Madras High Court
A.Umapathy vs State By on 11 October, 2022
Crl.A. No.197 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 11.10.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A. No.197 of 2022 and
Crl. M.P. No.2488 of 2022
A.Umapathy .. Petitioner
Vs
State by
The Inspector of Police
Mayiladuthurai Police Station
Mayiladuthurai
Crime No.533 of 2013 .. Respondent
***
Prayer: Criminal Appeal filed under Section 374(2) of Cr.P.C. to
set aside the judgment passed against the appellant on 31.12.2021
in S.C. No.35 of 2014 on the file of the Sessions Judge (Fast Track
Mahila Court), Nagapattinam and acquit the appellant herein from
all the charges.
***
For Petitioner : Mr.S.Ilamparithi
For Respondent : Mr.S.Sugendran
Additional Public Prosecutor
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Crl.A. No.197 of 2022
ORDER
The respondent police registered a case against the appellant
and yet another person in Crime No.533 of 2013 for the offence
under Section 364-A and 506(ii) IPC. After completing the
investigation, they laid a charge sheet before the learned Judicial
Magistrate I, Mayiladuthurai and the same was taken on file in
P.R.C. No.41 of 2013. After completing the formalities, the learned
Judicial Magistrate committed the case to the Sessions Judge,
since the offences are triable by the Court of Session. The case
was taken on file in S.C. No.35 of 2014 on the file of the Principal
District and Sessions Judge, Mayiladuthurai and after completing
the formalities, charges were framed against the first accused for
the offence punishable under Section 364-A and Section 506(ii)
IPC and against the appellant/2nd accused, for an offence under
Section 364-A and also charges were framed against both the
accused for the offence under Section 325 IPC.
2. In order to substantiate the case of the prosecution,
during trial, as many as 16 witnesses were examined as PWs.1 to
16, twelve documents were marked as Exs.P1 to P12. Besides, two
material objects were exhibited as MOs.1 and 2.
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3. On completion of examination of the prosecution
witnesses, when incriminating circumstances were culled out from
the evidence of the prosecution witnesses and put before the
accused under Section 313 Cr.P.C., they denied the same as false.
The denial of the accused are the total denial. On the side of the
defence, neither oral nor documentary evidence was produced.
4. On completion of trial, after hearing the arguments
advanced on either side and considering the materials and
evidence, the trial court found guilt of the appellant for the offence
under Section 364-A and also Section 325 IPC. The appellant was
convicted and sentenced to undergo five years rigorous
imprisonment and pay a fine of Rs.1,000/- in default to undergo
one month simple imprisonment for the offence under Section 364-
A and also he was convicted and sentenced to undergo three years
rigorous imprisonment and pay a fine of Rs.1,000/- and in default
to undergo one month simple imprisonment for the offence under
Section 325 IPC. Challenging the said judgment of conviction and
sentence as against the appellant, he has filed the present appeal
before this court.
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4. The specific case of the prosecution is that on 11.07.2013
at 9.00 a.m the appellant and A1, kidnapped the victim boy (PW1)
in a car driven by the appellant from his school and when the car
was proceeding through Mayiladuthurai to Thiruvarur Main Road,
the victim jumped from the car by opening the right side door of
the car and thereby, the victim had sustained injuries. Hence the
appellant and the first accused were found guilty for the offences
as stated supra.
5. The learned counsel appearing for the appellant would
submit that the conviction and sentence passed against the
appellant is against law, without any materials. The final report
against the first accused and the appellant herein before the
learned Judicial Magistrate I, Mayiladuthurai was, only for the
offence under Section 364-A for kidnapping a minor boy, to grab a
sum of Rs.5,00,000/- from the father of the victim and also both
the accused, caused grievous injuries, whereas the prosecution
witnesses have not substantiated the said charges.
6. The victim was examined as PW1, who had deposed that
he was kidnapped by the first accused in a car driven by this
appellant on 11.07.2013 at 9.00 a.m from his school and when the
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Crl.A. No.197 of 2022
car was proceeding through Mayiladuthurai to Thiruvarur main
road, the victim jumped from the car by opening the right side
door of the car and thereby, the victim had sustained injuries.
Hence the appellant and the first accused were found guilty for the
offences under Section 325 IPC. Even from the allegation of victim,
the said injuries were caused because of jumping from the running
car and not by the appellant herein. As per the evidence of the
victim, the appellant was driving the car. As such, the appellant
did not voluntarily caused the said injury to the victim. Therefore,
the ingredients of Section 325 are not attracted and none of the
ingredients has been made out to attract any of the charges
framed against the appellant.
7. The car, which was involved in the offence, belonged to
one Ramesh and later, the accused returned the said vehicle to
Ramesh at his request. However, the said Ramesh was not
examined as a witness, which is fatal to the case of the
prosecution. Further, he would submit that the victim was said to
have been initially taken to Government Periyar Hospital,
Mayiladuthurai on 11.07.2013. On the same day, he was referred
to a private hospital, namely Vairam Multispecialty Hospital, at the
request of the father of the victim and he was discharged on
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13.07.2013. The doctor, who gave treatment in the private
hospital, gave a wound certificate. As per the wound certificate, he
is of the opinion that injury No.3 stated in the certificate is a
grievous injury. Based on that certificate, PW-15, Assistant
Surgeon, who was working in the Government Periyar Hospital,
gave an opinion on 17.07.2013. Even in order to prove that the
injuries sustained by the victim was grievous in nature, no X-Ray
was taken at Government Hospital and no X-Ray was marked as an
exhibit or a material object, therefore, the prosecution has
miserably failed to positively prove that the injuries sustained by
the victim is grievous in nature. There is no age proof certificate
produced before the court to prove that the victim was a minor
under the age of 16 years. Therefore, in the absence of the same,
registering a case under Section 364-A of IPC itself is not correct
and therefore, the conviction recorded under Section 364-A of IPC
is liable to be set aside.
8. PWs.6 and 7 are the chance witnesses and they deposed
that they saw the victim boy fell down from the car and thereafter,
his uncle came to the spot and the victim was taken to hospital by
Ambulance and then they left the spot. They were examined on
13.07.2013 and there is no materials to connect that PWs.6 and 7
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were there at the time of occurrence at the occurrence place,
which itself created a reasonable doubt and therefore, the
prosecution case fails.
9. The evidence of the victim boy is not cogent and
corroborative with that of the other prosecution witnesses. The
contradictions found in the evidence of the prosecution witnesses
are material in nature, which would cause a reasonable doubt in
favour of the appellant. Further he would submit that identification
parade was not conducted. According to the prosecution, the
accused are not familiar to the victim and therefore, without
conducting an identification parade, fixing the appellant as accused
is against the principles of law. Though the prosecution has stated
that the victim identified the first accused on 20.07.2013 to his
father and he in turn, called the police and the first accused was
arrested at the same place. Based on the confession statement
given by the first accused, this appellant was arrested on
25.07.2013 at 8.30 a.m. The victim identified the appellant only
during the trial. Therefore, it is settled law that first time when the
victim identifying the accused during trial is not permissible. The
prosecution has miserably failed to prove positively that the
appellant had committed the offence of kidnapping for ransom and
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voluntarily caused grievous injury. Therefore, the trial court has,
erroneously convicted the appellant herein for the offence under
Section 364-A and 325 IPC and the same is liable to be set aside.
There is a delay in filing the complaint and the delay in sending all
the material documents to the court is fatal to the case and the
prosecution and there is a possibility of deliberation. Therefore, at
any angle, the prosecution has not proved beyond reasonable
doubt that only the appellant had kidnapped the victim due to
previous motive and enmity with the father of the victim, the de-
facto complainant has foisted the false case against the appellant
and the trial court, failed to appreciate the evidence and wrongly
convicted the appellant, which warrants interference of this court.
10. Even the prosecution has not proved that the victim was
studying in the school and the victim was a minor. No document
was produced that the victim was a student and he is a minor boy.
The prosecution has not proved the case of the prosecution.
11. The learned Additional Public Prosecutor, appearing for
the respondent police submit that the victim is a minor while
studying in the school. The appellant and the first accused
informed to the boy that his relative was not feeling well and
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therefore, his father asked them to bring the victim. Therefore, the
victim went along with the appellant and the first accused, they
took the victim by a car bearing Registration No.TN-51 K-1129.
When the route was deviated, at that point of time, the victim
questioned about the same, they threatened the victim and
immediately the victim broke open the right side of the car door
and fell down due to that he sustained injuries. Later on, the
parents of the victim was informed and the uncle of the victim took
the victim to the hospital for treatment. Later they gave the
complaint. Subsequently, the respondent police investigated the
matter and laid a charge sheet and during the trial, they examined
as many as 16 witnesses. Out of which, PW1 is the victim boy and
who has clearly deposed about the incident and the cashier of the
petrol bunk was examined as PW12 and the doctor, who gave the
treatment at Government Hospital was examined and wound
certificate was marked as Ex.P7. Therefore, the prosecution has
proved its case that the victim (PW1) was kidnapped by the
appellant and the first accused. The first accused was convicted for
the offence under Sections 364-A, 506(ii) and 325 of IPC against
which he has not filed any appeal and only the appellant alone has
filed the appeal. The prosecution has proved its case with cogent
evidence. There is no reason to discard the evidence of the victim.
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The victim has clearly stated that he identified the first accused
before his father and thereafter, his father informed to the police.
The first accused was arrested. Later, based on his confession
statement, this appellant was also arrested. Therefore, once the
victim identified one of the accused and arrested, based on the
confession given by the co-accused, this appellant was arrested
and subsequently, the victim identified the present appellant
before the court. The appellant, who drove the car bearing
Registration No.TN-51 K-1129, therefore, the mere non conducting
of identification parade may not be a reason to discard the
evidence of the victim. Since the victim has clearly identified one
of the accused, from that accused, the appellant was identified and
subsequently during trial, the victim identified both the accused.
Therefore, the evidence of the victim, medical evidence and other
circumstantial evidence, would clearly shows that the appellant has
committed the charge for an offence punishable under Section
364-A and also 325 IPC and therefore, there is no merit in the
appeal and is liable to be dismissed.
12. Heard both sides and perused the materials available on
record.
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13. The specific case of the prosecution is that that on
11.07.2013 at 9.00 a.m the appellant and A1, kidnapped the victim
boy (PW1) in a car driven by the appellant from his school and
when the car was proceeding through Mayiladuthurai to Thiruvarur
Main Road, the victim jumped from the car by opening the right
side door of the car and thereby, the victim had sustained injuries.
Hence the appellant and the first accused were found guilty for the
offences as stated supra.
14. Though in this case totally two accused, both of them
have been convicted, one of the accused has not filed any appeal.
However, the present appeal has been filed by the appellant, who
was arraigned as A2 in the said case. In order to substantiate the
case, the main witness is the victim, who has clearly deposed that
under what circumstances, the victim went to the appellant and
how he sustained the injuries and how he identified the accused
and therefore, since the evidence of the injured is cogent and
convincing, it is settled proposition of law, the quantum of
witnesses is not the material and only the quality of the witnesses.
Therefore, the victim is a directly affected person. He knows the
appellant that the appellant drove the vehicle. Though the
appellant is an unknown person, the victim boy knows that during
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the occurrence, the appellant is the one who drove the vehicle,
which is involved in this case, was said to have kidnapped by the
accused in the said car, which was driven by the appellant.
Therefore, the evidence of the victim is cogent and natural and
there is no reason to discard the evidence of the victim. The mere
non production of the X-Ray or non-examination of the doctor, who
gave treatment in the private hospital and the non-examination of
the care taker in the school where the victim was studying and non
production of the school certificate are not fatal to the case of the
prosecution. The victim has clearly stated that the appellant and
the other accused kidnapped the victim through the car bearing
Registration No.TN-51 K-1129 and further, the evidence of the
doctor and the wound certificate clearly show that the victim
sustained injuries while escaping from the appellant from the car.
Even the evidence of PW6 clearly shows that on 11.07.2013 when
he came to main road, one boy fell down from a car and he rushed
there and removed the cloth from his eyes and also based on his
information, he informed to the relative of the victim and
thereafter, when they came to the spot, he left the spot.
15. Though the confession statements recorded by the Police
Officer are not admissible in evidence, however, the evidence of
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the victim, clearly shows that the appellant and another accused,
have kidnapped him and he only identified A1 to his father. So
based on the information given by the victim, his father informed
the police. Subsequently, police arrested him. Therefore, the
appellant was arrested based on the confession given by the co-
accused; that however, the victim identified the appellant during
trial. Therefore, mere non-conducting of an identification parade,
would not fatal to the case of the prosecution.
16. Ten days after the occurrence, one day, the victim was
with his father in a shop, at that time A1 as a loadman, while
unloading the load, the victim showed and identified him to his
father, that has not been disproved by the defence that was
proved by the prosecution. Subsequently, based on the confession
statement given by A1, the appellant was arrested, but, however
he was identified by the accused during trial. Further, since the
victim is a minor boy and school going child, therefore, the delay
in filing the complaint or delay in filing the FIR is not fatal to the
case of the prosecution. Even though there is a contradiction
between the witnesses and according to this court, the
contradictions pointed by the learned counsel for the appellant,
which are not material contradictions, which would go to the route
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of the prosecution. The contradictions pointed out by the learned
counsel for the appellant are not material contradictions and the
evidence of the victim is a cogent and natural, there is no reason
to discard the evidence of the victim, who is the occurrence
witness as well as the injured witness. Therefore, the mere delay
in sending the documents to the court, may not be a sole ground
to discard the evidence unless the defence established that there
was a deliberation and out of the deliberation the original
complaint or the original case was changed or improved.
Therefore, the mere defect in investigation or failure on the part of
the prosecution, may not be the sole ground to reject the
prosecution case totally.
17. In this case, the victim boy is the prime witness, whose
evidence is cogent and natural and this court, does not find any
reason to discard or disbelieve the evidence of the victim.
Therefore, once the prosecution has proved that the custody of the
minor child was removed from the natural guardian without their
consent forcibly, Section 464-A of IPC would attract. Though the
learned counsel for the appellant stated that the appellant has not
voluntarily caused injuries to the victim, it is very clear that, in
order to escape from the appellant, the victim jumped from the car
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and due to that he sustained injuries. Therefore, the appellant is
the cause for the injuries sustained by the victim. Therefore, the
injuries sustained by the victim are grievous in nature as per the
medical evidence. Therefore, from the evidence of victim, it is
proved that the appellant, who drove the car and the said car was
utilised for kidnapping the victim, in order to escape from
appellant, he broke opened the glass and jumped from the car and
sustained injuries therefore, the appellant is responsible for the
injuries sustained by the victim. Therefore, he is found guilty for
the offence under Section 325 also. As the appellate court as a fact
finding court, this court, re-appreciated the entire evidence, in
order to come to an independent conclusion. This court, while re-
appreciating the evidence, found the guilt of the accused for an
offence under Section 464-A and Section 325 IPC and this court
also arrived at a conclusion that the prosecution has proved its
case with cogent evidence and there is no reason to discard the
evidence of the prosecution, especially PW1, the victim, whose
evidence has inspired the confidence of this court. Therefore, this
court, does not find any merit in the appeal and the appeal is liable
to be dismissed. Accordingly, this criminal appeal is dismissed.
11.10.2022
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Crl.A. No.197 of 2022
Index : Yes/No
Internet : Yes
Asr
To
The Sessions Judge (Fast Track Mahila Court), Nagapattinam
P.VELMURUGAN, J.
Asr
Crl. A. No.197 of 2022
https://www.mhc.tn.gov.in/judis
Crl.A. No.197 of 2022
Dated : 11.10.2022
https://www.mhc.tn.gov.in/judis
