BAIL SLIP That the Appellant/Accused viz., Palanisamy was directed to be released on bail by the order of this Court dated 28.11.2002 and made in Crl.M.P.No.12143/2002 in Crl.Appeal No.1666/2002. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.06.2009 C O R A M THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR Crl.A.No.1666 of 2002 Palanisamy ..Appellant Vs. State by Inspector of Police, Perundurai Police Station Erode District Cr.No.297/2001 ... Respondent This Criminal Appeal has been filed under Section 374(2) of Criminal Procedure Code as against conviction and sentence imposed in S.C.No.73/2002 dated 29.10.2002 by the learned Principal Sessions Judge, Erode and to set aside the same. For Appellant : Mr.N.Manokaran For Respondent : Mr.J.C.Durairaj, Govt. Advocate (Crl. Side) J U D G M E N T The sole accused who stood charged and convicted before the Principal Sessions Judge, Erode in S.C.No.73/2002 for an offence punishable under Section 3(1) and 5 of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 and sentenced to pay a fine of Rs.1,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of one month for the offence under Section 3(1) of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 and to undergo six months rigorous imprisonment and to paya fine of Rs.500/- and in default payment of fine to undergo rigorous imprisonment for 15 days for the offence punishable under Section 5 of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 has come forward with the present appeal against the said conviction and sentence. https://hcservices.ecourts.gov.in/hcservices/ 2. The case of the prosecution, in brief, can be stated as follows: i) The appellant herein/accused is a resident of Kambuliyampatti. 10 days prior to the date of occurrence, the appellant herein/accused travelled in the bus belonging to Tamil Nadu State Transport Corporation (Coimbatore-Division-II), Erode bearing Regn.No.TN-33 N-1286 from Perundurai to Vijayamangalam. Though he had got the ticket to Vijayamangalam, he wanted P.W.1 - the driver of the said bus to stop at Saralai and allow him to alight there. The said request was turned down stating that the bus would not be stopped there and the appellant herein/accused was dropped at Vijayamangalam. While he was leaving the said place after getting down from the bus, the appellant herein/accused proclaimed that one day or the other he would break the wind screens of the bus. ii) After a gap of 10 days from the said occurrence i.e. on 18.06.2001 when the said bus came to Moongilpalayam diversion (pirivu) at about 11.40 p.m on its way from Salem to Coimbatore, the appellant herein/accused pelted a piece of cement slab on the said bus in which the front left side wind screen got completely damaged. In the said incident, P.W.4-Ramanathan, who was travelling in the said bus as a passenger got simple injuries. Soon after the occurrence, P.W.1-Dhandapani, the driver of the bus and P.W.3- Pandian, the conductor of the bus chased the appellant herein/accused and caught him with the help of some of the passengers. Thereafter he was produced before the Sub-Inspector of police, Perundurai Police Station and Ex.P1 complaint was lodged by P.W.1. Based on the said complaint, Ex.P10-First Information Report was prepared and a case was registered on the file of Perundurai police station in Cr.No.297/2001 for offences punishable under Section 3 of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992 and Section 324 IPC at about 2.00 a.m on 19.06.2001. P.W.4, who sustained injuries in the occurrence, received medical treatment at Government General Hospital, Perundurai. Ex.P3 is the Accident Register and Ex.P2 is the Wound Certificate relating to P.W.4. After causing damage to the windscreen of the bus, the appellant herein/accused tried to escape by running away from the said place. When he was chased by P.W.1 (driver) and P.W.3 (conductor) and in such an attempt to escape from the place of occurrence, the appellant herein/accused fell down and sustained some injuries. Therefore, he was also referred to the Government General Hospital, Perundurai by the police for treatment. P.W.2-Dr.Arumugam is the Medical officer who gave treatment to P.W.4 as well as the appellant herein/accused. Ex.P4 and P5 are respectively the Accident Register and Wound Certificate of the appellant herein/accused. iii) P.W.5, the then Motor Vehicles Inspector Gr.II, Perundurai inspected the vehicle and submitted a report marked as Ex.P6 assessing the damage caused to the vehicle at Rs.1,000/-. P.W.9- https://hcservices.ecourts.gov.in/hcservices/ Vasudevan, the then Inspector of Police, Perundurai, conducted investigation, prepared Ex.P9-Observation Mahazar in the presence of P.W.7-Venkatachalam and one Kuzhanthaisamy and also Ex.P12-Rough sketch. The duty certificate of P.Ws.1 and 3 issued by the Branch Manager of Tamil Nadu State Transport Corporation, who was examined as P.W.6, Trip Sheet, letter addressed to the Inspector of Police by the General Manager, Tamil Nadu State Transport Corporation (CBE.DIVN.II) Ltd., Erode and xerox copy of the receipt issued to the accused for payment of Rs.1,500/- marked as Ex.P7, P8, P13 and P14 respectively were also recovered by the Investigating Officer. M.O.1-piece of cement slab and M.O.2 series - broken pieces of left side front windscreen of the bus were also recovered under Ex.P11- Form 95. After completing the investigation, P.W.9 - inspector of police submitted a final report alleging that the appellant herein/accused had committed the offences punishable under Sections 3 (1) and 5 of the Tamil Nadu Property (Prevention of Damages and Loss) Act, 1992. 3. The said final report submitted by the Investigating Officer was taken on file by the Judicial Magistrate, Perundurai as PRC No.11/2002. On appearance of the appellant herein/accused before the said court he was furnished with copies of the documents sought to be relied on by the prosecution, under Section 207 Cr.P.C and the case was committed to the Principal Sessions Judge, Erode for trial under Section 209(a) Cr.P.C. The case, thus committed for trial to the Sessions Court was taken on file by the learned Principal Sessions Judge, Erode as S.C.No.73/2002. Necessary charges were framed against the appellant herein/accused. He pleaded not guilty and wanted the case to be tried. 4. In order to substantiate the charges made against the appellant herein/ accused P.W.1 to 9 were examined, Ex.P1 to P14 were marked and M.Os.1 and 2 were produced on the side of the prosecution. After completion of recording of evidence on the side of the prosecution, the appellant herein/accused was examined under Section 313(1)(b) regarding the incriminating materials found in the evidence adduced on the side of the prosecution. He denied them as false and reiterated his stand that he was innocent and that the case registered against him was a false one. No witness was examined and no document was marked on the side of the appellant herein/accused. 5. The learned Principal Sessions Judge, Erode heard the arguments advanced on either side and in the light of the arguments thus advanced, considered the evidence brought before the trial court. Upon such consideration, the trial court came to the conclusion that both the charges framed against the accused were proved beyond reasonable doubt and convicted him for the said offences and imposed punishments as indicated supra. https://hcservices.ecourts.gov.in/hcservices/ 6. Challenging the correctness and legality of the conviction recorded and the sentence of punishment awarded by the trial court, the appellant herein/accused has come forward with the present appeal on various grounds set out in the appeal petition. 7. The point that arises for consideration in this appeal is, "whether the judgment of conviction and the order of sentence of the court below suffers from any defect or infirmity warranting interference by this court in this appeal?" 8. This court heard the submissions made by Mr.N.Manokaran, learned counsel for the appellant herein/accused and by Mr.J.C.Durairaj, learned Government Advocate (Crl. Side) representing the respondent police. The grounds of appeal, the judgment of the court below and all other materials available on record were also perused by this court. 9. Advancing arguments on behalf of the appellant herein/accused, Mr.N.Manokaran, learned counsel submitted that the judgment of the court below was against law, weight of evidence and probabilities of the case; that the court below failed to appreciate the contradictions found in the evidence of P.W.1 and the contents of the complaint regarding when the previous occurrence which formed the motive for the accused to commit the offences alleged against him; that the court below failed to notice the fact that the wife of P.W.4 was not examined even though she was also said to be travelling in the bus of which her husband was travelling at the time of the commission of the offence; that the non-examination of the wife of P.W.4 would create a reasonable doubt regarding the prosecution case; that no independent witness was examined in order to prove the charges made against the appellant herein/accused and that the court below pronounced a judgment holding the appellant herein/accused guilty of the above said offences without even considering the defence plea raised by the appellant herein/accused. 10. It is the further contention of the learned counsel for the appellant that the court below failed to note the absence of explanation offered by the prosecution regarding the injuries sustained by the accused; that the improbability in the case of the prosecution as if the accused was identified, as the occurrence was said to have taken place at about 11.40 p.m; that the court below failed to consider the admission made by P.W.1 that there can be occasions in which the windscreens might get damaged due to jerks when the vehicle was on move; that the court below failed to note the fact that the accused had already paid a sum of Rs.1,500/- towards the damage caused to the bus involved in the occurrence and that the punishment imposed by the court below on the appellant herein/accused was harsh and highly excessive. https://hcservices.ecourts.gov.in/hcservices/ 11. It is the further contention of the learned counsel for the appellant that the mere seizure of M.O.1 and M.O.2 series would not help the prosecution to connect the accused with the occurrence; that the fact that the Investigating Officer has omitted to show the presence of the bus in the Observation Mahazar or in the rough sketch, will improbablise the case against the appellant herein/accused and that hence the appeal must be allowed holding the procedure adopted by the trial court defective and the finding of the trial court unsustainable as the same was defective and infirm. 12. The submissions made by Mr.J.C.Durairaj, learned Government Advocate (Crl. Side) representing the respondent police in this regard were also heard and this court gave its anxious consideration to the points raised on behalf of both the parties in this appeal and also to the other materials available on record. 13. The case of the prosecution is that the front left side windscreen of the bus was smashed by the appellant herein/accused by pelting a piece of cement slab. It is also the case of the prosecution that P.W.4-Ramanathan, who was sitting behind the conductor seat, sustained injuries in the occurrence on the left side of his forehead and his left leg. P.W.1 is not specific in his evidence as to the object which hit P.W.4 and caused injuries. However, P.W.3 (conductor) would state that the stone (piece of cement slab), after hitting and smashing the windscreen of the bus, pierced through the windscreen, proceeded further and hit P.W.4 on the left side of his forehead. P.W.3 has also stated in his chief examination that on seeing the appellant herein/accuse pelting a stone against the windscreen of the bus he bent forward and lowered his head and thus escaped unhurt. On the other hand, P.W.4 would state that he was hit by the broken glass pieces of the windscreen and not by the piece of cement slab. It is the case of the prosecution that the accused also sustained injuries as he fell down while being chased by P.W.1, P.W.3 and some of the passengers. It transpires after registration of the case on the file of Perundurai Police station based on the Ex.P1-complaint both P.W.4 and the appellant herein/accused were referred to Government General Hospital, Perundurai for treatment. Ex.P3 is the Accident Register and Ex.P2 is the Wound certificate pertaining to P.W.4. In the said documents, the Medical Officer has noted that P.W.4 informed him that he sustained injuries when he was hit by a piece of cement slab thrown by a known person at about 11.40 p.m on 18.06.2001 at Moongilpalayam diversion when he was travelling in the bus from Erode to Coimbatore. But the passenger ticket has not been recovered and produced. The evidence of P.W.4 regarding the object which hit him and caused injuries is some what contrary to the particulars found in Ex.P2 and P3. According to P.W.4's testimony, he was hit by the broken pieces of glass and not by the piece of cement slab. https://hcservices.ecourts.gov.in/hcservices/ 14. The prosecution has produced M.O.1 as the piece of cement slab thrown by the appellant/accused at the windscreen of the bus. M.O.2 series have been produced as the broken glass pieces of the windscreen. M.O.1 and 2 were allegedly taken to the police station by P.W.1 from the place of occurrence and handed over to P.W.8- Marichamy, Sub-Inspector of Police, who recovered the same under Form 95 marked as Ex.p11. But there is total absence of evidence as to whether M.O.1 - piece of cement slab was picked up from inside the bus or from the road (outside the bus). It is quite improbable that the piece of cement slab would have travelled further and hit P.W.4 after piercing through the windscreen of the bus. Of course there is evidence to the effect that the appellant herein/accused fell down and sustained injuries when he was chased by P.W.1 and P.W.3 along with some of the passengers and the evidence of P.W.1 and 3 get corroboration from the evidence of the Medical Officer, examined as P.W.2 and also from Ex.P4-Accident Register and Ex.P5-Wound Certificate. But a contradiction found in the evidence of P.W.1 and 3 in this regard is worth mentioning. Admittedly, the bus was proceeding towards west from east. According to P.W.1, the appellant herein/accused was standing on the left side of the road and pelted a cement slab piece at the left side windscreen of the bus. 15. It is his further evidence that after the bus was hit by the piece of cement slab, he applied brake but the bus came to a halt after crossing a distance of 50 feet. He has also stated in his evidence that the appellant herein/accused was running towards est and they caught him after chasing him for about 60 feet. Per contra, P.W.3 has stated that the appellant herein/accused was running towards west when he was chased and caught by them. Thus there is a material contradiction between the evidence of P.W.1 and P.W.3 as to whether the appellant herein/accused was caught by P.W.1 and 3 at a place lying on the west or east of the place wherein the bus had been stopped. 16. The refusal of P.W.1 to allow the accused to get down from the bus at a place called Saralai and P.W.1's act of dropping him at Vijayamangalam to which he had got the ticket when the appellant herein/accused travelled in the said bus 10 days prior to the date of occurrence is said to be the motive for the occurrence that took place on 18.06.2001. According to the evidence of P.W.1, P.W.3 was the person who was on duty as conductor on the date of the above said previous occurrence forming the motive and on the date of occurrence, namely 18.06.2001. But the same has not been supported by P.W.3. According to P.W.3's testimony, he saw the appellant herein/accused for the first time on the date of occurrence viz. 18.06.2001. There is no other evidence except the oral testimony of P.W.1 in order to prove the previous occurrence providing motive for the occurrence that took place on 18.06.2001. In the light of the admission made by P.W.3 that he saw the accused for the first time on the date of occurrence i.e. 18.06.2001, whereas P.W.1 has stated that P.W.3 was https://hcservices.ecourts.gov.in/hcservices/ the conductor on duty on the date of previous occurrence also, this court is able to realise the improbabilities of the prosecution case regarding motive. If at all the appellant herein/accused pursuant to the alleged previous occurrence wanted to cause damage to the bus why should he wait for 10 days and choose a time just before midnight? This court is not able to find any reason for the same. 17. Perundurai – Coimbatore road is a busy National Highway (NH-47) in which a lot of vehicles are plied. It shall not be possible for a person to identify a bus with its registration number or route board during night hours at a distance when the bus is on the move. Even if the bus could be identified at a distance of 25 to 30 feet, the bus would have frisked away without there being sufficient time for the appellant to react since admittedly the bus was proceeding at a speed of 60 Km/hr which means the bus would have crossed 50 feet in a second. P.W.9 is the police officer who investigated the case and submitted the final report based on which the offences were taken cognizance of. The Observation Mahazar and rough sketch prepared by him at the scene of occurrence have been marked as Ex.P9 and P12 respectively. P.W.7-Venkatachalam has been examined as the attestor of the Observation Mahazar. The other attestor, namely Kuzhanthaisamy has not been examined as a witness on the side of the prosecution. P.W.7, according to his own version resides at a distance of 3 or 4 Km from the place of occurrence. It is improbable that he would have gone to the place of occurrence at about 3.00 a.m during night hours to be a witness for the preparation of the Observation Mahazar and rough sketch. P.W.7 has asserted in his evidence that the bus involved in the occurrence was there in the scene of occurrence when the Investigating Officer prepared Observation Mahazar and rough sketch. P.W.9 - Investigating Officer has also stated in his evidence that the bus had not been parked in the police station when he went there at 2.30 a.m to get the FIR copy and take up the investigation of the case. It is his further evidence that he saw the bus for the first time only in the place of occurrence. But the presence of the bus in the scene of occurrence has not been noted either in the observation mahazar marked as Ex.P9 or in the rough sketch marked as Ex.P12. 18. It is the evidence of P.W.1 that he took P.W.4 and the accused and also M.Os.1 and 2 to the police station and handed over the accused and M.O.1 and 2 to the police. He has not stated what was the mode of transport used for the said purpose. However, P.W.3 has stated that the appellant herein/accused, P.W.4 and the M.Os.1 and 2 were transported to the police station in the very same bus which was damaged in the occurrence. Same is the testimony of P.W.4 also in this regard. A consideration of the above said evidence of P.W.3 and 4 in the light of the statement of P.W.1 in his evidence that the bus was taken to the office of the Regional Transport Officer, Perundurai in the morning of 19.06.2001 along with the police and the fact that the presence of the bus in the scene of https://hcservices.ecourts.gov.in/hcservices/ occurrence at the time of alleged spot inspection made by P.W.9 has not been noted in Ex.P9 – Observation Mahazar and Ex.P12 – rough sketch, will make the contention of the learned counsel for the appellant/accused that Ex.P9 and P12 could not have been prepared in the presence of P.W.7 and that his signature should have been obtained in the police station probable and the said contention has got to be countenanced. It shall, at the least be held that the same would give rise to a reasonable suspicion regarding the spot inspection allegedly conducted by P.W.9. 19. Yet another discrepancy regarding the lodging of the complaint has also been pointed by the learned counsel for the appellant. P.W.1, in his evidence in chief examination, stated that he gave a complaint in writing and that Ex.P1 was the complaint given by him. P.W.3 and P.W.8 have also stated that P.W.1 gave a complaint in writing. It is not their evidence that the oral statement of P.W.1 was reduced to writing and his signature was obtained on it. Per contra, during cross examination, P.W.1 has stated that he orally furnished the particulars for the preparation of the complaint and the same was reduced to writing by the police; that there after he signed the complaint thus scribed by the police to the dictation of P.W.1 and that Ex.P1 is the said complaint. If all the discrepancies, contradictions and improbabilities found in the evidence adduced on the side of the prosecution and in the prosecution story itself are considered in proper perspective, the contention of the learned counsel for the appellant that the prosecution story is improbable and that at least there are vital points to give rise to a reasonable suspicion on the prosecution case cannot be rejected either as untenable or having no force in it. The Motor Vehicle Inspector has not confirmed the presence of symptoms of stone throwing. The report of the Motor Vehicle Inspector Gr.II marked as Ex.P6 will, at the best, would show that the windscreen was found damaged. The same will not lend any help to the prosecution to show that the windscreen was hit by M.O.1 stone. 20. The other clinching evidence, according to the learned Government Advocate (Crl. Side), to prove the charges against the accused, are the testimony of P.W.6 and Ex.P13 and P14. Relying on the same, it has been contended on behalf of the respondent that the accused himself admitted having broken the windscreen of the bus by making payment of a sum of Rs.1,500/- as compensation to the Transport Corporation. First of all, admissions are not conclusive proof even though the same may be one of the best evidences available for proving the fact thus admitted. Secondly, there is want of evidence to prove that there was such an admission and payment of compensation on the part of the appellant herein/accused. It is quite improbable that the accused would have made such an admission and paid compensation without getting an assurance for the withdrawal of the complaint or compounding of the offence when such a criminal case was pending. No petition for compounding the offence was filed https://hcservices.ecourts.gov.in/hcservices/ before the trial court. It is not the evidence of P.W.6 that there was such an understanding for the withdrawal of the complaint or for compounding the case. The alleged payment of compensation was stoutly denied by the accused. No case was filed against the accused claiming damages. Not even a lawyer's notice was issued to him claiming compensation. Therefore, this court is satisfied with the soundness of the arguments advanced on behalf of the appellant that no occasion would have arisen for the accused to make such payment as compensation. Neither in Ex.P13 nor in Ex.P14, the signature of the appellant herein/accused has been obtained. There is not even a scrap of paper containing the signature of the accused to show that it was he who made payment under the original of Ex.P14. Ex.P14 is only a xerox copy. It is not even a carbon copy. No case for adducing secondary evidence in proof of the contents of the document has been made out. Ex.P14 is a piece of inadmissible evidence and hence no reliance can made on it. 21. However, the learned Government Advocate (Crl. Side)