Crl.A(MD)No.160 of 2015

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 06.03.2020
CORAM:

THE HONOURABLE Mr.JUSTICE M.NIRMAL KUMAR

Crl.A(MD)No.160 of 2015

Raja … Appellant / Accused

Vs.

State rep. by its
Deputy Superintendent of Police,
Thirumangalam Inner Division,
Thirumangalam Town Police Station,
Madurai District.
(Cr.No.783 of 2005) … Respondent / Complainant

PRAYER: Appeal filed under Section 374(2) of Criminal Procedure
Code, against the Judgment and Conviction passed by the learned III
Additional District and Sessions Court (PCR) Madurai, made in Special
S.C.No.48 of 2011, dated 04.07.2015.

For Appellant : Mr.A.Saravanan

For Respondent : Mr.K.K.Ramakrishnan
Addl.Public Prosecutor

JUDGMENT

The appellant / accused was charged and tried before the learned

III Additional District and Sessions Court (PCR) Madurai, made in

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Special S.C.No.48 of 2011 and after trial, the Court below found the

appellant guilty and by Judgment, dated 04.07.2015, convicted the

appellant under Section 354 IPC., and sentenced him to undergo 6

months Rigorous Imprisonment and to pay a fine of Rs.1000/-, in

default, to undergo 1 month Simple Imprisonment. Aggrieved over the

same, the appellant has filed the present appeal.

2. For the sake of convenience, the parties are referred to, as per

their ranking before the trial Court.

3. The facts of the case are briefly stated hereunder:-

(i) On 10.05.2005, at about 3.00 p.m., when P.W.1 / defacto

complainant, was gracing the goats, at Kappaloor, opposite to SIDCO

Rubber Company, at that time, the accused came there, along with

other accused, hugged P.W.1, by calling her a cast name and torn her

saree and jacket, however, P.W.1 escaped from the accused.

(ii) P.W.1 immediately informed the incident to P.W.2 and P.W.3 /

father and brother of P.W.1, who in turn, informed the same to the

Village people and Village Headman, for taking action against the

accused persons, however, they were not taken any action, hence, P.W.1

lodged Ex.P1 / Complaint before P.W.6 / Sub-Inspector of Police, on

21.05.2005.

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4. On receipt of Ex.P1 / Complaint, P.W.6 registered a case in

Crime No.783 of 2005, for the offence under Sections 354 and 506(ii)

IPC., and Section 3(1)(x) of Scheduled Caste / Scheduled Tribes

(Prevention of Atrocities) Act, 1989, and prepared ExP.4 / FIR, sent the

original FIR to the Court and also sent a copy of Ex.P4 to P.W.7, the

Deputy Superintendent of Police.

5. P.W.7 / Deputy Superintendent of Police, on receipt of Ex.P4 /

FIR, at about 8 p.m., proceeded to the scene of occurrence on

21.05.2013. Again on 22.05.2013, proceeded to the scene of

occurrence, prepared Ex.P5 / Observation Mahazar and Ex.P6/ Rough

Sketch, in the presence of P.W.4 and P.W.5, recorded the statement of

witnesses, arrested the accused and remanded to the Judicial custody.

Further, obtained the community certificate of the accused from the

Revenue Department. P.W.7, after completion of investigation filed the

final report before the concerned court, for the offences

aforementioned.

6. Based on the above materials, the Court below framed charges

against the appellant for the offence under Sections 354 and 506(ii)

IPC., and Section 3(1)(x) of Scheduled Caste / Scheduled Tribes

(Prevention of Atrocities) Act, 1989.

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7. In order to prove the case, on the side of the prosecution, 7

witnesses were examined as P.Ws.1 to 7 and 7 documents were marked

as Exs.P1 to P7. On the side of the appellant / accused, no documents

were marked.

8. The Court below by pointing out the incriminating materials

recorded during the course of trial, questioned the appellant under

Section 313(1)(b) of Cr.P.C., and the appellant denied the same as false.

9. The trial Court on considering the facts and circumstances of

the case and also after analyzing he entire oral and documentary

evidence, came to the conclusion that the prosecution has not proved

the case beyond reasonable doubts against the accused in respect of

the offence under Section 506(ii) IPC., and Section 3(1)(x) of Scheduled

Caste / Scheduled Tribes (Prevention of Atrocities) Act, 1989, however,

convicted the accused under Section Section 354 IPC and sentenced to

undergo 6 months Rigorous Imprisonment and a fine of Rs.1000/- in

default to undergo 1 month Simple Imprisonment. Aggrieved by

which, the accused / appellant is before this Court by filing the present

appeal.

10. Mr.A.Saravanan, the learned counsel appearing for the

appellant would submit that initially, the law enforcing agency

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registered the case against three accused. Since the appellant / A1 was

not appeared before the trial Court, the case against him was split up

and other two accused were tried and they were acquitted However,

subsequently, the case against A1 case was conducted by assigning

S.C.No.48 of 2011 and the Court below acquitted accused in respect of

the offence under Section Section 506(ii) IPC., and Section 3(1)(x) of

Scheduled Caste / Scheduled Tribes (Prevention of Atrocities) Act,

1989, however, convicted the accused under Section Section 354 IPC

and sentenced him to undergo 6 months Rigorous Imprisonment with

default clause. It is submitted by the learned counsel for the appellant

that when the co-accused viz., A2 and A3 had been acquitted by the

Court below, the same benefit ought to have been given to the present

appellant.

11. Adding further, the learned counsel would submit that the

incident was happened on 10.05.2005, however, the complaint was

lodged only on 21.05.2005 and there is no proper explanation for delay

in filing the FIR. In the present case, P.W.1 is the victim, P.W.2 and P.W.

3 are father and brother of P.W.1. P.W.1 informed the incident to P.W.2

and P.W.3, who are not eyewitnesses to the occurrence and their

evidences are not much useful to decide the present case. Further,

P.W.2 in his evidence clearly deposed that the incident was happened

on 10.05.2005, the same was immediately informed to the Village

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people and Village Headman, they assured to enquire the issue and

since they were not conducted proper enquiry, P.W.2 lodged the

Complaint, on 21.05.2005.

12. It is the further contention of the learned counsel appearing

for the appellant that though P.W.7 / Investigating Officer in his

evidence deposed that he examined the village people, no evidence

was adduced before the trial Court that there was initial complaint

before the Village President In the present case, the victim alone

gracing the goats in Government Poramboke land and previously, there

was a dispute with regard to removal of fire wood in that particular

place. In order to wreck vengeance, the false complaint has been filed

against the appellant. The allegation against the accused is that when

P.W.1 / defacto complainant, was gracing the goats, at Kappaloor,

opposite to SIDCO Rubber Company, at that time, the accused came

there, along with other accused, hugged P.W.1, by calling her a cast

name and torn her saree and jacket, however, P.W.1 pushed the accused

and escaped from there, however P.W.1 evidence is not corroborated

with any material evidence. Accordingly, the learned counsel prayed

for allowing the appeal.

13. Mr.K.K.Ramakrishnan, the learned counsel appearing for the

State would submit merely because some of the accused were acquitted

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for want of evidence, the accused against whom there is legal evidence

can be convicted and the easy course of acquittal cannot be adopted by

the Court on the ground that the co-accused were acquitted. In this

case, P.W.1 had made a specific allegation against A1, as if he hugged

her, however, in respect of other accused, there is no serious

allegations against them. In the present case, the necessary

ingredients required under Section 354 IPC., has been clearly

established by the prosecution by examining P.W.1. Accordingly, the

learned Additional Public Prosecutor prayed for dismissal of the appeal.

14. I have heard the submissions made on either side and perused

the materials available on record.

15. The following questions arise for consideration in the present

appeal :-

(i) Whether the prosecution established
the case against the accused in respect of an
offence under Section 354 IPC. ?

(ii) Whether the appellant attempt to
misbehave or sexually assault P.W.1 intending
to outrage her modesty?

(iii) Whether the order of the trial Court
is to be interfered with?

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16. On perusal of records it is seen that the entire case revolves

between the evidences of P.W.1 / Victim and P.W.7 / Investigating

Officer. The other evidences are hearsay evidences. P.W.1 in her

evidence deposed that when she was gracing the goats, at Kappaloor,

opposite to SIDCO Rubber Company, at that time, the accused came

there, along with other accused, hugged and by calling her a cast name

torn her saree and jacket, however, P.W.1 pushed the accused and

escaped from the place and immediately thereafter, she informed the

same to P.W.2 and P.W.3. After two days of the occurrence, the accused

came with aruval to her house, threatened her and after 10 days, she

lodged the complaint before the respondent police. On perusal of

evidence of P.W.2, who is hearsay witness, in his evidence clearly

deposed that immediately after the incident P.W.1 informed the same to

P.W.2 and P.W.4, P.W.2 informed the same to the Village Headman and

the Village Headman assured him to take action, however, at that time,

P.W.2 did not reveal with regard to threatening by accused. There may

be justification in the action of P.W.2 for not lodging the complaint

immediately after the occurrence, however, P.W.7, who is the

Investigating Officer, in his cross examination clearly deposed that

with regard to delay in lodging the complaint, P.W.2 informed P.W.7

that he wanted to compromise the issue in the presence of elders of the

village. To that effect, P.W.7 did not examine the Village headman,

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villagers and they were not added as witnesses in the present case.

Hence, P.W.1 is evidence is not sufficient to prove the guilt of the

accused. In the considered opinion of this Court, the prosecution has

miserably failed to examine the independent witnesses and to prove the

case against the appellant beyond reasonable doubt.

17. In the result, this Criminal Appeal is allowed. The conviction

and sentence imposed on the appellant / accused in Special S.C.No.48

of 2011, by the learned III Additional District and Sessions Court (PCR)

Madurai, dated 04.07.2015, is set aside and the appellant is acquitted

of the charges framed against him. The bail bond, if any, executed by

the appellant shall stand cancelled. The fine amount, if any, paid by the

appellant shall be refunded to him.

06.03.2020
Index : Yes / No
Internet : Yes / No
MPK

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Crl.A(MD)No.160 of 2015

To

1.The III Additional District and
Sessions Court (PCR)
Madurai.

2. The Deputy Superintendent of Police,
Thirumangalam Inner Division,
Thirumangalam Town Police Station,
Madurai District.

3. The Additional Public Prosecutor,

Madurai Bench of Madras High Court, Madurai.

4.The Record Clerk,
Vernacular Section,
Madurai Bench of Madras High Court, Madurai.

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Crl.A(MD)No.160 of 2015

M.NIRMAL KUMAR, J.

MPK

Crl.A(MD)No.160 of 2015

06.03.2020

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