BAIL SLIPThe v. The State by the Inspector of Police

BAIL SLIPThe Appellants/Accused namely D. Manickam @ Lottery Manickam, 2)Viswanathan were directed to be released on bail as per order of thiscourt, dated 29.3.2001 and made in Crl.M.P.No. 1879/2001 in Crl A No.1140/2001 on the file of the Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 25.04.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1140 of 20001.Manickam2.Viswanathan.. Appellant'svs.The State by the Inspector of Police,Perundurai Police Station,Erode District,(Cr.No.46/1998) .. RespondentPrayer: This Appeal has been preferred against the judgment dated12.10.2000 made in S.C.No.104 of 1999 on the file of the I AdditionalAssistant Sessions Judge, Erode.For Appellants : Mr.R.T.DoraisamyFor Respondent : Mr.V.R.Balasubramanian, Addl.Public ProsecutorORDERThis appeal has been preferred against the conviction and sentence inS.C.No.104 of 1999 on the file of the I Additional Assistant SessionsJudge, Erode. 2. The short facts of the prosecution case is that the appellantsalong with three other accused on 18.2.1998 at about 1.00 am formedthemselves into an unlawful assembly and set fire to Door Nos.2/361,2/362, 2/363 at Moongle Palayam in Vijayamangalam town, belonging toP.W.1-Subramaniam causing damage to the tune of Rs.4,00,000/- and in thecourse of the same transaction A1 and A2 have set fire to cycle,T.V.S.Suziki moped and an autorickshaw and other house hold articlesbelonging to the said Subramanimam causing damages to the tune of https://hcservices.ecourts.gov.in/hcservices/ Rs.3,00,000/-. Hence, the accused have been charged under Section 435,436 r/w 109 IPC.3. The case was taken on file by the District Munsif-cum-JudicialMagistrate, Perundurai as PRC.No.15 of 1998. On appearance of the accusedon summons copies under Section 207 of Cr.P.C., were furnished to theaccused and since the case is triable by a Court of Sessions, the learnedjudicial Magistrate has committed the case to the Court of Sessions underSection 209 of Cr.P.C., from where the case was transferred to the IAdditional Assistant Sessions Judge, Erode. 4. On the side of the prosecution, P.W.1 to P.W.15 were examined andEx.P.1 to Ex.P.7 were exhibited and M.O.1 to M.O.10 were marked. 5. P.W.1 is the complainant. According to P.W.1 due to electionmotive on 17/18.2.1998 mid night he saw his house was engulfed and in thefire about Rs.7,00,000/- worth of properties were damaged. According tohim, the general election which took place on 16.2.1998 he was a boothagent for one of the political parties and the accused lottary Manikam,Kutty, Viswanathan came in a moped and stopped their moped 20 feet awayfrom their booth and when this was questioned by him (P.W.1) there arose acommotion and after the election was over he returned to his house and atthat time the accused Manikam, (a memebr) Arumugam, Kittu @ Kittumi, Kuttyand Viswanthan came to his house at about 8.00 pm on 16.2.1998 and askedhim to attend the panchayat to be held at Vijayamangalam Mekoor on17.2.1998 and further they criminally intimidated that if they do notattend the panchayat they will be set fire alive. P.W.1 would furtherdepose that out of fear he did not go to the panchayat on 17.2.1998. 6. P.W.2 is the son of P.W.1 who has corroborated the evidence ofP.W.17. P.W.3 is not an eye witness to the occurrence, but he would saythat there was a fire on 17.2.1998 in the place of occurrence and manyhouse hold articles including autorickshaw and two weelers, TV and cyclebelonging to P.W.1 got destroyed in the fire and P.W.1 preferred acomplaint.8. P.W.4 and P.W.5 also corroborated the evidence of P.W.1 to P.W.3.9. P.W.6 is not an eye witness to the occurrence. He speaks onlyabout the quarrel which took place on 18.2.1998 at about 1.00 am in frontof Government school, Vijayamangalam in which P.W.1 is the president ofthe Parents and Teachers Association. He would say that some of thepeople belong to Makoor Village came there and threatened the parents andteachers and school going children with the dire consequences, if theyattend the class on the next day.10. P.W.7 also speaks about the scuffle which took place on16.2.1998 between P.W.1 and the accused in connection with the general https://hcservices.ecourts.gov.in/hcservices/ election which took place on 16.2.1998. He would say that at about 1.00 amon 17.2.1998 his brother's and sister's houses got gutted due to fire andthe fire service was pressed into service at about 4.00 am and P.W.1 haspreferred a complaint.11. P.W.8 is an eye witness to the occurrence. He would say that hesaw both A1 and A2 with burning fire sticks in their hands at 12.00 midnight on 17.2.1998 near the place of occurrence and at the instigation ofA2, both A1 and A2 have thrown the burning sticks on the house and shop ofP.W.1 and in the fire P.W.1's hotel and his brother's cycle shop and papershop and other house hold articles got damaged. 12. P.W.9 is an another eye witness on the side of the prosecution,who would depose that he saw A1 and A2 with burning sticks on 17.2.1998mid night and at the instigation of A2, both A1 and A2 have threw theburning sticks on the hotel and cycle shop of P.W.1 and his brothercausing damages to two weelers, autorickshaw, moped and cycle shop besideshouse hold articles. 13. P.W.10 would say that the damages caused to the shop and thehouse hold articles of the P.W.1 will come to Rs.7,00,000/-.14. P.W.11 is not an eye witness, who speaks about the previousenmity prevailing between the accused and P.W.1.15. P.W.12 would say that the police visited the place of occurrenceand prepared Ex.P.3 mahazer in his presence. 16. P.W.13 is a fire service personnel, who would depose that theservice of fire engines were pressed into service about 1.51 am on18.2.1998 and Ex.P.4 is the report given by him, about the fire accident. 17. P.W.14 is the Sub-Inspector of Police, who after receiving thecomplaint from P.W.1 had registered the case in Perundurai Police StationCr.No.46/1998 under Section 147, 427, 436 IPC. Ex.P.5 is the FIR.18. P.W.15 is the Investigation Officer, who had visited the placeof occurrence and prepared observation mahazar on the basis of thecomplaint-Ex.P.1 preferred by P.W.1 and had drawn Ex.P.6-rough sketch inthe presence of witnesses and has sent the material objects seized fromthe place of occurrence to the Court under Ex.P.7-form-95. He hasexamined the witnesses and recorded their statement and after completingthe investigation he has filed the charge sheet under Section 407, 435,436 IPC and under Section 436 r/w 109 IPC against the accused on 25.5.1998.19. When incriminating circumstances were put to the accused, theaccused denied their complicity with the crime. The learned I AdditionalAssistant Sessions Judge after going through the oral and documentaryevidence has held that the charges levelled against A1 and A2 has beenproved beyond any reasonable doubt and accordingly convicted A1 & A2 under https://hcservices.ecourts.gov.in/hcservices/ Section 436 IPC and sentenced to undergo 7 years RI each and slapped afine of Rs.20,000/- each with default sentence. The learned trial Judgehas also convicted A1 & A2 under Section 435 IPC and sentenced each toundergo 5 years RI each and imposed a fine of Rs.5,000/- each with defaultsentence. Aggrieved by the findings of the learned trial Judge theaccused have preferred this appeal.20. Now the point for determination in this appeal is whether theprosecution has proved the guilty of the accused beyond any reasonbledoubt to warrant conviction?21. The Point:- The learned counsel for the appellants would mainlyfocused the attention of this Court to the delay caused in this case inpreferring the complaint-Ex.P.1. The learned counsel would submit thatthere is a delay of about 11 hours in preferring the complaint. Accordingto P.W.1, the occurrence had taken place on 17.2.1998 at about 12.30 am,but he has preferred the complaint only on 18.2.1998 at 11.00 am. Thelearned counsel for the appellants would say that the distance between theplace of occurrence and the jurisdiction police station (Perundurai policestation) is 10 kms and even according to P.W.14, the Sub-Inspector ofPolice, who has registered the case under Ex.P.5, a person can reach thepolice station within 15 minutes if he comes in a car and that P.W.1-complainant in his cross-examination has admitted that he along with hisson and others came in a car to prefer Ex.P.1-Complaint. No acceptableexplanation was given on the side of the prosecution for this delay of 11hours in preferring this complaint. But according to the learned counselfor the appellants, due to political enmity that was prevailing betweenP.W.1 and the accused after his shop and cycle shop of his brother gotdamaged due to fire accident after due deliberation and consultation withhis party members P.W.1 has implicated the accused falsely in this case.Yet another important point to be noted in this case is that along withthe list of witnesses submitted by P.W.15, Investigation Officer, alongwith the charge sheet, the eye witnesses' viz. P.W.8 & 9 names do not finda place. This creates a great suspicion on the case of the prosecution.The natural conduct of an Investigation Officer should be to mention theeye witnesses on the top of the list of the witnesses. But to our dismayin this case in the list of witnesses furnished by the InvestigationOfficer along with charge sheet to the Court neither P.W.8's name norP.W.9's name find a place. Certainly the benefit of doubt shall inure infavour of the accused. The non-explanation of mentioning the ocularwitnesses in the list of witnesses sent along with the charge sheet cutsat the root of the prosecution case. Under such circumstances, I am ofthe view that the prosecution has failed to prove the guilt of the accusedbeyond any reasonable doubt. The learned trial Judge has by over sitefailed to note this point held that the accused is guilty under theprovisions of criminal law, which warrants interference from this Court.Point is answered accordingly.22. In the result, the appeal is allowed and the conviction andsentence passed against the accused in S.C.No.104 of 1999 on the file ofthe First Additional Assistant Sessions Judge, Erode, is set aside and https://hcservices.ecourts.gov.in/hcservices/ both A1 and A2 are acquitted of all the charges levelled against them.Fine, if any paid by the accused, shall be refunded to the accused. Bailbonds stands cancelled. ssvSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo,1.The I Additional Assistant Sessions Judge, Erode.2.-do- thro The Principal Sessions Judge, Erode.3.The Judicial Magistrate, Perundurai.4. -do- thro The Chief Judicial Magistrate, Erode.5. The Inspector of Police, Perundurai Police Station, Erode. 6.The Public Prosecutor, Madras High Court.7.The Superintendent of Central Prison, Coimbatore.+ One cc to M/s R.T. Doraisamy SR 28174GK (co)sg 4/5/07Crl.A.No.1140 of 200025.04.2007