after a delay of more than 26 hours, which creates a doubt in the prosecution case. In the first ever statement given before the Doctor, they have informed that 10 unknown persons have attacked them. Subsequently, they have changed it and named 6 accused in the First Information Report, along with some known persons. Apart from that, it is the evidence of P.W.1 that there was a previous enmity between two community people in the village. He further contended that there are lot of contradictions in the evidence of P.Ws.1 to 3. Even though P.Ws.1 & 3 says that some of the accused were abusing them by calling his caste name, P.W.2 did not say anything about the accused had abused him by calling his caste name. It is a clear case of the prosecution that all the accused had attacked him with a wooden log and caused injuries. But none of the material objects were seized during investigation, which also creates doubt. He further submits that P.W.10, the investigating officer, Deputy Superintendent of Police, who has conducted investigation, is not an experienced person and not a senior in that cadre and thereby Rule 7 of the SC/ST Act has been violated.
13. Per contra, the learned Additional Public Prosecutor submitted that P.Ws.1, 2, and 3 are the injured witnesses. It is the consistent evidence that all the accused have attacked the witnesses with wooden log and caused serious injuries and they have also abused the witnesses by calling their caste name. The evidence of the injured witnesses have been corroborated by the medical evidence, absolutely, there is no contradiction in their evidence, and there is no reason to disbelieve the evidence of the injured eye-witnesses. So far as the delay in filing complaint is concerned, the learned Additional Public Prosecutor submits that the occurrence took place in the night hours and all the 3 injured witnesses were taken to the hospital and on the next day morning they lodged a complaint, wherein, they have clearly mentioned about the name of the 3 accused and their specific overt act has also been mentioned in the First Information Report. P.Ws.1 to 3 also clearly says that all the accused have abused them by calling their caste name. Thus, the prosecution has clearly established the case beyond any reasonable doubt. The trial court, after considering all the evidence, has rightly convicted all the appellants and there is no reason to interfere with the well considered judgment of the trial court.
14. I have considered the rival submissions and perused the materials available on record carefully .
15. According to the prosecution, there are two occurrences. The first occurrence took place on 14.09.2008 at about 7.00 p.m., in which, A1 to A4 attacked P.W.3 and also abused him by calling his caste name. Then P.W.3 informed the same to his brother P.W.2 , then P.Ws.1 and 2 went to the scene, where they questioned the accused for attacking P.W.3. At that time, all the accused attacked both P.Ws.1 and 2 and caused injuries and A7 attacked P.W.2 on his mouth and broken his teeth and all of them abused in filthy language called by their caste name. Immediately, they were taken to the JIPMER Medical College Hospital, Pondicherry. P.W.8, Doctor, working in the JIPMER Medical College Hospital, Pondicherry, treated all the 3 injured witnesses and also issued a wound certificate Ex.P.4 to 6. From the perusal of the evidence of P.W.8 and the wound certificates, it is seen that at the time of medical examination, all the 3 witnesses had stated that 10 unknown persons have attacked them with wooden log. In the wound certificate also it has been clearly stated that 10 unknown persons attacked them. P.W.8 also stated in his evidence that all the 3 accused have stated that 10 unknown persons have attacked them. Even though the occurrence took place on 14.09.2008, at about 7.00 p,m., only on the next day morning at about 9.30 a.m., P.W.1 lodged a complaint, wherein he has named 3 accused and also stated that 6 known persons also attacked them. Even though the First Information Report was registered at 9.30 a.m., on 15.09.2008, it reached the Court only on the next day (i.e.) on 16.09.2008 at 11.20 a.m. But, absolutely, there is no explanation on the side of the prosecution for the delay in filing the complaint, registration of the First Information Report as well as the delay in sending the First Information Report to the Court. It is the evidence of P.Ws.1, 2 and 3 that the injured witnesses and accused belong to neighbouring village and they are all known to them and there was a previous enmity between two villagers and all the accused were known to them. Even though the statement given before the Doctor is only a previous statement of witness and it is not a substantive evidence, considering the fact that there are multiple accused and there were a delay of 14 hours in filing the First Information Report, and also the delay of 26 hours in sending the First Information Report to the Court. All creates doubt in the prosecution case, especially when at the first instance, all the witnesses had clearly stated that 10 unknown persons have attacked him.
16. Apart from that so far as the offence under Section 3(1)(x) of the SC/ST Act is concerned, even though P.Ws.1 and 3 had stated that some of the accused were abused them by calling their caste name, P.W.2 did not say anything about the same and he did not say that the accused abused them by calling their caste name, P.W.3 totally contradicts the evidence of P.W.1 & P.W.2. Apart from that even though all the accused have said to have attacked the accused with wooden log, no weapon was recovered by the prosecution.
17. Considering all those facts, I am of the considered view that the prosecution has failed to prove the charges against the appellant beyond any reasonable doubt. In the above circumstances, the appellants are entitled for acquittal. The Court below without considering the evidence with proper perspective erroneously convicted the appellants and hence, the conviction and sentence imposed on the appellants are liable to be set aside.
18. In the result, the Criminal Appeals are allowed.
The conviction and sentence imposed on the appellants by the trial Court in S.C.No.81 of 2009 dated 24.03.2010 is hereby set aside. The appellants are acquitted of the charges. The bail bonds, if any executed by them, shall stand cancelled. The fine amount, if any, paid by the appellants, are directed to be refunded.
03.10.2017 Index: Yes/No Internet: Yes/No Speaking order/ non-speaking order mrp To
1. The Principal Sessions Judge, Special Court, Villupuram Sessions Division, Villupuram.
2. The Public Prosecutor, High Court, Madras.
V.BHARATHIDASAN.J., mrp Crl.A.Nos.214 of 2010 & 229 of 2010 03.10.2017