Madras High Court
The State Represented By vs C.Sukumaran (A1) on 25 October, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:25.10.2021
CORAM
.
THE HON'BLE Mr. JUSTICE C.V.KARTHIKEYAN
Crl.A.No.590 of 2014
The State represented by
The Public Prosecutor,
High Court, Madras - 600104.
(V & A.C. Special Cell, Salem
Crime No.1/AC/90) .. Appellant/Complainant
Vs.
1.C.Sukumaran (A1)
2.R.Gandhi (A2) .. Respondents/Accused (A1 & A2)
Prayer: Criminal Appeal filed under Section 378 Cr.P.C., to allow the
appeal, set aside the judgment of acquittal, dated 10.12.2013 in Special
Calendar Case No.120/93 on the file of the Court of the Special Judge/Chief
Judicial Magistrate, Salem and convict the respondents/accused (A1 and
A2) for the charges framed against them.
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2
For Appellant .. Mr.E.Raj Thilak
Additional Public Prosecutor
For R1 .. No Appearance
For R2 .. Mr.K.Gandhi Kumar
JUDGMENT
The Criminal Appeal has been filed by the prosecution under Section
378 of Code of Criminal Procedure questioning the judgment of the learned
Special Judge/Chief Judicial Magistrate, Salem, dated 10.12.2013 whereby,
the accused had been acquitted in Special Calendar Case No.120 of 1993.
2. When the appeal came up for hearing on 13.09.2021, it had been
stated that the first respondent/first accused had died. It had, therefore, been
observed that the charges against A1 has, naturally, abated owing to the
death and the appeal will, necessarily, have to be dismissed as against
A1/R1.
3. Heard arguments advanced by Mr.E.Raj Thilak, learned Additional
Public Prosecutor on behalf of the appellant/prosecution and Mr.K.Gandhi
Kumar, learned Counsel for the second respondent/A2.
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4. The Deputy Superintendent of Police, Vigilance & Anti-
Corruption, Special Wing, Salem had registered F.I.R in Crime
No.1/AC/90/SPL/SL against C.Sukumaran, Forest Range Officer, who was
formerly working in the Survey and Demarcation Range of Kalrayan
division, Salem District alleging offences under Sections 409, 467, 471 and
477-A of I.P.C and also under Sections 13(1)(c) and (d) read with 13(2) of
Prevention of Corruption Act, 1988, on the basis of information received
that the accused, namely C.Sukumaran had made false records stating that
work of construction of Cairns had been executed in Chinnakalrayan hills
between August, 1988 and March, 1989 and further, such entries were made
in the measurements book to make it appear as if the works were, actually,
carried out and measurements were recorded.
5. It had been claimed that no such work had been done, much less, in
12 blocks, as claimed, in Chinnakalrayan hills. It was stated that the total
cost of the construction of Cairns was said to be on at Rs.30,080/-. It was
stated that owing to this particular fact of receiving money, for the works
not done, the named accused had committed offences as stated above. After
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investigation, a final report had been filed and in that final report, quite
apart from the named accused in the First Information Report, one further
accused was added as A2.
6. As stated above, A1 had died pending the appeal and charges,
naturally, has abated. Even otherwise, he had been acquitted of all the
charges by the Trial Court. The appeal, therefore, has been argued,
naturally, against A2/R2. The scope of the appeal would, naturally, move
away, and this Court has to examine specific evidence adduced by the
prosecution as against A2.
7. On the basis of the final report, ten charges had been framed by the
learned Special Judge-cum-Chief Judicial Magistrate, Salem, after going
through the process of issuing copies under Section 207 of Cr.P.C.
8. The first charge was against A1, which was an omnibus charge
under Section 120(b) of I.P.C read with 167, 467, 471 read with 467, 409,
420 and 477-A of I.P.C and also under Section 13(2) read with 13(1)(c) and
13(1)(d) of Prevention of Corruption Act, 1988 and also under Section 109
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of I.P.C. The second charge was also against A1 for offence under Section
167 of I.P.C. The third charge was also against A1 under Section 467 of
I.P.C (29 counts). The fourth charge was also against A1 for offence under
Section 471 read with 467 of I.P.C (29 counts). The fifth charge was
against A1 for offence under Section 409 of I.P.C. The sixth charge was
also against A1 for offence under Section 420 of I.P.C. The seventh charge
was against A1 for offence under Section 477-A of I.P.C. The eighth
charge was also against A1 for offence under Section 13(2) read with
13(1)(c) and 13(1)(d) of Prevention of Corruption Act, 1988. The ninth
charge was against A2 with which this appeal is focussed for offences under
120(b) of I.P.C read with 167, 467, 471 read with 467, 409, 420 and 477-A
of I.P.C and also under Section 13(2) read with 13(1)(c) and 13(1)(d) of
Prevention of Corruption Act, 1988 and also under Section 109 of I.P.C.
The tenth charge was also against A2 for offence under Section 167 of I.P.C
read with 109 of I.P.C. The eleventh charge was also against A2 for offence
under Section 109 of I.P.C read with Section 13(2) read with 13(1)(c) and
13(1)(d) of Prevention of Corruption Act, 1988.
9. The facts in brief are that A1, who was Forest Ranger and A2, who
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was Forester and were both working in Survey and Demarcation Range at
Kalrayan division, Salem District, had, according to the prosecution, joined
in criminal conspiracy to commit offence of framing incorrect or forged
documents with an intention to gain valuable money, in the nature of the
job, namely construction of works of 998 Cairns and in clearing of the area
of 66.589.58 meters for a stretch of 12 blocks which was declared as
reserved land by Forest Government orders and in falsification of accounts
and claiming to clear the stretch for the said 12 blocks, whereas, the work
was not, actually, executed.
10. Both the accused had abjured the charges and the prosecution had
been invited to substantiate charges by adducing oral and documentary
evidence. The prosecution, in this connection, examined PWs.1 to 42
witnesses and also marked Exs.P1 to P136 documents. On the side of the
accused, though witnesses were not examined, Exs.D1 to D4 were marked.
After conclusion of trial and on hearing arguments, by judgment, dated
10.12.2013, learned Special Judge/Chief Judicial Magistrate, Salem had
acquitted both the accused of all the charges.
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11. With respect to A2, with whom alone we are now concerned,
prosecution had examined, primarily, three witnesses, namely PWs.9, 10
and 12 and unfortunately, for prosecution, all the witnesses turned hostile
and the learned Trial Judge also did not deem it fit to examine the
statements made by the said witnesses, during the course of their
examination. PW.3, primarily, during the course of his examination, had
also spoken about the role of A2. But, however, during his cross-
examination, he had very specifically stated as follows:-
"2?tJ vjphp jug;gpy; F/tp:? ehd; rhl;rp
mspj;j tpgu';fs; midj;Jk; bgupa
fy;uhad; kiy rk;ge;jg;gl;ljhFk;/ ,e;j
ntiyfs; brhd;d nu";rpw;Fk;.
rpd;dfy;uhad; kiyf;Fk; ve;jrk;ge;jKk;
fpilahJ/ 2?tJ vjphp ,e;j tHf;F
rk;gt fhyj;jpy; rpd;dfy;uhad; gphptpy;
tdtuhfg; gzp bra;J te;jhh;/ nkw;go
fhyj;jpy; bghpafy;uhad; kiy gpuptpy;
mz;zhJiu vd;gth; tdtuhf gzp
bra;J te;jhuh vd;W vdf;F jw;nghJ
epidtpy;iy/ Mdhy; nkw;go gFjpf;F
tdth; xUth; ,Ue;jhh;/ 2?tJ vjphpf;F
*,d;ld;rpt; fy;Rud; Mg;nuc&d;*
gzpapypUe;jhh;/ 2?tJ vjphpapd; gzp
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tajhd K:';fpy; fhLfis Rj;jk;
bra;J nkw;go K:';fpy;fis
ey;yKiwapy; tsu itf;f ntz;oa
gzpahFk;/"
12. The said evidence is very clear. A2 was, at the relevant point of
time, was working in Chinnakalrayan hills. The evidence and the focus of
the prosecution case was with respect to construction of Cairns in
Periyakalrayan and not in Chinnakalrayan hills. It is also seen that the
work, which A2 actually did, was to clear the Bamboo forest and to grow
fresh Bamboo saplings. There is no evidence to show that he was, actually,
involved with the commission of offences, as charged against him, insofar
as the evidence of PW.3 is concerned.
13. It must be kept in mind that PW.3 was working, at that particular
point of time, as Junior Drafting Officer in the Divisional Forest Office,
Kalrayan division. The other witness, who had spoken about the role of A2
is PW.2, K.Dayalan, who was working as Additional Junior Accountant at
Kalrayan division. He had stated in his chief examination that A2 has given
father's name of one Shankar as Devarajan Naidu. This writing was marked
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as Ex.P121. Witness stated that A2 had written the name of the father,
however, as Devarajan.
14. It is also stated by the witness that A2 had written the father's
name of Annamalai and Arumugam, which writings were marked as
Exs.P122 and P123. During his cross-examination, PW.22 stated that A2
was working as Forester and that he did not prepare any bill. He further
stated that in these bills, PW.22 had only written the name of the father of
the contractors. He did not do any other act. In this connection, the learned
Judge, while discussing the evidence, had come to a very categorical finding
that the only charge, as against A2, was that he had filled the names of the
father of the petty contractors in Ex.P70. The learned Judge found that
except filling of the names of the fathers of the petty contractors, no other
act has been implied by the prosecution, as against A2 and had come to a
specific conclusion that this particular act of filling names of the fathers of
the petty contractors cannot be stated to draw a conclusion that A2 had
intentionally committed the offences, for which, A1 had stood charged.
15. As a matter of fact, A1 had also been acquitted. Naturally, once
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that finding had been given by the learned Judge, the charge against A2
will, necessarily, have to collapse. Additionally, pending the Criminal
Appeal, A1 had also died and therefore, the prosecution is now faced with a
situation where they cannot even progress the Criminal Appeal as against
A1, since the appeal itself abates and more importantly, there cannot be any
examination whether the charges survive against A1 or not, since on death,
the charges naturally abate. When that is the case, the appeal against A2,
certainly, is a tight rope walk and would, necessarily, have to collapse with
a small shake and that is owing to the death of A1.
16. It must be kept in mind that when there is an appeal against an
acquittal, prosecution must establish that evidence had been interpreted
perversely or that evidence had been deliberately omitted to be considered.
Only then can the Appeal Court examine whether there has to be
interference with the order of acquittal. In this case, even though
prosecution had, by filing the appeal, endeavoured to put up such a stand,
with the death of A1, naturally, the charges against A2 will also have to
collapse.
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17. The investigating officer had also spoken about the role of A2 and
he had been examined as PW.42. He admitted that the name of A2 was not
included in the First Information Report. He stated that A2 had obtained the
signatures of the petty contractors, namely Davud Batsha, S.K.Paandu,
Annamalai, Madhu, Rajendran and G.Annamalai These witnesses had,
unfortunately, turned hostile. He also stated during cross-examination as
follows:-
",e;j tHf;F rk;ge;jg;gl;lgzpfspy;
rh;nt bra;tJ fhnrhiy
th';FtJnghd;w ve;j gzpapYk; 2tJ
vjphpf;F bjhlh;g[ ,y;iy vd;W
brhd;dhy; rhpay;y/"
18. It is, therefore, seen that the investigating officer had stated
during the course of cross-examination that A2 did not have any role in
conducting survey or with respect to the preparation or obtaining the
cheques in relation to the contract works. A suggestion was also put to the
investigating officer that A2 was subsequently added as an accused only by
the Deputy Superintendent of Police. The suggestion was denied by him.
But, it gives focus to the fact that the prosecution had some dithering
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whether to proceed against A2. There are no materials as against A2 and
the learned Judge had also thought it fit to acquit A2 of all the charges
which had been framed.
19. As a matter of fact, I should also express about the charge framed.
The ninth charge is an omnibus charge which also includes the commission
of offence and also under Section 109 of I.P.C. The learned Judge should
have taken efforts to frame charges in accordance with the offences alleged.
There cannot be a charge for commission of an offence and in the same
charge also include an abetment to commit the offence. At any rate, this
issue, naturally, becomes academic and let me not enter deeply into that
particular fact, since the evidence of record is wholly unsatisfactory to pass
any order in the Criminal Appeal in favour of the prosecution.
20. With the above said observation, the present Criminal Appeal is
dismissed.
25.10.2021
Index:Yes/No
Internet:Yes/No
grs
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To
1.The Special Judge/Chief Judicial Magistrate,
Salem.
2.The Public Prosecutor,
High Court of Madras.
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C.V.KARTHIKEYAN,J
grs
Crl.A.No.590 of 2014
25.10.2021
https://www.mhc.tn.gov.in/judis/
