Madras High Court
S. Satish Kumar vs L.A.T. Selvaraj on 2 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
Crl.A.No.513 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02-06-2025
CORAM :
THE HON'BLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
Criminal Appeal No.513 of 2018
S. Satish Kumar .. Appellant
Versus
1. L.A.T. Selvaraj
2. D. Selvam
3. K. Mani
4. C. Venkatesan
5. K. Chinnappan
6. R. Baskar
7. R. Siva @ Sivasankaramoorthi
8.State Rep. by
The Station House Officer,
Srimushnam Police Station,
Cuddalore Taluk and District. .. Respondents
Criminal Appeal filed under Section 372 of Criminal Procedure Code,
1973, to set aside the Judgment dated 25.10.2013 made in Criminal Appeal
No. 65 of 2011 on the file of the learned III Additional District and Sessions
Judge, Cuddalore, Vridhachalam setting aside the Judgment of conviction
dated 14.07.2011 passed in Sessions Case No. 164 of 2010 on the file of the
Principal Assistant Sessions Judge, Vridhachalam, Cuddalore Division.
1/28
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
Crl.A.No.513 of 2018
For Appellant : Mr. A.K. Samy
for Mr. R. Sudhakar
For Respondents 1 to 7 : Mr. V. Ramamurthy
for Mr. S. Thirumavalavan
For Respondent 8 : Mrs.G.V.Kasthuri
Additional Public Prosecutor
JUDGMENT
This Appeal is filed by the De facto Complainant against the judgment
of acquittal passed in Criminal Appeal No. 65 of 2011 passed by the learned
III Additional District and Sessions Judge, Cuddalore at Vridhachalam, dated
25.10.2013 acquitting A-1 to A7 from all the charges levelled against them.
2. The brief facts, which are necessary for the disposal of this
Criminal Appeal, are as follows:-
2.1. The case of the Prosecution is that there was a civil dispute
between the De facto Complainant and the Accused with respect to the
property namely residential house situated at Sapta Rishi Street, Srimushnam,
Cuddalore District belonged to the first Accused. On 11.01.2009, during night
hours i.e., 12.01.2009 at about 1.00 am the De facto Complainant and his
friend Siva @ Suvasuriyan were sleeping in the thatched shed. At that time,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
the Accused 1 to 7 trespassed into the said property with a common intention
to set the thatched shed on fire. When the De facto Complainant and his
friend questioned them, they threatened the De facto Complainant to vacate
the premises, else, they would kill him. However, the De facto Complainant
declined and refused to budge. Therefore, the first Accused scolded him in
filthy language and attacked the De facto Complainant on his cheek with his
hands. At the same time, the third Accused beat the De facto Complainant
with his hands. In the same transaction, the Accused 2, 4, 5 and 6 caused
damages to the household articles. When the 7th Accused attempted to cut the
De facto Complainant with a knife, his friend Sivasuriyan defended him,
therefore, the 7th Accused scolded Sivasuriyan in filthy language and beat him
on his left hand with his hand. Finally, all the Accused joined together and set
fire to the thatched shed and the shed completely gutted. In this context, the
De facto Complainant had given a complaint, based on which, the case in
Crime No. 5 of 2009 was registered for the offences punishable under Sections
147, 148, 448, 427, 323, 436 and 506 (ii)of IPC was registered. Ex.P-1 is the
written complaint. The printed copy of the First Information Report was
marked as Ex.P-6. P.W-7, Selvaraj, Inspector of Police of Srimushnam Police
Station, after receipt of the complaint from the Appellant/De facto
Complainant sent him and his friend Sivasuriyan/P.W-14 to the hospital for
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
treatment on memo.
2.2. P.W-13 – Dr. Subramanian treated P.W-1 and P.W-14 at 3.00 pm
on 12.01.2009. On enquiry, P.W-1 and P.W-14 told him that they were
attacked by 7 known persons with cane and knife. Thereafter, P.W-13 issued
the Wound Certificate which are marked as Ex.P-4 and Ex.P-6.
2.3. In the meantime, at 9.30 a.m. on 12.01.2009, P.W-15,
Chandrababu, Inspector of Police took up the case for investigation on
12.01.2009 and enquired the witnesses present in the scene of occurrence.
P.W-15 drew an observation mahazar, Ex.P-2 and rough sketch, Ex.P-7 in the
presence of P.W-12, Saravanan and another witness by name Manikandan. In
the scene of occurrence, he seized burnt reapers, casuarina cane, broken piece
of asbestos and utensils under the Seizure Mahazar, Ex.P-3. On the same day
viz., 12.01.2009, at about 11.45 a.m. he arrested the Accused Selvam-A2,
Venkatesan-A3 and Baskar-A6 and remanded them to judicial custody.
Subsequently, on 13.01.2009, P.W-13 enquired Sankaran and Gunasekaran-
P.W-11. In the course of investigation, on 22.01.2009 at about 6.00 am, in
front of Raj Tea Shop, near Car Street, P.W-13 arrested the 7th Accused. On
19.03.2009, P.W-13 enquired Dr. Subramanian and recorded his statement.
He had also received the wound certificates of P.W-1 and P.W-14. During the
course of investigation, the other Accused surrendered before the Court and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
were released on Bail. After conclusion of the investigation, P.W-13 filed an
alteration report under Ex.P-8 altering the charges into one under Sections
147, 148, 448, 427, 294 (b), 323, 324, 436 and 506 (i) of IPC. P.W-13, after
conclusion of investigation, filed the charge sheet against the Accused 1 to 7.
2.4. The charge sheet filed by the Accused was taken on file in P.R.C.
No. 19 of 2009 and summons were served to the Accused. On appearance of
the Accused, the documents filed by the prosecution have been furnished to
the Accused under Section 207 Cr.P.C. When the incriminating materials
against them were explained and the Accused were questioned under Section
313 (1) (b) of the Code of Criminal Procedure, they denied the same.
However, the Accused No.1 produced the written statement along with (i)
Certified copy of the order dated 27.01.2006 passed by the District Munsif-
cum-Judicial Magistrate, Kattumannarkoil; (ii) certified copy of the Delivery
receipt dated 28.01.2006 and (iii) Certified copy of the receipt issued by P.W-
2 and P.W-3 for having received the household articles found in the disputed
house.
2.5. In order to prove the case, on behalf of the prosecution, 15
witnesses were examined as P.W-1 to P.W-15 and 8 documents were marked
as Ex.P-1 to Ex.P-8. Also, the Prosecution projected 6 material objects as
M.O-1 to M.O-6. The learned Principal Assistant Sessions Judge,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
Vridhachalam, Cuddalore District after conclusion of trial and upon analysing
the oral and documentary evidence, convicted the Accused 1 to 7 and
sentenced them as follows:-
Accused Conviction under Sentence awarded
section
148 IPC To undergo rigorous imprisonment for one
year.
506 (i) IPC To undergo rigorous imprisonment for one
year.
323 IPC To undergo rigorous imprisonment for one
A1 year.
436 IPC To undergo rigorous imprisonment for
three years, and to pay a fine of Rs.1,000/-
in default to undergo simple imprisonment
for three months.
450 IPC To undergo rigorous imprisonment for
three years.
148 IPC To undergo rigorous imprisonment for one
year each.
436 IPC To undergo rigorous imprisonment for
A2, A4, A5 three years each and to pay a fine of
& A6 Rs.1,000/- each and in default to undergo
simple imprisonment for three months
450 IPC each.
To undergo rigorous imprisonment for
three years each.
148 IPC To undergo rigorous imprisonment for one
year each.
436 IPC To undergo rigorous imprisonment for
three years each and to pay a fine of
A3 & A7 Rs.1,000/- each and in default to undergo
simple imprisonment for three months
each.
450 IPC To undergo rigorous imprisonment for
three years each.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
2.6. Challenging the Judgment of conviction, the Accused 1 to 7 have
filed Criminal Appeal No. 65 of 2011 before the learned II Additional District
and Sessions Judge, Cuddalore at Vridhachalam. The learned Appellate
Judge, on considering the three documents filed by the first Accused during
his questioning under Section 313 of Cr.P.C. concluded that through the
process of the Court, the first Accused took possession of the premises in
dispute and there is no evidence produced by the prosecution to show that
P.W-1 took re-delivery of the said premises from the Accused through process
of the Court. The Appellate Court, on perusal of the evidence of P.W-1 and
P.W-14 in their statement under Section 161 of Cr.P.C. and their depositions
before the trial Court, concluded that there are glaring inconsistency in their
depositions. The Appellate Court also concluded that there is enormous delay
in the registration of First Information Report besides P.W-1 and P.W-14 went
to the hospital only at 3.00 p.m. for treatment for the injuries sustained on
12.01.2009 at 1.00 am. Thus, the Appellate Court had concluded that the
prosecution had failed to prove the charges against the Accused and
accordingly, allowed the Criminal Appeal filed by the Accused 1 to 7 and set
aside the Judgment dated 14.07.2011 passed in S.C. No. 164 of 2010 on the
file of the learned Principal Assistant Sessions Judge, Vridhachalam,
Cuddalore District.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
2.7. Challenging the correctness and validity of the Judgment dated
25.10.2013 passed in Criminal Appeal No. 65 of 2011, the De facto
Complainant had come forward with this Criminal Appeal.
3. Mr. A.K. Samy, learned Counsel appearing for the Appellant/De
facto Complainant submitted that the Judgment of reversal passed by the
Appellate Court is legally not sustainable. In connection with the occurrence
that had taken place on 11.01.2009, the complaint was given at 8.30 a.m. on
12.01.2009. While so, it cannot be said that there is enormous delay in
registering the First Information Report. Further, P.W-1 and P.W-14 have
taken treatment on the same day for the injuries suffered by them which was
clearly spoken to the Doctor, P.W-13. P.W-13 also issued Wound Certificates
under Ex. P-4 to P.W-1 and P.W-14. Therefore, it is evidently clear that P.W-
1 and P.W-14 have suffered injuries in the occurrence that had taken place on
11.01.2009. Even P.W-1 examined himself as a witness before the Trial Court
which was also corroborated by P.W-14 and other witnesses. Therefore, it is
clear that there was an incident in which P.W-1 and P.W-14 were attacked by
the Accused. The learned III Additional District and Sessions Judge,
Cuddalore at Vridhachalam, failed to appreciate the same and acquitted
Accused-1 to Accused-7.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
4. The learned Counsel for the Appellant/De facto Complainant
further submitted that P.W-1 and P.W-14 were not only eye witnesses, but they
are injured witnesses. The Appellate Court did not notice that immediately
after the occurrence in which they were assaulted during night, they could not
immediately go to the Police Station. Admittedly, P.W-1 has given the
complaint at 8.30 a.m. on the same day viz., after 7 to 8 hours of the incident,
which cannot be said to be a delayed complaint. It is also an admitted fact that
P.W-1 and P.W-14 were sent to the hospital through a Police memo. It is
further submitted that even assuming that the De facto Complainant and P.W-
14 were in illegal possession of the property in question, there was an incident
in which they were attacked by the Accused which was not properly taken of
by the Appellate Court, while reversing the Judgment of conviction passed by
the Trial Court. Therefore, the learned Counsel for the Appellant seeks to set
aside the judgment of acquittal by the learned III Additional District and
Sessions Judge, Cuddalore at Vridhachalam, in C.A.No.65 of 2011, dated
25.10.2013 and to restore the judgment of conviction recorded by the learned
Principal Assistant Sessions Judge, Vridhachalam, in S.C.No.164 of 2010
dated 14.07.2011.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
5. In support of his contentions, the learned Counsel for the
Appellant also relied on the reported ruling of the Hon'ble Supreme Court in
the case of Ramdas & Others Vs. State of Maharashtra reported in CDJ 2006
SC 1046 wherein it has been held as follows:-
“21. ... In the ultimate analysis, what is the effect of delay in
lodging the report with the police is a matter of appreciation of evidence,
and the court must consider the delay in the background of the facts and
circumstances of each case. Different cases have different facts and it is
the totality of evidence and the impact that it has on the mind of the court
that is important. No strait jacket formula can be evolved in such matters,
and each case must rest on its own facts. It is settled law that however
similar the circumstances, facts in one case cannot be used as a precedent
to determine the conclusion on the facts in another. (See AIR 1956 SC
216 : Pandurang and others vs. State of Hyderabad). Thus mere delay in
lodging of the report may not by itself be fatal to the case of the
prosecution, but the delay has to be considered in the background of the
facts and circumstances in each case and is a matter of appreciation of
evidence by the court of fact.”
6. On the other hand, the learned Counsel for the Respondents/A1 to
A7 invited the attention of this Court to the grounds of Appeal and submitted
that the grounds are generic and not specific. There was no ground raised by
the Appellant/De-facto Complainant with respect to the Civil dispute between
the parties. The Appellate Court, on an elaborate consideration of such civil
dispute, including Ex.D-1 to Ex.D-3 filed on behalf of the first Accused, has
categorically concluded that due to a civil dispute, the Accused have been
falsely implicated in the Criminal case. The Appellate Court also scanned
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
through the statement of P.W-1 and P.W-14 recorded under Section 161 (3) of
the Code of Criminal Procedure and their depositions before the Trial Court to
conclude that there are material contradiction between the two statements and
it cannot be relied on. Above all, it was concluded that after the case was
posted for Judgment by the Trial Court, additional charges were framed
against Accused-1, Accused-3 and Accused-7 for the offence under Section
436 of IPC and against Accused-1 to Accused-7 for the offence under Section
450 of IPC and against Accused-7 for the offence under Section 323 of IPC.
However, the Accused were not given opportunity to adduce further evidence
and opportunity was given only to the prosecution side. The Appellate Court
also extracted the deposition of P.W-14 and pointed out the glaring
consistency between his deposition and that of the P.W-1. Further, the
Appellate Court pointed out the deposition of P.W-1 wherein he had stated
that he is fully aware of the Judgment and Decree passed in favour of the first
Accused and the possession of the property was also delivered to him. He had
further deposed that at the time of delivery of the property through Court
Ameen, all the belongings have been received and acknowledged by his
mother and grandmother. Therefore, in the ultimate analysis of the Appellate
Court, it was concluded that the case against the Respondents/Accused has
been foisted and therefore, it will be unsafe to convict them.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
7. The Learned Counsel for the Respondents/A1 to A7 also invited
the attention of this Court to the cross-examination of the prosecution
witnesses. P.W-1 specifically admits that he was aware of the outcome of the
R.C.O.P. proceedings. He also admitted that he was aware of the filing of the
E.P. but he was not aware of the delivery of possession and it shows
possession was not with the tenant but possession was handed over to the
landlord, who is the first Accused herein. Further, the landlord had filed the
suit before the learned District Munsif-cum-Judicial Magistrate,
Chidambaram, seeking injunction against the tenant not to interfere in the suit
property. When the Civil Court had granted a decree in favour of the Accused,
the entire prosecution case is to be considered as a foisted case to wreck
personal vengeance. It is proved from the conduct of P.W-1 who has stated
that in the alleged house when the Accused and the co-Accused had knocked
on the door, they opened the door and found the Accused and others waiting
outside and attacked them. He also alleged that he was threatened to set the
house on fire. Immediately, P.W-1 and his brother went and complained it to
his mother. When it is alleged that P.W-1 and P.W-14 were attacked and the
house was gutted, they ought to have given the complaint immediately to the
Police, instead they have rushed to the house of his mother and complained it
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
to her. This part of the deposition of the P.W-1 is unnatural and it was taken
note of by the Appellate Court. When P.W-1 was not in lawful possession of
the property and possession was taken over by the first Accused through the
Court Ameen, the question of the Accused committing trespass into the house
of P.W-1 will not arise.
8. In support of his contention, the learned Counsel for the
Respondents/A1 to A7 relied on the following rulings:-
8.1. In the case of Sahib Singh Vs. State of Haryana reported in
(1997) 7 SCC 231 the Hon'ble Supreme Court has observed as follows:-
“53. A little effort on the part of the trial court would have revealed to it
the falsity of the prosecution case, but it proceeded in a mechanical
manner and ultimately convicted the appellant ignoring that there was a
deliberately delayed FIR and the case set out therein was sought to be
proved through highly interested witnesses, instead of independant
witnesses, and also by bringing on record a Confessional statement
which contained false facts. This leads to the conclusion that the trial
judge was sitting only to convict forgetting that judiciary holds the
SCALES even, not tilted.”
8.2. In the case of Kishan Singh (Dead) through LRS. Vs. Gurpal
Singh and Others reported in (2010) 8 SCC 775 the Hon'ble Supreme Court
has observed as follows:-.
“24. It is to be noted that the appellants' father Kishan Singh lodged
FIR No.144/02 on 23.7.2002 through his attorney Jaswant Singh Mann
under Sections, 420, 323, 467, 468, 471, 120-B IPC, against the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
respondents. The allegations made in the FIR were substantially similar
to the allegations made by the appellants in Civil Suit No.1075/96,
which had been decided against them. It is evident that the aforesaid
FIR was filed with inordinate delay and there has been no plausible
explanation for the same. The appellants lodged the aforesaid FIR only
after meeting their Waterloo in the Civil Court. Thus, it is evident that
the FIR was lodged with the sole intention of harassing the respondents
and enmeshing them in long and arduous criminal proceedings. We are
of the view that such an action on the part of the appellants' father
would not be bona fide, and the criminal proceedings initiated by him
against the respondents amount to an abuse of the process of law.”
8.3. In the case of Motiram Padu Joshi Vs. State of Maharashtra
reported in (2018) 9 SCC 429 the Hon'ble Supreme Court had observed as
follows:-
“22. It is fairly well-settled that in an appeal against the order of
acquittal, the appellate court would be slow to disturb the findings of the
trial court which had the opportunity of seeing and hearing the witnesses.
In an appeal against the order of acquittal, there is no embargo for
reappreciating the evidence and to take a different view; but there must
be strong circumstances to reverse the order of acquittal. In the appeal
against order of acquittal, the paramount consideration of the appellate
court should be to avoid miscarriage of justice.”
8.4. In the case of Geeta Devi Vs. State of U.P and Others reported
in 2022 SCC OnLine SC 57 the Hon'ble Supreme Court has observed as
follows:-.
“7. Applying the law laid down by this Court in the aforesaid decisions
of this Court to the facts of the case on hand and while considering the
impugned judgment and order passed by the High Court, we find the
same is unsustainable. On perusal of the impugned judgment and order
passed by the High Court, we find that decision of the High Court is
totally erroneous as it has ignored the settled legal position. As
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
observed hereinabove, the High Court has not at all discussed and/or re-
apppreciated the entire evidence on record. In fact, the High Court has
only made the general observations on the deposition of the witnesses
examined. However, there is no reappreciation of entire evidence on
record in detail, which ought to have been done by the High Court,
being a first appellate court. Under the circumstances on the aforesaid
ground alone, impugned judgment and order passed by the High Court
deserves to be quashed and set aside and the same is to be remanded
back to the High Court to decide the appeal afresh in accordance with
law and on its own merits being mindful of the observations made
hereinabove.”
8.5. In the case of Arun Wahane v. The State of Maharashtra
reported in 2011 Crl.L.J.2220 the Bombay High Court had observed as
follows:
“If charge is drastically altered or amended after the stage
of statement of the Accused has been recorded under Section 313
of the Criminal Procedure Code the trial Court ought to have
adopted cautious and careful approach to adjourn the trial as
contemplated under Section 216 of the Criminal Procedure Code
so as to enable either of the parties in the trial to adduce further
evidence either of the parties in the trial to adduce further
evidence pursuant to amended or altered charge in the case. This
was not done in this case. That being so it has to be concluded
that failure of justice has occasioned and serious prejudice has
resulted to the Accused which makes the conviction recorded by
the Courts below unsustainable”.
8.6. In the case of Sujit Biswas v. State of Assam, reported in 2013
Crl.L.J. 3140 the Hon'ble Supreme Court had held as under:
“(D) Criminal P.C(2 of 1974)S.311 – Examination of
Accused- Object is to give opportunity to Accused to explain
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
incriminating circumstances – S.311 meets requirement of
principle of natural justice – Examination is essential in case
based on circumstantial evidence – circumstance on which
Accused is not examined – cannot be used against him”
8.7. In the case of K. Shajahan v. Subramani Gounder and Others
reported in (2009) 3 MLJ (Crl.) 972 this Court had observed as follows:
“Once there is valid Court order where upon there
emerged the record of delivery, evidencing actual delivery of the
property on certain date, it is not open for the Accused who is
bound by such court order, to veer and take a plea before the
criminal Court as through the property delivered was only a
paper delivery and that he continued to be in possession and such
a case, he should not be treated as a trespasser”
9. The learned Additional Public Prosecutor appearing for the 8th
Respondent submitted that among the prosecution evidence including P.W-1
to P.W-15, Ex.P-9 is the most important document in this case, based on
which the learned Principal Assistant Sessions Judge, Vridhachalam,
convicted the Accused. The learned III Additional District and Sessions Judge,
Cuddalore at Vridhachalam, had reversed the finding, which is against the
guidelines issued by the Hon'ble Supreme Court. When the learned Trial
Judge had on proper appreciation of the evidence, arrived at a finding, the
learned Appellate Judge on the same set of evidence, cannot arrive at a
different conclusion or disturb the finding of the learned Trial Judge. This is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
because the learned Trial Judge had the opportunity to observe the demeanour
of the witnesses, which is not available to the Appellate Court. Therefore, the
finding of the reversal of the judgment of the Trial Court by the learned III
Additional District and Sessions Judge, Cuddalore at Vridhachalam, is to be
set aside and the instant appeal has to be allowed.
Point for consideration
Whether the judgment dated 25.10.2013 passed in
Criminal Appeal 65 of 2011 by the learned Additional District
Judge, Vridhachalam is to be set aside and the judgment dated
14.07.2011 passed in S.C.No.164 of 2010 by the learned
Principal Assistant Sessions Judge, Vridhachalam is to be
restored?
10. Heard the learned Counsel for the Appellant and the learned
Counsels for the Respondents 1 to 7 as well as the learned Additional Public
Prosecutor (Crl Side) appearing for the State/Respondent No.8. Also perused
the evidence of the prosecution witnesses P.W-1 to P.W-15 and documents
marked under Ex.P-1 to Ex.P-8, the Judgment of the learned Principal
Assistant Sessions Judge, Vridhachalam in S.C.No.164 of 2010 dated
14.07.2011 and the judgment of the learned Additional Sessions Judge,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
Vridhachalm in Criminal Appeal No.65 of 2011 dated 25.10.2013.
11. It is an admitted fact that there was civil dispute between the
parties to this appeal with respect to the property situated in Sapta Rishi Street,
Srimushnam, Cuddalore District. This property originally belonged to
Bethusamy Naidu. After his death, his wife Aathilakshmi Ammal executed a
Settlement Deed in favour of his adopted son Sambantham. The said
Sampantham rented out the house to the husband of P.W-3 namely Muthu
Pathar. When the tenancy is in subsistence, the first Accused purchased the
said property from Sambantham through a registered sale deed. After such
purchase, P.W-2 and P.W-3 were paying rent to the first Accused. However,
as the tenants committed default in payment of rent, the first Accused filed
RCOP No. 5 of 2001 for eviction before the District Munsif Court,
Kattumannar Koil. Pending R.C.O.P. No. 5 of 2001, P.W-2 and P.W-3 have
filed a suit in O.S. No. 69 of 2002 for a declaration to declare that they are the
owners of the property and claimed a rival right. On notice, the first Accused
also filed a suit in O.S. No. 581 of 2000 for permanent injunction restraining
P.W-2 and P.W-3/Tenants from making any further construction or altering the
existing building. The suit in O.S. No. 581 of 2000 filed by the first Accused
was allowed. Similarly, R.C.O.P. No. 5 of 2001 filed by the first respondent
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
for eviction on the ground of default in payment of rent was also allowed. The
first Accused therefore filed E.A. No. 1 of 2006 for delivery of possession and
it was also allowed. On 28.01.2006, the said property was delivered to the
first Accused by the officer of the Court. Thereafter, the first Accused had
demolished the existing superstructure and the land was vacant. It is alleged
that when the first Accused was away from the Town during Pongal Festival,
P.W-1 to P.W-3 gained entry into the vacant land, put up a thatched shed and
they themselves set fire to the shed and foisted a case.
12. It is in this factual backdrop, the criminal proceedings initiated by
P.W-1 and P.W-14 against the Accused 1 to 7 has to be considered.
Admittedly, on the date of the alleged occurrence, the property was in lawful
possession of the first Accused after evicting the prosecution witnesses.
Further, on the date of the alleged occurrence, after alleged to have been
attacked, P.W-1 and 14 did not go to the police Station which is half a kilo
meter away from the occurrence spot, rather, they have gone to their mother's
house and informed them of the occurrence. It is stated that P.W-5 informed
the Fire Service about the fire caused to the thatched shed.
13. The conduct of the P.W-1 and P.W-14 is required to be mentioned
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
here. Admittedly, as on the date of occurrence, they are not the owners of the
property in dispute. However, it is claimed that they were sleeping inside the
thatched hut. When P.W-1 and P.W-14 are not the owners or has no right over
the said property, they have no semblance of right to remain in occupation of
the said property. Such occupation can only amount to a trespass by P.W-1
and P.W-14 . Further, P.W-1 or P.W-14 did not mark any document to show
the previous civil litigation between the parties. It is only the first Accused
has stated about the Civil Proceedings in his statement under Section 313 of
Cr.P.C. and also marked three documents, Ex.D-1 to Ex.D-3 to substantiate the
same. In fact, when P.W-1 was cross-examined, he has stated that he is aware
of the decree passed in favour of the first Accused. He also admitted that the
articles in the tenanted premises were handed over upon due acknowledgment.
He also admitted that upon taking delivery of the property through Ameen of
the Court, the first Accused demolished the superstructure thereon and left the
land vacant. Having admitted so, it is futile on the part of P.W-1 to contend
that he was sleeping in the property in his own right and the Accused have
attacked them. Therefore it is clear that a false case has been foisted at the
behest of P.W-1 against the Accused in this case.
14. It is an apathy that the Investigation Officer in this case has not
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
brought to the notice of the Trial Court about the previous civil litigation
between the parties. The prosecution documents are Complaint of P.W-1,
Observation Mahazar, Seizure Mahazar, Accident Register of P.W-1 and P.W-
14, First Information Report, Rough Sketch and Alteration Report. The
Investigation Officer in this case has not probed into the background facts,
which led to the dispute between the parties. The Investigation Officer also
did not go into the details of the civil litigation and failed to collect the
Judgment and Decree passed by the Civil Court in favour of the first Accused
much prior to the alleged occurrence in this case. It is also very much in
evidence that only after taking delivery of possession of the property through
Court, the De facto Complainant has alleged that the Accused have trespassed
into his property. On the other hand, it is P.W-1 and P.W-14 who have
trespassed into the property of the first Accused, which was not probed into by
the Investigation Officer. The investigation conducted in this case is shoddy
which led to the conviction of the Accused, who are innocents. The Appellate
Court, on proper consideration of the Civil Dispute, deposition of P.W-1 and
P.W-14, the delay in preferring the complaint etc., has rightly reversed the
Judgment of conviction passed by the Trial Court.
15. Yet another lacuna in the Judgment of the Trial Court, which was
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
also pointed out by the Appellate Court, is that after prosecution evidence was
closed, the Accused was examined under 313 Cr.P.C. Subsequently, the
charges were altered. In case of altering charges, after recording of the
evidence, the trial Court has to frame Additional charge and once again put the
Accused on notice, thereby opportunity has to be granted to the Accused to
recall the same witnesses and enquire them for the altered charges. Otherwise
punishment or the conviction recorded on the alternate charges will be
considered as perverse and vitiated. Therefore, the learned III Additional
District Judge, Cuddalore at Vridhachalam had relied on the reported decision
in 2011 CRL L.J 2020, wherein it was held as follows:
“Opportunity is to be given to either of the parties to
adduce further evidence pursuant to altered/amended charge and
failure to give opportunity to the Accused will cause create
prejudice to the Accused which makes the conviction is
unsustainable”.
16. It must be stated here that the Complaint under Ex.P-1 itself is
bereft of details. The First Information Report was belated. When the
Investigation Officer was cross examined, he had clearly admitted that the
details were not spoken to by the prosecution witnesses as list witnesses
during investigation under 161 Cr.P.C statement. During trial, they had stated
that each of the Accused had attacked the prosecution witnesses. In this
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
regard, the Trial Court, in Paragraph 21 of the judgment held as follows:
“In the complaint marked as Ex.P-1, P.W-1 has not
mentioned about the assault made by the Accused persons on
P.W-1 and P.W-14. Only when P.W-1 was examined by Police
u/s.161(3) Cr.P.C he deposed about the assault over him. In the
complaint marked as Ex.P-1, it is not mentioned that Accused-3
assaulted P.W-1 in the evidence P.W-1 had deposed that
Accused-7 assaulted him over the left side of chest and Accused-3
assaulted with wood on the backside of the head. P.W-1 during
his cross examination admits that he had not stated as the 7th
Accused Siva attempted to assault him with Aruvol and also
admits in the complaint not mentioned as the Accused
Chinnappan informed the other Accused to set fire over the
thatched hut and admits not stated as A-3 poured the kerosene
over the hut and A1 set fire to the house...”
17. In the complaint marked as Ex.P-1, P.W-1 had not mentioned
about the assault made by the Accused persons on P.W-1 and P.W-14.
However, only when P.W-1 was examined by Police under 161(3) Cr.P.C he
deposed about the assault over him. In the complaint marked as Ex.P-1 it is not
mentioned that Accused-3 assaulted P.W-1 but he had deposed before the Trial
Court that Accused-7 assaulted him over the left side of the chest with the
edge of the knife. He also stated that Accused-3 assaulted him with wooden
log on the back of his head. P.W-1 during his cross examination admitted he
had not stated that the Accused-7 attempted to assault him with 'Arival'
(Machette). Also he admitted in the complaint he had not mentioned that the
Accused Chinnappan informed the other Accused to set fire to the thatched
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
hut. Also in the complaint he had not stated that Accused-3 poured kerosene
over the hut and Accused-1 set fire to the house. These facts were also
admitted in cross examination by the Investigation Officer to the effect that
those details were not mentioned in the statement of each of the prosecution
witnesses under Section 161 of the Code of Criminal Procedure. He also
admitted that the details regarding possession of weapon used by each of the
Accused to attack the prosecution witnesses is absent. Therefore, it is clear that
the complaint under Ex.P-1 is bereft of material particulars.
18. When the Accused-1 and his family, as landlord of the property,
obtained a decree from the competent civil Court and taken delivery of
possession through execution processes, the question of setting fire to the
property of the prosecution witnesses will not arise at all. When the structure
had been demolished by the landlord/A-1 after getting delivery of possession,
the possession of P.W-1 and 14 in such property itself is unlawful and it would
amount to a criminal trespass.
19. The prosecution witness/Complainant party had lost the civil
dispute. Having lost the Civil Court Proceedings, P.W-1 has unceremoniously
given the instant complaint against the Respondents/Accused 1 to 7 and made
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
them to undergo the ordeal of a lengthy Criminal Trial. The complaint and the
criminal prosecution against the Respondents/Accused 1 to 7 is nothing short
of an abuse of process of the Court. Therefore, the Appeal by the Accused
before the learned III Additional District Judge, Cudalore at Vridhachalam was
allowed and the judgment of the conviction recorded by the learned Principal
Assistant Sessions Judge was set aside. There is no perversity in the judgment
of the learned III Additional District and Sessions Judge, Cuddalore at
Vridhachalam. It is a well reasoned judgment on independent assessment of
materials made available.
20. In the light of the above discussion, the point for consideration is
answered in favour of the Respondents/Accused and against the De facto
Complainant. The judgment dated 25.10.2013 passed in Criminal Appeal No.
65 of 2011 by the learned Additional District Judge, Vridhachalam reversing
the conviction and sentence recorded in the judgment dated 14.07.2011 passed
in S.C.No.164 of 2010 by the learned Principal Assistant Sessions Judge,
Vridhachalam is found proper which does not warrant any interference by this
Court and the same is to be confirmed.
In the result, this Criminal Appeal is dismissed. The judgment dated
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
25.10.2013 passed in Criminal Appeal No. 65 of 2011 by the learned
Additional District Judge, Vridhachalam reversing the conviction and sentence
recorded in the judgment dated 14.07.2011 passed in S.C.No.164 of 2010 by
the learned Principal Assistant Sessions Judge, Vridhachalam is confirmed.
02.06.2025
shl/cda
Speaking/Non-speaking order
Neutral Citation : Yes/No
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
To
1.The III Additional District and Sessions Judge,
Cuddalore, Vridhachalam.
2.The Principal Assistant Sessions Judge,
Vridhachalam.
3.The Station House Officer,
Srimushnam Police Station,
Cuddalore Taluk and District.
4.The Public Prosecutor,
High Court, Madras.
5.The Section Officer,
Criminal Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
SATHI KUMAR SUKUMARA KURUP, J
shl/cda
Judgment in
02.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:57:11 pm )
