Madras High Court
L.Nadhan vs State Represented By on 29 September, 2023
Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.02.2023
Dated : 29.09.2023
CORAM:
THE HONOURABLE MR. JUSTICE P.VELMURUGAN
Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
and
Crl.M.P.Nos.12773 of 2018 & 12069 of 2022
Crl.A.No.618 of 2011
L.Nadhan ...Appellant
Vs.
State represented by
The Deputy Superintendent of Police,
CBI/SEP Madras
Crime No.R.C.3/(S)/95 ...Respondent
Prayer in all the Appeals: These Criminal Appeals are filed under Section
374(2) of Cr.P.C. 1973 to call for records and set aside the judgment of
conviction and sentence dated 29.09.2011 passed against the appellants in
1/78
https://www.mhc.tn.gov.in/judis
Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
S.C.No.1 of 2008 by the learned Principal Sessions Judge, Special Court of
Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989,
Dharmpuri.
For Appellant : Mr.C.Arulvadivel @ Sekar
Senior Advocate for Mr.M.Dinesh
For Respondent : Mr.AR.L.Sundaresan
Additional Solicitor General Assisted
by Mr.G.Arjunan
Public Prosecutor (CBI)
******
COMMON JUDGMENT
These criminal appeals have been filed against the judgment of
conviction and sentence dated 29.09.2011 passed by the learned Principal
Sessions Judge, Dharmapuri, in S.C.No.1 of 2008.
2 The respondent police registered a case in Crime
No.RC.3/(S)/95 for the offence under Sections 143, 147, 149, 323, 427, 344
of IPC, 323 r/w 34 IPC, 376, 201 and 203 of IPC, Section
3(i)(x)(xi)(xiii)(xv) of the Scheduled Caste and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (in short “the SC/ST Act”), 3(ii)(vi)
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
and (vii) and Section 4 of SC/ST Act, against 269 accused, who were Forest
Officials, Revenue Officials and Police Officials respectively. After
completing investigation, they laid charge sheet, which was taken on file in
S.C.No.1 of 2008.
3 In order to prove the charges, prosecution has examined 75
witnesses as P.Ws.1 to 75 and marked 324 documents as Exs.P1 to P324,
besides two material objects were exhibited as M.Os.1 and 2. After
completing examination of prosecution witnesses, when incriminating
circumstances culled out from the evidence of prosecution witnesses and
put before the accused, they denied the same as false and pleaded not guilty.
On the side of the defence, D.Ws.1 to 3 were examined and Exs.D1 to D32
were marked.
4 The learned trial Judge, on completion of trial and hearing the
arguments advanced on either side, by judgment dated 29.09.2011 convicted
the accused as follows.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Sl. Rank of the Accused Charge Sentence
No
.
1. 3 to 5, 7, 10 to 16, 18 to 33, No.1: 147 2 years RI
35, 36, 38 to 41, 43, 45 to IPC
47, 49 to 55, 57 to 62, 64 to
66, 68 to 79, 81, 82, 84, 85, No.2: 1 year RI; fine – 1000/-
87, 88, 90 to 92, 94 to 100, 342 r/w 149 each, i/d 3 months SI
104 to 111, 113, 114, 116, IPC
117, 119 to 123, 125, 126,
128, 129, 130 to 134, 136,
137, 139 to 143, 145 to 149,
150, 152 to 155, 157 to 160,
162 to 165, 168, 170 to 173,
176, 178, 180, 181, 185 to
189, 191 to 200, 202 to 214,
216, 218 to 220, 223 to 228,
230, 231, 233 to 237, 239 to
246, 248, 251 to 264, 266 to
2. 3, 10, 15, 24, 28, 38, 50, 53, No.3: 323 1 year RI; fine – Rs.1000/-
59, 71, 72, 76, 77, 90, 91, IPC each, i/d 4 months SI
99, 114, 152
3. 12, 18, 22, 25, 32 36, 39, 40, No.4: 323 1 year RI; fine – Rs.1000/-
43, 51, 52, 60, 69, 74, 85, r/w 149 of each, i/d 3 months SI
88, 92, 98, 107, 108, 110, IPC
111, 113, 116, 117, 119 to
123, 125, 126, 128, 129,
131 to 134, 136, 137, 139 to
143, 145 to 148, 153, 171,
172, 181, 185, 187, 192,
197, 199, 207, 219, 223,
225, 226, 239, 241, 244,
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Sl. Rank of the Accused Charge Sentence
No
.
248, 252, 258, 260, 262,
264, 266 to 269
4. 3 to 5, 7, 10, 11, 14 to 16, No.5: 3 years RI; fine –
19 to 21, 23, 24, 26 to 31, 3(2)(iii) of Rs.1000/- each, i/d 9
33, 35, 38, 41, 45 to 47, 49, SC/ST Act months SI
50, 53 to 55, 57 to 59, 61,
62, 64 to 66, 68, 70 to 73,
75 to 79, 81, 82, 84, 87, 90,
91, 94, 95, 99, 100, 104 to
106, 109, 114, 149, 152,
154, 155, 157 to 160, 162,
163, 170, 173, 176, 178,
180, 186, 188, 189, 191,
193 to 196, 198, 200, 202 to
206, 208, 214, 216, 218,
220, 224, 227, 228, 230,
231, 233 to 237, 240, 242,
243, 245, 246, 251, 253 to
257, 259, 296, 263
5. 3 to 5, 7, 10, 11, 14 to 16, No.6: 3(1)(x) 3 years RI; fine –
19 to 21, 23, 24, 26 to 31, of SC/ST Rs.1000/- each, i/d 9
33, 35, 38, 41, 45 to 47, 49, Act months SI
50, 53 to 55, 57 to 59, 61,
62, 64 to 66, 68, 70 to 73,
75 to 79, 81, 82, 84, 87, 90,
91, 94, 95, 97, 99, 100, 104
to 106, 109, 114, 149, 152,
154, 155, 157 to 160, 162,
163, 170, 173, 176, 178,
180, 186, 188, 189, 191,
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Sl. Rank of the Accused Charge Sentence
No
.
193 to 196, 198, 200, 202 to
206, 208 to 214, 216, 218,
220, 224, 227, 228, 230,
231, 233 to 237, 240, 242,
243, 245, 246, 251, 253 to
257, 259, 261 and 263
6. 10, 11, 20, 22, 24, 25, 26, No.7: 376 7 years RI; fine –
40, 49 to 53, 76, 107, 110 IPC Rs.2000/- each, i/d 21
and 152 months SI
7. 10, 11, 20, 24, 25, 26, 49, No.8: 3 years RI; fine –
50, 53, 76, 110 and 152 3(1)(xi) of Rs.1000/- each, i/d 9
SC/ST Act months SI
8. 10, 11, 20, 24, 25, 26, 49, No.9: 3(2)(v) 10 years RI; fine –
50, 53, 76, 110 and 152 of SC/ST Rs.1000/- each, i/d 30
Act months SI
9. 3 to 5, 7, 10, 11, 14 to 16, No.10: 355 1 year RI
19 to 24, 26 to 31, 33, 35, IPC
36, 38, 39, 41, 45 to 47
10. 2 to 5, 7, 10, 11, 14 to 16, No.11: 342 1 year RI
19 to 24, 26 to 31, 33, 35, IPC
36, 38, 39, 41, 45 to 47
11. 3 to 5, 7 10, 11, 14 to 16, 19 No.12: 3 years RI; fine –
to 21, 23, 24, 26 to 31, 33, 3(i)(v) of Rs.1000/- each i/d 9
35, 36, 38, 39, 41 and 45 to SC/ST Act months SI
As far as charge No.13 is concerned, the accused were acquitted from the
offence under Section 3(1)(viii) SC/ST Act
12. 1 No.14: 201 9 months RI
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Sl. Rank of the Accused Charge Sentence
No
.
IPC
13. 1 No.15: 3 years RI; fine Rs.1000/-
3(2)(1) of i/d 9 months SI
SC/ST Act
As far as Charge No.16 is concerned, A1 is acquitted from the offence
under Section 3(2)(vi) of SC/ST Act.
14. 1, 3 to 5, 7, 155, 157 to 160, No.17: 4 of 3 years RI; fine Rs.1000/-
162 and 163 SC/ST Act each i/d 9 months SI
As far as Charge Nos.18 and 19 are concerned, the accused were acquitted
from the offence under Sections 143 IPC and Section 427 r/w 149 IPC.
5 Aggrieved over the judgment of conviction and sentence, the
appellants are now before this Court.
6 During pendency of the appeals, some of the accused died and
hence the appeals against them alone were dismissed as abated.
7 There are huge number of accused involved in the present case
and they engaged a separate counsel and hence in order to avoid the
overlapping and repetitions and for better understanding, arguments of all
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
the learned counsel for the appellants have been consolidated as follows.
8 The learned counsel for the appellants would submit that
villagers of the Vachathi village were involving in the offence of smuggling
of sandal woods and several cases have been registered against them and
hence in order to wreck vengeance, false case has been foisted against the
appellants, who are the officials of Forest Department, Police Department
and Revenue Department. In the month of June, 1992 since large number of
smuggling activities have taken place with the help of the Vachathi villagers
and huge number of smugglers were involved and also heavy sandal woods
have been smuggled, the Forest Department had planned for a mass raid in
and around the Vachathi village. On 20.06.1992, various officials went to
the village and found some of the villagers were involved in smuggling of
sandal wood and they were caught hold by the various officials and at that
time they raised alarm and huge number of villagers surrounded the officials
with weapon like iron rods, rocks and attacked them. 22 officials sustained
injury one selvaraj sustained grievous injuries. All the injured officials were
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
taken to the Hospital and first aid was given and some of the officials were
referred to Salem Government Hospital for further treatment. In order to
escape from the said case, the Villagers with the help of some of the
prosecution witnesses concocted the story as if the uniformed service
officials committed rape on the young ladies of the Vachathi Village.
9 All the appellants/accused persons had not participated in the
said raid and there is no materials to prove that all the accused actively
participated in the raid. The alleged occurrence is said to have taken place
between 4.00 to 5.00 p.m. at Vachathi Village on 20.06.1992, but during the
relevant period even all the officials were not available in the Vachathi
Village. Further there is no material to show that the accused were present at
Vachathi village at the relevant point of time. Even the medical records
shows that the said Selvaraj was admitted in the Hospital in the morning
itself and further he was referred to Salem Government Hospital for further
treatment. Some of the officials were also admitted in the hospital and took
treatment. The Doctor, who admitted them also examined and relevant
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
documents were also marked. The trial Court has miserably failed to
consider all these material facts and rejected the contention of all the
appellants.
10 It is the further contention that the Investigating Officer has no
power to investigate the matter. According to Rule 7(1) of SC/ST Act the
offence committed under the Act shall be investigated by a police officer
not below the rank of a Deputy Superintendent of Police. In this case the
investigating officer was not appointed in consonance with the Rule 7(1) of
the SC/ST Act, which is fatal to the case of the prosecution. The charges
were not framed properly by the trial Court and SC/ST Act would not at all
attract. The Investigating Officer has not collected Community Certificates
of the victims from the competent authority and proved that the victims are
members of ST community. There is no evidence to show that the entire
villagers of the Vachathi are either members of SC or ST community. The
Hon'ble Apex Court repeatedly held that for attracting offence under the
SC/ST (PoA) Act, prosecution has to establish that the accused persons are
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
not belong to members of SC/ST community and the victims are belong to
SC/ST community. In the absence of the same and evidence against the
appellants for commission of offence under the SC/ST Act, the charges
under the SC/ST Act are not sustainable in law. Therefore non production of
community certificate is fatal to the case of the prosecution.
11 There are lots of contradictions between evidence of the
prosecution witnesses. Even they have not identified the accused while
conducting the Test Identification Parade, whereas, after 10 years, during
trial before the trial Court, they were able to identify the accused in open
Court, which is not believable. When test identification parade was
conducted in the year 1995, victim could not identify the accused, but, after
10 years they were able to identify the accused, which proves the fact that
the Investigating Officer has fixed the accused and shown to the witnesses
and made them to identify. There are contradictions between the evidence of
prosecution witnesses regarding one Perumal Oor Goundar, who was
alleged to have been attacked by the witnesses at the instigation of the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
uniformed services. There are two persons named Perumal and there is no
clear evidence that who is the person alleged to have attacked by the
witnesses at the instance of the uniformed force.
12 It is contended by the learned counsel for the accused that at
the relevant point of time, the witnesses stated that the accused forced them
to attack the Oor Goundar by broom, but, they have not named the person,
who insisted them to commit such act. One Velliayan, who was examined
as P.W.9 was the Oor Goundar at the relevant point of time, whose evidence
clearly falsified the case of the prosecution.
13 Further they would submit that all the Drivers of the vehicle
also been wrongly impleaded and shown as accused, but, they have not
committed any offence and there is no specific overt act as against them.
The Investigating Officer has not obtained the documents from the officials
viz. list of participants in the raid through Mahazar and observation mahazar
also not prepared and documents also not collected through recovey
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
Mahazar.
14 Even the place of occurrence itself is not correctly fixed by the
prosecution. Some of the witnesses have stated the place of occurrence is
Banyan Tree in the Vachathi Villge and some of the witnesses have stated
lake area and some of the witnesses have stated that River bed and bushes
and some of the witnesses have stated that they assembled under the
Tamarind Tree. Therefore the place of occurrence itself is doubtful and the
Investigating Officer has not prepared the Mahazar and also the rough
sketch showing the exact place of occurrence, which itself creates a doubt in
the prosecution story. Even in the writ petition, the department has filed
counter stating that there is no such occurrence taken place. Several
communication between the concerned department and Ministry of Forest
reflects the correct picture and true version. The Investigating Officer has
lost sight of it and the trial Court also failed to look into the same.
15 The victims were also not subjected to medical examination.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Further there is no materials to show that the officials who went for the raid
only damaged the property of the Vachathi Villagers. Even immediately
soon after the occurrence, RDO enquiry was ordered and the RDO also
submitted his report dated 10.08.1992, which was marked as Ex.P195, in
which it is clearly stated that the villagers of Vachathi Village were
smuggling the huge number of sandal wood trees and when it was prevented
by the Forest and Police officials, they were attacked by the Villagers and a
case was also registered for the same. It is further stated in the report that in
order to escape from the criminal case, the villagers themselves might have
caused damages to their property. Therefore, there is no truth in the
prosecution story.
16 Without ascertaining the details of the officials who were really
preset in the Vachathi village at the time of so called occurrence between
4.00 to 5.00 p.m. on 20.06.1992 and who were actively participated in the
raid, the Investigating Officer simply collected the list from the Office and
shown all the names mentioned in the list as accused. The Investigating
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
Officer has not conducted the investigation in a fair manner.
17 Further all the victims have not stated that which of the accused
took them and which of the accused committed rape and even when test
identification parade was conducted, the victims could not identify the
accused exactly who has committed rape on them and that be the situation,
it is highly unbelievable that they could identify the accused before the trial
Court during trial, which only shows that the Investigating Officer fixed the
accused and made the victims to identify. However the fact remains that the
Vachathi villagers were engaged in smuggling of sandal wood and when the
forest officials had taken effective steps to prevent the same and retrieve the
hidden sandal wood, in order to wreck vengeance they set up false case. The
trial Court failed to appreciate the facts and convicted the accused only on
the sympathy grounds without even any materials.
18 All the 18 victims have not given complaint before the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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Annamalai. All the victims were forced to give such complaint. Even the
complaint was not identified by the victims. Prosecution has not proved all
the signatures/thump impression found in the complaint are that of the
victims. The genesis of the prosecution case is based on Ex.P133, which is
the complaint lodged at the first instance. The said complaint contains Left
Thumb Impression of the victims. Most of the Left Thumb Impressions in
the complaint namely Ex.P133 were not tallied with the Left Thumb
Impressions available in the deposition of the witnesses namely P.Ws.39 to
58. Therefore persons, who had affixed Left Thumb Impression in Ex.P133
have not deposed before the Court and the persons who deposed before the
Court have not affixed the Left Thumb Impression in Ex.P133.
19 It is the further contention of the learned counsel for the
appellants that the act of destroy of any of the property of the members of
SC/ST by fire or explosive substances by the non member of SC/ST is the
offence under Section 3(2)(iii) of SC/ST Act. In the present case, it is not
the case of the prosecution that the accused either by fire or explosive
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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substances caused damage to the properties of the victims, which clearly
proved that the Investigating Officer without any application of mind
submitted the charge sheet before the trial Court and the trial Court also
failed to appreciate the facts and without applying its mind framed the
charges. At any angle, prosecution has not proved its case beyond
reasonable doubt. It is well settled proposition of law that prosecution has to
prove its case beyond all the reasonable doubts against the accused. If any
doubts arises and when two views are possible, benefits of doubt has to be
extended in favour of the accused and the view which favours the accused
has to be taken into account. Unfortunately the trial Court failed to look into
the settled proposition of law and wrongly convicted the accused, which
needs serious interference of this Court.
20 It is to be noted that all the accused are Government servants
and to prosecute the Government servant for the offence committed during
the course of official duty, prior sanction has to be accorded from the
competent authority. In this case all the accused are only public servant in
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Forest Department, Police Department and Revenue Department, but no
sanction for prosecution has been accorded by the Investigating Officer,
which is fatal to the case of the prosecution.
21 The complaint itself given belatedly, for which prosecution has
not offered any valid explanation. The victims have not stated before the
Judicial Magistrate about the injuries sustained by them or the fact that they
were subjected to sexual assault by the Uniformed Force. Further he would
submit that the Inspector of Police has not recorded the statement directly
from the witnesses/victims and the statements are not recorded by the
Investigating Officer as spoken by the witnesses.
22 Learned counsel appearing for the appellants in Crl.A.No.649
of 2011 in support of his contentions that there are contradictions in the
evidence of the prosecution witnesses and non compliance of the mandatory
provisions under the SC/ST Act with regard to appointment of the
Investigating Officer to investigate the matter, has placed reliance on the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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following judgments of the Hon'ble Supreme Court and this Court:
1. MANU/SC/1255/2022 (Chotkau vs. State of Uttar Pradesh)
2. 2009 CRI.L.J.350 (Gorige Pentaiah vs. State of Andhra Pradesh
3. 2010 (1) MWN (Cr.)100 (Thangarasu and another vs. State by
Deputy Superintendent of Police, Bhavani, Vellithiruppur Police
Station)
4. 2012-1-L.W.Crl.184 (Sekan vs. Sate of Tamilnadu)
5. Crl.A.No.277 of 2008 (V.Ponnusamy vs. State of Tamilnadu)
6. (2014) 12 SCC 279 (Krishnan Alias Ramasamy and others vs. State
of Tamilnadu
23 Learned counsel appearing for the appellants in Crl.A.No.671
of 2011, to support his contentions, has placed reliance on the following
judgments of the Hon'ble Supreme Court and this Court :
1. MANU/SC/0091/1982 (Mohd.Abdul Haffes vs. State of Andhra
Pradesh)
2. MANU/SC/0763/2002 (Dana Yadav and Ors. vs. State of Bihar)
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
3. (2011) 2 MLJ (Crl) 212 (Jayabalan and Ors vs. State rep. by the
Inspector of Police, CBCID, Villupuram, Villupuram District)
4. MANU/SC/0308/1987 (Subash and Ors. vs. Sate of Uttar Pradesh)
5. MANU/TN/0412/1992 (Vijayan and Ors. vs. The State)
6. (2011 ) 2 SCC 490 (Ranindra Kumar Pal @ Dara Singh vs. Republic
of India)
24 Learned counsel appearing for the appellants in Crl.A.No.626,
657 and 658 of 2011, to support his contentions, has placed reliance on the
following judgments of the Hon'ble Supreme Court and other High Courts :
1. 2000 (7) Supreme 177 (Abdul Wahab Anzari vs. State of Bihar and
another)
2. 2000 (6) Supreme 442 (State of Andhra Pradesh vs. Lankpalli
Venkateswarlu)
3. AIR 1960 SC 82 (Abdul Rehman Mohmed Yusuff vs. Mohmmed
Haji Ahmed Agbotwala)
4. AIR 1961 Kerala 99 (State of Kerala vs. Samuvel
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
5. Docid # IndianCases/295407 (Satya Deo and another in Crl.A.No.671
of 2006)
6. (2009) 15 SCC 246 (Akula vera Venketa Surya Prakash alias Baby
vs. Public Prosecutor)
7. 2009 (4) Supreme 363 Vallaba Neni Venkateswara Rao vs. State of
A.P.)
8. 2012 (4) Supreme 530 (Anand Mohn vs. State of Bihar)
9. (2006) AIR SC 2500 ( Budh Singh and others vs. State of U.P.)
10. 2014 (10) SCC 270 ( Sukhgit Singh vs. State of Punjab)
11. AIR 1954 SC 657 ( Moti Das vs. State of Bihar)
12. 2007 (5) Supreme 222 (State of Punjab vs. Sanjiv Kumar alias
Sanjive)
13. 1997 (2) Supreme 67 (State of U.P. vs. Dansingh
14.(2009) 6 S.C.R. 145 (State of M.P. vs. Chunnia Lal alias Cunni
Singh)
15. 2000 (1) Supreme 584( Masum Sha Hasana Sha Musalman vs. State
of Maharashtra)
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
16. (2009) 2 S.C.R. 2009 382 (Ashbai Machindra Adhagal vs. State of
Maharashtra and ors. )
17. (2020) 9 S.C.R.593 ( Supreme Court in Hitesh Verma vs. State of
Uttar Khand)
18. 2001 (1) Supreme 549 (Rukaram Annaba Chavan & anr vs.
Machindra Yashwant Patil & Anr.)
19. AIR 1987 SC 1222 (Subash and Shiv Shankar v. Sate of U.P.)
25 Learned Senior Counsel appearing for the appellants in
Crl.A.No.622 and 670 of 2011, to support his contentions, has placed
reliance on the following judgments of the Hon'ble Supreme Court and
other High Courts :
1. 2003 CRI. L. J. 1333 (Smt.Alka A.Misra vs. J.P.Shoke and ors.)
2. 2004 SCC (Cri) 2104 (State of Orissa through Kumar Raghvendra
Singh and ors. vs. Ganesh Chandra Jew)
3. 1996 SCC (Cri) 128 (R.Balakrishna Pillai vs. State of Kerala and
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
another)
4. 2015 CRI.L.J. 2958 (Kartik Ram & ors. vs. State of MP)
5. 2006-2-L.W.(Crl) 546 (The Inspector of Police P.R.C.Unit,
St.Thomas Mount Police Station, Chennai. vs. Kaliyaperumal)
6. 2009-2-L.W.(Crl.) 1347 ( V.P.Kuppurao vs. The DGP, Tamilnadu)
26 Learned counsel appearing for the appellants in Crl.A.No.618
of 2011, to support his contentions, has placed reliance on the following
judgments of the Hon'ble Supreme Court, with regard to prior sanction to
prosecute the Public Servant:
1. (2015) 12 SCC 231 ( D.T.Virupakshappa vs. C.Subash)
2. (2006 ) 4 SCC 584 (Sankaran Moitra vs. Sadhna Das and another)
27 Learned counsel appearing for the appellants in Crl.A.No.625
of 2011, to support his contentions, has placed reliance on the following
judgments of the Hon'ble Supreme Court:
1. (2000) 8 SCC 323 (Navinchandra N. Majithia vs. State of Meghalaya
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679, 682, 690 and 692 of 2011
and ors)
2. (2022) 9 SCC 321 (Jagjeet Singh and ors. vs. Ashish Mishra @ Monu
and anr. )
28 Learned counsel appearing for the appellants in Crl.A.No.665
of 2011, to support his contentions, has placed reliance on the decision of
the Hon'ble Supreme Court reported in (2011) 5 SCC 423 (Shaji and ors vs.
State of Kerala) and the learned counsel appearing for the appellants in
Crl.A.No.660 of 2011, to support his contentions, has placed reliance on the
decision of the Hon'ble Supreme Court in the case of Dana Yuadav @ Dahu
& Ors vs. State of Bihar in Crl.No.1156-57 of 2001.
29 Per contra the learned Additional Solicitor General for the
respondent would submit that no doubt the wrong doers have to be dealt
with due process of law. It is the primary defence of the appellants/accused
that since the Vachathi Villagers involved in smuggling of large number of
sandal woods, the Forest officials took action against the Villagers and
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657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
hence the Villagers foisted false case against the officials. Even assuming
that there was smuggling of sandal wood in the Chitheri hills near Vachathi
Village, some of the villagers might have been involved in the smuggling,
which does not mean the entire innocent villagers have to be suffered.
30 No doubt, the forest officials went for raid and they have taken
action to prevent smuggling of sandal wood, but however, in this case, it
cannot be stated that the entire villagers were involved in the smuggling
activities. The victims have clearly stated that they were in their houses and
some of them were in the field. At that time, the forest officials went and
dragged them out from their houses and in the respective places or fields to
the Banyan tree. All the witnesses have categorically stated that while they
were in the house or the agricultural field or grassing the cattle, the officials
went there and caught hold their tuft and dragged them to the Banyan tree
and they gathered all Villagers under the tree. The uniform force beaten the
Villagers and later they identified 18 young ladies alone and took them in a
Lorry under the guise of finding out the sandal woods to the lake area and
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679, 682, 690 and 692 of 2011
committed rape on them. Even though, during the test identification parade,
they could not identify, due to various reasons, but however, during trial
when they were produced before the Court they were able to identify the
accused and merely because they could not identify the accused during test
identification parade does not mean subsequently they could not identify
them before the trial Court.
31 Further he would submit that the victim ladies soon after the
occurrence immediately were taken to the Forest Range Office, Harur and
they were kept there for a whole night and obtained thump impression and
signatures. Subsequently on the next day they were remanded to judicial
custody alleging that they committed the offence of smuggling of sandal
wood and also they attacked the officials and prevented them from
discharging their official duty. They were all under the custody and control
of the police officials as well as the forest officials for a whole day and
because of criminal intimidation made by the appellants, they could not
reveal the same before the Judicial Magistrate for more than a month.
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679, 682, 690 and 692 of 2011
Thereafter two month later they came out on bail.
32 Even the complaint lodged by the victims had not taken for
investigation immediately and after some efforts, they approached this
Court. The Deputy Superintendent of Police, CBI/SEP, registered the case
in pursuance to the direction of this Court and investigated the matter. The
occurrence had taken place on 20.06.1992, whereas, investigation started
only in the year 1995. The Investigating Officer gathered all the documents
from the Department concerned as to who are all participated in the raid and
also they went to Vachathi Village and examined the victims and some of
the villagers and found that the occurrence had taken place during the
relevant period and after collecting all the particulars and oral and
documentary evidence, laid charge sheet.
33 Prosecution in order to prove its case examined 75 witnesses
and all the witnesses have categorically stated about the occurrence and also
the oral and documentary evidence proved that the appellants/accused have
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679, 682, 690 and 692 of 2011
committed the charged offence. Since all the documents are gathered by the
Investigating Officer from the Department concerned through official
communication based on the request letter, seizure of the materials through
seizure mahazar is not fatal to the case of the prosecution. The documents
are all official documents obtained through proper channel and hence non
preparation of Receovery Mahazar is not fatal to the case of the prosecution.
34 Further he would submit that the occurrence said to have taken
place on 20.06.1992, whereas the case was registered only in the year 1995
and investigation conducted thereafter and hence question of conducting
medical examination on the victims would not helpful and would not serve
any purpose. Victims are only members of ST community and already case
was registered after two years and there was no dispute that the victims are
not members of the ST community. Mere non production of the community
certificate is not fatal to the case of the prosecution, since which are all
undisputed facts. As already stated the occurrence was in the year 1992 and
the case was registered in the year 1995 and the accused are all members of
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679, 682, 690 and 692 of 2011
uniform force. It is very difficult for the victims to speak freely about the
occurrence and identify the accused.
35 All the contradictions pointed out by the learned counsel for
the appellants are not material contradictions and the same are not fatal to
the case of the prosecution. It is contended that to prosecute the public
servant while discharging official duty, prior sanction is necessary and
prosecution has failed to obtain sanction. It is to be noted that during the
raid, the uniform force assaulted the Villagers and committed the offence of
rape on 18 young ladies of the Village and also caused damage to the
properties of the Villagers, which are all not official duties. Therefore, the
prior sanction would not applicable to the appellants.
36 Based on the directions of this Court, CBI registered the case
and Special Officer was deputed for investigation and therefore the
Investigating Officer is the competent officer and hence the accused cannot
dispute the competency of the Investigating Officer. Further, for the very
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679, 682, 690 and 692 of 2011
first time, during the appeal, the appellants are raising this defence, which
cannot be accepted. Prosecution has proved from oral and documentary
evidence that the appellants/accused committed the charged offence. The
trial Court has rightly appreciated the evidence and has come to the
conclusion that the appellants/accused have committed the charged offence
and therefore convicted the appellants/accused. There is no merit in these
appeals and the same are liable to be dismissed by confirming the judgment
of conviction and sentence passed by the trial Court.
37 Heard the learned respective counsel for the respective accused
and the learned Additional Solicitor General for the respondent. Perused the
materials and original records and also the citations relied on by the
respective counsel.
38 All the accused are the officials of Forest Department, Revenue
Department and Police Department. Crux of the prosecution case is that on
20.06.1992 more than 200 officials from the Forest Department, Revenue
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679, 682, 690 and 692 of 2011
Department and Police Department assembled unlawfully under the guise of
preventing the Villagers from smuggling the Sandal Woods in large
numbers in and around the Vachathi Village and restrained the Villagers
from moving and beaten them and raped 18 young ladies and also caused
damages to their properties, who belong to SC/ST community.
39 As already stated in order to prove the case of the prosecution,
on the side of the prosecution, totally 75 witnesses were examined and 324
documents were marked. On the side of the defence, 3 witnesses were
examined and 32 documents were marked.
40 As far as competency of the investigating officer is concerned,
the learned counsel for the appellants vehemently contended that the
Investigating Officer P.W.75 is not a competent officer to conduct
investigation, which is violation of mandatory provisions under the SC/ST
Act. This is the peculiar nature of the case that the case was not registered
immediately soon after the occurrence based on the complaint given by the
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679, 682, 690 and 692 of 2011
affected parties. Admittedly this Court vide its order in W.P.No.14945 of
1992 dated 24.02.1995 directed the CBI to register the case and investigate
into the matter. Accordingly CBI registered the case and investigated the
matter. P.W.75 was authorised to investigate the case. It is the main
contention of the learned counsel for the appellants that since the offence
involved in this Case is under the SC/ST Act, officials who are not less than
a rank of DSP alone should conduct investigation. In this case, even P.W.75
in his deposition has stated that he is DSP, CBI and therefore he is a
competent person. Even otherwise, the offence said to have taken place on
20.06.199. This Court in W.P.No.14945 of 1992 vide its order dated
24.02.1995 given direction to CBI to register case. Even though the Act was
enacted in the year 1989 and came into force on 11.09.1989, whereas the
Rules formulated only in the year 1995, which came into force on
31.03.1995. This Court allowed the writ petition on 24.02.1995 and the CBI
registered the case in RC 3/5/1995 on 20.03.1995, which was marked as
Ex.P228. Therefore the rules came into force only on 31.03.1995 and hence
the case was registered on 20.03.1995 i.e. prior to the Rule came into force.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Hence at any angle the contention of the learned counsel regarding
competency of P.W.75 is not sustainable and this Court finds P.W.75 is the
competent officer.
41 Coming to the defence of prior sanction of prosecution, no
doubt all the accused are public servants. Even though they engaged in
performing the official duty, but, however when all the officials exceeded
their limit and were involved in criminal offence, the sanction of
prosecution is not necessary.
42 In this case, the allegation against the appellants are on
20.06.1992 all the appellants went to Vachathi Village between 4.00 to 7.00
P.M and assembled there unlawfully and went to the houses of the villagers
and took the victim girls from their residence in an unlawful manner by
threatening, attacking and dragging them and gathered them under Banyan
tree. The accused also dragged some of the victims, who were in the
agricultural work or grassing the cattle and forced them to assemble under
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679, 682, 690 and 692 of 2011
the Banyan tree and also restrained them. Thereafter they picked 18 young
ladies and took them in a Lorry under the guise of finding out the hidden
places of the sandal woods to the lake area and committed rape on them and
in and around the place they were subjected to sexual assault, which is not
official duty. The allegation against the appellants are the commission of
offence under the IPC and SC/ST Act and also some of the victims were
forcefully made to beat Oor Goundar by threatening them if they failed to
do that, they would be dealt with otherwise. Hence the victims have also
beaten him. Since all the victims belong to ST community, the accused also
committed the offence under the SC/ST Act. Therefore the allegations are
not while discharging the official duty. Hence sanction of prosecution is not
necessary. Therefore the contention of the learned counsel is not acceptable
and non obtaining of sanction of prosecution is not fatal to the case of the
prosecution.
43 One of the main contentions raised by the appellants is that all
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679, 682, 690 and 692 of 2011
the appellants went for official duty and hence no question of unlawful
assembly and hence the offence under Section 147 IPC would not attract
and even otherwise there was no charge under Section 146 IPC and without
making 146, 147 would not get attracted. It is the further contention that
prosecution has not proved the common intention to form unlawful
assembly and the appellants were involved in any illegal activities and
hence charge under Section 149 would also not attract.
44 In this Case, there is no doubt, since there were smuggling of
sandal wood activities at Chitheri hills, there was a plan for mass raid.
Further since large number of Vachathi villagers were involved in
smuggling of sandal wood and whenever the appellants went for raid, the
smugglers escaped and hidden in the forest, the official could not secure
them. Therefore the appellants formed big team in order to conduct raid on
19.06.1992. The team of members consisting 40 forest officials under the
head of A17 went to Chitheri hills and stayed there. On next day on
20.06.1992 they proceeded at 5.00 a.m. and at Kalasambadi, on the way,
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679, 682, 690 and 692 of 2011
they were able to chase some of the persons who were involved in
smuggling of sandal wood and they reached near Vachathi village, which is
adjacent to the Chitheri hills. Forest officials made enquiry regarding
removal of sandal wood in and around the place and during the course of
enquiry, the officials beaten P.W.5 on hearing his alarm, some of the
villagers reached the place and there was a quarrel between the officials and
the Villagers and there was untoward incident taken place due to which
some of the officials got injuries. In that way P.W.3 got grievous injury and
with the help of the villagers, he was taken to the Hospital at Harur by
Bullock Cart. Thereafter the team of the various officials and police and
revenue officials arrived at the Vachthi Village at 4.00 p.m. They thought
that the entire Vachathi Villagers prevented and attacked the officials
together and hence in order to teach lesson to the Vachathi Villagers, they
chased young ladies and children and some of the male members those who
were in the house, in the field and some of them returned from the working
place. The officials dragged the villagers, who were available at that time
and gathered under the Banyan Tree situated in the Vachathi Village nearby
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
the Temple.
45 The witnesses have clearly stated that they were in the house
and preparing foods. The Officers of Uniform Force entered into their
houses and forcibly took them to the Banyan Tree and restrained them from
moving. At 6.00 p.m. the officials selectively chosen 18 young girls and
took them to the lake area in and around the lake and river bush they were
rapped by the uniform force. Therefore, the act committed by the officers
are not coming under the purview of the official duty. Even though they
may gathered to the Vachathi village in order chase the smugglers of sandal
wood and also to catch the wrong doers and recover the sandal wood, the
moment they turned to forcefully take the innocent ladies who were in their
houses, in third hand methods and assembled them under the Banyan tree
and restrained them for more than hours and at last they took 18 young girls
separately and committed rape on them, they deviated from their official
duty and gathered unlawful assembly of all the officers and committed the
offence under Sections 147 and 149 IPC. The 18 victim ladies have also
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679, 682, 690 and 692 of 2011
clearly spoken that some of them were in the home, some of the them have
stated that they were in the field, few of them were grassing the cattle. The
uniform force came to the Vachathi village and forcibly took whoever
available dragging them by holding tuft and assembled them under the
Banyan tree.
46 The officials went to the extent of taking 18 young ladies and
committing rape on them. Subsequently at the night hours, the officials took
all the persons to the Forest Range Office, Harur, where they forced all the
family members and made the victims to beat the Oor Gounder with broom
and when the victims refused to do the same, the officials attacked the ladies
and threatened them and forced them to beat the said Oor Goundar with
brooms and hence as no other option, they also beaten the Oor Goundar
with brooms. The uniform force tortured the victims and obtained signature
and their thumb impression forcefully. Some of them were beaten by the
uniformed force and the victims sustained injury. On the next day night they
were remanded to judicial custody. They were kept in prison for more than a
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679, 682, 690 and 692 of 2011
month. Later they came out on bail.
47 Further evidence of the witnesses clearly shows that after
taking the villagers from the Banyan tree to the Harur Forest Range office at
about 8.00 p.m. on the next day, the remaining officials, who were stayed in
the Vachthi Village entered into the village and damaged the goods,
properties and houses of the Villagers and snatched the things which were
kept in the houses and also chopped the goats and cooked and eaten the
same and they continued the atrocities for a weak. Some of the officers took
away the valuable properties, goats and chickens of the Villagers. Therefore
the act committed by the appellants not in the course of the official duty.
The trial Court also rightly appreciated the oral and documentary evidence
and found the accused guilty for the charged offences.
48 Further the learned counsel for the appellants contended that
the prosecution has not produced community certificates of any of the
victims to show that they belong to the members of the ST community and
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679, 682, 690 and 692 of 2011
in the absence of the same conviction under the SC/ST Act is unsustainable.
49 Admittedly the case was registered after two years based on the
directions issued by this Court. Thereafter CBI investigated the matter and
collected materials and filed charge sheet before the Court below. Based on
the materials available, the trial Court framed charges and one of the
charges framed under the SC/ST Act. All the victims have clearly stated that
they belong to the members of ST community. Even in the deposition itself
their community has been mentioned as ST and further more while cross
examination the appellants never questioned the community of the victims.
They have also not disputed the community of the victims and had not
stated that the victims are not members of the ST community. Even the
appellants during cross examination put a suggestion that most of the
Vachathi Villagers are members of the ST community and they were
involved in smuggling of sandal wood. Therefore since the communities of
the victims are not disputed and CBI also after two years of occurrence
based on the directions of this Court started investigation, they could not
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679, 682, 690 and 692 of 2011
secure the community certificates of all the victims. Mere non production of
the community certificate may not be a fatal to the case of the prosecution,
when the communities of the victims are not disputed by the appellants.
Therefore the defence of the appellants in this regard is not sustainable.
50 Under the guise of raid from 20.06.1992 to 24.06.1992 the
uniform force have committed several unlawful activities. Most of the
villagers of Vachathi were arrested and remanded to judicial custody and
some of them have escaped and hidden in the hills. The victims, after
coming out on bail, along with some of the villagers, with the help of local
MLA made complaint to the officials, but action has not been taken on the
same. They filed writ petition before this Court and the matter went up to
the Hon'ble Supreme Court and on directions of this Court, CBI registered
the case and investigated the matter based on the complaint given by the 18
raped victims.
51 In order to substantiate the case, before the trial Court,
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prosecution examined 75 witnesses. P.W.64, Annamalai, ex-MLA of Harur
has deposed that he has taken several steps to register the case against the
uniformed force, who had participated in the raid in Vachathi village during
the relevant period. Soon after receiving the information, he also conducted
inquiry in Vachathi village and approached the authorities, but he could not
get any fruitful result and therefore he approached the Court and there also
they could not get any remedy for suffered villagers. At last, he approached
this Court by way of writ petition, in which directions had been issued and
the case has been registered by the CBI.
52 P.W.63 who was a President of All Women Association in
Tamilnadu at the relevant point of time, has deposed that in the year 1992
one Pankajavalli members of the association informed her about the
occurrence in the Vachathi village. Soon after receiving the information, she
went to the Vachathi Village on 31.07.1992 and enquired the villagers and
also the raped victims and based on the information gathered, she sent a
report to P.W.72. Based on the same P.W.72 took note of that and
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679, 682, 690 and 692 of 2011
conducted enquiry in the Vachathi Village in respect of occurrence and
based on the same she sent report Ex.P210 to SC/ST National Commission.
53 It is surprise to note from reading of the evidence of P.W.64 the
local man, who took all pain to lodge complaint and succeed and the
evidence of P.W.63 who was in position in the All Women Association,
Tamil Nadu and who sent a report to the leaders of the SC/ST community
and atlast P.W.72, who also made enquiry and sent report to the SC/ST
National Commission, even then no action was taken by any of the officials
and no case was registered against the erred officials. The erred officials
registered several cases against innocent ladies in the Vachathi for the
alleged offence of smuggling of sandal wood and assaulted them and
remanded them to judicial custody. They also assaulted the Villagers and
the ladies physically and sexually. Their properties were also damaged and
also looted and one of the persons in the Village namely Oor Goundar has
also been humiliated with their own village ladies by brooms. But
unfortunately none of the authorities have taken note of the same and
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
initiated action much less than the counter case. After much pain of some of
the Socials Workers as stated supra, at last the case was registered based on
the directions of this Court in W.P.No14949 of 1992 dated 29.09.1995
Ex.P174 by the CBI. Even then, they have not registered any case against
actual sandalwood smugglers.
54 The another main contention taken by the appellants that none
of the witnesses have identified any of the appellants as to whether they
have participated in the raid during the occurrence and none of the
witnesses have identified those who are alleged to have committed rape.
Test identification parade was conducted by the Chief Judicial Magistrate at
that time witnesses have not identified the accused and therefore
prosecution has not proved its charges beyond reasonable doubt against any
of the appellants and therefore the appellants are entitled for acquittal on the
ground of benefit of doubt. Further they contended that the Investigating
Officer has not conducted investigation properly and they have not prepared
observation mahazar and the documents were not collected/seized through
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
seizure mahazar. In the absence of the same, case of the prosecution is
unsustainable and prosecution has not proved that all the appellants
participated in the raid and they have committed the offence. Therefore the
appellants/accused are entitled to get acquittal.
55 Admittedly, the alleged occurrence is said to have taken place
on 20.06.1992 to 22.06.1992. Since most of the villagers who were caught
hold by the officials were remanded to judicial custody for more than a
month and thereafter only they came out on bail. When they came back to
their village, they found all the properties and houses were damaged and
cattle, pumpset and other valuable things like engines in the agricultural
field were also damaged and some of their properties were looted. While the
victims were in prison they got information from some of the victims and
therefore P.W.64 tried to bring home the atrocities and offence committed
by the accused. He approached several authorities and in that way he
approached this Court and they were able to get order only in the year 1995
and thereafter investigation started. However, no case was registered against
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
the real sandalwood smugglers.
56 The learned Judicial Magistrate, who conducted Test
Identification Parade on 15.09.1995, has given a report, which was marked
as Ex.P172. In that report he has clearly elaborated the difficulties faced by
him and the atrocities made by the members of the uniformed force during
the test identification parade. Further he has stated that a group of persons
produced for conducting the test identification parade have not co-operated
for the parade and they have wantonly created some problems and hence he
could not even conduct the parade, since there is no safety for him and the
witnesses. The report Ex.P172 itself clearly shows that the accused, who
participated in the identification parade had not allowed the Magistrate to
conduct the parade in a peaceful manner and they have not even allowed the
victims to identify the accused. It is surprise to see that even the Magistrate
himself faced these kind of difficulties during the parade, it could not be
imagined that what kind of difficulties that could have been faced by the
innocent villagers of Vachathi Village. Therefore the defence taken by the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
learned counsel that the victims had not identified the accused is not at all
sustainable.
57 Further, the victims themselves have clearly spoken that they
were criminally intimidated by the accused that if they revealed anything
about the sexual assault, they would take away the life of their family
members. Therefore the witnesses could not identify, for which the accused
are not entitled to get acquittal. However during the trial before the trial
Court, the victims felt somehow safe and protected and they identified some
of the accused were involved in the offence under Section 376 IPC and
other offences.
58 It is not the case that immediately soon after the occurrence,
case was registered and investigation started and the accused are ordinary
men, still the victim could not identify the accused, whereas in this case, all
the appellants are public servants viz. officials of Forest, Police and
Revenue Departments and the victims are remote villagers, who are illiterate
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
tribal and they are only coolie workers. The uniform force under the guise
of raid mishandled the villagers and committed all type of atrocities both
physically, verbally and also mentally.
59 It is the contention of the learned counsel for the appellants that
the Investigating Officer has mechanically included all the names in the list
as accused and has not find out those who have actually participated in the
raid and that list was also not collected through any mahazar. From the
evidence of P.W.75 Investigating Officer it is clear that it is only the official
document obtained through official communications. Therefore the question
of preparation of mahazar does not arise.
60 Even in the document Ex.P134 filed by A3, it was admitted
that more than 200 persons had participated in the raid. Therefore combined
reading of the Ex.P143 and evidence of P.W.13 it is proved all the
appellants had participated in the raid.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
61 From a careful reading of the evidence of P.Ws.13, 63, 64 and
72, it is clear that there were atrocities made by all the appellants towards
the victims and the other members of the village and damaged properties of
the villagers which also corroborated by evidence of the victims and other
villagers. Evidence of P.W.1, 3, 6, 7 proved the conduct of raid, which is
not disputed. Even the evidence of P.W.3 clearly proved that on 19.06.1992,
90 forest officials at the head of A17 went to the Chitheri hills and stayed
there at night hours then on the next day morning they proceeded to
Vachathi at 5.00 a.m. on 20.06.1992 and while going on the way to
Vachathi they went to Kalasambadi.
62 P.W.1, who is one of the members participated in the raid and
was working in the Forest Department has deposed that on 20.06.1992 @
5.00 a.m. they started Chitheri hills to Kalasambadi. P.W.4 who was
working as Post Master during the relevant period has deposed that at
9.00 a.m. P.W.3 came to Kalasambadi when he was standing outside the
Post Office around 50 Forest officials followed him under the head of A17
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
and they called him, but when he refused, the officials threatened and
forcefully took him and also caught hold of three persons. They all went to
Vachathi Village and nearby Tamarind tree there was altercation between
the Villagers and the officials and thereafter he left the place. He has also
admitted during the cross examination that both of them have attacked each
others.
63 P.W.5 has also deposed that he is the resident of Vachathi
village and he was having agricultural land, in which, some of the
smugglers hided the sandal wood and he refused for the same, but, they
promised to pay Rs.200/- and requested not to inform anyone. On
20.06.1992, the forest officials came for raid to that place and enquired
about the hidden sandal wood and the forest officials attacked him and he
fell down and lost his conscious. Thereafter he left the place.
64 P.W.6 who is also a Vachathi villager has stated that on
20.06.1992 the forest officials were in the land of P.W.5 and at that time
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
during the course of enquiry the officials beaten P.W.5 and on hearing the
alarm, around 15 to 20 villagers gathered in the land of P.W.5. On seeing
the Forest Range Officials, the villagers questioned them and there was
altercation due to which some of the officials also sustained injuries.
65 P.W.7 is the Oor Gounder at the time of occurrence and he has
given evidence that the villagers were doing Coolie work in the agricultural
field and some of them were engaged by the outsiders to cut and remove the
sandal wood in the hills near-by the Vachathi village. The villagers were
engaged only as Cooli that too not all the villagers and some of them only
were engaged. Other cooli workers were doing their agricultural work in
their field. Several times complaints were made before the official
concerned, but no action was taken, since some of the forest officials
themselves colluded with the smugglers and with the help and assistance of
some of the higher officials only the sandal woods were smuggled.
66 On the date of occurrence on 20.06.1992 one of the officials
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
one Selvaraj sustained grievous injuries and the Vachathi villagers only
helped to take him to the Hospital. Therefore the main contention of the
learned counsel for the appellant that the Vachathi Villagers were involved
in the smuggling activities and when the officials went there for raid they
were attacked with deadly weapon by the villagers and the officials went
without any weapons and therefore subsequently they were arrested and
registered the case and to escape from that case, they foisted false case are
not acceptable.
67 From the evidence of P.W.13, it is clear that they have given
complaint before the District Collector and District Forest Officer and
Superintendent of Police regarding the smuggling of sandal wood by the
outsiders with the help of the members of the Vachathi village. The persons
namely Murugan, Ganesan, Pollachi Ramasamy and Namakkal Mastan with
help of various Range Officers Thandapani and Nagarajan, had engaged
some of the members of Vachathi villagers in the work of cutting and
removing and hiding the sandal woods illegally. It has become usual for the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
smugglers with help of forest officials and the above said persons come and
take the sandal woods from the hidden places. Therefore from the evidence
of the above villagers, it is clear that there were large number of smuggling
activities of sandal wood but all were doing by the big shots with the help of
the forest officials. Unfortunately these innocent villagers were made as
accused in the offence of smuggling of sandal wood and foisted several
cases against them. There are no materials to show that the Forest officials
have filed case against those named sandalwood smugglers.
68 Further the version of the forest officials is that they went only
without any arms and any weapon. The evidence of the victims clearly
shows that even one month prior to the raid, several times the officials went
to Vachathi Villge for raid. P.W.1 deposed that on 30.12.1991, they went to
Kappukkad for raid which is also form part of Chitheri Hills, at that time
large number of Vachathi Villagers gathered and restrained the forest
officials and they attacked and scolded the officials and some of the male
members went and hidden in the hills. Therefore they planned for mass raid
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
on 18.05.1992 and it was postponed. From the evidence of P.Ws.1 and 3, it
is clear that whenever the officials went for raid, the Vachathi villagers
gathered in large numbers and attacked the officials and prevented them
from doing their job of searching sandal wood, which were hidden illegally.
It is also their version that the Villagers attacked them with deadly weapon.
Under these circumstances, it is not believable that the officials went
without any weapon and the villagers only attacked the officials. When they
themselves admitted villagers are powerful and as and when the officials
went for raid they gathered mass and prevented them and attacked them and
hence they planned to conduct mass raid and gathered more than 500
officials and planned for raid, if that be the case of the officials, it is highly
unbelievable that they went without any weapons knowing fully well that
the villagers are powerful and more in numbers and the contention of the
learned counsel that the villagers only attacked the officials is not
acceptable.
69 It is clearly admitted that on 20.06.1992 morning there was an
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
incident and at that time since the officials attacked ex Oor Gounder and he
sustained injury, the villagers went there and questioned the same. There
was untoward incident and both side sustained injury. The fact remains from
the evidence of P.W.7, 9 only they made arrangements to take the injured
officials to the hospital. Admittedly the officials did not come with any
vehicle and they stayed during night hours on 19.06.1992 at Chitheri hills
and they came by walk over the hills and went to Kalasambadi.
70 According to defence more than 100 persons gathered and
attacked them. If at all as contended by the learned counsel for the
appellants that the Villagers wanted to attack the official and they have
deadly weapons, they should not have taken P.W.3 to the Hospital who
sustained grievous injury. The villagers took P.W.3 to the Hospital by
bullock cart. Therefore the defence taken by the learned counsel for the
appellants are not acceptable.
71 From the evidence of P.W.7 to 13, it is clear that Vachathi
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
villagers and P.W.7 Oor Gounder along with some of the Villagers made
complaint before the District Collector, District Forest Officer, but no action
was taken.
72 There is no materials to show only smugglers were arrested and
action was taken only against the smugglers. All the materials shows all the
accused, against whom the officials registered cases, are only the innocent
villagers. Even after this incident, some of the villagers with the help of the
Voluntary organisation or the member of the Welfare Association and
SC/ST Commission, have taken the matter to the Court. The authority
concerned have not heard the voice of the innocent people and even the then
Government has also not paid any attention, which clearly shows that to
safeguard some of the stake holders, like Revenue officials, Police officials
and Forest officials, no action was taken and only innocent villagers were
targeted, since they could not compete the higher officials.
73 No doubt, several cases have been registered against the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
villagers and they also fairly stated that they were engaged by the smugglers
and with the help of the forest officials smugglers were doing the smuggling
activities. For the statistical purpose unfortunately the forest official
registered cases against only the innocent villagers and for the reason best
known to them and they have not taken any action against the real culprits.
74 P.W.7 and 13 have informed some of the persons those were
involved in smuggling and who are all the officials helped the smugglers.
There is no records to show that the officials taken any action and the real
sandal wood smugglers were brought within the clutches of law. Therefore
defence taken by the appellants is not acceptable. P.W.8 has clearly stated
that the uniform force selected 18 young ladies those who are gathered
under the banyan tree and took them to the lake area at 6.00 p.m. and
brought back only at 7.00 p.m.
75 P.W.10 also stated some of the official caught hold of the
ladies and dragged them from their houses to the Banyan Tree. P.W.11 has
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
sated that revenue people were also present nearby the Banyan tree and also
identified A2 to A69. P.W.12 has also stated two of the officials came there
and assaulted with wooden log and they took the ladies nearby the Banyan
Tree and restrained them from moving.
76 P.W.13 also stated that one of the officials took the ladies and
beaten. They also made complaint before A3 and he has not taken any
action. P.W.14 has stated that village ladies were subsequently attacked by
the uniform force and they sustained injuries. P.W.15 has stated that they
helped to take P.W.3 to the hospital in bullock cart. P.W.16 has stated that
18 ladies were taken to lake area from the Banyan Tree. Subsequently on
the next day, they also chopped the goats and damaged the goods of the
villagers. P.W.17 also stated one of the official caught hold on her tuft and
dragged from her house to Banyan Tree and thereafter they chosen 18 ladies
and took them to lake area.
77 P.W.24 stated that they were sexually assaulted by the uniform
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
force and also obtained thumb impression while they were detained in the
Forest Range Office, Harur at night. P.W.25 also stated that some of the
village ladies were taken to lake area and also the uniform force assaulted
the villagers and took them to Forest Range Office, Harur and made them to
attack the Oor Koundar.
78 P.W.26 stated that 10 to 15 members of uniform force entered
into the house and forcefully dragged them to the Banyan Tree and
subsequently some of the ladies were taken by the uniform force to the lake
area and thereafter they were taken to Forest Range Office, Harur, where
their Thumb impressions have been obtained forcefully and she also
identified A105 and A111. The witnesses have also spoken about the
damages of the properties by the uniform force. P.W.27 also corroborated
the evidence of P.W.26. P.W.28 also corroborated the same and identified
the accused A25, A47, A70 and A105. She has stated that she was dragged
from the house by the uniform force and they also obtained signatures in the
office, which were marked as Ex.P20 and 21.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
79 P.W.29 also corroborated evidence of the other witnesses and
identified the accused 39, 54, 59, 60, 61, 90, 92, 95 and 111. They assaulted
them with wooden log and she also sustained injury and they obtained
signature in the forest office. Exs.P22 and 23.
80 Evidence of P.W.30 is corroborated by the evidence of other
witnesses and identified A90 and A95 who assaulted and dragged her. They
took them to the Forest Range Office, Harur and forced them to attack Oor
Gounder. They damaged the properties of the villagers and obtained thumb
impression, which were marked as Exs.P24 and 25. P.W.31 had also stated
that while she was in the house, A39, 58, 61, 70, 90, 95 assaulted her with
gun wood and also she has corroborated the evidence of the other witnesses.
81 P.W.32 deposed that when she was present in the village A43,
59 came to her house and assaulted her and she was brought to the Banyan
tree. Her evidence also corroborated with the evidence of the other
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
witnesses.
82 P.W.37 has stated that while she was in her house A38, A53,
A76 and A99 came and dragged her and she was assaulted by A114, 152.
Thereafter at 6.00 p.m. they took 18 ladies to the lake area and subsequently
took them to Forest Range Office, Harur, where they made her to attack the
Oor Gounder with broom. On the next day they obtained her signature and
thumb impression, which were marked as Ex.P95 and Ex.P69.
83 P.W.38, who was woman constable and participated in the raid
stated that at 4.00 p.m. she reached Vachathi Village at that time more than
15 members of uniform force were gathered under the banyan tree.
Thereafter at 6.00 p.m., they selected about 20 young ladies and took them
to lake and returned back at 7.30 p.m. and subsequently they also brought
them to the Forest Range Office, Harur.
84 Even the evidence of victims P.Ws.39, 41, 42, 43, 44, 46, 47,
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679, 682, 690 and 692 of 2011
48, 49, 50, 51, 52, 53, 54, 55 and 58 have clearly stated at 4.00 to 5.00 p.m.
while they were in their house some of the members of uniform force came
there and attacked and dragged them from their houses to the Banyan tree.
Subsequently they took them and in and around the lake, the river bed and
bushes they were rapped by the members of the uniform force. They also
identified the persons who attacked and rapped them.
85 The main contention of the learned counsel for the appellants is
that while test identification parade conducted by the Magistrate, the victims
did not identify the accused. But, subsequently, during the course of
recording evidence, they identified the accused. As already stated it was not
done soon after the occurrence and offence committed by ordinary men.
This is the case where the large number of uniform force in the various
departments forcefully took the 18 young ladies and made physical and
sexual torture. Further the victims were took to the Forest Range Office and
they kept there and made several tortures through out the night hours and on
the next day night they were remanded to judicial custody. Further, the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
Magistrate, who conducted the test identification parade has also clearly
stated about the atrocities made by the uniform force. Therefore the defence
of the appellants are not acceptable.
86 One of the defence taken by the appellants is that if at all any of
the village ladies were assaulted sexually or physically by the uniform force,
while remanding, they could have informed to the Magistrate, but no victim
has revealed anything about the allegation of sexual assault, which shows
that there was no occurrence as alleged by the prosecution.
87 A careful reading of the entire materials would reveal that it is
not the situation that a private individual committed the offence and a single
victim made complaint before the police and the police arrested the accused
and remanded, in which, the contention of the learned counsel can be
accepted. But, in this case all the accused are members of uniform force
both the Forest as well as the police and revenue official also participated in
the crime. The victims were under the custody of them for the whole night
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
and evidence of the victims clearly show that they were threatened by the
uniform force not to reveal the sexual assault committed by the uniform
force and if it was revealed to anyone they would take away the life of the
individual or their family members. Therefore, under such circumstances,
mere non-mentioning of the atrocities made by the uniformed force during
remand before the Magistrate, may not be a ground to disbelieve the
evidence of the victims, who clearly explained the situation and under the
said circumstances, this Court cannot accept the defence version.
88 The victims are the ladies especially P.W.48 was only 13 years
old minor girl at the time of occurrence. The accused without any humanity
took her too and committed the offence of rape. The accused had not
stopped there itself and they coloured the victims as smugglers of sandal
wood. Considering the above facts and also the situation prevailed on the
date of occurrence, the contention of the appellants are not acceptable. One
of the victims, who in fact 8 months pregnant at the time of occurrence has
also deposed that she was brutally attacked and rapped by the official.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
Therefore the contention of the learned counsel for the appellants that in
order to escape from the sandal wood case, they have foisted false case, is
not acceptable.
89 Further more, it is shock and surprise to read the evidence of
P.W.56 Head Constable in the Prison, who has deposed that all the ladies
were brought for remand on 21.06.1992 at mid-night at 12 'O clock. Only.
P.W.57 is also one of the lady Constable, accompanied P.W.56 and she has
deposed that all the ladies from Vachathi village were remanded on
21.06.1992 at mid-night at 12 O'Clock and for few days, they did not talk
with any one and they looked very sad and after a week, they informed her
that they were raped by the members of uniform force.
90 P.W.38 the Police Constable who had also participated in the
raid at Vachathi Village and on 20.06.1992 at 5.00 p.m., was also present
nearby the Banyan Tree. At that time the forest officials took 18 young
ladies to the lake area under the guise of finding out the hidden place of
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679, 682, 690 and 692 of 2011
sandal wood and came back at 7.30 p.m. and no lady constable was allowed
to accompany them.
91 If at all as defended by the accused that in order to find out the
hidden place of sandal wood only they took the ladies, they should have
taken any lady constable along with them or they should have taken any
male members of the Vachathi Village. Therefore evidence of P.W.38
clearly shows that despite the lady constable was available near the banyan
tree at the time of occurrence, the accused did not take the ladies with the
lady constable. They have selectively chosen 18 young ladies and one of
them is only 13 years old and one of them was 8 months pregnant. The
uniform force have not even taken any male member to find out the sandal
wood and taken only the 18 young ladies, which clearly shows the intention
of the accused.
92 Prosecution has clearly proved its case from the evidence of
P.Ws.39 to 55 and 58 that the members of uniform force forcefully took
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
them from their resident to the Banyan Tree in an inhuman manner handling
with third hand method and from there they picked 18 young ladies and
took them to lake area and committed rape. Those victims have also
identified the accused, those who have taken them to the Banyan Tree and
attacked and those who have committed rape on them and also while
detaining in the Forest Range Office, Harur, forcefully obtained thumb
impression. The above facts all clearly shows the appellants/accused went
for raid, assuming that it may be a legal object, but subsequent activities of
the appellants clearly shows that they exceeded their limits and went to the
extent of doing unlawful activities, destroying the whole village. They
committed charged offences since all the victims are members of the ST
community, which was not disputed by the defence. The appellants also
made the victims to attack Oor Gounder, who also belongs to ST
community.
93 Further, this Court quashed the cases registered against the
victims as false cases, which also proves that the case foisted by the
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
officials against the victims are purely false one and in order to escape from
the offence committed by them they foisted the sandalwood case.
94 As far as the defence regarding genuineness of the complainant
is concerned, cases of this nature, a case may be registered even from the
information received from public, if the same is found to be true and
genuine. Even though certain discrepancies and inconsistencies regarding
signature, Thumb impression and names, admittedly the complaint has not
been given under normal circumstances. However, all the 18 victims have
clearly deposed about the atrocities of the accused and hence they given
complaint. It is settled proposition of law that the complaint is not an
encyclopedia. However, the case was registered only based on the direction
of the Court. Therefore the contention of the appellants are not sustainable.
95 P.W.63, who is a social activist viz. National Vice President of
All India Women Association has clearly deposed that while she was in the
post of Tamil Nadu Executive Secretary of the All India Women
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Association, on an information from Dharmapuri District Secretary of the
above Association , she and the General Secretary went to the Vachathi
Village on 31.07.1992 and conducted an enquiry. After conducting the
enquiry, they informed to P.W.72, who was the Director of SC/ST
Commission. Based on the complaint Ex.P209 given by state wing, she
went to the Vachathi Village and conducted an enquiry between 06.08.1992
and 08.08.1992 and sent a report Ex.P210 to National Commission of
SC/ST. The same was brought to the knowledge of the State Government
and the then State Government has not taken any action against the erred
offiers or even the Police has not registered any case. Subsequently the case
was registered only by the CBI based on the directions of this Court in the
writ petition. Till then no case was registered by the Harur Police on the
complaint given by P.W.64.
96 The evidence of P.Ws.63, 64, 57 and 72 clearly shows that
there was rape committed by some of the appellants and neither the police
has registered the case nor the revenue officials initiated any proceedings.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Even though the Tahsildar conducted investigation and filed a report
Ex.P204, but reading of the same would go to show that in order to
safeguard the officials, false report has been filed. The reports of P.W.63
and 72 also clearly shows that even prior to registering the case, they went
to Vachathi Village and enquired the victims and the victims have clearly
stated that they were rapped by the members of the uniform force.
Subsequently the witnesses have been examined before the Court as
witnesses and they have corroborated the same and also stated that P.W.63
and P.W.72 also enquired them. Subsequently CBI officials came and
enquired. Therefore the report of P.W.72 clearly shows that the appellants
have committed the offence.
97 This Court as a final Court of fact finding has to re-appreciate
the entire evidence and give its independent finding. Accordingly this Court
has re-appreciated the entire evidence and finds that the appellants have
committed the charged offences. The witnesses have clearly deposed that on
the next day i.e. on 21.06.1992 guise of the raid, officials went and damaged
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
the properties and also looted cattle of the villagers and chopped and
cooked them with fire and taken as food. Subsequently, they had done the
same thing for 3 days. The villagers are members of ST community. Even
though the accused are public servants, the act committed by the appellants
are not the official duty and they all committed all type of unlawful and
illegal acts towards the innocent villagers of Vachathi Village.
98 Even though the learned counsel for the appellants submitted
that A59 accompanied P.W.3 while going to the Hospital, he was all along
with him and he could not be present in the Vachathi village at the time of
occurrence and the Medical Officer has also stated that he was present,
however on reading of evidence of P.W.3 he himself has not stated that A59
accompanied him and he only took him to the Hospital. P.W.7 and P.W.9,
who are the villagers have clearly stated that they only took P.W.3 to the
Hospital by arranging Bullock cart. None of the witnesses have stated that
A59 accompanied P.W.3. Even the witness P.W.33 who was working as
Doctor in the Harur Hospital has deposed that on 20.06.1992 one Selvaraj
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
came to the Hospital and accompanied Rajarathinam A59, however, during
cross examination he has not stated so. Therefore none of the witnesses
either P.W.3 or the other witnesses who made arrangement to send P.W.3 to
the Hospital have spoken that A59 accompanied P.W.3. Further, these
documents were obtained only after registration of the case and the Doctor
was also not sure whether A59 alone brought P.W.3 and he was all long
with the injured. Once the accused took a plea of alibi, it is for him to
substantiate his defence. Except the words of Doctor, he has not shown any
materials to prove that he was in the Hospital at the relevant point of time.
The Doctor was also not sure whether A59 accompanied the injured. A59
is not a known person to the Doctor. Therefore, the defence version is not
acceptable.
99 From reading of oral and documentary evidence it is clear that
all the appellants while conducting the raid, deviated the object of the raid.
From the evidence of the witnesses it is clear that all the officials including
the District Collector, District Forest Officer and the Superintendent of
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
Police even though know who are the real culprits, for the reason best
known to them, they have not taken any action against them and to
safeguard the real culprits, the innocent villagers were victimised. Therefore
this Court comes to the conclusion that prosecution has proved that all the
appellants committed the offence. Even though there are discrepancies and
contradictions, considering the peculiar nature of this case, and in view of
the fact that unfortunately the case was also not registered immediately due
to several hurdles and started investigation only after 3 years of the
occurrence and trial was conducted after 10 years, which was inevitable,
those are not material contradictions, which would go to the root of the case
of the prosecution.
100 This Court finds that the evidence of all the victims and
prosecution witnesses are cogent and consistent, which are reliable. This
Court as appellate Court finds that the prosecution has proved through the
evidence of the prosecution witnesses and documents, which inspires
confidence of this Court.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
101 For the above observations and reasons, the citations relied on
by the respective counsel are not applicable to the present case on hand,
since the facts of the present case are unique and differ from the cases relied
on by the learned counsel for the appellants and this Court has given
elaborate reasons for the same. Further, the evidence of defence witnesses
do not inspire the confidence of this Court and as such, the same are
rejected.
102 The then Collector of Dharmapuri District and the Revenue
officials have not shown any interest in the matter and did not care about the
seriousness of the issue, even P.W.13 had given complaint to them prior to
the raid regarding smuggling of sandalwood by named persons. They have
not taken any action against real sandalwood smugglers. In order to
safeguard the actual smugglers and the big-shots, the revenue officials,
police officials and also the forest officials, with the help of the then
Government, played a big stage drama, in which the innocent tribal women
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
got affected much and the pain and difficulties faced by them have to be
compensated in terms of money and jobs. Even there is no Check Post
between the Vachathi Village and the hills which is the distance of the
quarter kilometer. When it is the case of the appellants/accused that the
Vachathi villagers were involved in the cutting and smuggling of
Sandalwood trees and whenever it was questioned and conducted raid the
same was prevented by them by attacking the officials, the Government
should have taken effective steps to prevent the same atleast by setting up a
Check Post in the way, through which the alleged smuggling had taken
place. But, to monitor and to prevent the alleged smugging by the Vachathi
villagers, the Forest Department officials have not taken any effective steps,
which clearly shows that the officials colluded with the real smugglers, who
engaged some of the Villagers as Coolie. Unfortunately the then
Government failed to protect the tribal women and it only safeguarded the
erred officials and also failed to find out the real sandal wood smugglers.
103 In view of the above observations and considering the nature of
offence and since the appellants, who are the Government officials chatted
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
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679, 682, 690 and 692 of 2011
the entire Vachathi Villlage, the following directions are issued:
1. Despite prior to the raid P.W.13 given many complaints to the District
Collector and District Forest Officer, they have not taken any action
on the complaint. Hence the Government of Tamil Nadu is directed to
pay Rs.10 Lakhs immediately to each of the victims directly to their
accounts in line with the decision of the Division Bench of this Court
reported in 2016 (2) LW 561 (The Divisional Manager, The Oriental
Insurance Company Limited, Kannur, Vs. Rajesh and Others), if the
victim is not alive, pay the compensation to the family members of
the victim concerned and out of Rs.10 lakhs, the Government shall
recover 50% i.e. Rs.5 Lakhs from the accused, who have been
convicted for the offence of rapre on the 18 victims and report the
same before this Court.
2. Further, the Government of Tamil Nadu is directed to provide a
suitable jobs either by self employment or by permanent job to the 18
victims or their family members for their livelihood, which were
destroyed by the then Government officials.
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
3. The Government of Tamil Nadu shall report to this Court regarding
the welfare measures taken to improve the livelihood and standard of
living of the Vachathi Villagers, after this incident.
4. Further, stringent action shall be taken against the then District
Collector, the then Superintendent of Police and finally the then
District Forest Officer during the relevant period.
104. In view of the above discussion and for the foregoing reasons,
this Court finds all the accused have committed the charged offences. There
are no merits in these appeals and the same are liable to be dismissed.
105. Accordingly, all the criminal appeals stand dismissed as devoid
of merits and substance. Consecutively connected miscellaneous petitions
are closed. The trial Court is directed to secure the custody of the
appellants/accused to serve remaining period of sentence, if any.
106. At the time of pronouncing the judgment today, it is brought to
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Crl.A.Nos.618, 622, 624, 625, 626, 635, 649, 653, 654,
657, 658, 659, 660, 662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
the notice of this Court by the learned counsel for the appellants in
Crl.A.No.665 of 2011 that the fourth appellant therein, namely A-176
A.Kuppu Singh died on 03.05.2023, in proof of which, he has also produced
a copy of the Death Certificate. Accordingly, Crl.A.No.665 of 2011 shall
stand dismissed as abated insofar as A-176 alone (fourth appellant) is
concerned.
29.09.2023
Index : Yes/No
Speaking Order/Non Speaking Order
Neutral Citation: Yes/no
cgi
Pre-Delivery Judgment in
Crl.A.Nos.618, 622, 624, 625, 626,
635, 649, 653, 654, 657, 658, 659, 660,
662, 665, 666, 668, 669, 670, 671, 673,
679, 682, 690 and 692 of 2011
29.09.2023
https://www.mhc.tn.gov.in/judis
