Palanisamy v. State

BAIL SLIPThat the Appellant/Accused viz., Palanisamy was directed to bereleased on bail by the order of this Court dated 28.11.2002 and madein Crl.M.P.No.12143/2002 in Crl. Appeal No.1666/2002.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 10.06.2009C O R A MTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1666 of 2002 Palanisamy ..AppellantVs.State by Inspector of Police, Perundurai Police StationErode DistrictCr.No.297/2001...RespondentThis Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code as against conviction and sentence imposed inS.C.No.73/2002 dated 29.10.2002 by the learned Principal SessionsJudge, Erode and to set aside the same. For Appellant: Mr.N.ManokaranFor Respondent : Mr.J.C.Durairaj, Govt. Advocate (Crl. Side)J U D G M E N TThe sole accused who stood charged and convicted before the Principal Sessions Judge, Erode in S.C.No.73/2002 for an offencepunishable under Section 3(1) and 5 of the Tamil Nadu Property(Prevention of Damages and Loss) Act, 1992 and sentenced to pay afine of Rs.1,000/- and in default of payment of fine to undergorigorous imprisonment for a period of one month for the offence under Section 3(1) of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 and to undergo six months rigorous imprisonment andto paya fine of Rs.500/- and in default payment of fine to undergorigorous imprisonment for 15 days for the offence punishable under Section 5 of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 has come forward with the present appeal against thesaid conviction and sentence. https://hcservices.ecourts.gov.in/hcservices/

The case of the prosecution, in brief, can be stated asfollows:i) The appellant herein/accused is a resident of Kambuliyampatti. 10 days prior to the date of occurrence, theappellant herein/accused travelled in the bus belonging to Tamil NaduState Transport Corporation (Coimbatore-Division-II), Erode bearingRegn. No.TN-33 N-1286 from Perundurai to Vijayamangalam. Though hehad got the ticket to Vijayamangalam, he wanted P.W.1 - the driver ofthe said bus to stop at Saralai and allow him to alight there. Thesaid request was turned down stating that the bus would not bestopped there and the appellant herein/accused was dropped at Vijayamangalam. While he was leaving the said place after gettingdown from the bus, the appellant herein/accused proclaimed that oneday or the other he would break the wind screens of the bus. ii) After a gap of 10 days from the said occurrence i.e. on18.06.2001 when the said bus came to Moongilpalayam diversion(pirivu) at about 11.40 p.m on its way from Salem to Coimbatore, theappellant herein/accused pelted a piece of cement slab on the saidbus in which the front left side wind screen got completely damaged. In the said incident, P.W.4-Ramanathan, who was travelling in thesaid bus as a passenger got simple injuries. Soon after theoccurrence, P.W.1-Dhandapani, the driver of the bus and P.W.3-Pandian, the conductor of the bus chased the appellant herein/accusedand caught him with the help of some of the passengers. Thereafterhe was produced before the Sub-Inspector of police, Perundurai PoliceStation and Ex.P1 complaint was lodged by P.W.1. Based on the saidcomplaint, Ex.P10-First Information Report was prepared and a casewas registered on the file of Perundurai police station inCr.No.297/2001 for offences punishable under Section 3 of the TamilNadu Property (Prevention of Damages and Loss) Act, 1992 and Section324 IPC at about 2.00 a.m on 19.06.2001. P.W.4, who sustainedinjuries in the occurrence, received medical treatment at GovernmentGeneral Hospital, Perundurai. Ex.P3 is the Accident Register andEx.P2 is the Wound Certificate relating to P.W.

After causingdamage to the windscreen of the bus, the appellant herein/accusedtried to escape by running away from the said place. When he waschased by P.W.1 (driver) and P.W.3 (conductor) and in such an attemptto escape from the place of occurrence, the appellant herein/accusedfell down and sustained some injuries. Therefore, he was alsoreferred to the Government General Hospital, Perundurai by the policefor treatment. P.W.2-Dr.Arumugam is the Medical officer who gavetreatment to P.W.4 as well as the appellant herein/accused. Ex.P4and P5 are respectively the Accident Register and Wound Certificateof the appellant herein/accused. iii) P.W.5, the then Motor Vehicles Inspector Gr.II, Perunduraiinspected the vehicle and submitted a report marked as Ex.P6assessing the damage caused to the vehicle at Rs.1,000/-. P.W.9- https://hcservices.ecourts.gov.in/hcservices/ Vasudevan, the then Inspector of Police, Perundurai, conductedinvestigation, prepared Ex.P9-Observation Mahazar in the presence ofP.W.7-Venkatachalam and one Kuzhanthaisamy and also Ex.P12-Roughsketch.

The learned Principal Sessions Judge, Erode heard thearguments advanced on either side and in the light of the argumentsthus advanced, considered the evidence brought before the trialcourt. Upon such consideration, the trial court came to theconclusion that both the charges framed against the accused wereproved beyond reasonable doubt and convicted him for the saidoffences and imposed punishments as indicated supra. https://hcservices.ecourts.gov.in/hcservices/

Challenging the correctness and legality of the convictionrecorded and the sentence of punishment awarded by the trial court, the appellant herein/accused has come forward with the present appealon various grounds set out in the appeal petition.

The point that arises for consideration in this appeal is,"whether the judgment of conviction and the order of sentence of thecourt below suffers from any defect or infirmity warrantinginterference by this court in this appeal?"

This court heard the submissions made by Mr.N.Manokaran, learned counsel for the appellant herein/accused and byMr.J.C.Durairaj, learned Government Advocate (Crl. Side) representingthe respondent police. The grounds of appeal, the judgment of thecourt below and all other materials available on record were alsoperused by this court.

Advancing arguments on behalf of the appellantherein/accused, Mr.N.Manokaran, learned counsel submitted that thejudgment of the court below was against law, weight of evidence andprobabilities of the case; that the court below failed to appreciatethe contradictions found in the evidence of P.W.1 and the contents ofthe complaint regarding when the previous occurrence which formed themotive for the accused to commit the offences alleged against him; that the court below failed to notice the fact that the wife of P.W.4was not examined even though she was also said to be travelling inthe bus of which her husband was travelling at the time of thecommission of the offence; that the non-examination of the wife ofP.W.4 would create a reasonable doubt regarding the prosecution case; that no independent witness was examined in order to prove thecharges made against the appellant herein/accused and that the courtbelow pronounced a judgment holding the appellant herein/accusedguilty of the above said offences without even considering thedefence plea raised by the appellant herein/accused.

It is the further contention of the learned counsel for theappellant that the court below failed to note the absence ofexplanation offered by the prosecution regarding the injuriessustained by the accused; that the improbability in the case of theprosecution as if the accused was identified, as the occurrence wassaid to have taken place at about 11.40 p.m; that the court belowfailed to consider the admission made by P.W.1 that there can beoccasions in which the windscreens might get damaged due to jerkswhen the vehicle was on move; that the court below failed to note thefact that the accused had already paid a sum of Rs.1,500/- towardsthe damage caused to the bus involved in the occurrence and that thepunishment imposed by the court below on the appellant herein/accusedwas harsh and highly excessive. https://hcservices.ecourts.gov.in/hcservices/

It is the further contention of the learned counsel for theappellant that the mere seizure of M.O.1 and M.O.2 series would nothelp the prosecution to connect the accused with the occurrence; thatthe fact that the Investigating Officer has omitted to show thepresence of the bus in the Observation Mahazar or in the roughsketch, will improbablise the case against the appellantherein/accused and that hence the appeal must be allowed holding theprocedure adopted by the trial court defective and the finding of thetrial court unsustainable as the same was defective and infirm.

The submissions made by Mr.J.C.Durairaj, learned GovernmentAdvocate (Crl. Side) representing the respondent police in thisregard were also heard and this court gave its anxious considerationto the points raised on behalf of both the parties in this appeal andalso to the other materials available on record.

The case of the prosecution is that the front left sidewindscreen of the bus was smashed by the appellant herein/accused bypelting a piece of cement slab. It is also the case of theprosecution that P.W.4-Ramanathan, who was sitting behind theconductor seat, sustained injuries in the occurrence on the left sideof his forehead and his left leg. P.W.1 is not specific in hisevidence as to the object which hit P.W.4 and caused injuries. However, P.W.3 (conductor) would state that the stone (piece ofcement slab), after hitting and smashing the windscreen of the bus, pierced through the windscreen, proceeded further and hit P.W.4 onthe left side of his forehead. P.W.3 has also stated in his chiefexamination that on seeing the appellant herein/accuse pelting astone against the windscreen of the bus he bent forward and loweredhis head and thus escaped unhurt. On the other hand, P.W.4 wouldstate that he was hit by the broken glass pieces of the windscreenand not by the piece of cement slab. It is the case of theprosecution that the accused also sustained injuries as he fell downwhile being chased by P.W.1, P.W.3 and some of the passengers. Ittranspires after registration of the case on the file of PerunduraiPolice station based on the Ex.P1-complaint both P.W.4 and theappellant herein/accused were referred to Government GeneralHospital, Perundurai for treatment. Ex.P3 is the Accident Registerand Ex.P2 is the Wound certificate pertaining to P.W.4. In the saiddocuments, the Medical Officer has noted that P.W.4 informed him thathe sustained injuries when he was hit by a piece of cement slabthrown by a known person at about 11.40 p.m on 18.06.2001 at Moongilpalayam diversion when he was travelling in the bus from Erodeto Coimbatore. But the passenger ticket has not been recovered andproduced. The evidence of P.W.4 regarding the object which hit himand caused injuries is some what contrary to the particulars found inEx.P2 and P3. According to P.W.4's testimony, he was hit by thebroken pieces of glass and not by the piece of cement slab. https://hcservices.ecourts.gov.in/hcservices/

The prosecution has produced M.O.1 as the piece of cementslab thrown by the appellant/accused at the windscreen of the bus.M.O.2 series have been produced as the broken glass pieces of thewindscreen. M.O.1 and 2 were allegedly taken to the police stationby P.W.1 from the place of occurrence and handed over to P.W.8-Marichamy, Sub-Inspector of Police, who recovered the same under Form95 marked as Ex.p11. But there is total absence of evidence as towhether M.O.1 - piece of cement slab was picked up from inside thebus or from the road (outside the bus). It is quite improbable thatthe piece of cement slab would have travelled further and hit P.W.4after piercing through the windscreen of the bus. Of course there isevidence to the effect that the appellant herein/accused fell downand sustained injuries when he was chased by P.W.1 and P.W.3 alongwith some of the passengers and the evidence of P.W.1 and 3 getcorroboration from the evidence of the Medical Officer, examined asP.W.2 and also from Ex.P4-Accident Register and Ex.P5-WoundCertificate. But a contradiction found in the evidence of P.W.1 and3 in this regard is worth mentioning. Admittedly, the bus wasproceeding towards west from east. According to P.W.1, the appellantherein/accused was standing on the left side of the road and pelted acement slab piece at the left side windscreen of the bus.

It is his further evidence that after the bus was hit by thepiece of cement slab, he applied brake but the bus came to a haltafter crossing a distance of 50 feet. He has also stated in hisevidence that the appellant herein/accused was running towards estand they caught him after chasing him for about 60 feet. Per contra,P.W.3 has stated that the appellant herein/accused was runningtowards west when he was chased and caught by them. Thus there is amaterial contradiction between the evidence of P.W.1 and P.W.3 as towhether the appellant herein/accused was caught by P.W.1 and 3 at aplace lying on the west or east of the place wherein the bus had beenstopped.

The refusal of P.W.1 to allow the accused to get down fromthe bus at a place called Saralai and P.W.1's act of dropping him at Vijayamangalam to which he had got the ticket when the appellantherein/accused travelled in the said bus 10 days prior to the date ofoccurrence is said to be the motive for the occurrence that tookplace on 18.06.2001. According to the evidence of P.W.1, P.W.3 wasthe person who was on duty as conductor on the date of the above saidprevious occurrence forming the motive and on the date of occurrence, namely 18.06.2001. But the same has not been supported by P.W.3.According to P.W.3's testimony, he saw the appellant herein/accusedfor the first time on the date of occurrence viz. 18.06.2001. Thereis no other evidence except the oral testimony of P.W.1 in order toprove the previous occurrence providing motive for the occurrencethat took place on 18.06.2001. In the light of the admission made byP.W.3 that he saw the accused for the first time on the date ofoccurrence i.e. 18.06.2001, whereas P.W.1 has stated that P.W.3 was https://hcservices.ecourts.gov.in/hcservices/ the conductor on duty on the date of previous occurrence also, thiscourt is able to realise the improbabilities of the prosecution caseregarding motive. If at all the appellant herein/accused pursuant tothe alleged previous occurrence wanted to cause damage to the bus whyshould he wait for 10 days and choose a time just before midnight?This court is not able to find any reason for the same.

Perundurai – Coimbatore road is a busy National Highway(NH-47) in which a lot of vehicles are plied. It shall not bepossible for a person to identify a bus with its registration numberor route board during night hours at a distance when the bus is onthe move. Even if the bus could be identified at a distance of 25 to30 feet, the bus would have frisked away without there beingsufficient time for the appellant to react since admittedly the buswas proceeding at a speed of 60 Km/hr which means the bus would havecrossed 50 feet in a second. P.W.9 is the police officer whoinvestigated the case and submitted the final report based on whichthe offences were taken cognizance of. The Observation Mahazar andrough sketch prepared by him at the scene of occurrence have beenmarked as Ex.P9 and P12 respectively. P.W.7-Venkatachalam has beenexamined as the attestor of the Observation Mahazar. The otherattestor, namely Kuzhanthaisamy has not been examined as a witness onthe side of the prosecution. P.W.7, according to his own versionresides at a distance of 3 or 4 Km from the place of occurrence. Itis improbable that he would have gone to the place of occurrence atabout 3.00 a.m during night hours to be a witness for the preparationof the Observation Mahazar and rough sketch. P.W.7 has asserted inhis evidence that the bus involved in the occurrence was there in thescene of occurrence when the Investigating Officer preparedObservation Mahazar and rough sketch. P.W.9 - Investigating Officerhas also stated in his evidence that the bus had not been parked inthe police station when he went there at 2.30 a.m to get the FIR copyand take up the investigation of the case. It is his furtherevidence that he saw the bus for the first time only in the place ofoccurrence. But the presence of the bus in the scene of occurrencehas not been noted either in the observation mahazar marked as Ex.P9or in the rough sketch marked as Ex.P12.

It is the evidence of P.W.1 that he took P.W.4 and theaccused and also M.Os.1 and 2 to the police station and handed overthe accused and M.O.1 and 2 to the police. He has not stated whatwas the mode of transport used for the said purpose. However, P.W.3has stated that the appellant herein/accused, P.W.4 and the M.Os.1and 2 were transported to the police station in the very same buswhich was damaged in the occurrence. Same is the testimony of P.W.4also in this regard. A consideration of the above said evidence ofP.W.3 and 4 in the light of the statement of P.W.1 in his evidencethat the bus was taken to the office of the Regional TransportOfficer, Perundurai in the morning of 19.06.2001 along with thepolice and the fact that the presence of the bus in the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence at the time of alleged spot inspection made by P.W.9 hasnot been noted in Ex.P9 – Observation Mahazar and Ex.P12 – roughsketch, will make the contention of the learned counsel for theappellant/accused that Ex.P9 and P12 could not have been prepared inthe presence of P.W.7 and that his signature should have beenobtained in the police station probable and the said contention hasgot to be countenanced. It shall, at the least be held that the samewould give rise to a reasonable suspicion regarding the spotinspection allegedly conducted by P.W.9.

Yet another discrepancy regarding the lodging of thecomplaint has also been pointed by the learned counsel for theappellant. P.W.1, in his evidence in chief examination, stated thathe gave a complaint in writing and that Ex.P1 was the complaint givenby him. P.W.3 and P.W.8 have also stated that P.W.1 gave a complaintin writing. It is not their evidence that the oral statement ofP.W.1 was reduced to writing and his signature was obtained on it. Per contra, during cross examination, P.W.1 has stated that he orallyfurnished the particulars for the preparation of the complaint andthe same was reduced to writing by the police; that there after hesigned the complaint thus scribed by the police to the dictation ofP.W.1 and that Ex.P1 is the said complaint. If all thediscrepancies, contradictions and improbabilities found in theevidence adduced on the side of the prosecution and in theprosecution story itself are considered in proper perspective, thecontention of the learned counsel for the appellant that theprosecution story is improbable and that at least there are vitalpoints to give rise to a reasonable suspicion on the prosecution casecannot be rejected either as untenable or having no force in it. TheMotor Vehicle Inspector has not confirmed the presence of symptoms ofstone throwing. The report of the Motor Vehicle Inspector Gr.IImarked as Ex.P6 will, at the best, would show that the windscreen wasfound damaged. The same will not lend any help to the prosecution toshow that the windscreen was hit by M.O.1 stone.

The other clinching evidence, according to the learnedGovernment Advocate (Crl. Side), to prove the charges against theaccused, are the testimony of P.W.6 and Ex.P13 and P14. Relying onthe same, it has been contended on behalf of the respondent that theaccused himself admitted having broken the windscreen of the bus bymaking payment of a sum of Rs.1,500/- as compensation to the Transport Corporation. First of all, admissions are not conclusiveproof even though the same may be one of the best evidences availablefor proving the fact thus admitted. Secondly, there is want ofevidence to prove that there was such an admission and payment ofcompensation on the part of the appellant herein/accused. It isquite improbable that the accused would have made such an admissionand paid compensation without getting an assurance for the withdrawalof the complaint or compounding of the offence when such a criminalcase was pending. No petition for compounding the offence was filed https://hcservices.ecourts.gov.in/hcservices/ before the trial court. It is not the evidence of P.W.6 that therewas such an understanding for the withdrawal of the complaint or forcompounding the case. The alleged payment of compensation wasstoutly denied by the accused. No case was filed against the accusedclaiming damages. Not even a lawyer's notice was issued to himclaiming compensation. Therefore, this court is satisfied with thesoundness of the arguments advanced on behalf of the appellant thatno occasion would have arisen for the accused to make such payment ascompensation. Neither in Ex.P13 nor in Ex.P14, the signature of theappellant herein/accused has been obtained. There is not even ascrap of paper containing the signature of the accused to show thatit was he who made payment under the original of Ex.P14. Ex.P14 isonly a xerox copy. It is not even a carbon copy. No case foradducing secondary evidence in proof of the contents of the documenthas been made out. Ex.P14 is a piece of inadmissible evidence andhence no reliance can made on it.

However, the learned Government Advocate (Crl. Side) arguedthat even if the evidence of other witnesses would be discarded asunreliable because of the discrepancy pointed out supra, there areclinching evidence in the form of deposition of P.W.2, P.W.4 andP.W.6 and in the form of Ex.P2 to P5, P6, P13 and P14 to substantiatethe charges framed against the accused; that hence there was no scopefor holding the judgment of conviction pronounced by the court beloweither discrepant or defective and that hence the appeal should bedismissed as devoid of merits. The answer to the said contention isas follows: Though P.W.4 is said to have sustained injuries in theoccurrence. It has not been proved that he was hit by M.O.1 and thussustained injuries. There are two different versions, one by P.W.1and other by P.W.4 in this regard as pointed out in the earlier partof this judgment as to whether M.O.1 came into contact with the bodyof P.W.4 or the glass pieces alone hit him and caused the injuries.

All the above said aspects have not been taken intoconsideration by the Court below. Had the trial Court considered theevidence in proper perspective, it would have come across all theabove said improbabilities and discrepancies and would have naturallyarrived at a conclusion that the charges made against the appellantherein/accused were not proved beyond reasonable doubt and that therewere reasonable doubts regarding the prosecution version, the benefitof which should be given to the appellant herein/accused resulting inhis acquittal.

For all the reasons stated above, this court comes to theconclusion that the conclusion arrived at by the court below holdingthe appellant herein/accused guilty of the offences punishable under Sections 3(1) and 5 of the Tamil Nadu Property (Prevention of Damagesand Loss) Act, 1992 and the conviction recorded by the court beloware discrepant and infirm liable to be reversed and set aside by thiscourt in exercise of its appellate power.

In the result the appeal succeeds and the same is allowed. The conviction of the appellant herein/accused for an offencepunishable under Section 3(1) and 5 of the Tamil Nadu Property(Prevention of Damages and Loss) Act, 1992 and the sentence imposedby the court below are set aside and the appellant herein/accused isacquitted of all the offences with which he stood charged. Fineamount collected should be refunded to the appellant.sd/-Asst. Registrar/true copy/Sub Asst. Registrarasr https://hcservices.ecourts.gov.in/hcservices/ To 1. The Principal Sessions Judge, Erode.2. The Judicial Magistrate, Perundurai.3. -do- Through The Chief Judicial Magistrate, Erode District. (for information)4. The Inspector of Police, Perundurai Police Station Erode District.5. The Public Prosecutor High Court, Madras.+ 1 c.c. to Mr. N. Manokaran, Advocate. S.R.No.22079. JUDGMENT IN Crl.A.No.1666/2002SRS (CO)GSK 02.07.2009.