Madras High Court
Silva vs State on 23 August, 2021
Crl.A(MD)No.19 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A(MD)No.19 of 2016
1.Silva
2.Alwin Richard
3.Rajamani
4.Thennarasan @ Thennarasu
5.Koilraj @ Dhinakaran Koilraj
6.Punitha
7.Devanesam
8.Sharmila : Appellants/Accused Nos.1 to 8
Vs.
State, rep. by
Inspector of Police,
Thaddarmadam Police Station,
Thoothukudi District.
(Cr.No.189 of 2014) : Respondent/Complainant
PRAYER: The Criminal Appeal is filed under Section 374(2) of the Code
of Criminal Procedure, to set aside the conviction and sentence, dated
16.12.2015 in S.C.No.319 of 2015, on the file of the Sessions Court,
Mahalir Neethimandram (Fast Track Mahila Court), Thoothukudi and
acquit the appellants.
1/20
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Crl.A(MD)No.19 of 2016
For appellants : Mr.V.Kathirvelu
Nos.1 to 6 & 8 Senior counsel
for Mr.K.Prabhu
For appellant No.7 : Mr.S.R.Anbarasu
For Respondent : Mr.E.Antony Sahaya Prabahar
Government Advocate (Crl.side)
JUDGMENT
The present criminal appeal is directed against the conviction and
sentence, dated 16.12.2015, made in S.C.No.319 of 2015, on the file of the
Sessions Court, Mahalir Neethimandram (Fast Track Mahila Court),
Thoothukudi.
2. The appellants are arrayed as accused Nos.1 to 8 in the above
referred case. They stood charged for the offences punishable under
Sections 148, 147, 452, 294(b), 324 r/w 149 and 506(ii) of IPC and Section
4 of Tamil Nadu Prohibition of Harassment of Women Act and Section 3(i)
of Tamil Nadu Public Property Damages and Loss Act. All the accused
denied the charges as false and opted for trial. Therefore, they were put on
trial on the charges.
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3. After full-fledged trial, the learned Sessions Judge, Mahalir
Neethimandram (Fast Track Mahila Court), Thoothukudi, came to the
conclusion that the appellants were found guilty for the following offences
and accordingly, they were convicted and sentenced as follows:-
Accused Section Sentence
A-1 to A5 148 IPC Convicted and sentenced to undergo rigorous
imprisonment for a period of one year.
A-6 to A8 147 IPC Convicted and sentenced to undergo rigorous
imprisonment for a period of six months.
A1 to A8 452 IPC Convicted and sentenced to undergo rigorous
imprisonment for a period of three months and to
pay a fine of Rs.1,000/-, in default, to undergo
rigorous imprisonment for a period of one month.
A1 324 (2 counts) Convicted and sentenced to undergo rigorous
IPC imprisonment for a period of two years for each
count and directed to pay a fine of Rs.2,000/- for
each count, in default to undergo rigorous
imprisonment for two months (the sentences are
run concurrently)
A3 324 IPC Convicted and sentenced to undergo rigorous
imprisonment for two years and to pay a fine of
Rs.2,000/-, in default, to undergo rigorous
imprisonment for two months.
A2,A4 & A5 324 r/w 149 Convicted and sentenced to undergo rigorous
IPC imprisonment for one year and to pay a fine of
Rs.2,000/- each in default to undergo rigorous
imprisonment for two months.
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Challenging the said conviction and sentence, all the accused are before this
Court, by way of filing the present Criminal Appeal.
4. The relevant facts of the case, which gave rise to filing of this
appeal are necessary to be recapitulated for the disposal of this appeal:-
(i) P.W.1-Muthukani is residing in Vedhakovil Street,
Thattarmadam. She is working as Assistant in Noon Meal Centre. Being
the reason both the accused and P.W.1 were residing in the same Village,
P.W.1 known to the accused. During the relevant point of time, her son
Suresh Jacob was working as a driver in Call Taxi, Tambaram at Chennai.
During that time, he developed love affair with one Muthusaral and
performed the marriage and the same has been registered. On 24.05.2014,
at about 09.00 a.m., on coming to know that the said Muthusaral was in the
house of P.W.1, all the accused with an intention to commit an offence,
came there and criminally trespassed into the house of P.W.1 with deadly
weapons. After entering into the house of P.W.1, all the accused scolded
P.W.1 with filthy language, while so, the first accused Silva attacked P.W.1
with Wooden log (cilkuf;fk;G) in her right hand. Further, the third
accused Rajamani attacked her with Wooden log (cilkuf;fk;G) in the
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left thigh, during that time, the fourth accused Thennarasan gave beatings to
P.W.3 Prema, who is the sister of P.W.1, accused Nos.2 & 5 gave beatings
to P.W.2 Suresh Jacob. At the same time, the accused Nos.6,7 & 8 scolded
them in filthy language and the accused Nos.1 & 3 damaged the Samsung
Television, which kept in the occurrence house. In the course of same
transaction the accused Nos.2,4 & 5 damaged the bike, which has been
parked in the house of P.W.1. Ultimately, after the said occurrence, on the
same day, around 10.00 a.m., P.W.1 went to Thattarmadam Police Station
and lodged a complaint before P.W.8 under Ex.P1. During the time of
lodging the complaint, due to the reason that her hand was swollen, she did
not write the complaint herself, but at the same time, her son wrote the
complaint and thereafter, P.W.1 affixed her Thump impression in the
complaint.
(ii) P.W.8-Jeyaseelan Franklin, the then Head Constable, on
receipt of the complaint given by P.W.1, registered a case in Cr.No.189 of
2014 for the offences punishable under Sections 147, 148, 323, 452, 506(ii)
of IPC and Section 3 of TNPPDL Act and Section 4 of Tamil Nadu
Prohibition of Harassment of Women Act. The printed copy of the FIR was
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marked as Ex.P8. After registration of the case, he referred the injured to
the hospital for taking treatment. Further, he handed over the case records
to P.W.9-Paul Issac, the then Sub-Inspector of Police, for investigation.
(iii) P.W.9-Paul Issac on receipt of the FIR, on the same day
around 11.45 a.m., visited the scene of occurrence and in the presence of
P.W.4-Aaseer Thomas and Vedamanickam he prepared an Observation
Mahazar under Ex.P2. He drawn the rough sketch and the same has been
marked as Ex.P9.
(iv) In continuation of investigation, in the presence of same
witnesses, he recovered the Samsung Television, Bajaj Pulsar Bike bearing
Registration No.TN-69-AW-9425 and 5 Wooden logs (cilkuf;fk;G)
under the cover of Mahazar under Ex.P3.
(v) In the meantime, P.W.7-Dr.Aathikumar, attached with
Government Hospital, Sathankulam, on 24.05.2014, while he was on duty,
examined P.W.2 and found the following injuries:-
“(i) A contusion injury of about 4 x 2 c.m., on both
elbows.
(ii) Nail scratch on the left arm.
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(iii) A contusion of about 4 x 5 cm below left elbow.
(iv) Complaints of pain. ”
According to him, the injuries sustained by P.W.2 was simple
in nature. In this regard, he issued an Accident Register under
Ex.P5.
(vi) On the same day, he examined P.W.1-
Muthukani and found the following injuries:-
“(I) A big contusion of about 12 x 8 cm over right
fore arm.
(ii) Complaints of pain on the back of her left
thigh.”
After noting down the said injuries, he referred P.W.1 to Tirunelveli
Medical College Hospital, Palayamkottai for further treatment. As per the
records, the injuries sustained by P.W.1 was simple in nature. In this
regard, the Accident Register issued by P.W.7 was marked as Ex.P6.
(vii) Similarly, on the same day, P.W.7 examined P.W.3-Prema
and found a contusion injury about 5 x 4 cm., on back right elbow. In
respect of the said injury, Accident Register has been issued and the same
has been marked as Ex.P7.
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(viii) In continuation of investigation, P.W.9 examined the
witnesses and recorded their statements. On the same day, around 13.30
hours, he arrested the accused Nos.1 to 3 and sent them to Judicial Custody.
On 03.06.2014, he handed over the case records to P.W.10.
(ix) P.W.10-Robinson, the then Inspector of Police,
Thattarmadam Police Station, on 03.06.2014, took up the case for further
investigation and examined the witnesses. Since the witnesses examined
by him are stated the occurrence as stated before the Sub-Inspector of
Police, he has not recorded their further statements.
(x) On 09.10.2014 he examined the doctor, who treated
P.Ws.1 to 3, and recorded their statement. He obtained the valuation
certificate in respect of the damaged Television and vehicle. He altered the
section of law from 147, 148, 452, 294(b), 323, 506(ii) and Section 4 of
Tamil Nadu Prohibition of Harassment of Women Act to Section 147, 148,
452, 294(b), 323, 506(ii) and Section 4 of Tamil Nadu Prohibition of
Harassment of Women Act and Section 3 of TNPPDL Act r/w 34 IPC.
Alteration report filed before the Magistrate was marked as Ex.P11. After
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concluding the investigation, he came to the positive conclusion that the
appellants are all committed the offence punishable under Sections 147,
148, 452, 294(b), 323, 506(ii) and Section 4 of Tamil Nadu Prohibition of
Harassment of Women Act and Section 3 of TNPPDL Act r/w 34 IPC and
accordingly, he had filed a final report against the appellants.
5. Based on the above materials, the trial Court framed the
charges against the accused/appellants under Sections 147, 148, 452,
294(b), 323, 506(ii) of IPC and Section 4 of Tamil Nadu Prohibition of
Harassment of Women Act and Section 3 of TNPPDL Act r/w 34 of IPC.
All the accused pleaded not guilty and opted for trial. Therefore, the
accused were put on trial.
6. During the course of trial proceedings, in order to prove their
case, on the side of the prosecution, 10 witnesses have been examined as
PW1 to PW10 and 11 documents were exhibited as Ex.P1 to Ex.P11,
besides, three Material Objects [M.O.1 to M.O.3].
7. Out of the said witnesses, P.W.1-Muthukani, who is the defacto
complainant, speaks about the occurrence as during the time of occurrence,
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all the accused unlawfully entered into her house and abused her by saying
filthy language. The first accused Silva with the aid of Udaimarakambu
attacked on her right hand and at the same time, the third accused Rajamani
with the aid of Udaimarakambu attacked on her left thigh. Further, accused
No.1 had attacked on her stomach and the accused No.4 attacked P.W.3-
Prema. She has further added that accused Nos.1 & 2 damaged the
Samsung TV, Motorbike and other articles found in her house.
(i) P.W.2-Suresh Jecob, who is one of the victim, has not
supported the case of the prosecution, hence, with the leave of trial Court,
he has treated as hostile witness.
(ii) P.W.3-Prema is also one of the victim speaks about the
occurrence as during the relevant point of time all the accused after entering
into P.W.1's house abused P.W.1 by saying filthy language. Further, with
the aid of Udaimarakambu, attacked P.W.1 and her son and during such
time, the first accused attacked her on the right hand elbow. According to
him, in the occurrence, all the accused damaged the property of P.W.1.
(iii) P.W.4-Aaseer Thomas is the husband of P.W.1. He was not
an occurrence witness. According to him, an Observation Mahazar Ex.P2
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was prepared in his presence. Further, the property which damaged during
the time of occurrence has also been recovered by the Investigating Officer
and in the Muchalika he has signed as a witness.
(iv) P.W.5-Rajan, who is a proprietor of Rajan Electrical Store,
gave evidence as for repairing the picture tupe of Television, he was
estimated the damage worth about Rs.3,000/-. In this regard, he issued a
certificate.
(v) Similarly, P.W.6-Michel Raj issued a certificate in respect of
the damage caused to the bike.
(vi) P.W.7-Dr.Aathikumar, who is the doctor, treated P.Ws.1 to 3,
gave evidence as the injuries sustained by P.Ws.1 to 3 are simple in nature.
(vii) P.W.8-Jeyaseelan Franklin, P.W.9-Paul Issac and P.W.10-
Robinson are the police officers speaks about the receipt of complaint,
manner of investigation and about the filing of final report.
8. When the above incriminating materials were put to the
accused under Section 313 Cr.P.C., the accused denied the same as false.
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However, they did not chose to examine any witness or mark any document
on their side.
9. Having considered all the above, the learned Sessions Judge,
Mahalir Neethimandram (Fast Track Mahila Court), Thoothukudi found the
appellants guilty and convicted them as stated supra. Aggrieved by the said
conviction and sentence, the appellants are before this Court with this
appeal.
10. I have heard Mr.V.Kathirvelu, learned Senior Counsel for
Mr.K.Prabhu, learned counsel appearing for the appellants 1 to 6 & 8,
Mr.S.R.Anbarasu, learned counsel appearing for the 7th appellant and
Mr.E.Antony Sahaya Prabahar, learned Government Advocate (Crl.side)
appearing for the State. I have also perused the records carefully.
11. The learned counsel appearing for the appellants would
submit that the evidence given by the injured witnesses are all not in
accordance with the charge framed against the accused. Further, in respect
of the weapons used by the accused, the prosecution has not shown the clear
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picture as the same are deadly weapons. In fact, the weapons used by the
accused at the time of occurrence are stick, which cannot be termed as a
deadly weapons. He would further contend that in respect of intention
having by the accused the witnesses examined on the side of the prosecution
have not stated the clear picture as during the time of occurrence, the
accused entered into the house of P.W.1 with intention to commit an offence
and therefore, the lapses found in the prosecution case is create a doubt
whether the alleged occurrence had happened as stated by the prosecution or
not. According to him, the conviction and sentence awarded by the trial
Court has to be set aside.
12. Per contra, the learned Government Advocate (Crl.side)
appearing for the respondent would contend that the story narrated by P.Ws.
1 to 3 is sufficient to hold that at the time of occurrence, all the appellants
with intend to commit an offence, unlawfully entered into the house of
P.W.1 and after abusing P.Ws.1 to 3 attacked them by using the deadly
weapons. Further, they damaged the properties, which was found available
in the house of P.W.1 and therefore, interference of this Court in the
findings arrived at by the Courts below does not require.
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13. I have considered the rival submissions made by the learned
counsel appearing on either side.
14. Initially, on go through the charges framed against the accused
was under Sections 147, 148, 452, 294(b), 324, 506(ii) of IPC and Section 4
of Tamil Nadu Prohibition of Harassment of Women Act and Section 3 (1)
of TNPPDL Act. After concluding the trial, all the accused were convicted
under Section 452 of IPC. Similarly, A1 to A5 were convicted under
Sections 148 of IPC and A6 to A8 were convicted under Section 147 of
IPC. More than that, the accused No.1 was convicted under Section 324 (2
counts) of IPC, the accused No.3 was convicted under Section 324 of IPC
and accused Nos.2,4 & 5 were convicted under Section 324 r/w 149 of IPC.
15. As far as the conviction under Section 452 of IPC is
concerned, on going through the charge framed against the accused, it was
stated that during the time of occurrence, all the accused unlawfully entered
into the house of P.W.1 and in otherwise, nothing was stated about the
preparation of hurt, assault or wrongful restraint. In fact, every charge
under the Code of Criminal Procedure 1973 shall state the offence with
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which the accused is charged. The motive behind framing of a charge is to
give intimation to the accused of clear, unambiguous and precise notice of
the nature of accusation that the accused is called upon to meet in the course
of trial. Undoubtedly, it is for the prosecution to prove beyond reasonable
doubt that the accused had committed the offence with the requisite mens
rea. But, here it is a case, the distinct charge, which is necessary to set up a
defence, is not available particularly, in respect of offence under Section
452 of IPC.
16. Secondly, in respect of the offence under Section 148 of IPC
is concerned, it is necessary for the prosecution to prove when at the time of
occurrence, the accused are armed with a deadly weapon or with anything
which, used as a weapon of offence, is likely to cause death.
17. Here it is a case, the victims, examined on the side of the
prosecution, narrated the story that while at the time of occurrence, the
accused Nos.1 to 5 are armed with wooden log. In respect of the said
evidence, the learned counsel appearing for the appellants would state that
there is a stick which would not cause death to any person. Therefore, in
the circumstances, it is necessary for the prosecution to prove that the
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weapon used by the accused at the time of occurrence is a deadly weapon.
In this regard, on go through the Ex.P3 seizure mahazar, though it was
stated that the recovered material object is having a length around 50 cm,
size, width and other things, did not observe in the recovery mahazar. So, in
the said circumstances, we cannot go into that the weapon used at the time
of occurrence by the accused is a deadly weapon and therefore, the
conviction under Section 148 of IPC is also liable to be set aside and the
same is set aside.
18. It is the case of the prosecution that during the relevant point
of time, all the accused jointly entered into the house of P.W.1 and assaulted
P.Ws.1 to 3. In respect of the same, P.W.2 has not stated anything before
the trial Court. P.W.1 alone says in his evidence as A1 Silva with the aid of
wooden log attacked her on the right hand and at the same time, the third
accused Rajamani had assaulted on her left thigh. Further, P.W.3 had given
evidence as accused Nos.1 & 3 alone had attacked her.
19. Now, on go through the judgment rendered by the trial Court,
the learned Sessions Judge, came to the conclusion that the first accused is
liable to be convicted under Section 324 (2 counts) of IPC and also
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convicted with the above terms. In the said circumstances, only P.W.1 has
stated in his evidence as the accused Nos.1 & 3 alone had attacked her and
caused simple injury. In otherwise, in respect of the attack made on P.W.3,
no charge has been framed against the accused and therefore, convicting the
first accused under Section 324 (2 counts) IPC is nothing but erroneous and
he is liable to be convicted under Section 323 of IPC. In otherwise, the
third accused also attacked P.W.1 on her thigh and thereby, he is also liable
to be convicted under Section 323 of IPC.
20. In this occasion, it is necessary to see the evidence given by
the doctor, who treated the P.Ws.1 to 3, in respect of the injuries sustained
by P.W.1, he has clearly stated that P.W.1 sustained contusion in the right
forearm and she complaints about the pain on the left thigh. Therefore, the
evidence given by P.W.1 in respect of the assault made by A1 & A3 is in
correspondence with the evidence given by P.W.7, who is the doctor treated
P.W.1, I am of the firm opinion that the accused Nos.1 & 3 are liable to be
convicted under Section 323 of IPC.
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21. In respect to the others, the evidence given by P.Ws.1 to 3
reveals the doubt whether all the accused were assembled together and
trespassed into the house of P.W.1 with a view to commit offence.
Therefore, the offence under Section 147 and 148 also cannot be
maintainable one.
22. In fine, the Criminal Appeal is partly allowed. Except the
accused Nos.1 & 3, remaining accused are acquitted from the respective
charges framed against them. In respect of the accused Nos.1 & 3 as
already observed above, they are liable to be convicted under Section 323 of
IPC and therefore, they are convicted under Section 323 of IPC and
sentenced to undergo Rigorous Imprisonment for three months and to pay a
fine of Rs.500/-, in default to undergo 1 month simple imprisonment. The
period of imprisonment already undergone by the revision petitioner
shall be set off under Section 428 of Cr.P.C.
23.08.2021
Index : Yes/No
Internet : Yes/No
am
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To
1.The Sessions Court, Mahalir Neethimandram
(Fast Track Mahila Court), Thoothukudi.
2.The Inspector of Police,
Thaddarmadam Police Station,
Thoothukudi District.
3.The Section Officer,
Criminal Section Records,
Madurai Bench of Madras High Court,
Madurai.
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R.PONGIAPPAN,J.
am
Crl.A(MD)No.19 of 2016
23.08.2021
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