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2018 Supreme(Mad) 1505
IN THE HIGH COURT OF JUDICATURE AT MADRAS
M.V. MURALIDARAN, J.
Mohan - Appellant
Versus
State Represented by Deputy Superintendent of Police, Dharmapuri - Respondent
CRL.A. No. 65 of 2010 & M.P. No. 1 of 2010
Decided on : 05-06-2018
For the Appellant :R. Thirunanam for M/s. C.H. Pandian, Advocates.
For the Respondent:T.P. Savitha, Government Advocate.
Headnote:
Indian Penal Code, 1860 - Section 323 - Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 -Section 3(1)(x) – Offence of voluntarily causing grievous hurt – Assaulted Charged - Challenged - PW1,was working as a Salesman in Wine Shop which belongs to State Government and accused had at that time, come to purchase Alcohol bottle from the shop - When PW1 had demanded amount, accused had started scolding PW1 by using the words which directly refer to his cast and demeaned him and also assaulted him on his nose by using a chappal - PW1 sustained injuries and accused had also closed the door of shop and at that time, PW2, PW3, PW4 and PW5 and one prevented accused from further assaulting PW1 and thereafter, after consulting higher authorities, - Thereafter, he sent complaint and F.I.R. to learned Judicial Magistrate Court and also gave a requisition letter to the Superintendent of Police for appointment of Investigation Officer in case - PW12 who was working as Deputy Superintendent of Police was appointed as Investigating Officer, rushed to scene of occurrence and prepared the Observation Mahazar in the presence of the witness and also prepared rough sketch, and also examined witnesses and recorded their statements - accused was arrested and sent to judicial custody – Held, Further, question whether the appellant has used abusive words demeaning caste to attract provisions of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has also not been proven but for claim made by PW1 - Though burden of proof has been discharged by the prosecution in opinion of trial Court, this Court has to consider whether said finding is based on material evidence or is it a futile attempt of prosecution to nail appellant order to sustain conviction - Ingredients that will have to be necessarily established are that there must be an intentional insult to humiliate a member of a Scheduled Caste in any place with public view - Therefore, the primary ingredient of an intention coupled with a further act to humiliate a member of the Scheduled Caste is to be satisfactorily established - Therefore, it becomes quite evident that window of benefit of doubt is now quite open in favour of appellant - This Court does not intend to close window since there are no warranting reasons not to exercise this benefit in favour of accused - Therefore, for above said reasons, this Court finds that prosecution has not established its case beyond reasonable doubt and accordingly, finding of trial Court cannot be sustained - Hence, the present Criminal Appeal stands allowed and sentence imposed is hereby set aside and appellant is acquitted of all charges.
1. The present appeal has been filed challenging the judgment of the learned Principal Sessions Judge, Dharmapuri made in S.C.No.59 of 2009 whereby which the appellant/accused has been convicted under Section 323 IPC and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. The accused has been sentenced to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for 3 months for the offence under Section 323 IPC and sentenced to undergo Rigorous Imprisonment for two years and pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a period of 8 months for the offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
2. The case of the prosecution is that PW1, Dheivam, was working as a Salesman in Wine Shop which belongs to the State Government and the accused had at that time, come to purchase Alcohol bottle from the shop. When PW1 had demanded the amount, the accused had started scolding PW1 by using the words which directly refer to his cast and demeaned him and also assaulted him on his nose by using a chappal. PW1 sustained injuries and the accused had also closed the door of the shop and at that time, PW2, PW3, PW4 and PW5 and one Amavasai prevented the accused from further assaulting PW1 and thereafter, after consulting the higher authorities, PW1 has preferred a complaint at Krishnapuram Police Station on 07.06.2008. Based on the complaint, PW11, the Sub-Inspector of Police who was on Duty registered the case in Crime No.312/2008 at Krishnapuram Police Station for the offences punishable under Sections 294(b), 323, 355 of I.P.C. and Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Thereafter, he sent the complaint and the F.I.R. to the learned Judicial Magistrate Court and also gave a requisition letter to the Superintendent of Police for appointment of Investigation Officer in the case. PW12 who was working as Deputy Superintendent of Police was appointed as the Investigating Officer, rushed to scene of occurrence and prepared the Observation Mahazar in the presence of the witness and also prepared the rough sketch, and also examined the witnesses and recorded their statements.
3. On 08.06.2008, the accused was arrested and sent to judicial custody. As it was revealed that the offences involved were exclusively triable by the Court of Sessions and accordingly the case was committed to the Sessions Court. During trial, 12 witnesses were examined on the side of the prosecution and PW2 to PW5 turned hostile and they were declared as Hostile Witnesses by the prosecution. Apart from PW1 himself who happens to be the injured witness, there were no other independent witnesses available to support the case of the prosecution. However, the trial Court, after considering the fact that PW1 sustained injuries and a wound certificate was also issued by PW10 at the time of admission of PW1 at the Hospital, and also considering the fact that there were no reasons to disbelieve the case of the prosecution, convicted the appellant for the 1st and 3rd Charge and sentenced him to undergo Rigorous Imprisonment for 2 years and pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a period of 8 months for the offence under Section 3(1)(x) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and to pay a fine of Rs.1,000/-, in default to undergo Simple Imprisonment for a period of 3 months for the offence under Section 323 of I.P.C.
4. I heard Mr.R.Thirunanam for C.H.Pandian, learned counsel appearing for the appellant/accused and Mrs.T.P.Savitha, learned Government Advocate (Criminal Side) appearing for the respondent and perused the entire records.
5. The learned counsel for the appellant would contend that the entire case of the prosecution is based on unfounded allegations and hearsay evidence and hence, the Commis
