Madras High Court
Chellappa @ Karikadai Chellappa @ ... vs The State Rep By on 15 May, 2025
CRL.A(MD).No.560 & 562 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 20.12.2024
Pronounced On : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.560 & 562 of 2018
1.Chellappa @ Karikadai Chellappa @ Mansoor
2.Jahir Hussain ... Appellant/Accused No.2&3
(In Crl.A(MD)No.560 of 2018)
Pillappan ... Appellant/Accused No.1
(In Crl.A(MD)No.562 of 2018)
Vs.
The State rep by,
The Inspector of Police,
Thiruvidaimaruthur Police Station,
Thanjavur District.
(Crime No.323 of 2006) ... Respondent/Complainant
( In both Appeals )
Common Prayer: Criminal Appeals have been filed under Section 374(2)
of Cr.P.C., to call for the records in S.C.No.11 of 2013 on the file of the
learned Additional District Sessions Jude, (FTC), Kumbakonam, Thanjavur
District, and set aside the judgment dated 06.12.2018 and acquit the
appellants from the charges levelled against them.
1/28
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CRL.A(MD).No.560 & 562 of 2018
For Appellant : Mr.C.Suresh Kannan for A2 & A3
(In Crl.A(MD)No.560 of 2018)
: Mr.J.John for A1
(In Crl.A(MD)No.562 of 2018)
For Respondent : Mr.M.Sakthi Kumar
Government Advocate (Crl.Side) for R1
( In both Appeals )
: Mr.E.Mareeskumar for defacto complainant
JUDGMENT
Accused A1, A2 & A3 in S.C.No.11 of 2013 on the file of the
S.C.No.11 of 2013 on the file of the learned Additional District Sessions
Jude, (FTC), Kumbakonam, Thanjavur District, have filed these appeals
challenging the following conviction and sentence imposed against them
by impugned judgment dated 06.12.2018:
Rank of Conviction Sentence of Imprisonment/
the under fine imposed
Accused Section
294(b) of Rigorous Imprisonment for one month
IPC each.
506(ii) of IPC Rigorous Imprisonment for two years
A2, A3 each.
and A1
3(1)of Rigorous Imprisonment for two years
each and to pay a fine of Rs.2,000/-
TNPPDL Act. each in default to undergo Rigorous
Imprisonment for three months.
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2. Since these criminal appeals are arising out of the same Crime No.
323 of 2006, these appeals are taken up for hearing together and disposed
of by way of this common judgment. For better appreciation of this appeal
rank of the accused mentioned in S.C.No.11 of 2013 is followed here
under.
3. The brief facts of the case are as follows:-
3.1. P.W.1 and P.W.2 are brothers. A3 and P.W.1 and P.W.2 are close
relatives. There is civil dispute between the family of A3 and the family of
P.W.1 & P.W.2. A1 is brother-in-law of A3. Due to the above dispute on
28.11.2006, at about 05.00 p.m, A3 is said to have come to the house of
P.W.1 in inebriated condition and abused P.W.1 & P.W.2 and their mother
in filthy language and also criminally intimidated them. At that time,
father of A3 came there and insisted A3 to come along with him by
dragging the hands of A3. In that process, A3 sustained injuries.
Thereafter, on 29.11.2006, at 01.30 a.m, A2, A3 & A1 again went to the
house of P.W.1 with aruval and wooden logs and questioned P.W.1 and his
family members about the injuries sustained by the second appellant/A3.
Further, they caused damage to the grill gate and doom light worth about
Rs.1,900/-. Therefore, P.W.1 lodged a complaint with the respondent
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CRL.A(MD).No.560 & 562 of 2018
police. The respondent police registered a case in Crime No.323 of 2006
for the offence under Sections 294(b), 506(ii) of IPC and 3(1) of TNPPDL
Act.
3.2. Thereafter, The Investigating Officer, conducted the
investigation and filed the final report before the learned II Additional
District Munsif cum Judicial Magistrate, Kumbakonam. The same was
taken on the file in P.R.C.No.22 of 2007.
3.3. On appearance of the accused, copies of documents relied by the
prosecution were furnished to the accused under section 207 of Cr.P.C. The
learned II Additional District Munsif cum Judicial Magistrate,
Kumbakonam, found that the offence under TNPPDL Act, filed against the
appellant is triable only by the Sessions Court and committed the case
under Section 209 of Cr.P.C., to the learned Additional District Sessions
Judge, (FTC), Kumbakonam, Thanjavur District, Thereafter, the case was
taken on file in S.C.No.11 of 2013. Then, the learned Judge framed
necessary charges and questioned the accused. The accused denied the
charges and pleaded not guilty and stood for trial.
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3.4. To prove the case, the prosecution examined P.W.1 to P.W.6 and
exhibited 9 documents as Ex.P.1 to Ex.P.9 and marked 5 material objects as
M.O.1 to M.O.5. Thereafter, the appellants were questioned under Section
313 Cr.P.C proceedings after disclosing the incriminating evidence against
them and they denied the same as false and they specifically stated that
their presence at the scene of occurrence is not proved. Prior to the
occurrence on 29.11.2006 at 01.30 a.m, P.W.2 attacked A3 and caused
bleeding injuries and hence, he went to the respondent police and lodged a
complaint and the respondent police gave a medical memo and he was
admitted in the hospital around 10.30 p.m and FIR was registered in Crime
No.322 of 2006 i.e., earlier to the crime number of the present case. He
was not present at the scene of occurrence as he was already admitted in
the hospital. Hence, false case was registered against them by making false
allegation. Thereafter, the case was posted for defence evidence. The
accused neither produced any documents nor examined any witnesses on
their side.
3.5.After considering the material adduced by the prosecution and
also hearing the argument of the appellants, the learned trial Judge passed
the impugned judgment, dated 06.12.2018 and found the appellants guilty,
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convicted and sentenced them as stated above.
4. Challenging the above said conviction and sentence, the
appellants have preferred the present Criminal Appeals.
5. Thiru.C.Suresh Kannan, learned counsel for the appellants 1 &
2 in Crl.A(MD)No.560 of 2018/Accused No.2 & 3 and Thiru.J.John,
learned counsel for the third appellant Crl.A(MD)No.562 of 2018/A1
jointly made the following submissions:-
5.1.The case of the prosecution as per the charge is that on
29.11.2006, at 01.30 p.m, the appellants assembled in front of the house of
P.W.1 and P.W.2 and caused damaged to the grill gate and doom lights in
the portico of the house of P.W.1. Further, they abused P.W.1 and his family
members in filthy language and criminally intimidated them. Even as per
the evidence of P.W.1, the earlier occurrence took place at 05.00 p.m on
28.11.2006. At that time, according to P.W.1, A3 namely, Jahir Hussain
himself caused injuries to him by hitting himself in the gate of P.W.1's
house. The said version is false for the reason that according A3, he was
attacked by P.W.1 and went to police station and a case was registered
against P.W.1 for the offence under Section 323 IPC and other IPC
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offences in Crime No.322 of 2006 and he was admitted in the hospital on
28.11.2006 at 10.30 p.m and took treatment as inpatient. In those
circumstances, the presence of A3 is not at all probable and the evidence of
P.W.1 and P.W.2, 3 who have deposed about the presence of P.W.3 is
nothing but false. Hence, he seeks acquittal.
5.2. In view of above event, unexplained delay of 21 hours in
lodging a complaint is fatal to the prosecution. The delay in lodging
complaint and delay of sending the statement under Section 161 Cr.P.C., to
Court is fatal to the prosecution. The explanation offered by the witness
P.W.1 that since all the accused were present at the scene of occurrence
even after the incident and due to fear he was not able to give complaint is
false in view of the evidence of eyewitness P.W.3 who has deposed that the
accused ran away from the place immediately. There is also manipulation
in the FIR by inserting the name of the accused and hence, there is doubt in
the prosecution case.
5.3. To prove the damages and to punish the accused under Section
3(1) of TNPPDL Act, no record was produced. According to the
Investigating Officer, he has not collected the pieces of broken glass and
valuation certificate also was not produced to prove any damage to the grill
gate and lights. In view of the above circumstances, conviction and
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sentence imposed on the appellants for the offence under Section 3(1) of
the TNPPDL Act is not legally maintainable.
5.4.According to evidence of P.W.1, all the accused came in a car
and caused damages to the properties by scolding and criminally
intimidated P.W.1 and his family members. As per the evidence of
Investigating Officer, he never recovered the Aruval which was allegedly
used by the third appellant/A1, who caused damages to the doom light in
the house of P.W.1 and he never seized the car. In the said circumstances,
non-seizure of car and aruval is fatal to the prosecution.
5.5. The learned trial Judge failed to see number of material
discrepancies in the evidence of P.W.1 to P.W.3 relating to the occurrence
and without properly considering the same, erroneously convicted the
accused.
5.6. It is unfortunate that the investigating officer has stated that the
earlier case registered against P.W.1 for the offence under Section 323 IPC
and other IPC in Crime No.322 of 2006 was not known to him and hence
his evidence is not reliable.
5.7.when the sub inspector of police was not available to speak the
recovery, hostility of the recovery witness is fatal to prosecution.
5.8. The presence of P.W.3 and the other witness namely, Jeganathan
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in the scene of occurrence is doubtful. P.W.3 deposed that A1 gave a
complaint against him with the allegation that he set fire to his house and
he is a planted witness.
5.9. There was strong motive between the appellants' family and
family of P.W.1 and P.W.2. Already there was a civil dispute relating to the
properties of grand father of P.W.1, P.W.2 and A3 and the same ended in
favour of A3. Hence P.W.2 and other persons assaulted A3 and caused
bleeding injuries to him. Hence, A3 went to the respondent police and he
was taken to the hospital. Therefore, due to the motive, false case has been
registered against the appellants. In the said case in Crime No. 322 of
2006 , P.W.1 and other accused admitted the offence of assault and he was
convicted and he also paid fine. In the said circumstances, the specific case
of the appellants/A2, A3 & A1 that the present case was fabricated against
them as a counter blast in order to escape from the legitimate prosecution
is probable
5.10. The learned trial Judge failed to consider the statement under
Section 313 Cr.P.C., which supported the evidence elicited to the cross
examination.
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6. The learned Government Advocate (Crl.Side) on going through
the judgment and records made the following submission:-
6.1. There were no material discrepancies between the evidence of
P.W.1 to P.W.3 relating to the substratum of the prosecution case namely,
the accused caused damage to the property and criminally intimidated P.W.
1 and P.W.2 and scolded them in the public place. P.W.3 was staying at the
house of P.W.1 and P.W.2 along with other person namely, Jeganathan, who
was the watch man of the said house were there. But, there was no
evidence to prove the case pending against P.W.3 and hence P.W.3's
evidence was correctly relied by the learned trail Judge. He cogently
deposed about the presence of the accused at the scene of occurrence and
causing damage to the properties. In all aspects, the prosecution clearly
proved the case beyond reasonable doubt.
6.2. Non recovery of glass pieces and the valuation certificate is not
a material to disbelieve the evidence of P.W.1 to P.W.3. They have
specifically stated that the accused caused damage to the property of P.W.1
namely, grill gate and bulb worth about Rs.1,900/-.
6.3. The learned trial Judge correctly appreciated the entire evidence
and believed the evidence of P.W.1 to P.W.3 and rightly convicted the
appellants for the charged offence under Sections 294(b), 506(ii) and 3(1)
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of TNPPDL Act. Even though, P.W.1 to P.W.3 were subjected to cross
examination, nothing was elicited to disbelieve their evidence. Therefore,
he seeks to confirm the conviction and sentence imposed by the learned
trial Judge.
6.4. A1 has number of previous cases and hence, he seeks to confirm
the sentence without any reduction.
6.5. The learned counsel for the defacto complainant (P.W.1)
impleaded himself as a party to the proceedings and filed a detailed written
submission and also reiterated the submission of the learned Government
Advocate (Crl.Side) and seeks to confirm the conviction and sentence
imposed by the learned trial Judge.
7. This Court considered the rival submissions made by the learned
counsel appearing on either side and perused the records and the impugned
judgment passed by the learned trial Judge.
8.Whether the conviction and sentence of imprisonment imposed
against the appellants is sustainable or not?
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9.Discussion on motive:
1995 Supp (1) SCC 363 2014 12 SCC 670
It goes without saying that enmity Just as there is a possibility of
is a double-edged weapon which murders having been committed
cuts both ways. It may constitute a because of motive due to enmity,
motive for the commission of the there is also a possibility of false
crime and at the same time it may implication of innocent people to
also provide a motive for false settle past scores. That is why it is
implication. said that motive is a double-edged
weapon.
9.1.With the above guiding principles, this Court considers the
submission of the learned counsel for the appellant whether false
complaint was made on the basis of the existing motive.
9.2.From the evidence of P.W.1 and P.W.2 and the answer furnished
by the accused during the proceedings under Section 313 of Cr.P.C., it is
clear that both P.W.1 and A3's grandfather had immovable property and
there was a civil dispute relating to the property of the said grandfather
between the family of P.W.1, P.W.2 and the family of A3 and in the said
dispute, the case ended in favour of A3 and against the family of P.W.1 and
P.W.2. A1 being brother-in-law of A3 has supported the claim of A3.
Therefore, there was a long standing dispute and motive. The said motive,
provoked P.W.1, P.W.2 and P.W.3 to implicate the appellants in the present
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CRL.A(MD).No.560 & 562 of 2018
case, which had been amply proved through various circumstances. The
specific explanation of the accused under Section 313 of Cr.P.C., is as
follows:
A1 answered as follows:
gjpy;: cjtp Ma;thsh; gd;dPh; nry;tj;jpw;FK;
vdf;Fk; Kd; tpNuhjk; ,Ue;jJ. mth;kPJ
cah;ePjpkd;wj;jpy; hpl; Nghl;L Jiw hPjpahf
eltbf;if vLf;f cj;juT Nghlg;gl;lJ.
mth; ,we;Jtpl;lhh;. ,.j.r.gphpT 307 tof;fpy; mth;
vjphp. Fw;w vz;.322/06 vd;gJ vd; kr;rhd; nfhLj;j
Gfhh; mjd; gpwF kUj;Jtkidapy; ,Ue;j NghJ
vd; kPJ ,e;j tof;F Nghlg;gl;lJ.
Nfs;tp: ,t;tof;F gw;wp ePh; VNjDk;
njhptpj;Jf;nfhs;s Ntz;Lkh?
gjpy;: ,J ngha;tof;F. vq;fSf;Fk;
Mrpj;nfsrpf;Fk; nrhj;J gpur;rid ,Ug;gjhy;
gopthq;f ,e;j tof;F ngha;ahf Nghlg;gl;Ls;sJ.
Fw;w vz;.322/2006 vd;w tof;if Mrpf;Fk;
nfsrpf;Fk; xg;Gf;nfhz;L mguhjk; ePjpkd;wj;jpy;
nrYj;jptpl;lhh;fs;. ,J ngha;tof;F.
Answer given by A3
Nfs;tp: ,t;tof;F gw;wp ePh; VNjDk; njhptpj;Jf;
nfhs;s Ntz;Lkh?
gjpy;: gpy;yg;gDk;> nry;yg;ghTk; vdf;F gof;fk;
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CRL.A(MD).No.560 & 562 of 2018
fpilahJ ,th;fs; ,Uthpd; khkdhh; [khy;
Kfk;kJ. mth;jhd; vdf;F gof;fk;. mth;fSf;F
nrhj;J gpur;rpid ,Ue;jJ. rptpy; Nf]; ele;jjhy;
rpy cjtpfis ehd; [khy; Kfk;kJtpw;F
mioj;J Nghftu nra;Njd;. Vd;id nfsrpf;
vd;gth; [khy; Kfk;kJit mioj;J Nghff;
$lhJ vd thh;d; gz;zpdhh;. ehd; cq;fs;
FLk;gg; gpur;rpidapy; ehd; vJTk; nra;atpy;iy.
ehd; el;ghf ,Ug;gjhy; mioj;J Ngha; tUfpNwd;
vd;W nrhd;Ndd;. gpur;rpid rk;ge;jkhf cNrd;
vd;gtiu kUj;Jtkidapy; Nrh;j;jJ ehd; jhd;.
mj;Jld; Kbe;Jtpl;lJ. gpy;yg;gd; filf;Fg;Ngha;
tpl;L ntspapy; te;jTld; cd;
ngaUk; ,jpy; ,Uf;F vd;W gpy;yg;gd; khkdhh;
[khy; Kfk;kJ Fw;w gj;jphpf;ifia vd;dplk;
fhz;gpj;jhh;. mJ FIR vd;W epidf;fpNwd;. ehd;
cjtp Ma;thsiug; ghh;j;Njd;. Mth;fs; nfhLj;j
Gfhiu mf;nrg;l; gz;zpf; nfhz;ljhf
nrhd;dhh;fs;. mjd;gpwFjhd; vdf;F [hkPd; Nghl;L
ehd; [hkPdpy; te;Njd;. cjtp Ma;thsh; Nfhh;l;by;
jfty; nfhLf;Fk;NghJ khw;wp tpLNthk; vd;W
nrhd;dhh;. ,J ngha; tof;F. gpy;yg;gd;
khkdhUf;F cjtp gz;zpNdd; vd;gjhy;
vd;id ,e;j tof;fpy; Nrh;j;Js;shh;fs;.
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CRL.A(MD).No.560 & 562 of 2018
9.3. On 28.11.2006, at 05.00 pm., P.W.2 attacked him and caused
bleeding injuries. Therefore, he lodged a complaint before the respondent
police officer and the same was registered in Crime No.322 of 2006 and
medical memo was also given. On the basis of medical memo, he was
admitted in the Government hospital as inpatient at 10.15 hours on
28.11.2006 P.W.2 & other accused in Crime No.322 of 2006 pleaded guilty
and paid fine. That being the situation, P.W.1 gave the distorted version
about the injuries. According to him, A3 himself came to the house of P.W.
1 and damaged the gate with wooden log and scolded the family members
of P.W.1 and hence, A3's father came and led away A3 and in the said
course, A3 himself dashed against the gate of the P.W.1's house and
suffered bleeding injuries. The said explanation is false in view of the
conviction judgment in Crime No.322 of 2006 and therefore, the case of
the appellant that due to the motive and in order to escape from the above
legitimate prosecution in Crime No.322 of 2006, a false case was
registered with the help of one deceased police officer/Paneerselvam is
probable. Hence, the prosecution case is shrouded with suspicion.
Therefore, this Court extends the benefit of doubt to the appellants.
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10.Discussion about the presence of A3 in the scene of
occurrence:
According to P.W.1 and the prosecution case, as narrated above,
after the occurrence at about 05.00 pm., on 28.11.2006, A1, A2, A3 came
in a car “around 01.30 am., on 29.11.2006” and assembled with aruval and
wooden log( A1 with aruval, A2 and A3 with wooden log) caused damages
to the gate of the P.W.1's house and also bulb worth of Rs.1,900/- and the
same was witnessed by P.W.1, P.W.2 and P.W.3. As per the statement of A3
during the proceeding under Section 313 of Cr.P.C., and the record of case
in crime No.322 of 2006, he was admitted in the hospital at 10.15 pm., on
28.11.2006 as inpatient for the grievous injuries sustained by him in the
alleged earlier occurrence that took place at about 05.00 pm. In the said
circumstances, evidence of P.W.1 to P.W.3 about the presence of A3 in the
scene of occurrence and their specific overtact attributed against A3 is
false. Therefore, the learned counsel for the appellant submitted that their
evidence lacks credibility and their evidence is unworthy and deserves to
be rejected. Hence, this Court holds that the presence of A3 in the scene of
occurrence was not proved by the prosecution.
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11.Discussion on the delay in registering the case:
According to P.W.1, P.W.2, the occurrence took place in the early
morning 01.30 am on 29.11.2006. P.W.1 gave the complaint only at 10.00
pm., on 29.11.2006. P.W.1 gave explanation that there was a fear in his
mind as the accused were still waiting in the occurrence place. The said
evidence of P.W.1 is quite contrary to the evidence of P.W.3. P.W.3 stated
that after the occurrence all the accused ran away from the place of the
occurrence. The contrary evidence of both witnesses as follows:
P.W.1 P.W.3
29k; Njjp ,uT 10 kzpf;F fhty; epiyaj;jpy;
ehd; Ngha; Gfhh; nfhLj;Njd;. mt;thW ,uT
Gfhh; nfhLj;jjw;F fhuzk; vjphpfs; 3 rz;il ele;j
NgUk; ,d;Dk; gf;fj;jpy; jhd; ,Uf;fpwhh;fs;. gpwF ehd; ,uT
Nghftpy;iy vd;w gaj;jpy; clNd Gfhh; 1.30 kzpf;F
nfhLf;f fhty;epiyak; Nghftpy;iy. fhty; Nky; vd;
epiyak; nrd;W Gfhiu ehd; jhd; vd; ifg;gl tPl;bw;F
vOjpf;nfhLj;Njd;. vd; Kd; fhl;lg;gLk; Gfhh; Ngha;tpl;Nld;.
ehd; ifnaOj;Jg;Nghl;Lf; nfhLj;jJ jhd;. mij NghyPrpy;
me;j Gfhh; jhd; m.j.rh.M1. NghyPrhh; vd;id nrhy;ypAs;Nsd;.
tprhhpj;jhh;fs;. ehd; ele;jtw;iw nrhd;Ndd;. rz;il
NghyPrhh; rk;gt ,lj;ijg; ghh;j;jhh;fs;. ele;jgpwF
rk;gtj;ij n[auhkd;> n[fehjd;> vdJ jk;gp vjphpfs; 3
KfkJ jTgpf; kw;Wk; vdJ mk;kh MfpNahh;fs; NgUk; Nkw;F
Neubahf ghh;j;jhh;fs;. jpiria
Nehf;fp
Xbg;Ngha;tpl;lhh;
29.11.2006k; Njjp ehd; fhiy 8 kzpf;F fs; vd;why;
kapyhLJiw NghNdd;. Ngha;tpl;L ,uT 9.30 Ngha;tpl;lhh;fs;.
kzpf;F te;Njd;.
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11.1. Apart from that, P.W.1 deposed that at 08.00 am., on
29.11.2006, he went to Maiyladudurai and returned home at 09.30 pm.,
P.W.2 also affirmed his statement that P.W.1 went to college. Therefore,
explanation furnished by P.W.2 that there was fear in his mind is not
acceptable one. The case of A3 that P.W.1 and P.W.2 assaulted him and
caused bleeding injuries to him and hence, he went to the police station
and FIR was registered against P.W.2 on 28.11.2006 at 10.00 pm., and he
was admitted in the hospital and in order to avoid the prosecution, present
complaint was preferred with the delay when the distance between the
police station and the occurrence place is within a reachable time of 10
minutes as admitted by P.W.2. Therefore, in the peculiar facts of this case,
the delay in lodging the complaint is fatal to the prosecution. The same is
further strengthened by other circumstances that the deceased police
officer Paneerselvam had strong motive against A1 in this case and the
explanation of A1 that the false case was registered by the said officer with
the connivance of P.W.1 and P.W.2 after the registration of the case in
crime No.322 of 2006 is probable one and hence, this Court accepts the
case of A1 to A3, that the above case was registered with delay without any
truth in the allegation for two reasons, namely to escape from the crime
No.322 of 2006 and to pressurize the appellant to settle the civil dispute.
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12.Discussion on the conviction judgment in Crime No.322 of
2006:
There is no dispute about the injuries on the head of A3. According
to P.W.1, he himself caused the said injury by hitting against the gate of
P.W.1's house. But, as per A3, P.W.2 and other persons caused the injuries
and hence, the criminal case was registered against P.W.2 and other
persons in Crime No.322 of 2006 and the same was investigated by the
same police officers and final report was filed before the learned II
Additional District Munsif-cum-Judicial Magistrate, Kumbakonam. The
same was taken on file in S.T.C.No.227 of 2007 with specific allegation
that P.W.2 and other persons caused injuries to A3 on 28.11.2006 at about
05.00 pm., and he was admitted in the hospital. P.W.2 and other accused
pleaded guilty and were convicted and they paid the fine also. Therefore,
the said judgment is vital one to decide whether A3 was present at the time
of the occurrence to assess the credibility and trustworthiness of P.W.1 to
P.W.3 about the occurrence allegedly happened on 29.11.2006 at about
01.30 am. Hence, this Court on the request made by the appellant and also
to verify the statement under Section 313 of Cr.P.C., that P.W.2 and others
were convicted called for the records of the said judgment. Under Section
56 of the Indian Evidence Act, Court has power to take judicial notice of
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the criminal Court judgment in exceptional circumstances as held by the
Hon'ble Supreme Court in the case of Harendra Rai v. State of Bihar
reported in , (2023) 13 SCC 563 with the following guidelines:
78. The law, in respect of taking judicial notice of any
fact, may be summarised in the following manner:
78.1. The doctrine of judicial notice, as provided
under Section 56, is an exception to general rules of
evidence applicable for proving any fact by adducing
evidence in the court of law.
78.2. According to Section 56 of the Evidence Act,
judicial notice of any such fact can be taken by the court,
which is well known to everyone, which is in the common
knowledge of everyone, which is authoritatively attested,
which is so apparent on the face of the record, etc.
78.3. Except in the rarest of rare cases, judicial notice
of any fact is generally not taken in criminal matters in the
normal course of proceeding, and the case is decided on the
basis of oral, material and documentary evidence adduced
by the parties to find out the guilt or innocence.
79. As discussed above, the judicial notice of any fact
is generally not taken in criminal matters, but the present
matter stands on an altogether different footing in view of
what has been noted hereinbefore. It falls in the category of
the rarest of rare cases and hence, it requires a different
approach. This Court, in its considered opinion, finds that
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the judgment [Harendra Rai v. State of Bihar, 2007 SCC
OnLine Pat 103 : (2007) 2 PLJR 244] in the habeas corpus
petition was passed on the basis of notes of the Inspecting
Judge of the High Court, the report of Additional Director
General of Police, statement of CW 1 Smt Lalmuni Devi
recorded in court before the Magistrate under the directions
of the High Court, her affidavit filed before the High Court,
her statement/disclosure in Bhojpuri before one of the
Judges hearing the habeas corpus petition and several other
authoritative materials after giving the opportunity of
hearing to the parties, including the accused of the crime in
question.
82. Another Latin maxim, which means that a judicial
decision must be accepted as correct, may be usefully
extracted here, “res judicata pro veritate accipitur”.
12.1.When A3 sustained injuries and he was admitted in the hospital
and the present case was registered with specific overtact that he caused
damages to the property of P.W.1 and P.W.2's house by assembling with A1
and A2 and also a quash petition was filed before this Court on the ground
that he was not present, and there was no investigation on this aspect and
the investigating officer feigned ignorance about the crime No,.322 of
2006 which is previous crime number to the present case namely, Cr.No.
323 of 2006, and this Court in the interest of justice and also to avoid
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miscarriage of justice to the appellants, places reliance on the said
judgment. This Court also takes note of the answer of P.W.1 and P.W.2
about the registration of the case put by way of suggestion.
12.2.On going through the records of Crime No.322 of 2006, it is
clear that P.W.1's version that A3 sustained injuries by hitting himself on
the gate of his house at 28.11.2006 about 05.00 pm., is false and the case
of the prosecution in this case that on 29.11.2006, at about 01.30 am., the
appellants assembled with weapons and caused damages to the property of
P.W.1 is stage managed one in order to escape from the above prosecution
in crime No.322 of 2006. Hence, this Court to render justice relied the
records of Crime No.322 of 2006 and the same was legally permissible as
per the provision of Sections 56 and 58 of the Indian Evidence Act. Once,
A3 was not present in the scene of the occurrence and the inseparable and
indivisible evidence of P.W.1 to P.W.3 against all the accused that they
caused damages to the appellant's house is also not believable one. It is
settled principle that When the evidence of prosecution is intrinsically
inseparable, benefit of doubt is to be given to all the accused. In this case,
as discussed above, A3's presence is doubtful and hence the evidence of
P.W.1 to P.W.3 is not trustworthy. The said benefit also is extended to A1
and A2 in view of the peculiar circumstances that evidence is inseparable
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and intrinsically connected with the overt acts of remaining accused.
13.Discussion on the presence of P.W.3
P.W.3 admitted that A1 gave a case against him with allegation that
he set fire to the property of A1. He also stated that before the occurrence,
he never stayed in the house of P.W.1.and only on the date of the
occurrence he stayed in the house of P.W.1 along with watch man of A1's
house. His evidence is contrary to the evidence of P.W.1 about the factum
of the presence of the accused in the place of the occurrence after the
occurrence was over. His evidence shows that he was a chance witness
which is not acceptable one. In view of the above motive with A1 he was a
planted witness. The same is further strengthened from the evidence about
the fact that he stated that he collected all the broken pieces of the bulb in
the house by sweeping the same. But the investigating officer admitted that
he has not collected any broken piece and no record was produced to prove
the damage of the bulb. Therefore, on this score also his evidence is not
corroborated by the remaining circumstances. Therefore, the presence of
P.W.3 in the scene of the occurrence is doubtful.
14.Material lapse on the part of the investigating agency:
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It is the specific case of the prosecution witnesses that A1 to A3
came in a car and A1 assaulted with aruval and caused damages to the
property of P.W.1 and hence,the punishment was to be given under Section
3(1) of the TNPPDL Act. To prove the offence, neither the broken
properties were produced nor any records were collected to prove the
damages caused to the house and investigating officer also admitted the
same. Not even damage certificate was produced. Both car and aruval were
not recovered. There is no investigation relating to the material fact that
the occurrence happened on 28.11.2006 at 05.00 pm. Whereas there was an
assault on A3 and the said case ended in conviction which is a different
occurrence from the present occurrence. The above said lapse clearly
shows that the prosecution miserably failed to prove the case against the
appellant. In view of the above special circumstances, the principle that
lapse on the part of the investigating officer is not a ground to acquit the
accused is not applicable. This Court already held that P.W.1 to P.W.3 are
not trustworthy witnesses.
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15.Other material circumstances to disbelieve the prosecution
case:
There was also no proper explanation relating to the manipulation of
A2's name in the FIR. There are also material discrepancies between the
evidence of P.W.1 and P.W.3 about the occurrence time and the same was
not properly explained by the investigating agency. According to the
prosecution the words used are thlh Njtbah kfNd Fr;rpf;fhhp kfNd
cd;id nfhy;yhky; tplkhl;Nld;. This version was not found out during the
course of investigation. There was a delay of FIR reaching the learned
Judicial Magistrate Court. Apart from that the material documents reached
the Court after considerable delay. The said police officer Paneer Selvam,
recovered the material object from the arrested accused, namely, the
appellants, in the presence of P.W.4. P.W.4 did not support the prosecution
case and hence, the case that the appellants caused damages to the property
is also doubtful. The above circumstances also create doubt over the
prosecution case and therefore, the prosecution miserably failed to prove
the case beyond reasonable doubt.
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16. The learned Government Advocate (Crl.Side) submitted that the
third appellant/A1 has previous cases and hence, he prayed for dismissal of
the appeal. This Court is unable to accept the said submission. The
instances of previous antecedents is not a ground to convict the appellant
without any evidence to connect the accused in this case. In view of the
above circumstances, this Court finds no merit in the submission of the
defacto complainant and the learned Government Advocate (Crl.Side) that
the appellants were rightly convicted for the offence under Sections
294(b), 506(ii) and 3(1) of TNPPDL Act. Hence, this Court is inclined to
set aside the conviction and sentence passed by the learned trial Judge
against the appellants/A2, A3 & A1.
17. Accordingly, the Criminal appeals are allowed on the following
terms :-
i) The judgment passed by the learned Additional District Sessions
Jude, (FTC), Kumbakonam, Thanjavur District, in S.C.No.11 of 2013,
dated 06.12.2018, is hereby set aside.
ii) The appellants are acquitted from all the charges in S.C.No.11 of
2013, passed vide judgment on the file of the learned Additional District
Sessions Jude, (FTC), Kumbakonam, Thanjavur District dated 06.12.2018.
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iii) Fine amount paid by the appellant shall be refunded to the
appellant forthwith.
iv) Bail bond executed by the appellant shall stand cancelled.
15.05.2025
NCC :Yes / No
Index :Yes / No
Internet : Yes / No
dss/sbn
To
1. The Additional District Sessions Jude, (FTC), Kumbakonam,
Thanjavur District.
2. The Inspector of Police,
Thiruvidaimaruthur Police Station,
Thanjavur District.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court, Madurai.
4.The Section Officer,
Criminal Section(Records),
Madurai Bench of Madras High Court, Madurai.
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CRL.A(MD).No.560 & 562 of 2018
K.K.RAMAKRISHNAN,J.
dss/sbn
CRL.A(MD).Nos.560 & 562 of 2018
15.05.2025
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