Criminal Appeal No. 918 of 2001 · High Court · 2007

BAIL SLIPThe Appellants/Accused viz, 1 Madasamy, 2. Francis, were directed tobe released on bail as per order of this Court dated 3.10.2001 made inCrl.M.P.No. 6883/2001 in Crl.Appeal.No. 918/2001.IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 01-08-2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANCRIMINAL APPEAL No.918 of 20011. Madasamy2. Francis..Appellants /accused-vs-State through Inspector of PoliceKolakombai Police StationCrime No.93/99Nilgiris District.. Respondent/complainant This appeal is filed under Section 374 f Cr.PC against theJudgment made in S.C.No.21/1999 dated 3.9.2001 on the file of the Districtand Sessions Judge, Uthagamandalam, Nilgiris District.For appellants : Mr.R.Vinayaga VishnuFor respondent : Mr.V.R.Balasubramaniam, Additional Public Prosecutor JUDGMENT This appeal has been preferred against the Judgment in S.C.No.21 of1999 on the file of the District and Sessions Judge,Uthagamandalam,Nilgiris District. 2. Both the accused have been charged under Sections 427 of IPC andunder Section 3(1) of Tamil Nadu Public Properties (Damages andPrevention)Act(hereinafter referred to as "TNPPDP Act") 1992.3. The learned Judicial Magistrate, Coonur had taken the case onfile as PRC 5 of 1994 and after the accused had appeared before him onsummons, copies under Section 207 of Cr.P.C.were furnished to the accusedand since the case is exclusively triable by the Court of Sessions, thelearned Judicial Magistrate had committed under Section 209 of Cr.P.C.. Onappearance before the learned Sessions Judge, the charges under Sections427 and 3(1) of the TNPPDP Act. were framed against the accused and whenquestioned, the accused pleaded not guilty. https://hcservices.ecourts.gov.in/hcservices/

4. On the side of the Prosecution , P.Ws 1 to 12 were examined.Exs P1 to P16 were exhibited and M.Os 1 to 5 were marked.5. P.W.1 is the complainant. He is the conductor in Tamil Nadu StateTransport Corporation bus bearing Registration No.TN-45-N-0807 andaccording to him at about 8.30p.m., on the date of the occurrence, thebus, who was taken by the driver from Coonur to Thutharmattam and itreached the destination at 9.45p.m and it was stationed at the bus standalong with two other buses bearing Registration Nos.TN-43-N-0243 and TN-29-N-0389 and there was incessant rain at that time and he along with thedriver of the bus were taking shelter near a shop. Along with him,Muniyandi, Kanagasundaram, Arumugam and Mohan, the workers of the depotwere also present. At that time, he had heard a sound which made them torush to the place of occurrence where they saw A2 Francis breaking thewindow pan glasses of the bus bearing Registration No.TN-29-N-0389 withwooden logs, M.O.1 and M.O.2 respectively. According to P.W.1, A1 and A2have smashed two window glass pans in TN-29-N-0389 and also six sideglasses on their right side and also front and rear glass pans in busesbearing Registration Nos.TN-43-N-0243 and also in TN-45-N-0807. Theaccused, on seeing P.W.1 and other witnesses approaching them, took totheir heels, but he along with the other witnesses successfully preventedthe accused from escaping, caught hold of them and produced in the policestation along with Ex P1 complaint. M.O.1 and M.O.2 wooden logs were alsoproduced by them under Form 95 which is marked as ExP2. He has assessedthe damage to the State Transport Corporation buses as Rs.27,500/-.5a. P.W.2 Arumugam is the driver of the State Transport CorporationBus bearing Registration No.TN-29-N-0389 . He has also corroborated theevidence of P.W.1 to the effect that the bus bearing Registration Nos.TN-45-N-0807, TN-43-N-0243 and TN-29-N-0389 were stationed at the busstand, the accused with M.O1 and M.O2 have smashed all the window screenglasses and window glasses and caused damage to the State TransportCorporation buses and that he along with P.W.1 and other witnesses hadcaught hold of the accused and produced the accused in the police stationand that P.W.1 had preferred Ex P1 complaint. 5b. P.W.3 is another driver of the State Transport Corporation busand also corroborated the evidence of P.W.1 and P.W.2 and had helped P.W.1and P.W.2 to apprehend the accused and produced them in the police stationand that P.W.1 had preferred Ex P1 complaint.5c. P.W.4 also helped P.W.1 to P.W.3 to apprehend the accused at theplace of occurrence along with M.O.1 and M.O.2. P.W.5 would depose that on19.4.1999 at about 9.30p.m., he got down from the bus and rushed to the https://hcservices.ecourts.gov.in/hcservices/ place where the accused had damaged three State Transport Corporationbuses and saw the damages caused to the buses. But he has not specificallyidentified the accused.5d. P.W.12 is the then Inspector of Police, kolakombai policestation, who had received the complaint Ex P1 from P.W.1 on 19.4.1999 atabout 23.30 hours and registered the case under Kolakombai Police StationCrime No.93 of 1999 under Sections 336,427 and 3(1) of TNPPDP Act. Ex P13is the first information report. According to him, both the accused wereproduced by the complainant and other witnesses at the time when Ex P1complaint was preferred by P.W.1 and that M.O1 and M.O2 were also producedby P.W.1 along with the accused, which were recovered under Form 95 Ex P2.On 20.4.1999 at about 00.15 hours, he had visited the place of occurrenceand prepared Ex P3 observation Mahazar and had drawn the rough sketch ExP14 in the presence of P.W.6 . Through P.W.7 Photographer, he had arrangedto take photographs for the scene of occurrence. Photos and negatives areEx P8 series. He has also recovered M.O.3 to M.O.5 glass pieces from thescene of occurrence under Ex P4 to Ex P6 recovery mahazar in the presenceof P.W.6 and other witnesses. He had made a requisition to the MotorVehicle Inspector to inspect the damaged State Transport Corporationbuses under Ex P15.5e. P.W.8 is the Assistant Engineer in Tamil Nadu State TransportCorporation, Coonur, who would depose that he had inspected the damagedState Transport Corporation buses and assessed the damages to the StateTransport Corporation buses as Rs.25,700/-(Rs.6,400/- to the bus bearingRegistration No. TN-45-N-0807, Rs.6,100/- to the bus bearing RegistrationNo.TN-45-N-0243 and Rs.12,600/- to the bus bearing Registration No. TN-29-N-0389 and he has also included the cost of repair as Rs.600) Ex P16 isthe assessment report marked through the Investigating Officer,P.W.12.5f.P.W.9 is the Branch Manager of the Coonur State TransportCorporation Depot. According to him, he had also inspected the damagedState Transport Corporation buses on 19.4.1999. P.W.10 is the MotorVehicle Inspector, who had inspected the damaged State TransportCorporation buses and issued Ex P 10 report stating that there is nomechanical defect in the buses.5g.P.W.11 is the doctor, who had examined the accused on 20.4.1999and issued Ex P11 certificate for A1 and Ex P12 is the certificate for A2.On examination, he found the smell of alcohol in their breath. P.W.12after completing the investigation has filed the charge sheet against theaccused on 26.5.1999 under Sections 427 of IPC and 3(1) of TNPPDP Act. 6. When incriminating circumstances under Section 313 Cr.P.C. wereput to the accused, they would deny their complicity with the crime. The https://hcservices.ecourts.gov.in/hcservices/ learned trial Judge, after scanning the evidence both oral anddocumentary, has held that the charges under Section 427 of IPC and underSection 3(1) of TNPPDP Act have been proved against the accused beyondany reasonable doubt and accordingly convicted the accused under Section427 of IPC and sentenced them to undergo six months simple imprisonmenteach and slapped a fine of Rs.5000/- each with default sentence. Thelearned trial Judge has convicted the accused under Section 3(1) of TNPPDPAct and sentenced them to undergo one year rigorous imprisonment eachand a fine of Rs.7,000/- each with default sentence. Aggrieved by thefindings of the learned trial Judge, the accused have preferred thisappeal.7. Now the point for determination in this appeal is whether thefindings of the learned trial Judge is sustainable for the reasons statedin the memorandum of appeal?8. Heard Mr. R.Vinayaga Vishnu, learned counsel appearing for theappellants and Mr.V.R.Balasubramaniam, learned Additional PublicProsecutor for the State and considered their respective submissions.9. The Point:The learned counsel appearing for the appellants would contend that thefirst information report would not have been lodged as alleged by theprosecution. He would point out that as per the evidence of P.W.1, thecomplaint was preferred only at the bus stand , after 11.30 p.m and ittook half an hour for P.W.1 and other witnesses to reach the policestation along with the accused. But P.W.12 the Investigating Officer,inhis evidence has admitted that the complaint was preferred by P.W.1 at11.30p.m., on 19.4.1999, which cannot be possible. Relying on thisdiscrepancy in the evidence , the learned counsel appearing for theappellants would contend that after due deliberation with the policeofficials, the complaint was preferred only at the police station,inducting the accused, who are innocents. 10. No doubt, there is a discrepancy in the evidence of P.W.1 and theevidence of P.W.12 regarding the filing of the first information report.But that itself will not derive us to the conclusion that the case hasbeen foisted against the accused. P.W.2 and P.W.3 have corroborated theevidence of P.W.1 to the effect that the commission of offence was doneonly by the accused and that after the rain was stopped, he took theaccused to the police station , after preferring the complaint around12.00 in the mid night.11. Both P.W.2 and P.W.3 have corroborated the evidence of P.W.1 tothe fact that the State Transport Corporation buses bearing RegistrationNos. TN-45-N-0807, TN-43-N-0243 and TN-29-N-0389 were damaged only by theaccused with M.O.1 and M.O.2 logs and they have identified both theaccused in the Court by saying that both the accused have smashed theglasses in the window pan and also side glasses in the buses at about https://hcservices.ecourts.gov.in/hcservices/

10.30p.m., on 19.4.1999 and that after causing damage to the bus, theaccused took to their heels and they chased the accused and caught holdof the accused with M.O.1 and M.O.2. 12. There is no motive attributed against the witness to deposefalsely against the accused. Both the accused under the influence ofalcohol have committed the offence as seen from the evidence of P.W.11 ,the doctor, who had examined the accused on 20.4.1999 at about 3.50p.m.,Under such circumstances, I do not find any reason to interfere with thefindings of the learned trial Judge that both the accused are guilty underSections 427 of IPC and 3(1) of TPPDP Act.13. The learned counsel appearing for the appellants would contendthat there is no bad antecedent against theaccused and that due topolitical motive, demanding to release some of the political people towhich party they belong, the accused have damaged the public propertyinadvertently and that there is no other criminal case is pending againstthe accused. The learned counsel appearing for the appellants wouldcontend that both the accused were in jail for more than 31 days. Undersuch circumstances, I am of the view that sentence alone can be modifiedby showing some leniency and also taking into consideration that there isno bad antecedent against the accused.14. In fine, the appeal is dismissed while confirming the convictionunder Sections 427 of IPC and 3(1) of TNPPDP Act against A1 and A2 made bythe learned District and Sessions Judge,Uthagamandalam, Nilgiris Districtin S.C.No.21 of 1999, the sentence alone is modified to that of theperiod already undergone instead of six months simple imprisonment eachunder Section 427 of IPC and one year rigorous imprisonment each underSection 3(1) of TNPPDP Act. The fine amount will sustain. sgSd/-Assistant Registrar,/true copy/Sub Assistant Registrar.To1. The District and Sessions Judge.,Uthagamandalam,Nilgiris District.2. The Judicial Magistrate, Coonur.3. -do- through the Chief Judicial Magistrate, Uthagamandalam4. The Public Prosecutor, High Court, Madras5. The Inspector of Police, Kolakombai Police Station,Nilgiris District.+ One cc to M/s N. Chandrasekaran, Advocate sR 47708GK (co)sg 8/8/07Crl.A.No.918/200101.08.2007