IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.1.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.1463 of 2002 I.Vijayamani .. Appellant/ Complainant Vs. 1. Pugalandhi 2. Indiran 3. Vinayagam .. Respondents/ Accused Criminal Appeal against the judgment of acquittal, dated 19.4.1999 in C.C.No.111 of 1993 on the file of the Additional District-cum-Chief Judicial Magistrate's Court, Chengalpattu. For appellant : Mr.K.M.Balaji For respondents: Mr.R.Karthikeyan JUDGMENT The Criminal Appeal arises out of the judgment of acquittal, dated 19.4.1999 in C.C.No.111 of 1993 on the file of the Additional District-cum-Chief Judicial Magistrate's Court, Chengalpattu, whereby, the respondents/A.1 to A.3 were acquitted of the offence under Section 342 IPC, the first respondent/A.1 was acquitted of the offence under Section 384 IPC and the second and third respondents/A.2 and A.3 were acquitted of the offence under Section 384 read with 109 IPC. 2. The case of the appellant-complainant (P.W.1) in the private complaint is that on 7.10.1993 at about 7.45 p.m., when he was at his grocery shop along with his father P.W.5 Govindasamy, A- 2 and A-3 came and took P.W.1, the complainant to Siva Kanchi Police Station, wherein A-1 Pugalendhi, Sub-Inspector of Police was there and at that time, along with A-1, D.W.1 Vijayakumari and her husband Sathyamurthy were also there. A-1 harassed and illegally confined P.W.1 and also questioned the whereabouts of P.W.2 Sivashanmugam and P.W.6 Ramesh. Immediately, A-1 directed A-2 and A-3 to go to the shop of P.W.1 and to bring P.Ws.2 and 6. When A-2 and A-3 went, P.W.1 was put in the lock-up. Subsequently, P.W.2 Sivashanmugam was assaulted by A-1 with lathi. A-1 also directed P.W.1 to bring seven silk sarees, two silk dhothies and five https://hcservices.ecourts.gov.in/hcservices/ sovereign gold jewels and cash of Rs.3,000/- from the shop and hence, A-2 and A-3 took P.W.1 to his shop and took Rs.3,000/- from the shop. Then P.W.1 handed over two silk dhothies and seven silk sarees and five sovereign gold jewels to A-2 and A-3 and they returned to Police Station at about 10 p.m. and handed over the same to A-1. At that time, D.W.1 Vijayakumari and her husband Sathyamurthy were there. P.W.5 Govindasamy intimated the incident to his friend, a retired Deputy Superintendent of Police, Chelladurai, P.W.4 at about 11 p.m. and also intimated the same to the higher officials. Then only, P.Ws.1, 2 and 6 were released from the Police Station. Immediately, they sent telegram to the higher officials. Since no steps have been taken, the complainant has come forward with the private complaint. 3. The trial Court, after following the procedures, framed necessary charges. The accused pleaded not guilty. Considering the evidence of P.Ws.1 to 6, D.W.1, Ex.P-1 series and Exs.D-1 to D-3, the trial Court acquitted the respondents-A.1 to A.3. 4. Learned counsel for the appellant-complainant would contend that even though the appellant-complainant (P.W.1) has sustained injury, he has not taken any treatment. There was a civil dispute between P.W.1, the complainant and his sister Vijayakumari, D.W.1. A-1 and A-3 took law into their own hands and assaulted P.W.1, the complainant herein and P.W.2 Sivashanmugam, the complainant in C.C.No.112 of 1993, i.e. the appellant in Crl.A.No.1464 of 2002. The trial Court has stated that non-examination of the auto driver is fatal. The trial Court also came to the conclusion that a concocted case has been initiated with the help of P.W.4, the retired D.S.P. But the trial Court has not considered the evidence of P.Ws.1 and 2, who are the injured witnesses, P.W.5 and P.W.3 Ayyathurai, the independent witnesses and hence, he prayed for conviction of the respondents-accused. 5. Per contra, learned counsel for the respondents-accused would contend that there is a civil dispute between the father and daughter, that the property where the shop is situated, belongs to P.W.5 Govindasamy. P.W.5's son is Vijayamani, the complainant, i.e. the appellant herein and his daughter, Vijayakumari was examined as D.W.1. P.W.2 Sivashanmugam is P.W.5's another daughter's son. Since P.Ws.1 and 5 have taken steps to evict D.W.1 Vijayakumari and her husband Sathyamurthy, D.W.1 filed a suit before the District Munsif Court, Kancheepuram and interim order was also obtained, and even then, with the help of P.W.4 Chelladurai, the retired DSP, who was running Security Service, they interfered with the possession and thrown out the belongings of D.W.1 and so, D.W.1 gave a complaint before Siva Kanchi Police Station, where, A-1 is the Sub-Inspector of Police and A-2 and A- 3, the Police Constables attached to the said Police Station and https://hcservices.ecourts.gov.in/hcservices/ since it is family dispute as well as civil dispute, for enquiry, P.W.1 was called for and no incident has taken place. Moreover, P.W.1 has not been treated by any Doctor and he has not sustained any injury. There was a delay in preferring the complaint. All these facts have been considered by the trial Court properly and the respondents-accused were acquitted. He further contended that since the respondents-accused were acquitted, the burden is heavily upon the appellant-complainant to prove that the respondents- accused are guilty of the offences for which they were acquitted and he prayed for dismissal of the Criminal Appeal. 6. While considering the arguments of both sides, it is seen that P.W.5 Govindasamy is the owner of the shop. There is also a residential portion in the premises of the shop. P.W.5 Govindasamy is having two daughters and a son and P.W.1 Vijayamani, the complainant, the appellant herein is his son and one of the daughters is D.W.1 Vijayakumari and her husband is Sathyamurthy. P.W.5's another daughter's son is P.W.2 Sivashanmugam. After the marriage of D.W.1 along with Sathyamurthy, she was permitted to reside in the house and she was directed to take care of the shop. So, from the date of marriage onwards, D.W.1 and Sathyamurthy were in possession and enjoyment of the property. After the death of D.W.1's mother, they attempted to interfere with the possession of D.W.1 and so, she filed a suit and obtained interim order. That factum has been accepted by P.W.1 in his cross-examination. But however, with the help of P.W.4, the retired D.S.P., who after his retirement, was running a Security Service, when D.W.1's husband was away from the house, the belongings of D.W.1 has been taken away from the house and they were loaded in a cart, which was accepted by P.W.6 Ramesh, who is an employee under P.W.1 in the grocery shop. Then only, Ex.D-3 complaint preferred by D.W.1 on 7.10.1993, came into existence, and at about 7.45 p.m., P.W.1 was taken to Siva Kanchi Police Station. That factum is admitted by both parties while making enquiry on Ex.D-3 complaint preferred by D.W.1. After the incident, it is admitted that P.W.1 has not gone to any hospital for treatment. So, the evidence before the trial Court, stating that he was assaulted by A-1 is unacceptable one. 7. Furthermore, the main focus is upon delay in preferring the private complaint. Admittedly, the occurrence was alleged to have taken place on 7.10.1993 and the telegram was sent only on 8.10.1993 at about 6.35 p.m. After that, they kept quiet all along and only on 1.11.1993, the private complaint was preferred by the appellant-complainant (P.W.1). No reason was assigned as to why immediately the private complaint has not been preferred against the respondents-accused. The delay has not been properly explained. The trial Court considered this aspect in proper perspective. I do not find any infirmity in the findings of the trial Court with regard to the same. https://hcservices.ecourts.gov.in/hcservices/ 8. Even though learned counsel for the appellant-complainant would contend that P.W.1 has sustained injury, but he has not taken treatment. He has also not given any reason as to why he has not taken any treatment. Further, the trial Court has mainly focussed upon the false private complaint that has been foisted against the respondents-accused with the help of P.W.4, the retired D.S.P. 9. At this juncture, it is appropriate on the part of the Court to consider the evidence of P.W.4, the retired D.S.P. While considering the evidence of P.Ws.1 and 5 along with P.W.4, as soon as respondents 2 and 3/A-2 and A-3 reached the shop of P.W.1, they intimated the fact that P.W.1 was called by the first respondent/A.1 immediately. P.W.1 rushed to the house of P.W.4, the retired D.S.P., where he has given instructions to A-2 and A-3 that since P.W.1 belonged to respectable family, he may be treated properly. Moreover, he also sent P.W.3 Ayyathurai, his driver to go and witness the same. While considering the evidence of P.W.3, the same is not trustworthy and he is an interested witness. That has been properly considered by the trial Court and it discarded the evidence of P.W.3. 10. It is seen that on enquiry, P.W.1 has intimated the fact to P.W.6 and P.W.2 who were at the shop and that factum has been informed to P.W.5 and so, he intimated the same to P.W.4 Chelladurai, the retired D.S.P. Then only, he intimated to higher officials, which shows that in each and every matter, P.W.4, the retired D.S.P. has interfered. If really P.Ws.1 and 2 were assaulted or harassed by the accused, they might have very well taken action immediately. But they kept quiet nearly for 23 days and then only, P.W.1 preferred the private complaint. 11. As already stated, P.Ws.1 to 5 are all relatives and interested witnesses. No independent witness has been examined. The auto driver, who took A-2 and A-3 to the shop of P.W.1 and who took Rs.3,000/-, jewels, silk sarees, etc., has not been examined before Court. No reason has been assigned by the appellant- complainant for the same. That has been properly considered by the trial Court. I do not find any infirmity in the findings given by the trial Court on this aspect. 12. As narrated above, after long time, P.Ws.1, 4 and 5 have discussed together and then only they foisted a false complaint against the respondents-accused. The trial Court has come to the correct conclusion that the private complaint has been filed only on 1.11.1993, and it is only an after-thought and the mastermind is P.W.4, the retired D.S.P., who assisted P.W.1 to evict D.W.1 from the shop. https://hcservices.ecourts.gov.in/hcservices/ 13. In such circumstances, even though P.Ws.1 and 2 have only admitted the signature in the alleged letters given by them on 7.10.1993, but that will not affect the case. As already narrated, the trial Court has considered non-explanation for delay in preferring the private complaint, the non-examination of the independent witness, that too the auto driver and the other neighbouring witnesses and that the private complaint has been the brain-child of P.W.4, the retired D.S.P., who was assisting P.Ws.1 and 5 to evict D.W.1 from the suit premises and all the above aspects have been properly considered by the trial Court and it came to the correct conclusion that only on the basis of the interesting testimonies of P.Ws.1, 4 and 6, it is unsafe to convict the respondents-accused for the offences indicated above. 14. Hence, the acquittal of the respondents-accused by the trial Court is hereby confirmed. The Criminal Appeal is dismissed. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. cs To 1. The Additional District Judge -cum-Chief Judicial Magistrates Court, Chengalpattu. 2. The Public Prosecutor, High Court, Madras 1 cc to Mr.R. Karthkeyan, Advocate, Sr.2941 Crl.A.No.1463 of 2002 KA (CO) kk 28/1 https://hcservices.ecourts.gov.in/hcservices/