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2018 DIGILAW 3449 (MAD)

Mookkandi v. State

2018-10-03

N.SATHISH KUMAR

body2018
JUDGMENT 1. This criminal appeal is preferred against the conviction and sentence passed by the learned II Additional Sessions Judge, Tirunelveli, Tirunelveli District, in S.C. No. 60 of 2005, dated 30.09.2008, in and by which, the Trial Court, though acquitted both the accused for offence under Sections 341, 506(2) IPC and 3(1)(XV) of SC/ST (PA) Act, has convicted both the accused as follows: (i) under Section 506(1) IPC sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- each, with the default sentence of two months simple imprisonment. (ii) under Section 3(1)(X) of SC/ST (PA) Act sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- each, with the default sentence of one month simple imprisonment. (iii) convicted the second accused under Section 323 IPC and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- with the default sentence of two months simple imprisonment. The sentences of imprisonment were ordered to run concurrently. 2. The brief facts of the case are as follows: 2.1. PW-1 is a member of Scheduled Caste Community. There were dispute between the accused and the family of PW-1 and his brother, over the alleged connection of A1's daughter with PW-1's brother, due to which, A1 moved to Tirupur. Thereafter, on 06.12.2014, A1 returned the village and it is alleged that when PW-1 and his brother came near a Temple in the village, both the accused wrongfully restrained them and A2 assaulted PW-1's brother and A1 threatened with Aruval and also abused them using caste name. Subsequent thereto, PW-1's brother, namely, Ramar lodged the complaint. PW-4 is the brother of PW-1. According to him, there was a rumor spread in the village that PW-4 is having illegal connection with A1's daughter and therefore, he went to Pudukottai and PW-5, on the date of occurrence, accompanied Ramar to the Police Station and lodged the complaint. 2.2. PW-9 treated Ramar and found no external injuries. Further, PW-9 issued Ex.P4 Accident Register cum Wound Certificate. PW-10, the Tahsildar, issued Community Certificate Ex.P5. 2.2. PW-9 treated Ramar and found no external injuries. Further, PW-9 issued Ex.P4 Accident Register cum Wound Certificate. PW-10, the Tahsildar, issued Community Certificate Ex.P5. PW-11, the Sub-Inspector of Police, on receipt of complaint from Ramar, on 06.12.2004, registered the First Information Report in Crime No. 541 of 2004 under Sections 641, 323, 506(2) IPC and 3(1)(X) and 3(1)(XV) of SC/ST (PA) Act and thereafter, forwarded the complaint to Deputy Superintendent of Police, PW-12. PW-12 took up the case for investigation and went to the place of occurrence on 07.12.2004 and prepared observation mahazar and rough sketch and after examining the witnesses, arrested the accused persons on 07.12.2004 and after recording the confession of A1, he recovered the Aruval and thereafter, laid final report. 2.3. Before the trial Court, 12 witnesses were examined; Exs.P1 to P8 and MO 1 were marked. Based on the evidences, the trial Court has convicted the appellants/accused, as stated supra. 3. Learned Counsel for the appellants/accused would contend that absolutely there is no evidence to convict the appellants/accused under any of the Sections. The entire occurrence was doubtful. Except PW-1, other witnesses did not support the prosecution. The first informant also has not been examined. The judgment of the Trial Court is against law and submitted that the entire prosecution case is highly doubtful and therefore, he prays for allowing the present appeal. 4. Learned Additional Public Prosecutor submitted that PW-1 has clearly stated about the specific overtact. The Trial Court has rightly appreciated the evidence and found the accused guilty. Hence, he prays for dismissal of the present appeal. 5. Having heard the learned Counsel on either side, this Court is of the view that the point for consideration is as to whether the prosecution proves the guilt of the appellants/ accused beyond reasonable doubt. 6. PW-1, in his evidence, has stated that there were some disputes between the two family over the alleged rumors in respect of the illegal connection of A1's daughter with PW-1's brother. As a result, A1 left the place and residing in Tirupur. Thereafter, for Deepavali, he returned to the village on 06.12.2004. While PW-1 and his brother, Ramar/defacto complainant were proceeding near a Temple in the village, the accused persons restrained them. A1 came with Aruval and abused PW-1 with caste name. A2 assaulted Ramar. Therefore, they lodged the complaint. 7. PWs. Thereafter, for Deepavali, he returned to the village on 06.12.2004. While PW-1 and his brother, Ramar/defacto complainant were proceeding near a Temple in the village, the accused persons restrained them. A1 came with Aruval and abused PW-1 with caste name. A2 assaulted Ramar. Therefore, they lodged the complaint. 7. PWs. 2 to 5, though examined by the prosecution, are not eye witnesses and they have not spoken anything about the alleged occurrence. In fact, PW-4 is the brother of PW-1. His evidence also clearly indicates that as rumor was spread in the village regarding the illegal connection between him and A1's daughter, he moved the village and residing in Pudukottai. PW-5 also spoken about the alleged rumor, i.e. the illegal connection with regard to the alleged occurrence. PW-5 accompanied the said Ramar, who lodged the First Information Report. The said Ramar is said to have been assaulted by A2. But, the said Ramar, who lodged the First Information Report, was not examined before the Court. 8. On a perusal of the evidences of PW-s 1 to 5, it is seen that there were already some dispute between the parties over the alleged illegal connection between A1's daughter and PW-1's brother. From the evidence of PW-1, it is seen that next to their house, A2's land is situated. No doubt, PW-1 is a member of Scheduled Caste Community, which is established by the Community Certificate given by the Tahsildar and the investigation, which was commenced based on the First Information Report lodged by the said Ramar. 9. From the evidence of PW-1, it is seen that he and his brother were abused in the village. But, his evidence is not supported by any of the independent witnesses. To attract the offence under Section 3(1)(X) of SC/ST (PA) Act, the prosecution must establish that a member of Scheduled Caste Community was abused or humiliated or insulted in a public view. Unless such abuse or humiliation or insult or threat made in the public view, offence under Section 3(1)(X) of SC/ST (PA) Act, cannot be inferred. Public view in the sense, besides alleged victim, others should have viewed the said incident. But, no such independent witnesses are available on record, to support the case of the prosecution. 10. Further, the nature of dispute that was already existing between the parties also gives raise to the inference for false implication. Public view in the sense, besides alleged victim, others should have viewed the said incident. But, no such independent witnesses are available on record, to support the case of the prosecution. 10. Further, the nature of dispute that was already existing between the parties also gives raise to the inference for false implication. Admittedly, A1 is residing in Tirupur and thereafter, returned. If really such incident, as alleged in the place of occurrence, had taken place, definitely other villagers who are residing there, might have viewed the same. But none of the villagers, more particularly, the villagers belonging to the same community of PW-1, has supported the prosecution. 11. It is also curious to note that the first informant, namely Ramar, who is said to have got injured, has not been examined by the prosecution; the Medical Officer not found any external injuries either in the Chin or in any parts of body, to substantiate that the said Ramar was assaulted. In the absence of these facts, the entire case of prosecution is highly doubtful. The evidence of PW-1 alone is not sufficient to convict the accused for the alleged guilt. Therefore, this Court is of the view that benefit of doubt should be extended to the appellants/accused. 12. In view of the same, the conviction and sentence imposed by the learned II Additional Sessions Judge, Tirunelveli, Tirunelveli District, in S.C. No. 60 of 2005, dated 30.09.2008, are set aside and the appeal is accordingly, allowed. The appellants/accused are acquitted of all charges in respect of the present case. Fine amount, if paid, shall be refunded to the appellants/accused. Bail bonds shall stand terminated.