Bail Slip That the Appellants/Accused 1 to 6 viz. (1) Shanmugam, S/o.Sukumaran,(2) Gopal,S/o.Nagarajan, (3) Narayanamurthy, S/o.Venkatachalam, (4) Nagaraj, S/o.Mani, (5) Ansar, S/o.Gulabjohn & (6) Jakkeriya,S/o.Abdul Samath,were directed to be released on bail as per order dt.1.9.2003 made in Crl.M.P.No.8101 of 2003 in Crl.A.No.1288/2003 on the file of this Court. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13-09-2010 CORAM THE HONOURABLE MR.JUSTICE T.SUDANTHIRAM Crl.Appeal No.1288 of 2003 1.Shanmugam 2.Gopal 3.Narayanamurthy 4.Nagaraj 5.Ansar 6.Jakkeriya .. Appellants/Accused 1 to 6 Versus State, represented by The Assistant Commissioner of Police, North Range, (1/c) West Range, Salem City, Suramangalam Police Station. .. Respondent/Respondent Prayer: Appeal against the judgment, dated 11.8.2003, made in S.C.No.235 of 2002, on the file of the Principal Sessions Judge, Salem. For Appellants : Mr.B.Vasudevan For Respondent : Mr.A.Saravanan Government Advocate (Crl. Side) J U D G E M E N T The appellants herein are the accused in S.C.No.235 of 2002, on the file of the Principal Sessions Judge, Salem. The learned trial Judge had convicted and sentenced the accused/appellants, which are as follows: https://hcservices.ecourts.gov.in/hcservices/ Appellants 2 and 3 were convicted under Section 147 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six months each; Appellants 1, 4 to 6 were convicted under Section 148 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six months each; Appellants 1 to 6 were convicted under Section 3(1) (x) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- each, in default to undergo rigorous imprisonment for one month each and Appellants 1, 4 to 6 were convicted under Section 324 of Indian Penal Code and sentenced to undergo rigorous imprisonment for six months each. Aggrieved by the above said conviction and sentence, the appellants have been preferred the present criminal appeal. 2. The case of the prosecution in brief is that P.W.1 the resident of Zahir Chinnama Palayam, Salem Taluk, was a plus two student. On 26.6.2002, at 4.30 p.m, P.W.1 was on his way to attend his tution classes. While he was nearing Kaliamman Temple, the accused who were gathered near a beeda shop had called P.W.1 and abused him stating that "vd;dlh gug;gr';fSf;F ,';F ntiy". P.W.1 had replied that he was going to attend tution classes. Thereafter, the second accused had kicked P.W.1 on his testicles. The second and the third accused caught hold of him and then the remaining four accused had attacked him with casuarina sticks. 3. P.W.1 had then left the place of occurrence and reached his house in a cycle rickshaw. He had informed about the occurrence to his parents. Thereafter, he was taken to Government Mohan Kumaramangalam Medical College Hospital, Salem, by his parents. P.W.4, the Doctor, attached to Government Mohan Kumaramangalam Medical College Hospital had attended on the victim, P.W.1 at 7.05 p.m and noticed the following injuries: 1. Contusion on forehead 2 x 2 cm 2. Contusion over right cheek. 3. Bruise marks over left shoulder 4. Bruise marks over left scalpular region 5. Contusion over left thigh. 6. Tenderness over right wrist. He had issued the accident register, marked as Ex.P-9. P.W.8 the Head Constable of Suramangalam Police Station, on receipt of the intimation had went to the hospital and received the complaint, from P.W.1, marked as Ex.P-1. 4. P.W.9 the Sub Inspector of Police had received the https://hcservices.ecourts.gov.in/hcservices/ complaint Ex.P-1 from P.W.8 and registered a case in Crime No.628 of 2002 at 9.00 p.m for the offences under Sections 147, 148, 341, 324, 323, 307 and 3(1)(x) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989. He then prepared a First Information Report, marked as Ex.P-16. P.W.11 the Assistant Commissioner of Police, took up the investigation in the matter and recorded the statement of the witnesses. He also prepared the observation mahazar and the rough sketch. On the same day at about 11.00 p.m he arrested the first accused Shanmugam and recovered M.O.1 casuarina stick. 5. On 27.6.2002, he arrested the accused Narayanamurthy (A-3), Nagaraj (A-4), Ansar (A-5) and Jakkeriya (A-6) and recovered casuarina sticks. On 2.7.2002, he received the information that accused Gopal (A-2) surrendered before the Judicial Magistrate. P.W.11 had made a requisition to the Special Tahsildar, Salem, and received the community certificates pertaining to P.W.1 and the accused, marked as Exs.P-1 to P-8. On completion of the investigation P.W.11 had laid the final report against the accused, on 29.7.2002. 6. After examining all the prosecution witnesses, the accused was questioned under Section 313 Cr.P.C, with regard to the incriminating materials against them and they have denied their complicity. 7. No defence witness was examined and no documentary evidence was produced. The trial Court after analysing the evidence had convicted and sentenced all the accused, as stated above. 8. The learned counsel appearing on behalf of the appellants had submitted that the place of occurrence has not been proved by the prosecution. Since as per the observation mahazar and the rough sketch the scene of occurrence was in front of Palanisamy Beeda shop, but P.W.1 had informed the Doctor P.W.4 that he was attacked near Kaliamman Koil in Ammapalayam. Further, the beeda shop owner Palanisamy, was also not examined by the prosecution. It was further submitted that the names of A1 and A-2 alone are given in the first information report and the names of the other accused were not stated in the first information report. The further submission of the learned counsel is that the ingredients of the offence under Section 3(1)(x) of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, are not made out and the evidence of P.W.1 is contrary to what is stated in Ex.P-1 and it is also contrary to the evidence of P.W.5 and P.W.6 9. Per contra the learned Public Prosecutor submitted that the evidence of P.W.1, the victim, is corroborated by the medical evidence and also by the evidence of P.W.5 and P.W.6 who are eye witnesses to the occurrence. Though the names of A-1 and A-2 are https://hcservices.ecourts.gov.in/hcservices/ given in the first information report, P.W.1 and other witnesses have identified the other accused in Court. 10. This Court considered the submissions and perused the records. 11. It is seen from the evidence that after the occurrence P.W.1 was taken to the hospital and he had informed the Doctor P.W.4 that he was assaulted by two known persons and four unknown persons. He had also given a complaint Ex.P-1 to the police in which he had specifically mentioned the names of A-1 and A-2. He had stated that the other four accused also attacked him but he did not know their names. However, he had stated that those persons could be identified. 12. During the evidence, P.W.1 had also stated before the Court that all the six accused were present at the time of the occurrence. P.W.5 the classmate of P.W.1 also had stated that all the six accused were present at the scene of occurrence and they have attacked P.W.1. P.W.6 had stated that P.W.1 was assaulted by four or five persons and he has specifically mentioned the names of A-4 to A-6. The evidence of P.W.1, P.W.5 and P.W.6 establish the presence of the accused at the time of the occurrence and also the attack on P.W.1 by the accused. 13. The prosecution had established the fact that P.W.1 was assaulted by all the accused. Though P.W.1 during his evidence had stated that all the accused had stated "vd;dlh gug;gr';fSf;F ,';F ntiy" (Ennada Parapasangakaluku ingu vellai), he had not clearly stated that which accused had uttered the words first. It is hard to believe that all the accused, as a chorus uttered those words. In Ex.P-1 he had not stated that the accused had used the words "gug;gr';f ". It is the evidence of P.W.5 that it was only the second accused who used the caste name. P.W.6 did not say anything about the accused uttering the words about the caste of P.W.1. In the said circumstances, this Court is unable to accept the evidence of P.W.1 to the effect that all the accused used the words uttering the caste name of P.W.1. Therefore, the conviction and sentence imposed on the accused for the offence under Section 3(i)(x) of the the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, is set aside. 14. At this juncture, the learned counsel appearing for the appellants had submitted that the accused have already been in jail for more than two months and they were all aged about 20 to 21 years at the time of the occurrence. 15. Considering the facts and circumstances of the case, the sentence of imprisonment imposed on the accused for the offences under Sections 147, 148 and 324 of Indian Penal Code is modified to the period of imprisonment already undergone by them. Instead for https://hcservices.ecourts.gov.in/hcservices/ the offence under Sections 147 or 148 of Indian Penal Code, each accused shall pay a fine of Rs.500/- and, in default of payment to undergo rigorous imprisonment for one month. The fine amount already paid by the accused for the offence under Section 3(1)(x) of the the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989, which is to be returned, shall be adjusted towards the fine amount imposed by this Court on the accused. The criminal appeal is accordingly allowed in part. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar csh To 1.The Principal Sessions Judge, Salem. 2.The Judicial Magistrate No.2, Salem. 3.-do- Thro' The Chief Judicial Magistrate,Salem. 4.The Assistant Commissioner of Police, North Range, (1/c) West Range, Salem City, Suramangalam Police Station. 5.The Public Prosecutor, High Court,Madras. +1cc to Mr.B.Vasudevan, Advocate Sr 67676 RJ(CO) km/30.9. Crl.Appeal No.1288 of 2003 https://hcservices.ecourts.gov.in/hcservices/