IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.06.2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.R.C.No.267 of 2006 Panja @ Panchatcharam .. Petitioner Vs. State, rep. by the Sub-Inspector of Police, L & O., R-7 K.K.Nagar Police Station, Chennai-78. Crime No.2233 of 2003 .. Respondent Criminal Revision Case against the judgment dated 24.2.2006 in Crl.A.No.75 of 2005 on the file of the VI Additional Sessions Judge, i/c of IV Additional Court, Chennai, against the judgment dated 10.2.2005 in C.C.No.1468 of 2004 on the file of the 23rd Metropolitan Magistrate, Saidapet, Chennai. For petitioner: Mr.A.Shiv Kumar For respondent: Ms.MF.Shabana and Mr.C.Emalias, Govt. Advocates (Crl. Side) ORDER The Crl.R.C. is filed against the judgment dated 24.2.2006 in Crl.A.No.75 of 2005 on the file of the VI Additional Sessions Judge, i/c of IV Additional Court, Chennai, against the judgment dated 10.2.2005 in C.C.No.1468 of 2004 on the file of the 23rd Metropolitan Magistrate, Saidapet, Chennai. 2. The trial Court convicted the revision petitioner/accused for the offence under Section 385 IPC and sentenced him to undergo six months' simple imprisonment and to pay fine of Rs.500/-, in default, to undergo one month simple imprisonment; he was also convicted for the offence under Section 354 IPC and sentenced him to undergo six months' simple imprisonment and to pay fine of Rs.500/-, in default, to undergo one month simple imprisonment; he was also convicted for the offence under Section 506 (Part 2) IPC and sentenced to undergo one year simple imprisonment, and to pay fine of Rs.500/-, in default, to undergo one month simple imprisonment and he was also https://hcservices.ecourts.gov.in/hcservices/ convicted for the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and sentenced to undergo one year simple imprisonment and to pay fine of Rs.3,000/-, in default, to undergo two months' simple imprisonment. 3. Challenging the said conviction and sentence passed by the trial Court, the revision petitioner/accused filed appeal and the first appellate Court partly allowed the appeal and set aside the conviction and sentence in respect of the offences under Sections 385, 354 and 506 (Part 2) IPC and acquitted the revision petitioner/accused from these offences and confirmed the conviction and sentence in respect of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and enhanced the fine amount from Rs.3,000/- to Rs.10,000/-, in default, to undergo two months' simple imprisonment. Challenging the said conviction and sentence passed by the first appellate Court, the present Crl.R.C. is filed by the revision petitioner/accused. 4. The case of the prosecution is that the revision petitioner/accused who is an auto driver, used to transport P.Ws.1 and 2 who are the sister and brother, to school and P.W.3 who is the father of P.Ws.1 and 2, is well acquainted with the accused. On 30.12.2003 at about 6 p.m., when P.Ws.1 and 2 were on their way to home, the revision petitioner/accused wrongfully restrained them and demanded Rs.400/- and threatened them with knife point and would murder them and would sprinkle acid on their face and the accused pulled P.W.1 with the hands and abused her and she gave Rs.400/- to the accused. P.Ws.1 and 2 made alarm and the public gathered and immediately, the accused escaped from the place. P.Ws.1 and 2 intimated the incident to P.W.3, their father. Subsequently, the complaint Ex.P-1, was given, which was received by P.W.5 and a case was registered in Crime No.2233 of 2003 and Ex.P-2 FIR was prepared and he investigated the case and arrested the accused and seized M.O.1 on the basis of the confession given by the accused under Ex.P- 3. P.W.5 filed the charge sheet against the accused for the said offences. 5. The trial Court, after considering the oral evidence of P.Ws.1 to 5 and Exs.P-1 to P-3 and M.O.1, convicted and sentenced the accused as stated above, against which, the revision petitioner/accused preferred appeal before the first appellate Court and the first appellate Court, after hearing the arguments of both sides, set aside the conviction and sentence in respect of Sections 385, 354 and 506 (Part 2) IPC and convicted and sentenced him in respect of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and enhanced the fine amount. 6. Challenging the conviction and sentence passed by the first appellate Court, learned counsel for the revision petitioner/accused made the following contentions: https://hcservices.ecourts.gov.in/hcservices/ (i) The first appellate Court disbelieved the evidence of P.Ws.1 and 2 in respect of the IPC offences, i.e. Sections 385, 354 and 506 (Part 2) IPC and so, the first appellate Court ought not to have convicted the revision petitioner/accused in respect of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. (ii) Learned counsel culled out some portion of the evidence of P.Ws.1 and 3 and submitted that Ex.P-1 complaint has not been give by P.W.1 and that P.W.3 stated that he has dictated the complaint and hence there is no sanctity attached to Ex.P-1 complaint. (iii) When once the first appellate Court disbelieved the evidence of P.Ws.1 and 2 who are the eye-witnesses, the first appellate Court specifically mentioned that there is no independent witness examined to corroborate the evidence of P.Ws.1 and 2 and the first appellate Court ought not to have accepted the evidence of P.Ws.1 and 2 for convicting the accused under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. (iv) The alleged occurrence is said to have taken place on 30.12.2003 at about 6 p.m., and the complaint was given on the next day at about 10.30 a.m., and the delay has not been properly explained and this factum has not been considered by the first appellate Court. Learned counsel prayed for setting aside the conviction and sentence in respect of Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. 7. Per contra, learned Government Advocate (Criminal Side) stated as follows: (i) It is true that the trial Court convicted the accused for all the charges levelled against him, but the first appellate Court considered the evidence and came to the correct conclusion that in the complaint as well as in the chief examination of witnesses and P.Ws.1 and 2 who are the eye-witnesses, stated that P.W.1 paid Rs.400/-, but in cross-examination, P.W.1 specifically mentioned that she never paid the amount and in such circumstances, the first appellate Court correctly held that the ingredients of Section 385 IPC has not been made out and hence, he was acquitted of the said offence. (ii) In respect of Section 354 IPC, the first appellate Court, in paragraph 12 of the judgment, specifically mentioned the evidnece of P.W.1 that the revision petitioner/accused caught hold of P.W.1's hands and questioned her about her beauty and abused her. In such circumstances, the ingredients of Section 354 IPC has not been made out and hence, the first appellate Court acquitted the accused from the said offence. https://hcservices.ecourts.gov.in/hcservices/ (iii) In respect of the offence under Section 506 (Part 2) IPC, the trial Court came to the conclusion that there is no evidence to show that P.W.1 was threatened by the revision petitioner/accused with dire consequences. Except the evidence of the interested witnesses P.Ws.1 and 2, who are the sister and brother, there is no other evidence. The alleged occurrence took place in a public place and as per the evidence of P.Ws.1 and 2, they have made alarm and the public gathered in that place. In such circumstances, no independent witness has been examined before Court and hence, the first appellate Court disbelieved the evidence of P.Ws.1 and 2 and acquitted the accused of the offence under Section 506 (Part 2) IPC. In paragraph 17 of the judgment of the first appellate Court, the first appellate Court discussed Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act and convicted the accused in respect of the said offence. The judgment of the first appellate Court does not warrant any interference and hence, learned Government Advocate prayed for dismissal of the Crl.R.C. 8. Considering the rival submissions made by both sides, this Court has to decide as to whether the delay in filing Ex.P-1 complaint is fatal to the case of the prosecution. It is pertinent to note that as per Ex.P-1 complaint and Ex.P-2 FIR, the occurrence has taken place on 30.12.2003 at about 6 p.m. But the complaint has been admittedly given on 31.12.2003 at about 10.30 a.m. While perusing the documents and the evidence of P.W.1, it is seen that the delay has been properly explained. As per the evidence of P.W.1, the revision petitioner/accused is known to both P.Ws.1 and 2 and he extracted money from P.W.1 and she gave money to the accused, but she has not intimated about the same to her parents. On the fateful day, i.e. on 30.12.2003 at about 6 p.m., the revision petitioner/accused made a threat and caught hold of P.W.1's hands and abused her with filthy language and she has not intimated the same on the evening. But on the very next day, she intimated the same to her parents and then only, the complaint was given. Furthermore, it is pertinent to note that if anything happened against women, the women are not in the habit of disclosing the same to their parents immediately and they will think over it and then only they will intimate the same. Further, at the time of incident, P.W.1 was a final year college student of B.Sc. Sociology. So, non-giving of the complaint on the same day will not be fatal to the case of the prosecution. In such circumstances, I am of the view that the delay in preferring the complaint has been properly explained. The delay is not fatal to the case of the prosecution. 9. Now, this court has to decide as to whether the complaint has not been written by P.W.1 and whether it is fatal to the case of the prosecution. P.W.1 in her cross-examination fairly stated that she does not known as to who has written Ex.P-1 complaint. In her cross- https://hcservices.ecourts.gov.in/hcservices/ examination, she fairly stated that she does not know as to what is written in Ex.P-1. 10. At this juncture, it is appropriate to consider the evidence of P.W.3, the father of P.Ws.1 and 2. In his cross-examination, he has fairly conceded that on his dictation only, someone has written the complaint, but he does not know the name of the person who wrote the complaint. 11. It is appropriate to incorporate the portion of the evidence of P.W.1 and in her cross-examination, she has stated as follows: @////// ehd; jkpiH gs;spapy; gapytpy;iy/ g[fhh; m/rh/M/1/ jkpHpy; vGjg;gl;lJ vd;why; rhpjhd;/ ,jpy; vd;d vGjpapUf;fpwJ vd;W bjhpahJ/ g[fhh; ntW xU eguhy; vGjg;gl;lJ/ me;j egh; ahh; vd;W vdf;F bjhpahJ/ mjpy; ehd; ifbaGj;J nghl;nld;/ /////@ 12. P.W.3 in his cross-examination, has stated as follows: @ ///// ehd; vd;Dld; ehd; vGjpa g[fhiua[k; vLj;Jr; brd;nwd;/ kWehs; fhiyapy; ehd; fh/epiyaj;jpy; g[fhh; bfhLj;njd;/ tha;bkhHpahf g[fhh; bfhLj;njd;/ mij ,d;bdhU eghpd; K:ykhf vGjp mjpy; ehd; ifbaGj;J nghl;nld;/ mg;nghJ khiy 5/30 kzp ,Uf;Fk; /////@ 13. There is a contradictory version between the evidence of P.Ws.1 and 3. Admittedly, Ex.P-1 complaint contains only the signature of P.W.1 and not the signature of P.W.3. Furthermore, P.W.3 in his evidence stated that he has signed the complaint at about 5.30 p.m. But on a perusal of Exs.P-1 and P-2, it is seen that the case has been registered on 31.12.2003 at about 10.30 a.m. It has been received by the Court on the same day at 16 hours. The evidence of P.W.3 is not trustworthy. P.W.1 who is the complainant, herself admitted that she does not know the contents of the complaint. As per her evidence, she does not know to read Tamil. It is true that the complaint is not the Encyclopaedia. But however, it could be used for corroboration and contradiction of the evidence. In this case, P.W.1 who is alleged to be the complainant, has categorically stated that she does not know the contents of the complaint Ex.P-1. In such circumstances, I am of the view that the complaint has not been given by P.W.1 and the alleged complaint was given by P.W.3 on the very next day. Therefore, no sanctity could be attached on Exs.P-1 and P- 2. 14. The revision petitioner/accused was acquitted of the charges levelled against him under Sections 385, 354 and 506 (Part 2) IPC and he was convicted for the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. It is appropriate to incorporate Sections 2(a) and 4 of the Tamil Nadu Prohibition of Harassment of Women Act, as follows: https://hcservices.ecourts.gov.in/hcservices/ "Section 2: Definitions: In this Act, unless the context otherwise requires-- (a) "harassment" means any indecent conduct or act by a man which causes or is likely to cause intimidation, fear, shame or embarrassment, including abusing or causing hurt or nuisance or assault or use of force." "Section 4: Penalty for harassment of woman: Whoever commits or participates in or abets harassment of woman in or within the precincts of any educational institution, temple or other place of worship, bus stop, road, railway station, cinema theatre, park, beach, place of festival, public service vehicle or vessel or any other place shall be punished with imprisonment for a term which may extend to three years and with fine which shall not be less than ten thousand rupees." 15. Considering the provisions of the Tamil Nadu Prohibition of Harassment of Women Act and the evidence of P.Ws.1 and 2, it is clearly proved that P.Ws.1, 2 and 3 know the revision petitioner/accused and he was an auto driver for some time for their family. So, the revision petitioner/accused is well acquainted with the family of P.W.3, and he was an auto driver by avocation, and whenever he needs money, he approached P.W.1 and received money. On a perusal of the evidence of P.Ws.1 and 2 and Ex.P-1 complaint, it is seen that they have given one version in the complaint and in the chief examination, and contra version in the cross-examination, i.e. in chief examination, P.W.1 categorically stated that she paid Rs.400/- and in cross-examination, P.W.1 categorically admitted that she has not paid the amount and the same were confirmed by the evidence of P.W.2. So, there is contradiction in the evidence of P.W.1 in chief examination and cross-examination. No reliance can be placed on the evidence of P.Ws.1 and 2. Hence, I am of the view that the prosecution has miserably failed to prove that the revision petitioner/accused is guilty of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. 16. The first appellate Court has not considered the said aspect in proper perspective and when once the first appellate Court comes to the conclusion that it disbelieves the evidence of P.Ws.1 and 2 in respect of the IPC offences, the same has to be applied in respect of the offence under the special enactment, namely Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. Hence, I am of the view that the prosecution has not proved that the revision petitioner/accused is guilty of the offence under Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act. 17. In the result: (a) The Crl.R.C. is allowed. https://hcservices.ecourts.gov.in/hcservices/ (b) The conviction and sentence passed against the revision petitioner/accused in respect of Section 4 of the Tamil Nadu Prohibition of Harassment of Women Act, are set aside and he is acquitted of the said offence. (c) The bail bond, if any executed by the revision petitioner/accused shall stand cancelled. (d) The fine amount, if paid by the revision petitioner/accused, shall be refunded. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar cs To 1. The VI Additional Sessions Judge, i/c IV Additional Court, Chennai. 2. Do Through The Principal Sessions Judge, Chennai 3. 23rd Metropolitan Magistrate, Saidapet, Chennai. 4. Do Through The Metropolitan Magistrate, Egmore, Chennai-8 5. The Sub-Inspector of Police, L & O., R-7 K.K.Nagar Police Station, Chennai-78. Crime No.2233 of 2003 6. The Public Prosecutor, High Court, Madras. 7. The Superintendent, Central Prison, Chennai-66 8. The Superintendent, Central Prison, Vellore Copy to The Section Officer, Criminal Section, High Court, Madras 1 cc To Mr.A.Shiv.Kumar, Advocate, SR.33569 Order in Crl.R.C.No.267 of 2006 NG (CO) RH (21.6.11) https://hcservices.ecourts.gov.in/hcservices/