Bail Slip That the Appellants/Accused namely, Murugan, Siva @ Deva 3.Jayaseelan @ Jayaselvam and 4.Sasi @ Sasikumar were directed to be released on bail by order of this Court dated 28.10.2002 in Crl.MP.No.10978/02 in CA 1491/02 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04.11.2009 CORAM: THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN Crl.A.No.1491/2002 1.Murugan 2.Siva @ Deva 3.Jayaseelan @ Jayaselvam 4.Sasi @ Sasikumar Appellants Vs State by Inspector of Police G3 Kilpauk Police Station Chennai-10 Respondent Prayer:- This Criminal Appeal is filed against the judgement dated 03.10.2002 passed in SC.No.289/2001 by the learned Additional Sessions Judge (FTC-V) Chennai convicting and sentencing the each of the appellants for the offence under Section 341 of IPC to under go 15 days of Rigorous Imprisonment and for the offence under Section 332 of IPC to undergo 1 year Rigorous Imprisonment and for the offence under Section 336 of IPC to undergo one month Rigorous Imprisonment and for the offence under Section 3(1) of the Tamil Nadu Public Properties Prevention of Damages Act to undergo one year Rigorous Imprisonment and ordering the sentences to run concurrently. For Appellant : Mr.K.Selvakumaraswami For Respondent : Mr.S.Senthilmurugan, GA ORDER This Criminal Appeal is filed against the judgement dated 03.10.2002 passed in SC.No.289/2001 by the learned Additional Sessions Judge (FTC-V) Chennai convicting and sentencing the each https://hcservices.ecourts.gov.in/hcservices/ of the appellants/A1 to A4 herein for the offence under Section 341 of IPC to under go 15 days of Rigorous Imprisonment and for the offence under Section 332 of IPC to undergo 1 year Rigorous Imprisonment and for the offence under Section 336 of IPC to undergo one month Rigorous Imprisonment and for the offence under Section 3(1) of the Tamil Nadu Public Properties Prevention of Damages Act to undergo one year Rigorous Imprisonment and ordering the sentences to run concurrently. 2. The case of the Prosecution is as follows:- a. PW.1, the complainant Sub Inspector of Police attached to G3 Kilpauk Police Station, on receipt of information that there was fire in the hutment in Osankulam, V.P.singh Nagar, Chetpet on 15.4.2000 at 3.45 p.m. went to the place of occurrence with PW.3 Packiasamy, and PW.4, who are the Head Constables attached to the said Police Station. The fire fighting vehicles also came to the spot. At that time, the Appellants/A1 to A4 thrown stones and sticks at the firemen and their fire fighting vehicles and also at the police personnel. PW.2 R.C.Venugopal, Additional Superintendent of Police, CBCID was injured due to the stone pelted on him by A1. A1 to A4 damaged the front glass and head light of the fire fighting vehicles. b. When the police personnel warned them, A1 to A4 shouted at them saying that the police should be thrown in fire and again started pelting stones and threw sticks at them. PW.2 also sustained injuries on his right side forehead. The injured persons PW.2 and other firemen were sent to the Hospital for treatment and then PW.1 gave a complaint. PW.15, the Inspector of Police, G3 Police Station on receipt of the complaint Ex.P1 registered FIR Ex.P6 for the offences under Sections 147, 148, 341, 332, 336, 427, 324 and 307 of IPC read with 34 of IPC and Section 3(1) of the TNPPPDL Act and then rushed to the spot and prepared observation mahazar Ex.P7 and Sketch Ex.P8 in the presence of the witness and seized the material objects viz. stones and broken glass pieces Mos.1 and 2 under a seizure mahazar Ex.P9 and recorded the statements of the witnesses and also that of PW.2 at the Hospital. PW.15 also recorded the statement of PW.14 Doctor and received opinion Ex.P4 from PW.14 and the accident register Ex.P5 and then recorded the statement of Pws.6 to 9 firemen to speak about the occurrence and the damage caused to the fire fighting vehicles and arrested the A1 to A4/ Appellants herein and received a certificate of damage Ex.P3 and Ex.P10 Form-95 was sent along with the final report to the learned II Metropolitan Magistrate, Egmore. 3. The case was taken on file in CC.No.2507/2001 on the file of the learned II Metropolitan Magistrate, Egmore. Since the offence under Section 307 read with Section 34 of IPC is triable by the Court of Sessions, the learned II Metropolitan Magistrate committed the case to the Principal Sessions Court, Chennai, who transferred the case to III Additional Sessions Judge and at the stage of trial, the case was transferred to the learned Additional Sub Judge (FTC-V) Chennai. https://hcservices.ecourts.gov.in/hcservices/ 4. Necessary charges were framed. In order to substantiate the charges levelled against the accused, the prosecution examined as many as 15 witnesses and also relied on Exs.P1 to P10 and 2 Material Objects. 5. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused denied the same as totally false. 6. The court below, after hearing the arguments advanced on either side and looking into the materials available, found the accused/appellants guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 7. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 8. PW.1 is the complainant. According to the Prosecution, Pws.1 to 5, who are all the police personnel and PW.6 to 8, who are firemen had sustained injuries at the time of occurrence. PW.1's evidence indicates that only A1 to A4 indulged in pelting of stones against the firemen and the police personnel, who were engaged in extinguishing the fire and one of such stone pelted hit the forehead of PW.2, who sustained injury on his forehead. He identified all the four accused in the court for the first time, as there was no identification parade to identify the persons who pelted stones and sticks against the police personnel. 9. It is not the case of the Prosecution that the accused were already known to the Police. They were neither notorious persons nor indulged in any such activities or have any criminal antecedents which makes them know to the local police. In the absence of any material to show that they were known to the police personnel prior to the occurrence, identifying the accused to the investigating officer or in the court would not positively establish that it is the accused, who had pelted stones and caused injuries on PW.2. 10. In this context, it is relevant to point out to the statement made by PW.2 to Pw.14 Dr.Raman attached to the Apollo Hospital that some one had thrown the stone which caused injury on him. PW.2 would state in his evidence that a violent mob gathered at the spot and started throwing stones and sticks on the police personnel and he would also state that from the said mob, a stone was thrown at him, but he would say that he identified the accused in the mob and came to know their names later. It is pertinent to point out that he has not given the identifying features of the accused persons in the complaint or before the investigating officer. https://hcservices.ecourts.gov.in/hcservices/ 11. The testimony of PW.3, 4 and 5 would falsify the case of the Prosecution that it is the accused who caused injury to PW.2 and also caused damaged to the fire fighting vehicles. PW.3's evidence reads thus:- @milahsk; bjhpahJ 4 egh;fs; me;j tz;oapd; cs;ns tutlhky; jLj;jhh;fs;/ PW.4 would state thus:- @epiwa ngh; fy;yhy; moj;jhh;fs;/ mjpy; M$h; vjphpfs; ,Ue;jth;fs;/ PW.4 in his cross examination he has said thus:- @rk;gtk; ele;j ,lj;jpy; jfuhW ele;jnghJ bghJkf;fs; Rkhh; 500ngh; ,Ue;jhh;fs;/ jP mizg;g[ tz;o fhykhkjkhf te;jjhy; jfuhW bra;jhh;fs;/@ Pw.5's evidence reveals thus:- @vjphpfs; kw;Wk; m';fpUe;jth;fs; v';fs; kPJ fy; vwpe;jdh;/ cjtp Mizahsh; kPJ fy;nky; gl;L bew;wpapy; tyJ gf;fj;jpy; fhak; Vw;gl;lJ/ 12. Even as per the evidence of Pws.3 to PW.5, the public who gathered at the spot threw stones at the police personnel and the accused were also present in the said mob. Contrary to the Prosecution's case, PW.6 to PW.7 the firemen have categorically deposed that the accused were not in the crowd. Quite surprisingly they were not treated hostile by the Prosecution. Their evidence cannot be discarded, as they have spoken to the other facts such as pelting of stones by the crowd on the police and fire service personnel and also causing damage to the vehicle. 13. There are several factors which as rightly pointed out by the learned counsel for the Appellants corrode the credibility of the Prosecution's version. More importantly immediately after the incident, PW.2 has stated to the Doctor that some one had thrown a stone at him and later while he was examined by the investigating officer, he has pointed out to the accused to have pelted stone at him. It is not explained as to how and why PW.2 the Sub Inspector of Police did not tell the Doctor that the identity was known. 14. In view of the discrepancies and contradictions noted above in the testimony of the Prosecution witnesses, it is not safe to place reliance upon the evidence of Pws.1 to 5. The court below failed to advert to the above material aspects and the analysis of the evidence by the court below was not proper. 15. In view of the reasons stated above, the conviction and sentence imposed on the Appellants are liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 16. In the result, this Criminal Appeal is allowed. The conviction and sentence imposed on by the Appellants by judgement dated 03.10.2002 SC.No.289/2001 by the court below are set aside and the Appellants are acquitted of the charges levelled against them. The bail bond if any executed by the appellants shall stand terminated. Srcm Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar To: 1. The Additional Sessions Judge, (Fast Track Court V) Chennai. 2. -do- Through The Principal Sessions Judge, Chennai. 3. The Inspector of Police, G-3 Kilpauk Police Station, Chennai. 4. The Public Prosecutor, High Court, Madras Crl.A.No.1491/2002 SGL(CO) EU 20.11.2009. https://hcservices.ecourts.gov.in/hcservices/