Madras High Court

K.S.Myleswamy vs State Rep. By on 17 June, 2022

                                                                                     Crl.A.No.926 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 17.06.2022

                                                          CORAM :

                       THE HON'BLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY

                                                   Crl.A.No.926 of 2019

                    K.S.Myleswamy                                               ...Appellant

                                                            Vs

                    State Rep. by
                    Inspector of Police,
                    Thudiyalur Police Station,
                    Coimbatore.
                    (Crime No.504/2014)                                         ...Respondent

                    Prayer: Criminal Appeal filed under Section 374(2) of Crl.P.C to set aside
                    the judgement passed in S.C.No.3 of 2017 on the file of the 2nd Additional
                    Assistant Sessions Judge, Coimbatore, dated 26.11.2019.

                                          For Appellant      : Mr.B.Kumarasamy

                                          For Respondent     : Mr.S.Vinoth Kumar
                                                               Government Advocate (Crl.Side)


                                                       JUDGMENT

This appeal is filed against the judgment of the learned 2nd Additional

Assistant Sessions Judge, Coimbatore, dated 26.11.2019 in S.C.No.3 of

2017, in and by which, the appellant is convicted for the offence under

Section 435 of Indian Penal Code and imposed 7 years rigorous https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

imprisonment and fine of Rs.1,000/- and in default to undergo 1 year

rigorous imprisonment and on 3 counts for the offence under Section 307 of

Indian Penal Code and imposed 10 years rigorous imprisonment for each

count and fine of Rs.1,000/- for each count and in default for payment of

fine to undergo 1 month rigorous imprisonment.

2. On 06.08.2014, when one Hemalatha, Sub-Inspector of Police was

on duty at Thudiyalur Police Station, PW.1 one Ravi appeared before her

and lodged a complaint to the effect that his family possesses 1 acre of land.

In the said land, fencing by erecting cement poles and barbed iron wires was

made by them and hut was constructed in the western corner, in which, one

Sankaradas was living as a Watchman. While so, the accused, who was the

owner of the adjacent land, developed jealousy and on 04.08.2014, at about

6.00 A.M., it was found that the said hut used by the Watchman was

burning and therefore, when one Malathi, Manohar and Sankaradas

attempted to go near and when they touched the fence, they got electric

shock and at that time, the accused took away the wire which he used to

make the electric connection and ran away. From this, they came to know

that the accused had burnt the hut and also, so as to kill the persons who

may come to douse the fire, he has given electricity connection in the https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

fencing. On the said complaint, a case in Crime No.504 of 2014 was

registered for the offences under Sections 435 and 307 IPC.

3. Initially, PW.11 Vetrivendan and thereafter PW.12 Saravanan, took

up the case for investigation and laid the charge sheet, which was taken on

file as PRC.No.31 of 2016 by the learned Judicial Magistrate No.1,

Coimbatore and after furnishing copies as per Section 207 of CPC,

committed the case under Section 209 of CPC to the learned District and

Sessions Judge, Coimbatore, upon which, the case was taken on file as

S.C.No.03 of 2017 and thereafter was made over to the Trial Court, namely,

the 2nd Additional Assistant Sessions Judge, Coimbatore. Thereafter, charges

were framed for the said offences and upon being questioned, the appellant

denied the charges and stood trial.

4. To bring home the charges, the prosecution examined one Ravi as

PW.1, who is the first informant. The wife of said PW.1, namely one

Kanchana, who is the owner of the property, was examined as PW.2. One

Sasidharan, who was a resident near the scene of occurrence, was examined

as PW.3 and he was an eye witness. One Malathi, who is also a resident

nearby and who is also one of the injured witness who suffered the shock, https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

was examined as PW.4. One Kalpana, who is the wife of the injured witness

Sankaradas, was examined as PW.5 and she deposed that she came to the

spot after the occurrence. One Satish Kumar, son of Sankaradas, was

examined as PW.6, who is also examined as an eye witness to the incident.

One Sankaradas, who is the Watchman residing in the subject property and

who is an injured eye witness, was examined as PW.7. One Manoharan,

who is also an eye witness and injured witness of electric shock, is examined

as PW.8. One Kandhasamy, the Assistant Executive Engineer from the

Electricity Board was examined as PW.9, for the purpose that there was

electricity connection in the name of the accused in respect of his land near

the place of occurrence. One Dr.Parameshwaran was examined as PW.10,

who is a Doctor in a Private Hospital who examined the 3 injured witnesses

and stated that he treated them by giving Neuro Vitamin Injection and given

them Wound Certificates stating that the injuries were simple injuries. One

Vetrivendan, the Investigating Officer, who conducted the major part of the

investigation, was examined as PW.11. One Saravanan, who conducted part

of the investigation, was examined as PW.12.

5. On behalf of the prosecution, the complaint given was marked

Ex.P.1. The observation mahazar was marked as Ex.P.2 and the seizure https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

mahazar was marked as Ex.P.3. The report of the Assistant Executive

Engineer of TNEB was marked as Ex.P.4. The wound certificate to the 3

injured witnesses was marked as Exs.P.5 to P.7. The First Information

Report was marked as Ex.P.8 and the rough sketch was marked as Ex.P.9.

A black wire was produced as MO.1 and a burnt casuarina stick was

produced as MO.2.

6. Upon questioning about the evidence on record and the

incriminating circumstances under Section 313 of Criminal Procedure Code,

the appellant denied the same as false. Thereafter, no evidence was let in by

the defense. Thereafter, the Trial Court proceeded to hear the learned

Additional Public Prosecutor and the learned counsel for the accused and by

the judgment dated 26.11.2019, found the appellant guilty of the offence

under Section 435 of IPC and under Section 307 of IPC (3 counts) and

sentenced as aforesaid. Aggrieved by the same, the present appeal is laid

before this Court.

7. The learned counsel for the appellant, taking this Court through the

entire evidence on record, would contend that firstly, the entire case of the

prosecution is false. The appellant was a cultivating tenant with the vendor https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

of PW.1 and PW.2 from whom the land was purchased in the name of

PW.2. Since they did not want to recognize him as the cultivating tenant,

this case has been foisted. He would submit that the complaint is given as if

the appellant is the owner of the adjacent land and out of jealousy, he has

done it. The witnesses examined in this case are either related to PW.1 and

PW.2 or their family members or the neighbors who are having interest in

the said land. He stated that not even a single independent witness is

examined in this case.

8. Further, by taking this Court through the evidence of PW.3, the

learned counsel for the appellant stated that they have spotted the appellant

when he was trying to set the hut on fire and he ran away upon seeing them.

While PW.6 would state that thereafter, he had again come back and was

taking away the wires, which he has used for making electricity connection

for the fence. He would further submit that on reading of the evidence of

PW.6, it would be clear that again after 2 days, the appellant recovered the

said wire, which is alleged to have been taken away by the accused. The

wire alleged to have been used by the appellant and one casuarina stick

alleged to have been used to burn the hut, have been artificially shown as

recovered. He would further submit that even all the 3 injured witnesses https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

were not taken to the Government Hospital and the wound certificates does

not contain any wound whatsoever. It is given by a private Doctor. When

such a serious incident is said to have taken place, the complaint itself has

been lodged after a period of 2 days, which is fatal to the case and therefore,

the said delay itself would demonstrate the extreme artificialness in the case.

9. This apart, taking this Court through the cross examination of the

Investigating Officer, the learned counsel would demonstrate that absolutely

no investigation whatsoever has been conducted by the Investigating Officer

and his admission in the cross examination is that he did not even mention

about the half burnt casuarina stick, which was recovered. The Investigating

Officer did not know the colour of the wire and from where it was connected

and where the fence was touched by the injured witnesses and for every

aspect of the case, he has admitted that he has not investigated and that he

did not have knowledge. Therefore, the learned counsel would submit that

absolutely the case smacks of falsehood and in any event, the Trial Court

ought to have given the benefit of doubt to the appellant and ought not to

have convicted him for serious offences under Sections 435 and 307 IPC and

mulcted him with such a sentence.

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

Crl.A.No.926 of 2019

10. Per contra, the learned Government Advocate (Crl. side) would

submit that this is a case where there are eye witnesses. All the 3 injured

witnesses were examined and they spoke about the incident. This apart,

PW.3 and PW.6 were also examined, who have clearly seen the accused

setting fire to the hut as well as remove the electric wires used by him for the

purpose of giving electric connection to the fence. This apart, he would

submit that the wound certificate is marked and just because the Doctor is

from a private hospital, it cannot be discredited. He would submit that the

delay in lodging the FIR is because of the fault of PW.1, who being the

owner of the land has to take action in lodging a complaint. Therefore, that

by itself is not fatal to the case of the prosecution and prayed that this

Criminal Appeal is without any merits and is liable to be dismissed.

11. I have considered the rival submissions made on behalf of either

side and perused the materials available on record before this Court.

12. In this case, I am fully in agreement with the learned counsel for

the appellant. The entire case does not inspire confidence of this Court. The

motive alleged by the prosecution is that he was jealous being the owner of

the neighbouring land. The same was proved to be false by cross- https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

examination of P.Ws.1 and 2, whereby, they have admitted that there is a

civil dispute pending between the accused and themselves regarding

recognition of the accused as a cultivating tenant in respect of the land in

question. Further, the state of mind/intention of the accused, as alleged by

the prosecution is that, he would set the hut on fire and upon seeing the hut

burning, people will come and touch the fence and therefore, he wanted to

kill those people whoever may touch the barbed wire fencing and with that

intention, gave an electricity connection from his line. The intention, as

alleged, by itself, it can be seen from the reasons stated infra that it is too far

fetched to believe. The actus reus alleged is that on the day of occurrence

i.e., on 04.08.2014 at about 6.00 A.M in the morning, after noticing that

P.W.7, Sankaradas, had left the hut to have Tea, he had set the hut on fire

and even while he was setting the hut on fire, P.W.3 noticed and then the

accused ran away and then the three injured witnesses came and touched the

fence and suffered electric shock and then, thereafter, the accused again

came and disconnected the electric wire and took away the same. The

deposition of the witnesses does not inspire confidence. For instance, PW.3

who is supposed to be an eye witness, would state as follows:-

                                       "M$u;        vjphp   m/rh/2   ,lj;jpYs;s         kl;l
                                  rhiyia       jP    itj;J     bfhz;oUe;jhh;/       vd;id
                                  ghu;j;jJk; Xo tpl;lhh;/"
https://www.mhc.tn.gov.in/judis



                                                                                       Crl.A.No.926 of 2019

13. Further, as per the statement of PW.2, if a person is setting fire to

the hut and if that is seen by anyone, especially by PW.3, who is the

neighbor and a person who is in the thick of things as stated by PW.3, he

would only run away. But, however, PW.6 would state that when he went

near the spot, i.e. after the hut was being burnt and after the injured

witnesses went near the spot and suffered the shock, he saw the appellant

disconnecting the wire and taking back the wire he used. It is essential to

extract his version, which is as follows:-

                                       "mt;thW      jP   gpof;Fk;     nghJ     vd;    mg;gh.
                                  khyjp.       fy;gdh.          kndhfud;.          rrpjud;.
                                  Mfpnahu;fs; Foir mUnf brd;w nghJ vd;

mg;gh. fy;gdh. kndhfud;. khyjp Mfpnahu;fs;

Foir mUnf ,Ue;j ntypia gpoj;j nghJ kpd;rhuk; jhf;fp J}f;fp tPrg;gl;lhu;fs;/ eh';fs; me;j ,lj;jpy; ghu;j;j nghJ M$u; vjpup kpd;

                                  fk;gj;jpypUe;J         xaiu       Jz;oj;J          RUl;of;
                                  bfhz;oUe;jhh;/"

14. This apart, when such a serious offence of setting the hut on fire

and attempting to electrocute has been committed, it is unbelievable that the

matter will not be reported to the Police for a period of 2 days. Therefore,

the delay in lodging the complaint also raises serious suspicion. To top it all, https://www.mhc.tn.gov.in/judis

Crl.A.No.926 of 2019

PW.3 would depose in his chief examination that on 06.08.2014, after the

complaint, when the Police visited the spot, they recovered the wire which is

alleged to have been disconnected and taken away by the appellant along

with the burnt casuarina stick. It is essential to extract the said portion of the

evidence also.

"gpd; 6/8/2014 y; nghyprhu; rk;gt ,lj;ij ghh;itapl;L jahupj;j ghu;it kfrupy; ehDk; r';fujhRk; rhl;rp ifbahg;gkpl;Ls;nshk;/ mJ m/rh/2 MFk;. gpd; rk;gt ,lj;jpypUe;J xau;

                                  kw;Wk;         vhpe;j              rt[fi
                                                                         ; f           fl;ilia
                                  ifg;gw;wpdhh;fs;/           ehDk;      r';fujhRk;        rhl;rp
                                  ifbahg;gkpl;Ls;nshk;/              ifg;gw;Wk;    kfru;     mJ
                                  m/rh/3      MFk;/      vd;dplk;        fhl;lg;gLk;    ghu;it
                                  kfru;     kw;Wk;      2tJ         ifbahg;gk;     vd;DilaJ
                                  jhd;/      rh/bgh           1/2     v';fs;      Kd;dpiyapy;
                                  ifg;gw;wg;gl;lJjhd;/                 ,J          rk;ge;jkhf
                                  nghyprhu; vd;id tprhhpj;jhh;fs;/"

15. Thus, the entire case of the eye witnesses smack artificialness and

none of their testimony is trustworthy. To top it all, it is extremely essential

to extract a major portion of the cross examination of the Investigating

Officer in this case, which reads as follows:-

"rk;gtk; ele;J 2 ehl;fs; fhyjhkjkhf 6/8/2014 k; njjp kjpak; 1/00 kzpastpy; g[fhu;

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

Crl.A.No.926 of 2019

vGj;J K:ykhf bfhLf;fg;gl;lJ vd;why;

rupjhd;/ rk;gt ,lj;jpw;Fk; fhty;

epiyaj;jpw;Fk; Rkhu; 13 fp/kP vd;why; rupjhd;/ K/j/m/ 6/8/2014y; ePjpkd;wj;jpw;F mDg;gpndd;/ tiuglj;jpy; rk;gt ,lj;jpy; fUg;g[ fyu; xau;

kw;Wk; ghjp vupe;j epiyapYs;s fl;ilfs;

fplg;gjhf Fwpg;gplg;gltpy;iy vd;why; rupjhd;/ rk;gt ,lj;ij Rw;wp Ks; fk;gpntyp nghlg;gl;Ls;sJ vd;why; rupjhd;/ ve;j gFjpapy; vjpup kpd;rhu xaiu ,izj;jhu;

vd;W vd; tprhuizapy; bjupe;Jbfhs;stpy;iy/ fk;gpntypapd; ve;j jpirapy; fhak; gl;l egu;fs; bjhLk;nghJ kpd;rhuk; gha;e;jJ vd;W Fwpg;gpl;L brhy;ytpy;iy vd;why; rupjhd;/ rk;gt ,lj;jpy; nky;g[wk; kw;Wk; fPHg ; ;g[wk;

FoapUg;g[ tPLfs; ,Ue;jJ vd;why; nky;g[wk;

                                  kl;Lk;       tPLfs;       cs;sJ/         rk;gt        ,lj;jpy;
                                  fPHg
                                     ; [wKk; tPLfs; ,Ue;jJ vd;Wk; mij vd;
                                  tprhuizapy;         ruptu      tprhupf;ftpy;iy            vd;why;
                                  rupay;y/      fhak;        gl;l       egu;fs;        kndhfud;.

r';fujh!;. khyjp Mfpnahh; muR rk;ge;jg;gl;l kUj;Jtkidapy; rpfpr;ir vLj;Jf;bfhs;stpy;iy vd;why; rupjhd;/ fhak;

                                  gl;l        egu;fspd;          fhar;rhd;wpid                ehd;
                                  th';ftpy;iy           vdf;F           gpd;dpl;l       Ma;thsu;
                                  th';fpdhh;/       fhak;      gl;l     egu;fSf;F       rpfpr;ir
                                  mspj;j            kUj;Jtu;              rpfpr;ir            gw;wp
                                  fhty;Jiwf;F           jfty;         vJk;     brhy;ytpy;iy/
https://www.mhc.tn.gov.in/judis



                                                                                          Crl.A.No.926 of 2019

rk;gt ,lj;jpy; vupe;jjhf brhy;yg;gLk; !;lt;

kw;Wk; vspjpy; vupa[k; bghUs;fs; vJk;

ifg;gw;wg;gltpy;iy/ vupe;j nghd rhiy vjpup kpd;rhuk; gha;r;rpajhy; vd;W bjupe;Jbfhz;nld;/ rk;gt ,lj;ij g[ifg;glk;

                                  vJk;     vLf;ftpy;iy/        rk;gtk;      ele;j       ,lk;    1
                                  Vf;fu;     tp!;jPuzKs;s         tptrha      epyk;     vd;why;
                                  rupjhd;/ me;j ,lj;jpid Fj;jiff;F vLj;J

tptrhak; bra;jhu; vd;why; rupay;y/ vjpupf;Fk;

                                  thjpf;Fk;        jhth           brhj;J           rk;ge;jkhf
                                  jw;nghJk;     tHf;F     elf;fpwJ          vd;w    tptuj;ij
                                  ehd;     bjupe;Jbfhs;stpy;iy/             m/rh/M/1      jdJ

thf;FK:yj;jpy; rk;gtj;jd;W Rkhh; fhiy 6/00 kzpastpy; thl;rn ; kd; r';fujh!; O Fof;f filf;F brd;w rkak; vd;W Fwpg;gplg;gl;Ls;sJ/ m/rh/m/1 jd;

tprhuizapy; fhtyhsp r';fujh!; rk;gt ,lj;jpy; ,Ue;jjhf Fwpg;gpl;L brhy;ytpy;iy/ rhl;rpfs; midtUk; cwtpdu;fs; vd;why;

                                  rupjhd;/    jdpegu;     (Independent Witness)           rhl;rp
                                  ahiua[k;     tprhupf;ftpy;iy           vd;why;        rupjhd;/
                                  vjpup        tPl;oy;     ahh;      ahh;     thlifjhuuhf
                                  FoapUf;fpwhh;fs;        vd         bjupe;Jbfhs;stpy;iy
                                  vjpup    tPlL
                                              ;    mUfpYs;s           egu;fis         rhl;rpahf

tprhupf;ftpy;iy vd;why; rupjhd;/ ehd; khjpup tiuglj;jpy; Fwpg;gplg;gl;l bjd;idkug;gl;ilfs; kw;Wk; fUfpfplf;Fk;

                                  bjd;id           Xiyfs;              kw;Wk;           rpbkd;l;
https://www.mhc.tn.gov.in/judis



                                                                                        Crl.A.No.926 of 2019

                                  fhy;fisa[k;     ehd;     ifg;gw;wtpy;iy/        vjphpf;Fk;
                                  thjpf;Fk;      epyk;      rk;ge;jkhd         gpur;rpidfs;
                                  ,Ue;J           tUfpwJ              vd;Wk;           nkw;go
                                  epyj;jpypUe;J          btspnaw;w      thjp       bfhLj;j
                                  g[fhiu        ruptu        tprhupf;fhky;            vjpupkPJ
                                  Fw;wgj;jpupf;if        jhf;fy;    bra;Js;nsd;        vd;why;
                                  rupay;y/     nkYk;       r';fujh!;        vd;gtu;     vupe;j
                                  rhiyapy;      gzpg[hpatpy;iy         vd;why;        rupay;y/
                                  thjp      bfhLj;j      g[fhiu     ruptu      tprhupf;fhky;
                                  vjpupkPJ    g[yd;tprhuiz          jhf;fy;    bra;Js;nsd;
                                  vd;why;     rupay;y/     fhak;     gl;l     egUf;F     ehd;
                                  brhd;d      tpjj;jpy;     fhak;     vJk;     Vw;gltpy;iy
                                  vd;why; rupay;y/"

16. The answer is in affirmative for every question put across by the

defense and therefore, absolutely the prosecution version is unbelievable.

17. I am therefore of the view that this is a case in which the

prosecution has not at all proved the alleged occurrence. In any event, the

evidence on record and the defense by the cross examination has amply

raised so many doubts in the prosecution case, so that the appellant would

be entitled to benefit of doubt. I therefore hold that the conviction by the

Trial Court for the offences is unsustainable and the appellant would be

entitled to the benefit of doubt.

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

Crl.A.No.926 of 2019

18. Accordingly, this Criminal Appeal is allowed and the conviction