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2018 DIGILAW 3554 (MAD)

S. K. Muniyandi v. State

2018-10-05

G.JAYACHANDRAN

body2018
JUDGMENT G. Jayachandran, J. This appeal is directed against the judgment of the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur made in Spl.S.C.No.28 of 2009 dated 28.01.2011. 2. The gist of the prosecution case is as follows: On 21.02.2006 at K. Alangulam Kanmai on the land situated in Survey No.214/3 owned by one Chinnathambi and maintained by one Solai Ambalam, the defacto complainant was removing karuvelam trees with the permission of the land owner and after paying Rs. 500/- for the same. The appellant herein quarrelled with the defacto complainant and prevented him from removing the karuvelam trees, claiming the said land on which the karuvelam trees stand belonged to the Government. The accused gave a complaint to the Revenue Officials. On receipt of the compliant, the Revenue Officials visited the spot on 23.02.2006, surveyed the land and found that the land belongs to Chinnathambi, who is the pattathar of the land and therefore, the accused should not disturb or prevent the cutting and removal of karuvelam trees. Thereafter, Thangavelu resumed the work of cutting the karuvelam trees and on 25.02.2006 at about 02.00 p.m., when he was loading the karuvelam trees, the accused came with sickle and abused Thangavelu in filthy language referring his caste and criminally intimidated the said Thangavelu that he will take away his life. Since Thangavelu was humiliated by the abusive language of the accused, he has lodged complaint before the Aviyoor police station. On 26.02.2006, at around 17.00 hours, the police has registered the compliant in Crime No.20 of 2006 for the offences punishable under Sections 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 506(ii) IPC. 3. After completion of investigation by the Deputy Superintendent of Police, Aruppukottai, final report was filed for the above said two charges. 4. To prove the case, the prosecution examined PW.1-Thangavelu (defacto complainant), PW.2-Rajendran-one of the resident of Alangulam Village was supported the case of the prosecution and corroborated the deposition of PW.1 regarding the criminal intimidation and humiliation caused to PW.1 by calling the caste name. PW.3-Solai Ambalam, who is the person in- charge of the disputed land where the defacto complainant removed karuvelam trees had corroborated both PW1 and PW2. PW4 and PW5 have turned hostile. PW.3-Solai Ambalam, who is the person in- charge of the disputed land where the defacto complainant removed karuvelam trees had corroborated both PW1 and PW2. PW4 and PW5 have turned hostile. PW.9-Chinnadurai-Revenue Inspector of Kariapatti has deposed about the complaint given by the accused regarding felling karuvelam trees in the Government land and his visit to the spot on 22.02.2006 along with the surveyor and after measurement, he ascertained that the land belonged to Chinnathambi and it is not the Government land. The officials who issued the community certificate to show that the defacto complainant-Thangavelu belongs to scheduled caste and the accused belongs to non-scheduled community were examined and they have identified the respective certificates issued by them. 5. The trial Court after appreciating these evidence has hold the accused guilty and convicting him to undergo six months Simple Imprisonment for the offence punishable under Section 3(1)(x) of SC/ST (POA) Act, 1989, and six months Simple Imprisonment and to pay a fine of Rs. 1000/-, in default to undergo two months Simple Imprisonment for the offences punishable under Section 506(i) IPC. The period of sentence was ordered to run concurrently and the period already undergone to be set off under Section 428 Cr.P.C. 6. The learned counsel appearing for the appellant submitted that the delay in lodging the complaint had not been properly considered by the trial Court. PW.4-Paramasivam-VAO has not supported the case of the prosecution. PW.12-Thiru.Baskaran, DSP was not authorised but investigate the case under SC/ST Act. Further, the delay in completing the investigation beyond six months is contrary to Rule 7 (a) of SC/ST Rules. Therefore, the entire trial has vitiated and liable to be set aside. Further, the learned counsel would submit that the appellant had no intention to defame the defacto complainant. He tried to prevent illegal felling of trees standing on the Government land. 7. Per contra, the learned Government Advocate (Criminal side) would submit that the prosecution has proved the guilt of the accused through oral and documentary evidence beyond reasonable doubt. The community certificate Ex.P6 issued to PW1-defacto complainant and the community certificate issued to the accused Ex.P.5 would show that the accused belongs to non-scheduled community and the defacto complainant belongs to the scheduled community. Based on the complaint, Ex.P1 given by PW.1, an FIR was registered and taken up for investigation. The community certificate Ex.P6 issued to PW1-defacto complainant and the community certificate issued to the accused Ex.P.5 would show that the accused belongs to non-scheduled community and the defacto complainant belongs to the scheduled community. Based on the complaint, Ex.P1 given by PW.1, an FIR was registered and taken up for investigation. The testimony of PW.1 is corroborated by the testimony of PW.2 and PW.3. The cause for abusing the defacto complainant was also narrated by PW.1, PW.2 and PW.3 coupled with the fact that based on the complaint given by the accused PW.9 had measured the disputed land few days prior to the occurrence. So, in the light of the above clinching evidence, the trial Court has rightly convicted the accused and there is no point for interference. 8. Heard the learned counsel appearing for the appellant and the learned Government Advocate (Criminal side) appearing for the respondent. 9. Point for consideration: Whether delay in lodging the FIR or the other reason stated in the grounds of appeal warrants any interference of the judgment of the trial Court? 10. The learned counsel appearing for the appellant would submit that the prosecution has failed to recover the sickle alleged to have been used to intimidate the defacto complainant. The evidence of PWs.1 to 3 interested witnesses are not reliable. Chinnathambi, the alleged land owner of the property was not examined by the respondent police. The lorry driver and the loadmen, who were engaged by PW.1 to cut the karuvelam trees were not examined. They are the independent witnesses and if the prosecution has examined them, the truth would have come out. The failure of the prosecution to examine the lorry driver and the loadmen, who were engaged to cut the karuvelam trees is fatal. In the genuine interest of the society, the appellant prevented the removal of karuvelam trees from the Government land, under bonafide belief that the land belongs to the Government and the defacto complainant with his man power, trying to illegally remove the karuvelam trees. Therefore, he gave the complaint to PW9 reporting illegally felling of trees on 22.02.2006. When PW9 came and measured the land with the help of the surveyor and declared that the land belongs to Chinnathambi and he has every right to remove the trees and sell. The appellant did not interfere with PW1 any further. Therefore, he gave the complaint to PW9 reporting illegally felling of trees on 22.02.2006. When PW9 came and measured the land with the help of the surveyor and declared that the land belongs to Chinnathambi and he has every right to remove the trees and sell. The appellant did not interfere with PW1 any further. But having infuriated by his action, PW1 has given false complaint. 11. The said contention of the appellant counsel deserves consideration because except the evidence of PW.1-defacto complainant which has been corroborated by PW.2 and PW.3, others are of interested witnesses. Though PW.3-Solai Ambalam is the person, who has permitted PW.1 to cut and remove the karuvelam trees, he is not the actual owner of the land, but the representative of Chinnathambi-owner of the land, who lives at Madurai. The action of the accused/appellant reporting about the felling of tree to the revenue officials could have naturally infuriated both PW.1 and PW.3. The action of the appellant/accused inviting the revenue officials about the felling of karuvelam trees and consequent to the information, PW.9-revenue inspector has visited the spot and measure the land to identify whether it is a patta land or Government poramboke is an admitted fact. The quarrel between PW.1 and the accused has started on 21.02.2006. The land has been measured by the revenue officials on 23.02.2006. Thereafter on 24th and 25th day of February, 2006, PW.1 has continued to cut the trees and he has removed the trees using lorry on 25.02.2006. In such circumstances, if really, the appellant has threatened PW.1 with sickle and he was intimidated, he could not have removed the wood. Further PW.1 in the cross-examination admits that at that time apart from the lorry driver, there were nearly 20 loadmen involved in cutting the trees. If so, the prosecution should have examined those loadmen. The non-examination of those loadmen and the belated lodging of complaint after 27 hours of the incident indicates that there is embellishment in the case of the prosecution. 12. The trial Court relied upon the evidence of PWs.1 to 3 to hold the accused guilty. As pointed out earlier, PW.1 cannot be the wholly reliable witness since his animosity with the appellant is well established and admitted by the prosecution witnesses. PW.3 is the person, who has entrusted PW.1 for removing the karuvelam trees, since he has received Rs. The trial Court relied upon the evidence of PWs.1 to 3 to hold the accused guilty. As pointed out earlier, PW.1 cannot be the wholly reliable witness since his animosity with the appellant is well established and admitted by the prosecution witnesses. PW.3 is the person, who has entrusted PW.1 for removing the karuvelam trees, since he has received Rs. 500/- and sold the tree to him. By the action of the accused temporarily cutting of trees was stopped and therefore he have every reason to depose against the appellant. As far as PW.2 is concerned, he is the next house resident of the accused and also a relative of the accused. In the cross- examination, it has been suggested to him that in a litigation between PW.2 and his brother Krishnan, the accused has deposed in support of his brother, though the suggestion has been denied by PW.2. So, it is to be inferred that the appellant had no cordial relationship with his next house neighbour-PW.2. Since the witnesses for prosecution relied by the trial Court for convicting the appellant are all tainted witnesses with motive, based on their tainted evidence, holding the accused guilty is improper. Therefore, this Court holds that the finding of the trial Court is based on unreliable witnesses. Hence, the said finding is liable to be set aside. 13. In the result, this Criminal Appeal is allowed. The conviction and sentence dated 28.01.2011 passed in Spl.S.C.No.28 of 2009 by the learned Principal Sessions Judge, Virudhunagar District at Srivilliputhur are set aside. The appellant is set at liberty. Fine amount, if any paid by the appellant shall be refunded to the appellant. The bail bond if any executed by the appellant/accused shall stand cancelled.