Madras High Court
Gunasekaran vs The State Rep By on 17 February, 2021
Crl.O.P.(MD)No.5918 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE ON WHICH RESERVED : 17.02.2021
DATE ON WHICH PRONOUNCED : 16.03.2021
CORAM:
THE HON'BLE MR JUSTICE G.ILANGOVAN
Crl.O.P.(MD)No.5918 of 2017
and
Crl MP(MD)Nos.4011 & 4012 of 2017
Gunasekaran ... Petitioner/A-2
Vs.
1.The State rep by
The Inspector of Police,
Gandarvakkottai Police Station,
Pudukottai District.
2.Renganathan ... Respondent/Defacto Complainant
Prayer:Criminal Original Petition filed under Section 482 Cr.P.C., to call
for the records in S.C.No.105 of 2004 on the file of the learned Special
Court for Essential Commodities Act - Cum - Additional Sessions Judge,
Pudukkottai and quash the same as illegal.
For Petitioner : Mr.S.Ravi for
Mr.A.K.Manickam
For R1 : Mr.M.Ganesan,
Government Advocate (Crl.Side)
For R2 : No Appearance
1/12
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Crl.O.P.(MD)No.5918 of 2017
ORDER
This Criminal Original Petition has been filed to quash the
proceedings in S.C.No.105 of 2004, on the file of the learned Special Court
for Essential Commodities Act - Cum - Additional Sessions Judge,
Pudukkottai.
2. (i) The case of the prosecution before the Trial Court is that the
present petitioner and as well as the other accused persons in S.C.No.91 of
1995, on the file of Sessions Judge, Pudukottai, were charge sheeted for
various offences, such as, under Sections 147, 148, 302 r/w 149, 326, 324,
323 IPC and also for causing grievous and simple injuries to the various
witnesses. As per the prosecution version, the witness party and the accused
party belong to the separate village called Marungoorani and Rajapatti
respectively. A dispute arose between the villagers over Vinayagar Temple.
A sporting event called 'Jallikattu' was conducted on 02.04.1994, in the
village called Ganapathipuram. So, in that event, the deceased and witness
party participated. The accused party also participated and during the sport
event, quarrel arose between the accused on one side and P.W.1 party on the
other side. The petitioner along with the other accused, challenged the
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Crl.O.P.(MD)No.5918 of 2017
deceased party that they have to pass through their village in any event, they
would murder them. That incident took place around 3.30 p.m on that date.
(ii) At about 09.30 p.m, when the deceased party was passing though
the land of one Rasu Konar, the accused party, who waited in a water canal
emerged at the scene. The first accused and this petitioner alleged to have
armed with aruval and other accused persons armed with sticks and rods and
the first accused hit the deceased namely, Chinnaiah Konar on his right side
neck with aruval. Subsequently, he fell down. P.W.1, immediately, shouted
and on hearing his noise, P.Ws.2, 5 and 6 reached the place of occurrence.
When P.W.1 tried to lift the injured Chinnaiah Konar, this petitioner
attacked him on his right forehead with an aruval. The other accused
persons have also attacked the witnesses. When Chinnaiah Konar was taken
to the hospital, he died enroute. P.W.1 went to the Village Administration
Officer of Sundampatti and gave a complaint.
(iii) After completing the formalities, the case was committed to the
Additional Sessions Judge, Pudukkottai and during that time, this petitioner
did not appear and the case against him was split up as S.C.No.105 of 2004
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Crl.O.P.(MD)No.5918 of 2017
on the file of the learned Special Court for Essential Commodities Act Cum
Additional Sessions Judge, Pudukkottai, and rest of the accused were tried
by the Trial Court and were convicted and sentenced to undergo various
sentences as noted in the petition. Against the conviction and sentence
order, all the other accused persons, preferred Crl.A.No.322 of 1998 before
this Court. By the judgment, dated 10.02.2003, Hon'ble Division Bench of
this Court, allowed the appeal, filed by all the accused persons and
accordingly, conviction and sentence imposed against the accused persons
were set aside.
3. Now, according to this petitioner, the benefit of doubt, extended to
the co-accused in Crl.A.No.322 of 1998, also enures him and the sessions
case pending against him in S.C.No.105 of 2004 is liable to be quashed.
4. The point, which arose for consideration is whether in the light of
the judgment in Crl.A.No.322 of 1998, the case pending against this
petitioner in S.C.No.105 of 2004 is liable to be quashed?
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Crl.O.P.(MD)No.5918 of 2017
5. Straight-away the learned counsel for the petitioner, before going
into the factual aspects would draw the attention of this Court to various
judgment pronounced on this point. In all the judgment, cited by the learned
counsel for the petitioner, invariably in all the cases, the judgment of the
Hon'ble Supreme Court reported in Mohemed Moin Uddin Vs. State of
Maharashtra, 1971 SCC (Cri) 617 is either referred or followed. That is
the base case, wherein, the following proposition has been laid.
“Where the evidence against all the accused
persons is inseparable and indivisible and if some of the
accused persons have been acquitted, the remaining
accused persons cannot be treated differently on the basis
of the same evidence.”
6. But, at the same time, the general proposition of law is restated by
the Hon'ble Supreme Court in a judgment reported in Sat Kumar Vs. State
of Haryana AIR 1974 SC 294 to the effect that,
“there is no rule of law that if the Court acquits
some of the accused on the evidence of a witness raising
doubt with regard to them the other accused against whom
there is absolute certainty about his complicity in the
crime based on the remaining credible part of the evidence
of that witness must be acquitted.”
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Crl.O.P.(MD)No.5918 of 2017
7. So, following this proposition of law, this Court, in a judgment
reported in Thamilendi Vs State of Inspector of Police, Orathanadu
Police Station, 2008 (2) CTC 153, a similar situation arose by referring to
the judgment of the Hon'ble Supreme Court mentioned above, came to the
conclusion that when the entire prosecution story has been disbelieved in a
parent case, the said benefit, shall also be extended to the absconding
accused and directing him to undergo the trial will serve no purpose and the
proceedings may be quashed. So, this is followed in a number of judgments
such as,
i) Chinnappa @ Mahendran Vs. State (2015) 1 MadWN(Cri) 259
in Crl.OP.(MD)No.16303 of 2014 dated 18.11.2014,
ii) Crl.OP.(MD)No.19944 of 2018 dated 01.11.2018,
iii) Crl.OP.(MD)No.28114 of 2019 dated 21.11.2019 and,
iv) M.Nithtanandam Vs State 2020 (5) CTC 921.
8. According to the learned counsel for the petitioner, this case also
squarely falls, under the above principle and subjecting or directing the
petitioner to undergo trial proceedings will become useless and no purpose
is going to be served since the very manner of the occurrence was doubted
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Crl.O.P.(MD)No.5918 of 2017
by this Court, in the above Criminal Appeal. So, with this legal principles in
mind, we have go to the factual aspects. Because as mentioned earlier, the
Hon'ble Supreme Court has a cautious note, while dealing with such
matters, to be followed by this Court.
9. The learned counsel for the petitioner, took this Case through
various observations and findings recorded by this Court, in the above said
Criminal Appeal. In para 2, it has been observed that according to the
prosecution case, this petitioner and others have participated in the
occurrence. The specific allegations against the petitioner is that when P.W.1
namely, Renganathan tried to lift the deceased, the accused assaulted him on
his right forehead and above the eye region. The second allegation is that
P.W.3 was also assaulted by this petitioner in his left forehand with the
handle of aruval at the instigation of the first accused namely, Mamundi.
The petitioner assaulted P.W.5 in his left forearm. P.W.6 was assaulted by
this petitioner in his left hand little finger. The other accused persons
alleged to have assaulted the other witnesses and also caused the death of
Chinnaiah Konar. This Court, doubted the following things for acquitting
the accused:-
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Crl.O.P.(MD)No.5918 of 2017
i) Place of occurrence:-
Regarding the place of occurrence, after going through the evidence
of the witnesses and the documents produced by the prosecution, it has been
found that the place of occurrence is not properly established by the
prosecution and the place of occurrence, where the occurrence is said to
have taken place, as per the case of the prosecution, was doubted.
ii) Time of occurrence:-
As per the case of the prosecution, time of occurrence, said to have
taken place at 05.30 p.m, at 02.04.1994. After analysing the evidence of
record, this Court, came to the conclusion that, the time is also not properly
established by the prosecution. Because, witnesses have deposed that
occurrence took place at 04.00 p.m, whereas, the case of the prosecution is
that it took place on 05.30 p.m on the date.
10. It is further observed that as per the evidence of P.W.1, during
chief examination presence of all the 11 accused, all the accused at the time,
when Chinnaiah Konar came to be attacked is open to be a very serious
doubt. So, on this finding, presence of all the accused persons when
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Crl.O.P.(MD)No.5918 of 2017
Chinnaiah Konar was attacked were given the benefit of doubt. Further
observation is that the one of the accused party namely, A11 by name,
Palanivel was also alleged to have been attacked and injured. There was no
explaination on the part of the prosecution regarding this. Similarly, one
another person namely, Karuppaiah was also said to have been injured in the
incident. He was neither added as a witness nor charge-sheeted as an
accused.
11. In the concluding portion of the judgment, this Court has
observed that when two villagers are pitted against each other, the
prosecution also must come out, with clear case and must prove the guilt of
the accused beyond all reasonable doubt. The concluding portion of the
judgment runs like this:-
“ 11. For all the reasons referred to above, we are
convinced that the prosecution is not projecting a
truthful version. In other words, it appears to be a
fabricated version to suit their case. In the light of our
earlier conclusion that the scene of occurrence is itself
open to a serious doubt; the presence of all the accused
at the time when Chinniah Konar came to be attacked is
doubtful and according to the injured witnesses, the
occurrence could have taken place at an earlier point of
time, we are inclined to give the benefit of the
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Crl.O.P.(MD)No.5918 of 2017
cumulative effect of all our doubts to the accused and
accordingly, the appeal is allowed setting aside the
judgment under challenge and all the accused are
acquitted of the offences for which they were tried,
convicted and sentenced.”
12. So, in the concluding observation or finding, this Court has given
a complete answer to the question raised by the petitioner. So, in the light of
the finding of this Court, I am of the considered view that no useful purpose
is going to be served by directing this petitioner to fact the trial. This Court,
after appreciation of evidence, came to a clear finding with regard to the
manner, place, time and involvement of the accused persons in the
occurrence. When that is being so, reappriciation of evidence in the absence
of any new facts against this petitioner, in the course of separate trial is not
possible. It is also not the case of the prosecution that against these
petitioner, new facts or new evidences are available and so, he must be
subjected to trial. So, in the absence of any new facts, such argument, on the
side of the prosecution and another exercise of trial against this petitioner,
in the opinion of this Court, will be a futile exercise. So, the case, against
this petitioner, is liable to be quashed.
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Crl.O.P.(MD)No.5918 of 2017
13. In the result, S.C.No.105 of 2004 pending on the file of the
Special Court for Essential Commodities Act - Cum - Additional Sessions
Judge, Pudukkottai. is quashed and the Criminal Original Petition is
allowed. Consequently, connected miscellaneous petitions are closed.
16.03.2021
Internet:Yes
Index:Yes/No
Speaking order/Non-Speaking order
dss
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
To
1.The Special Court for Essential Commodities Act
- Cum - Additional Sessions Judge,
Pudukkottai.
2. The Inspector of Police,
Gandarvakkottai Police Station,
Pudukottai District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.O.P.(MD)No.5918 of 2017
G.ILANGOVAN,J.,
dss
Crl.O.P.(MD)No.5918 of 2017
and
Crl MP(MD)Nos.4011 & 4012 of 2017
16.03.2021
http://www.judis.nic.in
