Perambai Shanmugam vs State
2021 Latest Caselaw 6135 Mad

                                                                              Crl.R.C.No.104 of 2019

                               IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                              Dated : 09.03.2021

                                                      CORAM:

                               THE HONOURABLE MR. JUSTICE P.VELMURUGAN

                                            Crl.R.C.No.104 of 2019

                Perambai Shanmugam                                             ...Petitioner

                                                       Vs

                State, rep.by
                The Sub Inspector of Police (L&O),
                Chennai Central Railway Police Station,
                Chennai.                                                    ... Respondent


                PRAYER: This Criminal Revision case is filed under Section 397 read with
                Section 401 of Cr.P.C. to call for the records and set aside the order of
                Impugned Judgment in C.A.No.39 of 2016, dated 24.12.2018 passed by the
                learned I Additional Sessions Judge, City Civil Court, Chennai, confirmed the
                Judgement of the Trial Court in C.C.No. 226 of 2015, dated 01.02.2016, on the
                file of the learned XVI Metropolitan Magistrate, George Town, Chennai,
                pending Revision on the file of this Court.


                                     For Petitioner    : Mr.A.S.Balaji
                                     For Respondent    : Mr.K.Madhan,
                                                         Government Advocate (Crl.)




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                                                                               Crl.R.C.No.104 of 2019

                                                 ORDER

This Criminal Revision Case has been filed against the Judgment dated

24.12.2018 in C.A.No.39 of 2016 passed by the learned I Additional Sessions

Judge, City Civil Court, Chennai, in and by which, confirmed the judgment

dated 01.02.2016 in C.C.No. 226 of 2015 on the file of the learned XVI

Metropolitan Magistrate, George Town, Chennai.

2. The respondent Police registered a case in Crime No.348 of 2014 for

an offence punishable under Section 4 of Tamil Nadu Prohibition of

Harassment of Woman Act, 1998 against the petitioner. On completion of the

investigation, the respondent Police filed a charge sheet before the learned XVI

Metropolitan Magistrate and the same was taken on file in C.C.No.226 of 2015.

After framing the charges, during the trial, in order to prove the case of the

prosecution as many as 11 witnesses were examined as P.W.1 to P.W.11 and

also marked Ex.P1 to Ex.P4. After completion of the prosecution side evidence,

the incriminating circumstances culled out from the evidence were put against

the petitioner and the petitioner was examined under Section 313 of Cr.P.C.,

wherein he denied all the incriminating evidences and circumstances as false

and pleaded not guilty. On the side of the defence, no oral and no documentary

evidence were marked.

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Crl.R.C.No.104 of 2019

3. The trial Court, after hearing the arguments advanced on either side

and also considering the materials available on record found that the

accused/petitioner is guilty for the offence under Section 4 of Tamil Nadu

Prohibition of Harassment of Woman Act, 1998 and convicted and sentenced

him to undergo simple imprisonment for a period of one year and to pay a sum

of Rs.10,000/-, in default, to undergo simple imprisonment for a period of one

month. Aggrieved over the said conviction and sentence, the petitioner

preferred an appeal before the learned Principal Sessions Judge, City Civil

Court, Chennai and the same was taken on file in C.A.No.39 of 2016 and made

over to the learned First Additional Session Judge, City Civil Court, Chennai

for disposal. The learned Sessions Judge, after hearing the arguments dismissed

the appeal and confirmed the order of the trial Court. Challenging the same, the

petitioner is before this Court with this Criminal Revision Case.

4. The learned counsel for the petitioner would submit that no such

occurrence was taken place in the train as stated by the de facto complainant.

The Lower Appellate Court has not applied its judicial mind regarding perverse

judgment of the trial Court and did not take into consideration the judgment of

the Apex Court and the High Courts on the jurisdictional point and other laches

in conducting the trial and the prosecution failed to prove the case beyond all https://www.mhc.tn.gov.in/judis/

Crl.R.C.No.104 of 2019

reasonable doubt. In criminal cases, convicting the accused for the alleged

charges has to be established by the prosecution and not by the

petitioner/accused. The Lower Appellate Court failed to consider the facts and

circumstances of the present case and simply confirmed the order of the trial

Court. He would further submit that there was delay in filing the complaint. The

alleged incident is said to have taken place on 19.06.2014, whereas, the

complaint was given only on 26.06.2014. There was an enormous delay of 7

days in filing complaint, which has not been explained by the prosecution.

Even though, the complainant stated that she was not feeling well and

therefore, did not lodge the complaint on time, it is seen that, during the

relevant time i.e., between the date of occurrence and the date of the complaint,

she attended her office. Therefore, the reasons stated for the delay in filing the

complaint is not acceptable. The trial Court failed to consider the same and

convicted the petitioner and the Lower Appellate Court also confirmed the

same. The findings given by the Magistrate is erroneous. He further submitted

that the accused preferred a complaint against the de facto complainant, the

respondent Police instead of registering the case, investigated the matter and

foisted a false case against the petitioner, based on the complaint preferred by

the de facto complainant. The prosecution has not established as to whether the

de facto complainant and the petitioner were travelling in the same train on the https://www.mhc.tn.gov.in/judis/

Crl.R.C.No.104 of 2019

date of occurrence. None of the co-passengers were examined in this case.

Without collecting ticket from the witnesses, who were said to have travelled

with them, it cannot be stated that they were travelling on the same train and on

the same day. The investigating officer has failed to collect the ticket either

from the complainant or from the other witnesses, who travelled as passengers.

He would further submit that the main allegation against the petitioner is that he

has taken the photo of the defacto complainant in his cell phone, but, the same

was not seized by the respondent Police. The police neither recovered the cell

phone nor the tickets. He would further submit that the petitioner has not

committed any such offence, however, the trial Court has failed to appreciate

the entire evidence and simply convicted and sentenced the petitioner on the

ground of assumption and sympathy. Against the conviction of the trial Court,

the appellant filed an appeal, without reappraising the evidence, the said appeal

was also dismissed.

5. Mr.K.Madhan, learned Government Advocate would submit that the

de facto complainant, who is working in Chennai and the petitioner were

travelling in the train on the date of occurrence on 19.06.2014 and the

petitioner was harassing the de facto complainant by taking photographs in his

mobile phone. The occurrence had taken place on 19.06.2014 and the complaint https://www.mhc.tn.gov.in/judis/

Crl.R.C.No.104 of 2019

was given on 26.06.2014. Since the petitioner has apologized more than once,

she has decided not to lodge a complaint. After the occurrence, the de facto

complainant has given a complaint. The defence taken by the petitioner that

P.W.6 paternal uncle of the de facto complainant is alleged to have committed

the theft of 3 sovereigns of gold chain from the petitioner and hence, only to

save P.W.6 from the complaint regarding the theft, the de facto complainant

filed a false case against the petitioner, which is not an acceptable one. The

petitioner has not given any complaint against P.W.6. Therefore, the delay in

lodging the complaint has been explained properly.

6. The learned Government Advocate (Crl.Side) would further submit

that both the Courts below have rightly appreciated the entire evidence on

record and convicted and sentenced the petitioner for the charged offence. The

petitioner himself admitted that he travelled in Palani Express train on

19.06.2014. Therefore, the prosecution has proved its case beyond all

reasonable doubt and the trial court has rightly convicted the petitioner which

has also been confirmed by the appellate court.

7. Heard both side and perused the records available on case file.

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8. On reading of the entire material records, this Court finds that the trial

Court, after framing the charges, conducted trial against the petitioner and on

appreciation of evidence adduced on the side of prosecution, found the

petitioner guilty for the offence under Section 4 of the Tamil Nadu Prohibition

of Harassment of Women Act. There is no perversity in appreciation of

evidence or applying law. This Court while dealing with the revision, has to see

as to whether there is any perversity in appreciation of the evidence. This court

finds that entire materials has been dealt in detail by the trial Court. The trial

Court discussed the evidence in detail and on going through the entire oral and

docuemntary evidence put forth during trial, convicted the Revision Petitioner.

The lower appellate Court as a final Court of fact finding reappreciated the

entire oral and documentary evidence and dismissed the appeal.

9. The contention raised by the learned counsel for the Revision

Petitioner is that the Revision Petitioner was charged under Section 4 of Tamil

Nadu Harassment of Woman Act, 1998 and it was not made out and no proof of

travelling both the complainant and Revision Petitioner in the train on the day

of occurrence and further no mobile phone is recovered and therefore, prejudice

is caused to the Revision Petitioner. But this Court does not find any substance

in the said contention that prejudice is caused to the Revision Petitioner and he https://www.mhc.tn.gov.in/judis/

Crl.R.C.No.104 of 2019

has been wrongly convicted under Section 4 of Tamil Nadu Prevention of

Women Harassment Act. The charges framed against the Revision Petitioner

has been proved by the prosecution and there is no perversity in the finding of

the courts below. Further, non recovery of train tickets would not in any way,

affect the prosecution case as the Revision Petitioner himself admitted that he

travelled in the Palani Express on the date of occurrence, The occurrence taken

place on 19.06.2014 and the complainant decided to prefer the complaint on

26.06.2014 and there was 7 days delay. Both the Courts have appreciated the

evidence and satisfied with the reasons for the delay in preferring the complaint

and that the delay was properly explained by the prosecution. Therefore, the

contention raised by the learned counsel for the petitioner is rejected. There is

no perversity in the findings of the courts below.

10. As far as non-recovery of mobile phone is concerned, it is observed

by the Lower Appellate Court that evidence of P.W.1, P.W.5 to P.W.7 would

substantiate the contention of the prosecution that the Revision Petitioner had

taken the photograph of P.W.1 in his mobile phone and co-passengers had dealt

him and his mobile phone had been broken. Therefore, non-recovery of mobile

phone will not in any way fatal to the case of the prosecution.

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Crl.R.C.No.104 of 2019

11. Both Courts, on going through the entire evidence and on perusing

the records gave finding and while dealing with the Revision, this Court need

not sit in the armchair of the Appellate Court. This court has to see whether

there is any perversity in appreciation of the evidence.

12. On reading the entire material records, this Court does not find any

perversity in appreciation and there is no reason to interfere with this Court and

there is no illegality or irregularity in the Judgment of the both courts in

appreciation of evidence or applying law and therefore, there is no reason to

interfere with the Judgment of the Courts below and there is no merits in the

Revision. Accordingly, the Revision Petition is dismissed.

09.03.2021

Index : Yes/No Internet : Yes/No

kmm

To

1.The I Additional Sessions Judge, City Civil Court, Chennai.

2.The XVI Metropolitan Magistrate, George Town, Chennai.

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Crl.R.C.No.104 of 2019

3.The Public Prosecutor, High Court, Madras.

4.The Sub Inspector of Police (L&O), Chennai Central Railway Police Station, Chennai.

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Crl.R.C.No.104 of 2019

P.VELMURUGAN, J.,

kmm

Crl.R.C.No.104 of 2019

09.03.2021

https://www.mhc.tn.gov.in/judis/