V. Arumugham v. Swaminatha Nadar — 1997 DIGILAW 753 (MAD)

Judgment : The appellant is the complainant and the respondents are the accused before the lower court. This appeal is preferred by the appellant/complainant to set aside the order of acquittal passed by the learned Judicial Magistrate at Ambasamudram in C.C. No.232 of 1939 on 21.3.1990. 2. The appellant/complainant preferred a complaint under Sec.190(1)(a) of Crl.P.C. for the offences punishable under Secs.147, 148, 183, 186 and 189 read with Sec.149 of I.P.C. raising the following contentions: There is a civil dispute between the Thiruvavaduthurai Adheenam and the cultivating tenants of the lands owned by the Thiruvavaduthurai Adheenam at Kodarangulam Village, Ambasamudram Taluk. Thiruvavaduthurai Adheenam filed a suit in O.S. No.124 of 1966 before the Sub Court at Tirunelveli. The suit was decreed in favour of the Adheenam. As per the decree dated 5.8.1968, the tenants/defendants were restrained from harvesting and removing the crops in the lands concerned in the suit before ever the Adheenam plaintiff got his landlords share. A petition in E.A. No.393 of 1988 in O.S. No.124 of 1966 was filed by the Adheenam for the appointment of a Commissioner to take possession of the standing crops in the suit lands commencing from the ker fasli 1398 and to collect the landlords share. The said petition was allowed and the complainant was appointed as Commissioner for the said purpose by the Principal Sub Judge, Tirunelveli on 8.9.1988. The Commissioners warrant dated 8.9.1988 was also issued in favour of the complainant for the said purpose. The Commissioner gave due notice to the tenants asking them to inform him before proceeding with the harvest in those lands and to harvest them in his presence and to deliver without arrears the pattom paddy due to the said Adheenam. Such a notice has been published in ‘Dinamalar’ dated 19.9.1988 not by Commissioner but by S.Meenakshisundaram, Adheenams Advocate. The accused Nos. 1 and 2 are the defendants in the above suit O.S.No.124 of 1996. The other accused are actually cultivating different lands for the Adheenam at Kodarangulam village. The complainant visited the suit properties on different dates and some of the tenants delivered the pattom paddy and some of the tenants delivered the pattom paddy and some of the tenants evaded measuring the landlords share. The other accused are actually cultivating different lands for the Adheenam at Kodarangulam village. The complainant visited the suit properties on different dates and some of the tenants delivered the pattom paddy and some of the tenants delivered the pattom paddy and some of the tenants evaded measuring the landlords share. On 11.10.1988 on information that some of the tenants harvested the paddy from the suit lands at Kodarangulam village and that the paddy was kept in heaps in threshing floor, the Commissioner along with the Inspector of Thiruvavaduthuraj Adheenam for Kodarangulam village by name S.Krishna Pillai, Karnams of Adheenam by name Ramish Thevar and Ramu Thevar went to the thrashing floor at about 3 p.m. The complainant was accompanied by Mr.S.Selvaganapathy, an Advocate appointed as Commissioner for the same purpose in another suit filed by the Adheenam in respect of lands in Ekambarapuram village limits. All the accused were standing in a ground. Some of them were armed with vel sticks, aruval and sticks. The complainant informed them that he was the Commissioner appointed by the court to collect the landlords share of paddy from the threshing floor. He also showed them the Commissioners warrant issued by the court. At first he demanded the 1st accused to measure the pattom paddy due to the landlord. But he refused to do so. The other tenants of other fields were also present there and they told the complainant that they will not measure and deliver the landlords share of the paddy. As the Commissioner were asking the accused to measure the landlords’ share of the paddy, the accused removed the entire produce kept there in bags from the threshing floor. The paddy harvested from the suit lands and kept in the neighbouring threshing floors also was unlawfully and forcibly removed by the accused. When the complainant objected to such unlawful removal of all the paddy from the threshing floor, the accused threatened the complainant and others, who were there to assist him in his duty with dire consequences by show of arms. As the number of accused and their men were large, the complainant could not do anything further. The complainant ascertained the names of the accused from the above mentioned employees of the Adheenam who were present there. As the number of accused and their men were large, the complainant could not do anything further. The complainant ascertained the names of the accused from the above mentioned employees of the Adheenam who were present there. The accused not only obstructed the complainant from the discharge of his public duty but also resisted him from taking the landlords share of the harvested paddy in the suit lands in pursuance of the Commissioners warrant issued by the learned Subordinate Judge, Tirunelveli in E.A.No.393 of 1988 in O.S; No.124 of 1966. They also held out thirst of injury to the Commissioner and the other persons. As the complainant was obstructs from discharging his duty by the accused by show of force, the complainant has felt that it is his duty to prefer the present criminal complaint. He has submitted his report to the court of learned subordinate Judge, Tirunelveli on 27.10.1988 and sought the oral approval of the court. Hence the delay in laying the complaint. The acts of the accused amount to offences under Secs.147, 148, 183, 186 and 189 of I.P.C. read with 149 of I.P.C. The complainant is a public servant within the definition of Sec.21 of the Indian Penal Code. 3. Copies of the complaint were furnished to the accused. The charges under Secs.148 and 506506, Part II of I.P.C. were alone formed and read over to the accused by the Magistrate, and the accused denied the same and claimed to be tried. In proof of the charges the appellant/complainant examined P.Ws. 1 to 5 and filed the documents marked as Exs.P-1 to P-4. No material object was marked. 4. When questioned in respect of the incriminating circumstances available in the evidence of the complainant and his witnesses underSec.313 of Crl.P.C, the respondents/accused denied their complicity in the crime. The accused did not choose to examine any witness on their side. 5. On consideration of the material placed the learned Judicial Magistrate at Ambasamudram found the accused not guilty of the offences under Secs.148 and 506506, Part II of I.P.C. and acquitted all the accused under Sec.248(1) of Crl.P.C. Aggrieved against the order of acquittal the complainant has come up in appeal. 6. 5. On consideration of the material placed the learned Judicial Magistrate at Ambasamudram found the accused not guilty of the offences under Secs.148 and 506506, Part II of I.P.C. and acquitted all the accused under Sec.248(1) of Crl.P.C. Aggrieved against the order of acquittal the complainant has come up in appeal. 6. After hearing the learned counsel for the appellant/complainant and the learned counsel for the respondents/accused the point that arises for determination is as to whether the appellant/complainant has proved his case beyond all reasonable doubt and as to whether the respondents/accused are guilty of the charges under Secs.148 and 506, Part II of I.P.C. and if so, what is the sentence to be imposed on the accused. 7. Point It is the specific case of the respondent/ complainant at the end of para 9 of the complaint that when he was appointed by the Sub Court at Tirunelveli as the Commissioner in pursuance of the decree passed in O.S.No.124 of 1966, he told the accused to measure the paddy due to the landlord and they refused to do so, and they removed the paddy, and when the complainant objected to the removal of all the paddy from the threshing float, the accused threatened the complainant and others who were there to assist him in his duty with dire consequences by show of arms, the complainant would state further in para 6 of his complaint that the accused not only obstructed the complainant from the discharge of his public duty as the Court Commissioner but also resisted him from taking the share of the landlord in the harvested paddy in the suit lands in pursuance of the Commissioners warrant issued to him. So the gist of the complaint is the threat of the accused given to the appellant/ complainant and the obstruction made by the accused to the complainant for the discharge of his duty as the Commissioner. These features in the complaint were not at all spoken to by the appellant/complainant examined as P.W.1 Arumugham. His evidence before the lower court is extracted here in extenso for better appreciation of this case. His testimony in the chief examination as well as in the cross-examination reads as follows in Tamil: 8. These features in the complaint were not at all spoken to by the appellant/complainant examined as P.W.1 Arumugham. His evidence before the lower court is extracted here in extenso for better appreciation of this case. His testimony in the chief examination as well as in the cross-examination reads as follows in Tamil: 8. Thus a careful scrutiny of the oral evidence of the appellant/complainant examined as P.W.1 Arumugham would disclose that he was never threatened nor intimidated with arms by the accused, who only refused to deliver a portion of the harvested paddy. He even candidly admitted during his cross-examination that nobody has acolded him and nobody has threatened him. It is not the testimony of P.W.1 Arumugham that the accused proclaimed that they would kill him and others if they attempted to remove a portion of the harvested paddy. Per contra, it is his testimony that a larger number of people were there for harvesting the paddy and the weapons like arruval and kambu were essential for harvesting the paddy. Therefore the evidence of P.W.1 Arumugham will not in any way prove his case that the accused intimidated him and threatened to cause the death of grievous hurt and thereby committed the offences punishable under Secs.142 and 506506, Part II of I.P.C. 9. P.W.1 Arumugham did not whisper a word that himself and others were threatened and intimidated with arms by the accused or the accused proclaimed to kill them with the arms they had in their hands. While that being so, the employees of Adheenam, who accompanied P.W.1 Arumugham and who were examined as P.W.2 Krishna Pillai.1 P.W.3 Balasubramaniam and P.W.4 Subramaniam, would say in their evidence with uniform voice that the accused refused to deliver a portion of the harvested paddy towards the share of the landlord and inspite of their refusal if P.W.1 Arumugham and others tried to take away a portion of the harvested paddy, then there would be murder. Tamil Such was not the version spoken to by the complainant himself examined as P.W.1 Arumugham in this case. Therefore the evidence of P.Ws.3 and 4 about the threat to kill uttered by the accused is only an after thought and so the evidence of P.Ws.3 and 4 is not entitled to any credibility in this case. 10. P.W.5. Mayandi Thevar is none other than another employee of the Adheenam. Therefore the evidence of P.Ws.3 and 4 about the threat to kill uttered by the accused is only an after thought and so the evidence of P.Ws.3 and 4 is not entitled to any credibility in this case. 10. P.W.5. Mayandi Thevar is none other than another employee of the Adheenam. He fairly conceded during his cross examination that the accused refused to measure the share of the landlord in the harvested paddy and thereafter they came back and apart from this nothing happened. His testimony in his cross examination on this aspect in Tamil runs as follows: Tamil Therefore the evidence of P.W.5. Mayandi Thevar, who is one of the employees of Adheenam for whom the landlords share of the paddy has to be measured by the accused and who accompanied P.Ws.1 to 4. did not support the version of the complainant and instead his evidence would support the defence, theory that the accused did not indulge in any threat or intimidation to cause grievous hurt by forming an unlawful assembly. So the testimony of P.Ws.1 to 5 will not satisfactorily establish the case of the complainant beyond all reasonable doubt that the accused herein are guilty of the offences under Secs.148 and 506, Part II of I.P.C. 11. Even admitting that the accused were armed with weapons like aruval and sticks and they raised these weapons during the course of the wordy quarrel, it cannot be stated that such an action on the part of the accused would amount to criminal intimidation punishable under Sec.506, Part II of I.P.C. In such a quarrel between the servants of the landlord and the tenants like the accused such things like the possession of aruval and sticks, which are required for the purpose of harvesting the paddy, would occur without any one intending to intimidate seriously the other, and this intimidation by holding the weapons like aruval and sticks in the hands of the accused to an offence under Sec.506, Part II of I.P.C. against the accused. This view gains support from a decision of our Madras High Court reported in Periamalaiswami v. Poosariambalam Periamalaiswami v. Poosariambalam 1969 L. W. (Crl.) 202 wherein it was held as follows: “In the course of a wordy quarrel, if the accused raised the spade which he was already having for the purpose of diverting water and told the witness P.W. 1 that he would kill him, it cannot be stated that it will amount to criminal intimidation. In such a quarrel, such things would, as a matter of course, occur without anyone intending to intimidate seriously the other. This intimidation cannot be a deliberate one and an offence under Sec.506, Part II of I.P.C, against the accused cannot be sustained.” 12. There are no substantial and compelling reasons to reverse the order of acquittal passed by the lower court. In an appeal against the acquittal strong and convincing reasons must exist for interference. In the present case, no such strong and convincing reasons exist for interference. There is not evidence worth its name on record to come to the conclusion that the respondents/ accused formed an unlawful assembly and force was used by any member of such an unlawful assembly or the accused threatened and intimidated P. W.1 Arumugham and others with weapons to cause grievous hurt or death to them. There is absolutely no assurance of the guilt of the accused from the evidence on record and therefore the arm of acquittal is not liable to be interfered with nor disturbed. Considering the above facts and circumstances of the case, I am to hold that this appeal is devoid of merits and the same is dismissed and the order of acquittal passed by the learned Judicial Magistrate at Ambasamudram in C.C. No.232 of 1989 on 21.3.1990 is confirmed, and consequently I answer this point an against the appellant/ complainant. 13. In the result the appeal is dismissed. The order of acquittal passed by the learned Judicial Magistrate at Ambasamudram in C.C.No. 232 of 1989 on 21.3.1990 is confirmed.