Ashok Kumar v. The Deputy Superintendent Of
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT ( Criminal Jurisdiction ) Monday, the Twenty Fourth day of October Two Thousand Sixteen PRESENT The Hon`ble Mr.Justice M.SATHYANARAYANAN and The Hon`ble Mrs.Justice J.NISHA BANU CRL MP(MD) No.7238 of 2016 IN CRL A(MD) No.297 of 2016 and CRL MP(MD)No.8418 TO 8420 of 2016 IN CRL A(MD)328 of 2016 ASHOK KUMAR ... PETITIONER/APPELLANT CRL MP(MD) NO.7238 OF 2016 IN CRL A(MD) NO.297 OF 2016 PANDI ... PETITIONER/3RD APPELLANT CRL MP(MD) NO.8418 OF 2016 IN CRL A(MD)NO.328 OF 2016 MATHI ... PETITIONER/2ND APPELLANT CRL MP(MD) NO.8419 OF 2016 IN CRL A(MD)NO.328 OF 2016 CHANDRASEKAR ... PETITIONER/1ST APPELLANT CRL MP(MD) NO.8419 OF 2016 IN CRL A(MD)NO.328 OF 2016 Vs THE STATE REP.BY THE DEPUTY SUPERINTENDENT OF POLICE, MELUR, MADURAI DISTRICT.
... RESPONDENT/COMPLAINANT CRL MP(MD) NO.7238 OF 2016 IN CRL A(MD) NO.297 OF 2016 THE STATE REP.BY THE DEPUTY SUPERINTENDENT OF POLICE, MELUR, MADURAI DISTRICT.
... RESPONDENT/COMPLAINANT [CRIME NO.962/1991] CRL MP(MD) NOS.8418 TO 8420 OF 2016 IN CRL A(MD)NO.328 OF 2016 Prayer in CRL MP(MD). 7238/ 2016 :
Petition praying that in the circumstances stated therein and in the petition filed therewith the High Court will be pleased to suspend the sentence of appellant passed in the order of conviction of Learned III Additional District Sessions Judge in Spl.S.C. 139 of 2004 pending disposal of Crl.Appeal.
Prayer in CRL MP(MD). 8418 to 8420/ 2016 :
To suspend the sentence imposed by the Learned III Additional Sessions Judge (PCR Case) Madurai in SPl. S.C. No. 139/2004 dated 03.08.2016 and to enlarge the appellant bail in connection with
Spl. S.C. NO. 139/2004 on the file of the Learned III Additional Sessions Judge (PCR CASES) Madurai pending disposal of the above Criminal Appeal, respectively.
ORDER : These petitions coming on for orders upon perusing the petitions filed in support thereof and upon hearing the arguments of Mr.VEERA.KATHIRAVAN, learned Senior Counsel assisted by Mr.K.P.NARAYANAKUMAR as well as Mr.R.MANICKARAJ, Advocate, respective learned Counsel for the petitioners in all the Miscellaneous Petitions and of Mr.K.S.DURAIPANDIAN, learned Additional Public Prosecutor appearing for the State in all the Miscellaneous Petitions and Mr.P.RATHINAM, learned Counsel appearing for the intervenor/petitioner in Crl.M.P(MD)No.9805 of 2016 in Crl.A.(MD)No.328 of 2016, the Court made the following order:- COMMON ORDER M.SATHYANARAYANAN,J.
Heard Mr.Veera.Kathiravan, learned Senior Counsel assisted by Mr.K.P.Narayanakumar as well as Mr.R.Manickaraj, respective learned Counsel for the petitioners in all the Miscellaneous Petitions; Mr.K.S.Duraipandian, learned Additional Public Prosecutor appearing for the State and Mr.P.Rathinam, learned Counsel appearing for the intervenor/petitioner in Crl.M.P(MD)No.9805 of 2016 in Crl.A.(MD) No.328 of 2016.
2. The petitioners in Crl.M.P.(MD)Nos.7238, 8418, 8419 and 8420 of 2016 are the appellants in Crl.A.(MD)Nos.297 and 328 of 2016 respectively and they were charged and tried for the offences under Section 148 and Section 307 I.P.C. read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, in Special S.C.No.139 of 2004 on the file of the III Additional District and Sessions (PCR) Court, Madurai.
3. The trial Court, vide judgment dated 03.08.2016, had convicted the petitioners/appellants as follows: Petitioners/Acc used Conviction Sentence To undergo R.I. for one year and to pay a find of Rs.500/-, in default to undergo S.I. for one month.
U/s.307 I.P.C. read with Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act,1989.
A-1, A-2, A-3 and A-5 / Petitioners in Crl.M.P(MD) Nos.7238, 8420, 8419 and 8418 of respectively.
U/s.148 I.P.C.
To undergo Life Imprisonment and to pay a fine of Rs.2,000/- in default, to undergo S.I.
for six months.
The trial Court ordered the sentences to run concurrently and also granted set off under Section 428 of the Code of Criminal Procedure.
4. Mr.Veera.Kathiravan, learned Senior Counsel assisted by Mr.K.P.Narayanakumar as well as Mr.R.Manickaraj, respective learned Counsel for the petitioners in all the Miscellaneous Petitions, would submit that the occurrence was on 13.11.1991 at about 05.45 p.m. near the Rickshaw Stand in front of Melur Bus Stand, Madurai District and the complaint was given by the injured/P.W.1 on 13.11.1991 at about 06.00 p.m. to P.W.10 - Sub Inspector of Police, Melur Police Station, based on which, a case in Cr.No.962 of 1991 was registered and the printed F.I.R was marked as Ex.P.16 and initially, the charge sheet was filed leaving out the provisions of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and thereafter, the additional charge sheet was filed on 02.04.2004 by P.W.
12 - the Deputy Superintendent of Police, Melur and the trial Court waited nearly for 12 years and ultimately, the petitioners/A-1, A-2, A-3 and A-5 were convicted for the commission of the above said offences and the delay was mainly due to the non co-operative attitude of P.W.1, who was also a member of a political outfit and P.W.2 who was said to be another eye-witness, was in abroad in connection with his employment.
5. It is the further submission of the learned Senior Counsel appearing for the petitioners that in Ex.P.1 - complaint, uttering/abusing P.W.1 with caste name, has not been stated and P.W.1, during the course of his testimony, made improvements and the prosecution has failed to produce the special authorisation given in favour of PW.12 - the Deputy Superintendent of Police, as required under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995 and as such, the rigorous imprisonment for life imposed on the petitioners/accused by invoking the said provisions, per se, is unsustainable.
6. It is also the submission of the learned Senior Counsel appearing for the petitioners that admittedly, the Accident Register has not been marked, which would have disclosed the earliest version of the injured/P.W.1 and only the Wound Certificate was marked through P.W.11 - Medical Officer of the Government Hospital, Melur and admittedly, all the injuries are simple in nature, but for the invocation of Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, lesser sentence should have been imposed on the petitioners.
7. Lastly, it is submitted by the learned Senior Counsel appearing for the petitioners/accused that there is no proper identification for A.1, because P.W.1 is not clear as to the place of residence of A.1 as well as his father's name and as such, the case of the prosecution bristles with improprieties and inconsistencies and in any event, the trial Court ought to have awarded the benefit of doubt and acquitted them. He would further add that since the petitioners/appellants are having a bright
chance of success in these appeals and also in the light of the fact that they were on bail throughout the trial, the substantive sentence of imprisonment imposed on them, may be suspended.
8. Per contra, Mr.K.S.Duraipandian, learned Additional Public prosecutor appearing for the State would contend that P.W.1 is the injured and within fifteen minutes from the time of occurrence, he has given the complaint giving out the details about the specific overt acts on the part of the accused and without any loss of time, the statements were recorded from the concerned witnesses and the testimony of P.W.1 is amply corroborated by P.W.2 - another eyewitness to the occurrence and therefore, their testimonies would carry a great weight.
9. It is the further submission of the learned Additional Public Prosecutor that since Ex.P.18 - Wound Certificate has been marked through P.W.11, there is no necessity to mark the Accident Register and even otherwise, the contents of the Accident Register cannot be taken as a substantive evidence.
10.Insofar as the contention put forth by the learned Senior Counsel appearing for the petitioners regarding want of authorisation under Rule 7 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Rules, 1995, it is the submission of the learned Additional Public Prosecutor that P.W.12 has obtained necessary authorisation under Rule 7 of the Rules and it has also been marked as Ex.19. He would further add that the trial Court, on a proper appreciation and consideration of oral and documentary evidence, has rightly convicted and sentenced the petitioners/accused and since their chance of success is very remote, the substantive sentence of imprisonment imposed on them may not be suspended.
11. This Court has considered the rival submissions and also perused the typed set of documents available on record.
12. P.W.1 is the injured witness and he suffered injuries in the attack inflicted on him on 13.11.1991 at 05.45 p.m., and within fifteen minutes thereafter, he lodged a complaint at about 06.00 p.m., to P.W.10 - Sub Inspector of Police attached to Melur Police Station, who registered the F.I.R and Ex.P.16 is the printed F.I.R. The injured was also taken to Government Hospital, Melur and he was initially treated by P.W.11, through whom, Ex.P.18 - Wound Certificate was marked and as per the said exhibit, the injuries are simple in nature.
13. No doubt, in Ex.P.1 - complaint, nothing is stated about the use/abuse of caste name of P.W.1 and though certain contradictions were elicited during the oral evidence of P.W.1, the same has not been put to P.W.10, who registered the F.I.R as well as P.W.13 - the Investigating Officer.
14. The testimony of the injured witness always carries weight and it is also corroborated by P.W.2, another eye-witness.
15. P.W.12 - Deputy Superintendent of Police, who filed the additional charge sheet adding the offence under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, would depose that he has filed the authorisation marked as Ex.P.19 and it was marked subject to objections and as such, it cannot be contended that without authorisation, the said official had investigated the said offence.
16. No doubt, the trial got protracted for nearly 12 years and a perusal of the materials placed on record would prima facie indicate that both the prosecution as well as the defence had contributed to the said delay.
17. The petitioners were on bail pending trial, but after conviction, their presumption of innocence got erased and they are convicts. In the considered opinion of this Court, the other points urged by the learned Senior Counsel appearing for the petitioners/accused touch upon the merits of the appeals and cannot be gone into at this stage.
18. Therefore, all the Criminal Miscellaneous Petitions are dismissed. However, it is made clear that the observations made hereinabove are only for the purpose of disposal of these petitions and this Court has not gone into the merits of the case of the petitioners as it can be considered at the time of final disposal of the appeals.
19. Since the Sessions Case is of the year 2004, the Registry is directed to prepare the typed set of documents and accord priority for final disposal of the main appeals. sd/- 24/10/2016 / TRUE COPY / Sub-Assistant Registrar (C.S.) TO 1 THE III ADDITIONAL DISTRICT AND SESSIONS (PCR) COURT, MADURAI. 2 -DO-THRO'THE PRINCIPAL SESSIONS JUDGE, MADURAI. 3 THE DEPUTY SUPERINTENDENT OF POLICE, MELUR, MADURAI DISTRICT. 4 THE SUPERINTENDENT, CENTRAL PRISON, MADURAI. 5 THE ADDL. PUBLIC PROSECUTOR, MADURAI BENCH OF MADRAS HIGH COURT, MADURAI.
+1. C.C. to M/S VEERA ASSOCIATES, Advocate SR.No.62856. +1. C.C. to M/S R.MANICKARAJ, Advocate SR.No.63078. ORDER IN CRL MP(MD) NO.7238 OF 2016 IN CRL A(MD) NO.297 OF 2016 AND CRL MP(MD)NO.8418 TO 8420 OF 2016 IN CRL A(MD)328 OF 2016 DATE :24/10/2016 msm/ck-ss3/24.10.16/p5/8c