Madras High Court
Mahendran vs State Rep. By on 9 March, 2022
Crl.A.No.264 of 2019
IN THE HIGH COURT OF JUDICIATURE AT MADRAS
DATED: 09.03.2022
CORAM :
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
Crl.A.No.264 of 2019
and
Crl.M.P.No.583 of 2022
Mahendran
S/o.Ganagaraj ... Appellant/Accused-2
versus
State rep. by
The Inspector of Police,
Tiruppur South Police Station,
Tiruppur District.
(Crime No.1959/2012) ... Respondent/Complainant
Prayer: Criminal Appeal filed under Section 374(2) of the Code of
Criminal Procedure, to set aside the judgment made in S.C.No.175 of 2015
dated 05.01.2019 on the file of II Additional District and Sessions Judge,
Tiruppur.
For Appellant : Mr.Deepan Uday
For Respondent : Mr.Leonard Arul Joseph Selvam
Government Advocate (Crl. Side)
JUDGMENT
The present Criminal Appeal has been filed by the appellant to
set aside the judgment of conviction and sentence passed by the learned II
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Crl.A.No.264 of 2019
Additional District and Sessions Judge, Tiruppur dated 05.01.2019 in
S.C.No.175 of 2015.
2. The appellant herein is arrayed as Accused No.2 in the above
referred case. He stood charged for the offences punishable under Sections
294(b), 506(ii) of I.P.C. and Section 3 of TNPPDL Act. By a judgment dated
05.01.2019, the learned II Additional District and Sessions Judge, Tiruppur
convicted the appellant under Section 294(b) of IPC and sentenced to pay a
fine of Rs.1,000/-, in default to undergo Simple Imprisonment for three
months. Further, the appellant was convicted under Section 506(ii) of I.P.C.
and sentenced to undergo three years Rigorous Imprisonment and to pay a
fine of Rs.1,000/-, in default to undergo Rigorous Imprisonment for three
months. The learned II Additional and Sessions Judge further convicted the
appellant for the offence under Section 3 of TNPPDL Act and sentenced to
undergo three months Rigorous Imprisonment and to pay a fine of
Rs.5,000/-, in default to undergo Rigorous Imprisonment for three months.
The trial Court also ordered the sentences to run concurrently.
3. Challenging the said conviction and sentence the accused No.2 is
before this Court, by way of filing the present criminal appeal.
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Crl.A.No.264 of 2019
4. The case of the prosecution, in brief, is as follows:
4.1. P.W.1- Karthikeyan was working as a driver in Tamil Nadu State
Transport Corporation. On 18.11.2012 around 5.00 p.m. when he was
driving the bus near Iyangar Bakery, opposite to Velan Hotel at Tiruppur-
Kangeyam Road, he heard a noise of breaking of glass. Immediately he
stopped the bus and got down from the bus and on seeing the back side of the
bus, the appellant herein and another accused, holding the Sivasena Flag and
after seeing P.W.1 abused him by showing knife and black stone. Both of
them had criminally intimidated P.W.1. Hence, P.W.1 lodged a complaint
under Ex.P1.
4.2. On receipt of the complaint given by P.W.1, P.W.6-Shanmuga
Sundaram, the then Head Constable, Tiruppur, South Police Station
registered a case as against the appellant and other accused in Crime
No.1959 of 2012 for an offence punishable under Sections 294(b), 506(ii) of
I.P.C. and Section 3 of TNPPDL Act. The printed F.I.R. was marked as
Ex.P4. After registration of the case, he forwarded the copy of the F.I.R to
Sub-Inspector of Police for investigation.
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Crl.A.No.264 of 2019
4.3. P.W.7-Sasikala, the then Sub-Inspector of Police, Tiruppur South
Police Station, on receipt of the copy of F.I.R., examined the appellant and
other accused. During examination both the accused have admitted the
offence. Hence, she secured both the accused and sent them to remand. She
recovered the material objects, which are all produced by P.W.1.
4.4. In continuation of investigation, on 18.11.2012 around 19.00 hrs.
she visited the scene of occurrence and in the presence of witnesses, she
prepared the observation mahazar under Ex.P5. She drawn rough sketch and
the same has been marked as Ex.P6. She recovered the broken glass pieces
and a small black stone under Seizure Mahazar-Ex.P7. She examined the
witnesses in the scene of occurrence and recorded their statements. She made
arrangements for the production of the vehicle before Motor Vehicle
Inspector for estimating the value of the damage. Afterwards she handed
over the case records to P.W.8 for further investigation.
4.5. P.W.8-Eswaran, the then Inspector of Police, on receipt of the
case records, examined the witnesses and after receiving the report from the
Motor Vehicles Inspector, he came to the conclusion that both the accused
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Crl.A.No.264 of 2019
are liable to be convicted under Sections 294(b), 506(ii) of I.P.C. and Section
3(1) of TNPPDL Act. He filed a final report accordingly.
5. Based on the above materials, the trial Court framed charges under
Sections 294(b), 506(ii) of I.P.C. and Section 3 of TNPPDL Act. Both the
accused pleaded not guilty and prayed for trial. Hence, they were put on trial.
Before the trial Court, in order to prove the case of the prosecution, 8
witnesses were examined as P.W.1 to P.W.8 and 9 documents were marked
as Exs.B1 to B9. Besides, six material objects, which were marked as M.O.1
to M.O.6.
6. Out of the said witnesses, P.W.1-Karthikeyan is working as a driver
in Tamil Nadu State Transport Corporation. He has spoken about the
occurrence as, on the date of occurrence the appellant and another accused
attacked the bus by using black stones. He has further stated that after seeing
the same, with the help of public, he secured the accused and produced
before the police along with the complaint.
7. P.W.2-Sethuraman is a passenger travelled in a bus, which was
damaged at the relevant point. Though he has been cited as an eye witness,
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Crl.A.No.264 of 2019
he has not given any evidence in support of the case of prosecution. Hence,
he was treated as a hostile witness.
8. P.W.3-Kanagaraj was working as a Motor Vehicle Inspector, he has
spoken about the examination of the bus, which was alleged to be damaged
and about the issuance of the report. According to him, the glass fitted on the
back side of the bus was broken in the measurement of 59 x 26 inches.
9. P.W.4-Selvakumar is the conductor. He has spoken about the
occurrence as, during the relevant point of time, the appellant and another
accused holding Sivasena Flag thrown out a black stone on the back side of
the bus and due to which, the glass fitted on the back side was broken into
pieces.
10. P.W.5-Kannan is the resident of Poyampalayam. He gave evidence
in respect of the preparation of observation mahazar and about the recovery
of material objects. Though he was cited as eye witness to the occurrence, he
has not stated about the occurrence, hence, he was treated as hostile witness.
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Crl.A.No.264 of 2019
11. P.W.6 to P.W.8 are the police officers speak about the receipt of
complaint, registration of the case, investigation and about the filing of final
report.
12. When the above incriminating materials were put to the accused
under Section 313 of Cr.P.C., he denied the same as false. However, none
examined on his side.
13. The learned II Additional District and Sessions Judge, Tiruppur
after perusing all the above materials and on considering the arguments
advanced by either side, convicted and sentenced the appellant as stated
supra. Aggrieved over the said conviction and sentence, the appellant is
before this Court with this appeal.
14. I have heard Mr.Deepan Uday, learned counsel appearing for the
appellant and Mr.Leonard Arul Joseph Selvam, learned Government
Advocate (Crl.Side) appearing for the respondent/State. I have also perused
the records carefully.
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Crl.A.No.264 of 2019
15. The learned counsel appearing for the appellant would contend
that before the trial Court, the alleged eye witnesses, who were examined on
the side of the prosecution to prove the occurrence, have not given any
evidence in support of the case of prosecution. The evidence given by those
witnesses are having lot of contradictions. The trial Court without
appreciating the same with correct perspective, convicted the accused and
sentenced as above. Accordingly, he prayed to set aside the conviction and
sentence.
16. On the other hand, the learned Government Advocate (Criminal
Side) appearing for the respondent police would submit that the evidence put
forth by the prosecution witnesses before the trial Court would be sufficient
to accept the case of the prosecution. According to him, interference in the
judgment rendered by the trial Court is not necessary and thereby he prayed
to dismiss this appeal.
17. I have considered the rival submissions made on either side and
perused the records carefully.
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Crl.A.No.264 of 2019
18. On going through the submissions made by the learned counsel for
the appellant, there is no doubt, before the trial Court in order to prove the
case of the prosecution, P.W.1, P.W.2, P.W.4 and P.W.5 were examined as
eye witnesses to the occurrence. Now on going through the evidence given
by P.W.1, in his chief examination, he has stated that only after hearing the
noise, he stopped the vehicle and got down from the bus. In other words, he
has stated about the presence of accused and not about the act committed by
the accused.
19. Therefore, in the absence of any specific evidence about the
alleged occurrence, this Court cannot come to the conclusion that in the
presence of P.W.1, the appellant and another accused damaged the bus.
P.W.2, who is also one of the evidence, did not say about the occurrence.
P.W.4, who is the conductor working in the same bus also stated that only
after hearing the noise he saw the occurrence, wherein in the backside of the
bus both the appellant and other accused were standing with the flag. Even
he did not say about the possession of the black stone by the accused, which
was used for damaging the vehicle. The other witness, who was examined as
P.W.5 also deposed before the trial Court that after seeing the crowd, they
secured the accused and produced before the police station. On the other
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Crl.A.No.264 of 2019
hand, as per the case of the prosecution, he was shown as witness attested in
the observation mahazar prepared by the investigation officer. Therefore, his
evidence is also not sufficient to prove the guilt of the accused. Even, the
witnesses examined on the side of prosecution have not stated about the
words uttered by the accused at the relevant point of time.
20. In the said circumstances, except those witnesses, the other
prosecution witnesses have not spoken about the occurrence. They are the
persons deposed about the investigation and about the inspection of the
damaged bus. Their evidence is only in respect to the process of
investigation and about the inspection of bus.
21. Ultimately, I am of the considered opinion that the witnesses
examined on the side of the prosecution has not stated as to whether the
alleged occurrence had happened in their presence or not. Therefore, in the
absence of any direct evidence in respect of the alleged occurrence, we
cannot hold that the appellant and another accused waylaid the bus and
damaged the same, as alleged by the prosecution. The trial Court, without
appreciating the same with the correct perspective, convicted the accused,
which is liable to be set aside.
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Crl.A.No.264 of 2019
22. In the result, this Criminal Appeal is allowed. The conviction and
sentence imposed upon the appellant/accused No.2 by the learned II
Additional District and Sessions Judge, Tiruppur, dated 05.01.2019 in
S.C.No.175 of 2015 for the offences under Sections 294(b), 506(ii) of I.P.C.
and Section 3 of TNPPDL Act, is set aside. Fine amount, if any paid is
directed to be refunded. Consequently, connected miscellaneous petition is
closed.
09.03.2022
Speaking / Non-speaking order
Index : Yes / No
Internet : Yes
rsi
To
1.The II Additional District and Sessions Judge,
Tiruppur.
2.The Inspector of Police,
Tiruppur South Police Station,
Tiruppur District.
3.The Superintendent,
Central Prison,
Coimbatore.
4.The Public Prosecutor,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
Crl.A.No.264 of 2019
R.PONGIAPPAN, J.
rsi
Crl.A.No.264 of 2019
and
Crl.M.P.No.583 of 2022
09.03.2022
https://www.mhc.tn.gov.in/judis
