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IN THE HIGH COURT OF JUDICATURE AT MADRAS
P.N. PRAKASH, J.
Biyaskan and Another – Appellants
Versus
State Rep. by the Inspector of Police, Kuniyamuthur Police Station – Respondent
Crl. A. Nos. 581, 648 of 2011
Decided On : 09-01-2019
Indian Penal Code,1860 - Sections 147 and 307 - Criminal Procedure Code,1973 - Sections 162,313,374 - Essential Commodities Act, 1955 - Sections 7 and 7(a)(11) Tamil Nadu Civil Supplies (RDCS) Order, 1982- Sections 6(iv) - Indian Evidence Act,1872 - Sections 6 ,8 and 25 - Challenge - Appeal against conviction - Punishment for rioting - Attempt to murder - Sub-Inspector of Police and Head Constable of Police both attached to Kuniyamuthur Police Station were conducting a regular vehicle check along with other police personnel in Coimbatore Palakkad Highway at that time they saw a Tempo Van proceeding towards Palakkad and signalled Vijayakumar Tempo Van driver to stop instead of stopping vehicle raised speed of vehicle and tried to mow down police policemen ran for cover and escaped death by a whisker - However police chased Tempo Van and intercepted it - Was on wheels and was in cabin - Apart from and were in carriage portion of Tempo Van - On checking Tempo Van it was found to have bags of rice which police suspected to be PDS rice - Tempo Van and bags of rice were seized under cover of - Tempo Van along with five accused was brought to jurisdictional Police Station viz Pothanur Police Station - On a complaint lodged by Sub Inspector of Police a case in Crime of was registered under Section 6(iv) of Tamil Nadu Civil Supplies Order r/w Section 7(a)(11) of Essential Commodities Act and Section 307 IPC - Investigation of case was taken over by Investigating Officer who recorded statement of in presence of Village Administrative Officer - Based on disclosure made by bags of rice were seized from his residence under cover of attested by Village Administrative Officer and - All five persons were arrested and were produced before jurisdictional Magistrate for remand - Held, Statement of to that it was who exhorted him to mow down Police will be relevant under Sections 6 and 8 of Indian Evidence Act - Section 6 of Indian Evidence Act reads as under Relevancy of facts forming part of same transaction - Facts which though not in issue are so connected with a fact in issue as to form part of same transaction are relevant whether they occurred at same time and place or at different times and places - A reading of Section 6 shows that connecting link between a fact that is in issue and a fact which is not in issue is whether fact that is not in issue formed part of same transaction for it to be relevant - Section 6 embodies principle of res gestae which makes a hearsay statement relevant if statement forms a part of same transaction - Section 8 of Indian Evidence Act reads as under Motive preparation and previous or subsequent conduct Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact - Conduct of any party or of any agent to any party to any suit or proceeding in reference to such suit or proceedings or in reference to any fact in issue therein or relevant thereto and conduct of any person an offence against whom is subject of any proceeding is relevant if such conduct influences or is influence by any fact in issue or relevant fact and whether it was previous or subsequent thereto - Outside purview of bar against proof contained in Section 25 of Indian Evidence Act - As statement was made prior to commencement of investigation by police it is not hit by bar against admissibility under Section 162 Cr.P.C either - This brings us to concept of proof which is cumulative effect of evidence led and is defined under Section 3 of Evidence Act - Appeals Dismissed
JUDGMENT :
P.N. PRAKASH, J.
Prayer: Criminal Appeals filed under Section 374 Cr.P.C. against the judgment dated 26.08.2011 in S.C. No. 26 of 2011 on the file of the Additional District and Sessions Court (Fast Track Court No. 1), Coimbatore.
1. These criminal appeals have been preferred seeking to set aside the conviction made by the judgment dated 26.08.2011 in S.C. No. 26 of 2011 on the file of the Additional District and Sessions Court (Fast Track Court No. 1), Coimbatore.
2. The brief facts leading to the filing of these criminal appeals are as under:
2.1 It is the case of the prosecution that on 16.05.2006, around 3.00 a.m. Sundharam (PW-1), Sub-Inspector of Police and Ayyasami (PW-2), Head Constable of Police, both attached to B14, Kuniyamuthur Police Station, were conducting a regular vehicle check along with other police personnel in the Coimbatore Palakkad Highway; at that time, they saw a Tempo Van proceeding towards Palakkad and signalled Vijayakumar (A1), the Tempo Van driver to stop; Vijayakumar (A1), instead of stopping the vehicle, raised the speed of the vehicle and tried to mow down the police; the policemen ran for cover and escaped death by a whisker. However, the police chased the Tempo Van and intercepted it. Vijayakumar (A1) was on the wheels and Biyaskan (A2) was in the cabin. Apart from Vijayakumar (A1) and Biyaskan (A2), A3 to A5 were in the carriage portion of the Tempo Van. On checking the Tempo Van, it was found to have 100 bags of rice, which the police suspected to be PDS (Public Distribution System) rice. The Tempo Van and the 100 bags of rice were seized under the cover of Mahazar (Ex-P1). The Tempo Van, along with the five accused was brought to the jurisdictional Police Station viz. B13 Pothanur Police Station.
2.2 On a complaint lodged by Sundharam (PW-1), the Sub Inspector of Police, a case in Crime No. 631 of 2006 was registered on 16.05.2016 under Section 6(iv) of the Tamil Nadu Civil Supplies (RDCS) Order, 1982 (for brevity “the TNCS (RDCS) Order”) r/w Section 7(a)(11) of the Essential Commodities Act, 1955 ( for brevity “the EC Act”) and Section 307 IPC.
2.3 The investigation of the case was taken over by Vivekanandhan (PW-7), the Investigating Officer, who recorded the statement of Biyaskan (A2) in the presence of Balasubramaniam (PW-3), Village Administrative Officer. Based on the disclosure made by Biyaskan (A2), 40 bags of rice were seized from his residence under the cover of Mahazar (Ex-P4), attested by Balasubramaniam (PW-3), Village Administrative Officer and Vivekanandhan (PW-4). All the five persons were arrested and were produced before the jurisdictional Magistrate for remand.
2.4 At the request of the police, Dhandapani (PW-5), Quality Inspector of Civil Supplies Department, took samples from the 140 seized bags and the same were examined by Muthupillai (PW-6), Deputy Manager, Coimbatore Region, Tamil Nadu Civil Supplies Corporation, who, in his evidence and in the certificates (Exs-P7 and P8), has opined that the seized rice was PDS rice. Vivekanandhan (PW-7), the Investigating Officer, completed the investigation and filed final report in P.R.C. No. 34 of 2008, before the Judicial Magistrate No. VII, Coimbatore, against Vijayakumar (A1), Biyaskan (A2), Mohammed Ali (A3), Gabair (A4) and Mohammed Sherif (A5) for the offences under Sections 6(iv) of the TNCS (RDCS) Order, r/w Section 7(a)(11) of the EC Act and Section 307 IPC.
2.5 On the appearance of the accused, they were furnished with the copies of the relied upon documents under Section 207 Cr.P.C. and the case was committed to the Court of Session in S.C. No. 26 of 2011 and was then made over to the Additional District and Sessions Court (Fast Track Court No. 1), Coimbatore, for trial.
2.6 The Trial Court framed charges against the accused under Sections 147 and 307 IPC and Section 6(iv) of the TNCS (RDCS) Order, 1982, r/w 7(a) of the EC Order and when questioned, the accused pleaded “not guilty.”
2.7 To prove the case, the prose
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