Madras High Court
Balamurugan vs The State Rep By on 15 May, 2025
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 31.01.2025
Pronounced on : 15.05.2025
CORAM
THE HONOURABLE MR.JUSTICE K.K.RAMAKRISHNAN
CRL.A(MD).Nos.462 of 2016
Balamurugan -- Appellant
--Vs--
The State Rep by
1. The Assistant Superintendent of Police,
Mayiladuthurai Sub Division,
Nagapattinam District.
(Crime No.114 of 2015)
2. Kalaimagal -- Respondents
( Suo motu impleaded as per order dated 05.08.2024 )
PRAYER: Criminal Appeal has been filed under Section 374 (2) of Criminal
Procedure Code, to call for the entire records and set aside the judgment passed
by the I Additional District and Sessions Judge, (PCR) Thanjavur in Spl.S.C.No.
85 of 2015, dated 04.11.2016, and allow this appeal and acquit the
appellant/accused.
For appellant : Mr. B.Jameel Arasu
For respondent : Mr.M.Sakthi Kumar,
Government Advocate (Crl.Side)
(For 1st Respondent)
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JUDGMENT
The appellant/Sole Accused in Spl.S.C.No.85 of 2015 on the file of the I
Additional District and Sessions Judge, (PCR) Thanjavur has file this appeal,
challenging the conviction and following sentence of imprisonment imposed
against him by virtue of judgment on 04.11.2016, under Sections 354-C IPC
Section 66 E of Information Technology Act and Section 3(1)(xi) of SC/ST
(PoA) Act .
Offence Sentence of Fine with default
imprisonment sentence
354-C IPC One year Rigorous Rs.1000/- with default
Imprisonment sentence of 3 months
simple imprisonment
Section 66 E of One year Rigorous Rs.5000/- with default
Information Technology Imprisonment sentence of 3 months
Act simple imprisonment
Section 3(1)(xi) of SC/ST Three years Rigorous Rs.5000/- with default
(PoA) Act Imprisonment sentence of 6 months
simple imprisonment
2.The brief facts of the case are as follows:
On 03.04.2015 at about 9.30 a.m, when the victim was taking bath in the
bathroom, she found that accused had fixed his android mobile to capture the
bathing scene of the victim and she noticed that and took the mobile and filed the
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complaint before the respondent police on 04.04.2015 and PW7 received the
information and registered the case in Cr.No. 114 of 2015 for offence under
section 354 C, 509 of IPC and 4 of Tamilnadu Prohibition of Harassment of
Women Act, 2002. PW7 took custody of the mobile, Simcard, and Memory Card
from PW1 and entrusted to PW8/Inspector of Police. PW8 continued the
investigation by examining the witnesses and arrested the accused and during the
course of investigation he came to know that victim belonged to the schedule
caste and hence he altered the offence into relevant provision of the Schedule
Caste/Schedule Tribes Prevention of Attrocities Act. Thereafter PW9/Deputy
Superintendent of Police continued the investigation and filed the final report
under section 354 C IPC, 66E of the Information Technology Act, Section 3(1)
(Xi) of SC/ST (POA) Act 1989 and section 4 Tamilnadu Prohibition of
Harassment of Women Act before the 1st Additional District and Sessions Judge,
(PCR) Thanjavur and the same was taken on file in the Spl.S.C. No. 85 of 2015
and summons were issued to the accused and on his appearance, copies under
section 207 of Cr.P.C. Were served upon him and proper charges were framed
and was questioned and he pleaded not guilty and stood for trial.
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3. The prosecution to prove the case examined PW1 to PW9 and marked
Ex.P1 to Ex.P11 and exhibited MO 1 to MO 3. The learned Trial Judge after
recording the prosecution evidence, examined the accused under section 313
Cr.P.C. by putting incriminating material available against him and he denied
them as false and no witness was examined on his side and marked Ex.D.1 and
Ex.D2. The learned Trial Judge convicted the appellant under section 354 C, 66
E of Information Technology Act, and section 3(1)(Xi) of SC/ST (POA) Act
1989 and acquitted under section 4 Tamilnadu Prohibition of Harassment of
Women Act vide impugned judgment and imposed sentence as stated above.
4. Challenging the conviction and sentence, appellant has preferred this
appeal.
4.1. The learned counsel for the appellant would submit that P.W.1 made a
false complaint against the appellant in order to save her skin. There was a
prohibition case registered against the complainant's father in law and he was
convicted. Further on the date of the occurrence, there was a scuffle between the
PW1's family members and appellant relating to the theft of the cell phone of the
appellant. Therefore before he could make a complaint about the theft of the cell
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phone, she preferred a false complaint. In the said circumstances delay in
preferring the complaint is fatal to the prosecution.
4.2. The learned counsel for appeallant further submits that the appellant's
wife lso belongs to the victim's community and he married outside his caste with
schedule caste lady and the appellant's father was running a petty shop and she
used to go to the shop to purchase the grocery. She also used the mobile of the
appellant to contact her husband when ever he was away from the village.
Appellant was a differently abled person and working as a drawing master in the
school and the case of the prosecution that, he went to the bathroom of the
victim and fixed the cell phone to capture the image improbable one. It is
specific case of the PW1 that one person with Blue colour lungi ranaway from
the place of the occurrence. In the said circumstances without investigation
about that person, fixing the accused only on the basis of the recovery of cell
phone without any other evidence that appellant fixed the cell phone in her
bathroom, conviction under charged offence is not legally maintainable.
4.3. The counsel for appellant also submitted that, MO1 to MO3 were
marked without compliance of the Section 64B of the Evidence Act and hence
same is inadmissible.
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4.4. The prosecution miserably failed to prove the presence of the
appellant in the scene of the occurrence. There are number of material
discrepancies between the statement given before the police and 164 statement
given before the learned Judicial Magistrate. Even in the statement given before
the learned Judicial Magistrate she stated that he was physically challenged
person and he can walk only with help of the sticks and his both legs are crippled
and hence the case of the victim that he fixed the cell phone in the bathroom of
the victim and ranaway from the scene of occurrence is unbelievable story. She
also admitted that she went to the house of the appellant and assaulted him.
Therefore the evidence of the victim is not trustworthy and hence he seeks
acquittal.
5.1. Thiru.Sakthi Kumar, learned Government Advocate would submit that
the appellant's cell phone was found fixed in the bathroom of the victim and
there was no explanation on the side of the appellant in this regard. Therefore
there is no need to interfere with the conviction and sentence passed by the
learned Trial Judge. The learned Government Advocate further submit that there
was no delay in perferring the complaint. Occurrence took place on 03.04.2015
at 9.30 a.m. and the complaint was given on 04.04.2015 at 10.00 a.m. On the
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date of the occurrence and her husband was not available and therefore she
approached the police station with some delay. In this case delay is not material
since they MO1 was produced at the police station with the offending material.
5.2. The learned Government Advocate would also submit that there was
no imbellishment and discrepancy between the statement given to police officer
and the learned Judicial Magistrate.
5.3. The learned Government Advocate would also submit that when the
original cell phone with memory card was produced, certificate under section
64B is not necessary. The learned Trial Judge appreciated the evidence and
correctly convicted under section 354-C IPC Section 66 E of Information
Technology Act and Section 3(1)(xi) of SC/ST (PoA) Act.
6. This court considered rival submission and perused the records and the
precedents relied upon by them.
7. The case of the prosecution is that, appellant is a differently abled
person and his both legs are crippled and he cannot walk without stick. He is
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working as drawing teacher. He married outside his caste with schedule caste
lady. His father was running a petty shop. M.O.1, cell phone belonged to the
appellant. P.W.1 is the neighbour. She used to go to the shop of the appellant's
father. She has not only purchased the grocery in the shop but also used the
mobile phone of the appellant to contact her husband whenever he was out of the
village. Before the occurrence, according to P.W.1, there was a scuffle between
P.W.1 and appellant's family. P.W.1 tresspassed into the house of the appellant
and assaulted him. It is the specific case of P.W.1 that the appellant can not walk
without sticks. In the special factual circumstances of the case, the evidence of
P.W.1 that the appellant fixed the cell phone in the bathroom and captured the
image and on findnig of the said cell phone, he ran away from the place of
occurrence without taking cell phone is a suspicious circumstance to disbelieve
the evidence of P.W.1. She has not deposed about the presence of the appellant in
the scene of the occurrence. Her evidence is that the appellant's cell phone was
found fixed in the bathroom. But the evidence of the investigating officer is that
on going through M.O.3, one person with wearing blue colour lungi was
runaway from the scene of the occurrence immediately on pouring water on the
cell phone. It is the specific case of the accused that, the cell phone was stealed
by the victim and therefore, there was a scuffle and mother of the appellant
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scolded her and the appellant also scolded her and therefore she tresspassed into
the house of the appellant and assaulted the said disabled person. Even though
said suggesstion of the appellant is not proved in enterity, but it was admitted by
P.W.1 that he entered into the house of the appellant and assaulted him.
Therefore, this court persumed that the cell phone was missed before the
occurrence. P.W.2 was inside the house of the P.W.1 at the time of the bathing.
His presence in the house of the P.W.1 in her husband absence and the failure of
investigation about the person runaway from the place with wearing blue colour
lungi created a doubt over the presence of the appellant in the scene of the
occurrence is probable one. At the cost of the repetition, the appellant is walking
with only stick and his both legs are crippled and the case of the prosecution is
not appellant was weared the blue colour lungi on the date of the occurrence.
Only incriminating circumstances against the appellant is that, his cell phone was
seized from the bathroom. But he gave the plausible explanation that the cell
phone was missed prior to the occurrence and there was scuffle and P.W.1
assaulted him and before the giving complaint he gave the complaint with false
allegation. In the said circumstances, the prosecution failed to prove the present
of the accused in the scene of the occurrence and captured image by fixing cell
phone in bathroom of the P.W.1 beyond reasonable doubt. The prosecution must
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prove the case beyond reasonable doubt. Suspicion, however strong, is not a
ground to convict the accused and the same is fortified by the following
decisions of the Hon'ble Supreme Court in Digamber Vaishnav v. State of
Chhattisgarh reported in (2019) 4 SCC 522 and Sheila Sebastian v. R.
Jawaharaj reported in (2018) 7 SCC 581.
(2019) 4 SCC 522 (2018) 7 SCC 581
“14. There can be no “28. Law is well settled with
conviction on the basis of surmises regard to the fact that however
and conjectures or suspicion strong the suspicion may be, it
howsoever grave it may be. Strong cannot take the place of proof. Strong
suspicion, strong coincidences and suspicion, coincidence, grave doubt
grave doubt cannot take the place of cannot take the place of proof.
legal proof. The onus of the Always a duty is cast upon the courts
prosecution cannot be discharged to ensure that suspicion does not take
by referring to very strong suspicion place of the legal proof.”
and existence of highly suspicious
factors to inculpate the
accused........”
7.1. The Hon'ble three Judge Bench of Supreme Court in the case of
Bijender v. State of Haryana reported in (2022) 1 SCC 92 has reiterated the
said principle and held as follows:-
“17. Incontrovertibly, where the prosecution fails to
inspire confidence in the manner and/or contents of the
recovery with regard to its nexus to the alleged offence, the
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court ought to stretch the benefit of doubt to the accused. It
is nearly three centuries old cardinal principle of criminal
jurisprudence that “it is better that ten guilty persons
escape, than that one innocent suffer” [ W.
Blackstone, Commentaries on the Laws of England, Book IV,
c. 27 (1897), p. 358. Ed. : see R. v. John Paul Lepage, 1995
SCC OnLine Can SC 19.] . The doctrine of extending benefit
of doubt to an accused, notwithstanding the proof of a strong
suspicion, holds its fort on the premise that “the acquittal of
a guilty person constitutes a miscarriage of justice just as
much as the conviction of the innocent”.
18. It may not be wise or prudent to convict a person
only because there is rampant increase in heinous crimes
and victims are often reluctant to speak truth due to fear or
other extraneous reasons. The burden to prove the guilt
beyond doubt does not shift on the suspect save where the
law casts duty on the accused to prove his/her innocence. It
is the bounden duty of the prosecution in cases where
material witnesses are likely to be slippery, either to get their
statements recorded at the earliest under Section 164 CrPC
or collect such other cogent evidence that its case does not
entirely depend upon oral testimonies.”
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7.2. The learned trial Judge failed to consider the above principle and
convicted the appellant without sufficient evidence much less than the strong
suspicion. Therefore, this court is inclined to hold that, the prosecution failed to
prove the charged offence beyond reasonable doubt and this appeal is liable to be
allowed.
8. Accordingly, this appeal is allowed in following terms:
8.1.The judgment passed by the I Additional
District and Sessions Judge, (PCR) Thanjavur , in
Spl.S.C.No.85 of 2015, dated 04.11.2016, is set aside.
8.2.The appellant is acquitted from all the
charges in Spl.S.C.No.85 of 2015 , by virtue of the
judgment dated 04.11.2016, passed by the I Additional
District and Sessions Judge, (PCR) Thanjavur.
8.3.Fine amount paid by the appellant shall be
refunded to the appellant forthwith.
8.4.Bail bond executed by the appellant shall
stand cancelled.
- Consequently, the connected miscellaneous petitions are closed.
15.05.2025
NCC :Yes/No
Internet :Yes/No
Index :Yes/No
dss
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To:-
1. The I Additional District and Sessions Judge, (PCR)
Thanjavur
2. The Assistant Superintendent of Police,
Mayiladuthurai Sub Division,
Nagapattinam District.
(Crime No.114 of 2015)
3.The Government Advocate,
Madurai Bench of Madras High Court, Madurai.
4.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.
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K.K.RAMAKRISHNAN, J.,
dss
15.05.2025
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