Bail SlipThat v. State, represented byThe Assistant Commissioner of Police,North Range, (1/c) West Range, Salem

Bail SlipThat the Appellants/Accused 1 to 6 viz. (1) Shanmugam,S/o.Sukumaran,(2) Gopal,S/o.Nagarajan, (3) Narayanamurthy,S/o.Venkatachalam, (4) Nagaraj, S/o.Mani, (5) Ansar, S/o.Gulabjohn& (6) Jakkeriya,S/o.Abdul Samath,were directed to be released onbail as per order dt.1.9.2003 made in Crl.M.P.No.8101 of 2003 inCrl.A.No.1288/2003 on the file of this Court.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 13-09-2010CORAMTHE HONOURABLE MR.JUSTICE T.SUDANTHIRAMCrl.Appeal No.1288 of 20031.Shanmugam2.Gopal3.Narayanamurthy4.Nagaraj5.Ansar6.Jakkeriya.. Appellants/Accused 1 to 6VersusState, represented byThe Assistant Commissioner of Police,North Range, (1/c) West Range, Salem City,Suramangalam Police Station... Respondent/Respondent Prayer: Appeal against the judgment, dated 11.8.2003, made inS.C.No.235 of 2002, on the file of the Principal Sessions Judge,Salem.For Appellants : Mr.B.VasudevanFor Respondent : Mr.A.Saravanan Government Advocate (Crl. Side)J U D G E M E N TThe appellants herein are the accused in S.C.No.235 of 2002,on the file of the Principal Sessions Judge, Salem. The learnedtrial Judge had convicted and sentenced the accused/appellants,which are as follows: https://hcservices.ecourts.gov.in/hcservices/ Appellants 2 and 3 were convicted under Section 147of Indian Penal Code and sentenced to undergo rigorousimprisonment for six months each; Appellants 1, 4 to 6 were convicted under Section148 of Indian Penal Code and sentenced to undergorigorous imprisonment for six months each; Appellants 1 to 6 were convicted under Section 3(1)(x) of the Schedule Castes and Schedule Tribes(Prevention of Atrocities) Act, 1989, and sentenced toundergo rigorous imprisonment for six months and to pay afine of Rs.500/- each, in default to undergo rigorousimprisonment for one month each and Appellants 1, 4 to 6 were convicted under Section324 of Indian Penal Code and sentenced to undergorigorous imprisonment for six months each.Aggrieved by the above said conviction and sentence, the appellantshave been preferred the present criminal appeal.2. The case of the prosecution in brief is that P.W.1 theresident of Zahir Chinnama Palayam, Salem Taluk, was a plus twostudent. On 26.6.2002, at 4.30 p.m, P.W.1 was on his way to attendhis tution classes. While he was nearing Kaliamman Temple, theaccused who were gathered near a beeda shop had called P.W.1 andabused him stating that "vd;dlh gug;gr';fSf;F ,';F ntiy". P.W.1 hadreplied that he was going to attend tution classes. Thereafter, thesecond accused had kicked P.W.1 on his testicles. The second andthe third accused caught hold of him and then the remaining fouraccused had attacked him with casuarina sticks. 3. P.W.1 had then left the place of occurrence and reached hishouse in a cycle rickshaw. He had informed about the occurrence tohis parents. Thereafter, he was taken to Government MohanKumaramangalam Medical College Hospital, Salem, by his parents.P.W.4, the Doctor, attached to Government Mohan KumaramangalamMedical College Hospital had attended on the victim, P.W.1 at 7.05p.m and noticed the following injuries:1. Contusion on forehead 2 x 2 cm2. Contusion over right cheek.3. Bruise marks over left shoulder4. Bruise marks over left scalpular region5. Contusion over left thigh.6. Tenderness over right wrist.He had issued the accident register, marked as Ex.P-9. P.W.8 theHead Constable of Suramangalam Police Station, on receipt of theintimation had went to the hospital and received the complaint,from P.W.1, marked as Ex.P-1. 4. P.W.9 the Sub Inspector of Police had received the https://hcservices.ecourts.gov.in/hcservices/ complaint Ex.P-1 from P.W.8 and registered a case in Crime No.628of 2002 at 9.00 p.m for the offences under Sections 147, 148, 341,324, 323, 307 and 3(1)(x) of the Schedule Castes and ScheduleTribes (Prevention of Atrocities) Act, 1989. He then prepared aFirst Information Report, marked as Ex.P-16. P.W.11 the AssistantCommissioner of Police, took up the investigation in the matter andrecorded the statement of the witnesses. He also prepared theobservation mahazar and the rough sketch. On the same day at about11.00 p.m he arrested the first accused Shanmugam and recoveredM.O.1 casuarina stick.5. On 27.6.2002, he arrested the accused Narayanamurthy (A-3),Nagaraj (A-4), Ansar (A-5) and Jakkeriya (A-6) and recoveredcasuarina sticks. On 2.7.2002, he received the information thataccused Gopal (A-2) surrendered before the Judicial Magistrate.P.W.11 had made a requisition to the Special Tahsildar, Salem, andreceived the community certificates pertaining to P.W.1 and theaccused, marked as Exs.P-1 to P-8. On completion of theinvestigation P.W.11 had laid the final report against the accused,on 29.7.2002. 6. After examining all the prosecution witnesses, the accusedwas questioned under Section 313 Cr.P.C, with regard to theincriminating materials against them and they have denied theircomplicity.7. No defence witness was examined and no documentary evidencewas produced. The trial Court after analysing the evidence hadconvicted and sentenced all the accused, as stated above.8. The learned counsel appearing on behalf of the appellantshad submitted that the place of occurrence has not been proved bythe prosecution. Since as per the observation mahazar and the roughsketch the scene of occurrence was in front of Palanisamy Beedashop, but P.W.1 had informed the Doctor P.W.4 that he was attackednear Kaliamman Koil in Ammapalayam. Further, the beeda shop ownerPalanisamy, was also not examined by the prosecution. It wasfurther submitted that the names of A1 and A-2 alone are given inthe first information report and the names of the other accusedwere not stated in the first information report. The furthersubmission of the learned counsel is that the ingredients of theoffence under Section 3(1)(x) of the Schedule Castes and ScheduleTribes (Prevention of Atrocities) Act, 1989, are not made out andthe evidence of P.W.1 is contrary to what is stated in Ex.P-1 andit is also contrary to the evidence of P.W.5 and P.W.69. Per contra the learned Public Prosecutor submitted that theevidence of P.W.1, the victim, is corroborated by the medicalevidence and also by the evidence of P.W.5 and P.W.6 who are eyewitnesses to the occurrence. Though the names of A-1 and A-2 are https://hcservices.ecourts.gov.in/hcservices/ given in the first information report, P.W.1 and other witnesseshave identified the other accused in Court. 10. This Court considered the submissions and perused therecords.11. It is seen from the evidence that after the occurrenceP.W.1 was taken to the hospital and he had informed the DoctorP.W.4 that he was assaulted by two known persons and four unknownpersons. He had also given a complaint Ex.P-1 to the police inwhich he had specifically mentioned the names of A-1 and A-2. Hehad stated that the other four accused also attacked him but he didnot know their names. However, he had stated that those personscould be identified. 12. During the evidence, P.W.1 had also stated before theCourt that all the six accused were present at the time of theoccurrence. P.W.5 the classmate of P.W.1 also had stated that allthe six accused were present at the scene of occurrence and theyhave attacked P.W.1. P.W.6 had stated that P.W.1 was assaulted byfour or five persons and he has specifically mentioned the names ofA-4 to A-6. The evidence of P.W.1, P.W.5 and P.W.6 establish thepresence of the accused at the time of the occurrence and also theattack on P.W.1 by the accused. 13. The prosecution had established the fact that P.W.1 wasassaulted by all the accused. Though P.W.1 during his evidence hadstated that all the accused had stated "vd;dlh gug;gr';fSf;F ,';Fntiy" (Ennada Parapasangakaluku ingu vellai), he had not clearlystated that which accused had uttered the words first. It is hardto believe that all the accused, as a chorus uttered those words.In Ex.P-1 he had not stated that the accused had used the words"gug;gr';f". It is the evidence of P.W.5 that it was only the secondaccused who used the caste name. P.W.6 did not say anything aboutthe accused uttering the words about the caste of P.W.1. In thesaid circumstances, this Court is unable to accept the evidence ofP.W.1 to the effect that all the accused used the words utteringthe caste name of P.W.1. Therefore, the conviction and sentenceimposed on the accused for the offence under Section 3(i)(x) of thethe Schedule Castes and Schedule Tribes (Prevention of Atrocities)Act, 1989, is set aside. 14. At this juncture, the learned counsel appearing for theappellants had submitted that the accused have already been in jailfor more than two months and they were all aged about 20 to 21years at the time of the occurrence. 15. Considering the facts and circumstances of the case, thesentence of imprisonment imposed on the accused for the offencesunder Sections 147, 148 and 324 of Indian Penal Code is modified tothe period of imprisonment already undergone by them. Instead for https://hcservices.ecourts.gov.in/hcservices/ the offence under Sections 147 or 148 of Indian Penal Code, eachaccused shall pay a fine of Rs.500/- and, in default of payment toundergo rigorous imprisonment for one month. The fine amountalready paid by the accused for the offence under Section 3(1)(x)of the the Schedule Castes and Schedule Tribes (Prevention ofAtrocities) Act, 1989, which is to be returned, shall be adjustedtowards the fine amount imposed by this Court on the accused. The criminal appeal is accordingly allowed in part. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarcshTo1.The Principal Sessions Judge, Salem.2.The Judicial Magistrate No.2, Salem.3.-do- Thro' The Chief Judicial Magistrate,Salem.4.The Assistant Commissioner of Police,North Range, (1/c) West Range, Salem City,Suramangalam Police Station.5.The Public Prosecutor,High Court,Madras.+1cc to Mr.B.Vasudevan, Advocate Sr 67676RJ(CO)km/30.9.Crl.Appeal No.1288 of 2003