Madras High Court
K.V.Viswanathan vs The State Rep By Its on 7 December, 2023
Crl.A.No.633 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.12.2023
CORAM
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Criminal Appeal No.633 of 2017
K.V.Viswanathan .. Appellant
-vs-
The State rep by its
The Inspector of Police
Avinashi Police Station
Tiruppur District
(Crime No.1621 of 2010) .. Respondent
Memorandum of Grounds of Criminal Appeal under Section 374(2)
of the Code of Criminal Procedure against the judgment dated 22.09.2017
passed in S.C.No.249 of 2011 on the file of the learned Principal District &
Sessions Judge at Tiruppur.
For Appellant :: Mr.K.Myilsamy
For Respondent :: Mr.A.Gokulakrishnan
Additional Public Prosecutor
JUDGMENT
The appellant/A1 stands convicted for the offence under Section 3 of
the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992 and
sentenced to undergo rigorous imprisonment for one year and to pay a fine
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of Rs.5,000/-, in default to undergo simple imprisonment for a period of six
months, by the judgment dated 22.09.2017 passed in S.C.No.249 of 2011 by
the learned Principal District & Sessions Judge, Tiruppur. Challenging the
above conviction and sentence, the appellant has preferred this criminal
appeal.
2. It is the case of the prosecution that protesting the action taken for
removal of encroachments, on 14.05.2010, the appellant along with his
friend, pelted stones on the two Tamil Nadu State Transport Corporation
buses bearing Registration Nos.TN-38-N-0818 and TN-33-N-2262, causing
damage to the wind shields; that the damage caused to the first bus was
Rs.2501/- and the damage caused to the other bus was Rs.4200/-. On the
complaint given by P.W.1, the driver of the bus, P.W.8, the Inspector of
Police registered the First Information Report for the offence under Section
3 of the Tamil Nadu Property (Prevention of Damage and Loss) Act. P.W.9
examined P.W.4, the Branch Manager of the State Transport Corporation to
assess the damage caused to the bus bearing Registration No.TN-33-N-
2262, similarly examined P.W.6 to assess the damage caused to the other
bus bearing Registration No.TN-38-N-0818. After examination of all other
witnesses, he laid the final report under Section 3 of the Tamil Nadu
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Property (Prevention of Damage and Loss) Act before the learned Judicial
Magistrate, Avinashi on 13.05.2011.
3. The prosecution examined witnesses, P.W.1 to P.W.9, marked
exhibits, P1 to P7 and produced M.O.1, broken glass & M.O.2, stone to
prove their case.
4. The trial Court, after framing the charge under Section 3 of the
Tamil Nadu Property (Prevention of Damage and Loss) Act against the
appellant and considering the oral and documentary evidence, found that
the prosecution had proved the case and held the appellant guilty of the
offence under Section 3 of the Tamil Nadu Property (Prevention of Damage
and Loss) Act and convicted and sentenced the appellant to imprisonment
as stated above. Pending trial, A2 died, which is recorded in the judgment
of the trial Court.
5. The learned counsel appearing for the appellant submitted that
admittedly, the witnesses were not known to the appellant. No test
identification parade was conducted during investigation. The names of the
accused were also not known to the witnesses, namely, P.Ws.1 & 2. They
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were examined seven years after the occurrence. Therefore, their version
that they saw the appellant as a pillion-rider and the person who hurled
stone on the wind shields, is unbelievable. The learned counsel further
pointed out that the investigating officer has also not stated as to how he
identified the appellant as the person who hurled the stone on the buses.
6. The learned Additional Public Prosecutor submitted that the
evidence of P.Ws.1 & 2 is clear and they had identified the appellant during
the examination in Court. The trial Court rightly believed the evidence of
P.Ws.1 & 2 and convicted the appellant for the offence under Section 3 of
the Tamil Nadu Property (Prevention of Damage and Loss) Act. There is no
infirmity in the said finding, prayed for dismissal of the appeal.
7. On perusal of the records, this Court finds that P.Ws.1, 2 & 3 are
the crew members, namely, driver and conductor of the buses which are
said to have been damaged by throwing of stone. P.W.4 and P.W.6, the
Managers attached to the Tamil Nadu State Transport Corporation have
assessed the damage caused to the two buses. P.W.5 states that he saw the
stone being thrown on the two buses. He is also a retired employee of the
Tamil Nadu State Transport Corporation. P.W.7 is the witness to the
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observation mahazar. P.Ws.8 & 9 are the investigating officers. It is seen
from the records that First Information Report was registered on 14.05.2010
on the complaint given by P.W.1, the driver of one of the buses. He has not
given the vehicle number of the two wheeler in which the appellant is said
to have travelled to throw stone on the buses. According to P.W.8, the
appellant and the other accused were formally arrested while they were in
custody with regard to another case in Crime No.580 of 2010. P.W.8 admits
that the appellant and the other accused were not known to the witnesses,
namely, P.Ws.1 to 3. He also admits that no test identification parade was
conducted to ascertain if the accused were involved in the alleged
occurrence. P.W.8 has not stated in his evidence as to how he identified the
vehicle of the appellant and the appellant as the person involved in the
alleged occurrence. Further the occurrence is said to have taken place on
14.05.2010. The witnesses were examined on 11.07.2017 nearly seven
years after the occurrence. P.W.1 had not stated about the identifying
features of the accused while he gave the complaint. In such circumstances,
it is highly unsafe to rely upon the evidence of P.Ws.1 & 2 as regards
identification of the appellant seven years after the occurrence. Further the
prosecution has also not established that the TVS-50 which is said to be
involved in the occurrence belonged to the appellant.
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8. Therefore, for the aforesaid reasons, this Court is of the view that
the judgment of conviction rendered by the trial Court is liable to be set
aside. Accordingly, the judgment of the trial Court is set aside and the
appeal stands allowed acquitting the appellant of the charge framed against
him. Fine amount paid by the appellant is ordered to be refunded to him.
Bail bond executed by the appellant shall stand discharged.
Index : yes/no
Neutral Citation : yes/no 07.12.2023
ss
To
1. The Principal District & Sessions Judge at Tiruppur
2. The Inspector of Police, Avinashi Police Station, Tiruppur District
3. The Public Prosecutor, High Court, Madras
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SUNDER MOHAN, J.
ss
07.12.2023
https://www.mhc.tn.gov.in/judis
