THE HONOURABLE MR v. State byThe Sub-Inspector of Police

Bail SlipThe Appellant/Accused namely T.K.Palanisamy was directedto be released on bail as per order of this Hon'ble Courtdated 9.11.2001 in Crl.M.P.No.8474/01 in Crl.A.No.1061/01.IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 06.08.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCrl.A.No.1061 of 2001T.K.Palanisamy .. Appellant/AccusedVs.State byThe Sub-Inspector of Police,Perundurai Police Station,Erode District,(Cr.No.185 of 2001) .. Respondent/ComplainantPrayer:- This appeal has been preferred against the judgmentdated 10.10.2001 made in S.C.No.116 of 2001 on the file ofthe Principal Sessions Judge, Erode.For Appellant:Mr.V.K.Muthusamy, Senior Counsel, for Mr.M.M.Sundresh For Respondents :Mr.V.R.Balasubramaniam Additional Public ProsecutorJUDGMENTThis appeal has been preferred against the judgment inS.C.No.116 of 2001 on the file of the Principal SessionsJudge, Erode. The accused, who has been convicted andsentenced under Section 3(1)(x) of the SC/ST (Prevention ofAtrocities) Act, [herein after referred to as 'The Act' andunder Section 341 and 332 IPC, is the appellant herein.2.The learned trial judge, after furnishing copies underSection 207 of Cr.P.C., on his appearance, framed chargesunder Section 3(1)(x) of the Act, and under Sections 341, 332& 506(ii) IPC and explained to the accused and when https://hcservices.ecourts.gov.in/hcservices/ questioned, the accused pleaded not guilty. Before the trialCourt P.W.1 to P.W.6 were examined and Ex.P.1 to Ex.P.9 weremarked. 3.P.W.1 is the complainant. He is working as anenvironmental assistant in Perudurai Panchayat. According tohim, while he was on duty on 21.4.2001 at about 9.00 am nearold post-office Perundurai attending to cleansing the toiletalong with P.W.4-Kandan, the accused came there and preventedthem from proceeding with their work and when they refused toheed to his appeal, he abused by his (P.W.1's) caste (rf;fpypjhnahsp) and asked them to go out of the place. Immediatelythe accused had kicked on the right hip and due to that hefell unconsciously. When P.W.4-Kandan, his co-workerintervened, the accused pushed him down and stamped on hischest. Immediately he went to his office and preferred acomplaint to the Supervisor Periyasamy and also to ExecutiveOfficer. Since he has developed chest pain he went to thegovernment hospital Perundurai and was admitted in the saidhospital by the doctor therein as an inpatient for four days.While he was taking treatment in the hospital, a policeofficer from Perudurai Police Station came to the hospitaland recorded his statement, which is Ex.P.1.4.P.W.2 is the Tahsildar, who had issued Ex.P.2 toEx.P.4, community certificates. Ex.P.2 & Ex.P.3 are relatingto P.W.1 and P.W.4 respectively describing them as belongingto scheduled caste and Ex.P.4 is the community certificaterelating to the accused showing that he belongs to backwardcommunity. 5.P.W.3 is the then Sub-Inspector of Police, PerunduraiPolice Station, who on 21.4.2001 at about 12.30 pm onintimation from the government hospital at Perundurai, wentto the said hospital and recorded Ex.P.1, statement of P.W.1,and on the basis of the complaint he had registered the caseunder Perudurai Police Station Cr.No.185 of 2001 underSection 341, 323, 332 & 506(i) IPC and under Section 3(1) (x)of the Act. Ex.P.5 is the copy of the FIR.6.P.W.4 is the co-worker of P.W.1 viz.Kandan. Accordingto him, at the time of occurrence at the place of occurrencethe accused had prevented him and P.W.1 from doing their workand when he intervened, the accused had abused him in filthylanguage and also slapped him and that he immediatelypreferred a complaint to Periyasamy, the Supervisor, and healong with P.W.1 went to the government hospital atPerundurai for treatment, where P.W.1 was admitted as aninpatient. https://hcservices.ecourts.gov.in/hcservices/

7.P.W.5-Periyasamy, the Supervisor in PerunduraiPanchayat Board, would depose that on 21.4.2001 at about 6.00am all the environmental assistants were present and he hadassigned work for P.W.1 and P.W.4 to clean the modern toiletat M.C.Road and thereafter he attended to his supervisingwork. When he came to his seat, P.W.1 & P.W.4 complained thatthe accused had assaulted them. Immediately he has preferreda complaint to his higher official Executive Officer, who hadpreferred a complaint to the police.8.P.W.6 is the Investigating Officer. On seeing the FIREx.P.5 he had examined P.W.4 and recorded his statement andvisited the place of occurrence and examined the witnessesand recorded their statements and prepared Ex.P.6-observationmahazar and had drawn a rough sketch-Ex.P.7. He had arrestedthe accused and produced him before the Judicial Magistratefor judicial remand. He has also obtained Ex.P.8-woundcertificate for P.W.1 and Ex.P.9-wound certificate for P.W.4.After completing the formalities, he has filed the chargesheet against the accused on 28.6.2001.9.When incriminating circumstances were put to theaccused under Section 313 of Cr.P.C., the accused would denyhis complicity with the crime. After going through theevidence both oral and documentary the learned trial Judgehas convicted the accused under Section 3(1)(x) of the SC/ST(Prevention of Atrocities) Act, and sentenced him to undergo6 months RI and a fine of Rs.1,000/- with default sentence,and convicted and sentenced the accused under Section 332IPC to pay a fine of Rs.1,000/- with default sentence andalso convicted and sentenced the accused under Section 341IPC to pay a fine of Rs.1,000/- with default sentence. Boththe accused have been acquitted for the offence under Section506(ii) IPC. Aggrieved by the findings of the learned trialJudge, the accused has preferred this appeal.10.Heard Mr.V.K.Muthusamy learned senior counselappearing for the accused and Mr.V.R.Balasubramanian, thelearned Additional Public Prosecutor and considered theirrespective submissions.11.Now the point for determination in this appeal iswhether the chrage against the accused under Section 3(1)(x)of the Act and under Section 341 & 332 IPC imposed by thelearned trial Judge is sustainable for the reasons stated inthe memorandum of appeal?12.The Point:- The learned senior counsel https://hcservices.ecourts.gov.in/hcservices/ Mr.V.K.Muthusamy would focus the attention of this Court toan important flaw committed by the prosecution in this case.Admittedly soon after the occurrence P.W.1 has made acomplaint to his higher official viz. the Supervisor ofPerundurai Panchayat Union. In the cross-examination P.W.1would admit that his supervisor Periyasamy had reduced towriting what he had narrated about the incident to him andthat he had also signed in the said statement and gave to theExecutive Officer at about 10.00 or 10.30 am on 21.4.2001ie. about 1 ½ hours after the occurrence. P.W.5 is the saidPeriyasamy, the Supervisor of Perundurai Panchayat Union.P.W.5 would admit in the cross-examination that both P.W.1and P.W.4 have presented a complaint about the occurrence tothe Executive Officer at about 10.00 am on the date ofoccurrence, who in turn had forwarded the same to the PoliceStation at 10.30 am. But unfortunately the said complaintpreferred by P.W.1 and P.W.4 immediately after the occurrencehas not seen the light of the day. P.W.5 in his evidencewould say that P.W.1 & P.W.4 have complaint that the accusedhad bet them. P.W.5 has not stated neither in the chief-examination nor in the cross-examination that P.W.1 & P.W.4have complaint that the accused had abused them by caste.Only if the earliest complaint is placed before the Courtthen only it will be possible to see whether the accusedabused both P.W.1 & P.W.4 at the time of occurrence by casteor simply they assaulted them at the time of occurrence.Further according to P.W.1, the accused at the time ofoccurrence has assaulted him by kicking him on the right sideof the hip and that he fell down unconsciously and when P.W.4intervened the accused had stamped on his chest. But inEx.P.1-complaint he has alleged that the accused had kickedon his chest and landed blows on the chest of P.W.4-Kandan.P.W.4-Kandan in his evidence has stated that the accused atthe time of occurrence had slapped him. But there is nospecific overtact attributed against P.W.1 except by sayingthat the accused had abused him. P.W.4 has not specificallystated what are the abusive words used by the accused at thetime of occurrence particularly he has not stated any abusivewords said to have been attributed by the accused byaffecting his caste. Both P.W.1 & P.W.4 would say that aftermaking a complaint with P.W.5 they went to governmenthospital at Perundurai and were treated by the doctor. Woundcertificates were produced by the Investigating officer P.W.6in this case. There is no explanation forthcoming from theside of the prosecution for not examining the doctor, who hadissued Ex.P.8 & Ex.P.9, wound certificates for P.W.1 & P.W.4respectively. Apart from this, the learned senior counselwould also attack the case of the prosecution on the groundthat the occurrence has not taken place within the public https://hcservices.ecourts.gov.in/hcservices/ view. In support of his contention that prosecution hasfailed to prove that the incident has not taken place withinthe public view and hence an offence under Section 3(1)(x) ofthe Act will not attracted, the learned senior counsel reliedon 1997(2) Crimes 119 (E.K.Nayanar Vs. M.A.Kuttappan), 1992Crl.L.J.3054 (Karansingh and others Vs. State of M.P.,) and1997 Cri.L.J.122 [Haridas s/o.Ajab Shinde Vs. State ofMaharashtra (through P.S.O., Police Station Deoli)]. Eventhough in this case, the place of occurrence is said to benear a wedding mahal in M.C.Road, Perundurai near the oldbus-stand at 9.00 am, no doubt the place is accessible to thepublic view, to show that the public have witnessedthe occurrence apart from the complainant P.W.1 and hisco-worker P.W.4, there is no independent witness wasexamined to corroborate the evidence of P.W.1. Even theco-worker of P.W.1 viz., P.W.4 has failed to corroborate theevidence of P.W.1 to show that at the time of occurrence, theaccused had abused P.W.1 & P.W.4 by their caste. Sine theprosecution has failed to produce the earliest firstinformation in this case, I am of the view that the benefitof doubt cast upon the case of the prosecution will certainlyinures to the benefit of the accused. Point is answeredaccordingly.13.In fine, the appeal is allowed and the judgment ofthe trial Court in S.C.No.116 of 2001 on the file of thePrincipal Sessions Judge, Erode, is set aside and the accusedis relieved from all the charges levelled against him. Bailbonds shall stand cancelled. Fine amount, if any paid, shallbe refunded to the accused. Sd/Asst.Registrar/true copy/Sub Asst.Registrarssv https://hcservices.ecourts.gov.in/hcservices/ To1.The Principal Sessions Judge, Erode.2.The Public Prosecutor, Madras High, Madras.3.The Superintendent, Central Jail, Madras.4.The Sub-Inspector of Police, Perundurai Police Station, Erode.5.The Director General of Police,Chennai-4.+1cc to Mr.M.M.Sundresh,Advocate Sr 49154NSM (CO)km/13.8.Crl.A.No.1061 of 2001