BAIL SLIP The Appellant/Accused was directed to be released on bail in and by the order of this court dated 28.4.2003 made in Crl.M.P.4314/2003 in Crl.A.730/03 on the file of High Court, Madras. IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.02.2010 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Crl.A.No.730 of 2003 1. Palanivel 2. Velmurugan 3. Elavarasan .. Appellants Vs. State: Rep. by the Inspector of Police, Vallam Police Station, Perambalur District. (Cr.No.79 of 2000) .. Respondent Criminal Appeal against the judgment dated 21.4.2003 in S.C.No.42 of 2001 on the file of the Additional Sessions Court (Fast Track Court), Ariyalur. For appellant : Mr.T.Ravichandran For respondent: Mr.I.Paul Noble Devakumar, Govt. Advocate (Crl. Side). ORDER The Criminal Appeal arises out of the judgment dated 21.4.2003 in S.C.No.42 of 2001 on the file of the Additional Sessions Court (Fast Track Court), Ariyalur, whereby the appellants-A.1 to A.3, were convicted for the offence under Section 436 IPC and each sentenced to undergo rigorous imprisonment for four years and to pay a fine of Rs.3,000/- each, in default, each to undergo simple imprisonment for four months. 2. The case of the prosecution is as follows: https://hcservices.ecourts.gov.in/hcservices/ (a) Prior to the occurrence, A.2 Velmurugan attempted to outrage the modesty of one Kayalvizhi, who is the relative of P.W.2 Narayanasamy. Since the father and the brother of Kayalvizhi were abroad, P.Ws.1 and 2 were taking care of the family of Kayalvizhi. (b) Since P.W.2 is a retired Headmaster, he condemned the activities of A.2. A.1 Palanivel and A.2 Velmurugan have given a Police complaint before Jayankondam Police Station, stating that during the Panchayat, P.W.1 Anandan assaulted A.1 and A.2, and the complaint was pending and so, due to enmity, they had a vengeance to murder P.W.2 by setting fire to the farm house situated on the land (fhl;Lf; bfhl;lif), and the said plan of murder was heard by P.W.7 Ponmudi. (c) To exhibit the said object of murder, on 16.7.2000 at 9 p.m., when P.Ws.1 and 3 were in their house, they heard a call from their father that his farm house was under fire and immediately P.Ws.1 and 3 rushed to the place. At that time, P.Ws.6 and 7 intimated the fact that the accused set fire and left the place, which was witnessed by P.W.1 also. In the fire accident, nearly Rs.5,000/- worth materials were damaged. (d) Then, P.W.1 went to the Police Station on 17.7.2000 at 1 p.m. and gave a complaint Ex.P-1 before P.W.4 Sub-Inspector of Police. He received the same and registered a case in Cr.No.79 of 2000 for the offence under Section 436 IPC and prepared FIR Ex.P-4. He went to the place of occurrence and examined the witnesses and prepared observation mahazar Ex.P-2 in the presence of P.W.1 and one Prakasah and seized M.Os.1 and 2 under Ex.P-3 mahazar. He drew rough sketch Ex.P-5. (e) On 17.7.2000 at about 5 p.m., P.W.4 Sub-Inspector of Police arrested A.1 and remanded him to judicial custody. A.2 to A.4 obtained anticipatory bail and surrendered before Court. (f) P.W.5 Inspector of Police took up the matter for further investigation, verified the records and examined the witnesses and filed the charge sheet against the accused for the offence under Section 436 IPC. 3. The trial Court framed necessary charge against the accused, to which they pleaded not guilty. During the course of trial, P.Ws.1 to 7 were examined, Exs.P-1 to P-5 were marked and M.Os.1 and 2 were produced. The trial Court questioned the accused under Section 313 Cr.P.C. posing incriminating evidence against them and they denied the same. Considering the oral and documentary evidence, the trial Court found the accused guilty of the offence under Section 436 IPC and convicted and sentenced them as indicated above. https://hcservices.ecourts.gov.in/hcservices/ 4. Challenging the conviction and sentence passed by the trial Court, learned counsel for the appellants-A.1 to A.3 would contend that there is a delay in preferring the complaint and there was previous enmity between the parties as A.1 and A.2 have given complaint against P.W.1, who wanted to escape from the clutches of law and hence, a false case has been foisted against the accused. There is a contradiction in the contents of the FIR, the statements recorded under Section 161 Cr.P.C. and the deposition of witnesses. P.W.1 is the son of P.W.2 and P.W.3 is the wife of P.W.2. Except the oral evidence of P.Ws.1 to 3, who are the interested witnesses, no other evidence is available for implicating the accused in the commission of offence. The names of P.W.6 Valsamy and P.W.7 Ponmudi, who are the alleged eye-witnesses, have been incorporated in Ex.P-1 complaint and Ex.P-4 FIR and they have turned hostile. Even though P.W.2 was the Headmaster, he has not given any complaint in respect of A.2 who attempted to outrage the modesty of one Kayalvizhi, who was under the care and custody of P.W.2, and due to enmity, to escape from the clutches of law, a false complaint has been given against the accused. Learned counsel further submits that the damages were only for Rs.5,000/-, but the sentence imposed is proportionately very high. Hence, he prayed for acquittal of the appellants-A.1 to A.3. 5. Learned Government Advocate (Crl. Side) appearing for the respondent-Police would submit that the delay has been properly explained. The occurrence took place on 16.7.2000 at about 9 p.m. The Police Station is situated nearly 20 Kms. away from the place of occurrence. Since it was night time, they were unable to give complaint and as it was an internal dispute between the parties and the Panchayat also failed, P.W.1 gave Ex.P-1 complaint at about 1 p.m and so, the delay has been properly explained. Learned Government Advocate further submits that there is no contradiction between the contents of FIR and the statements recorded under Section 161 Cr.P.C. The FIR does not contain all particulars and it is not an Encyclopaedia. The trial Court considered all the aspects properly and correctly came to the conclusion. Since there was previous enmity between the accused and P.W.2, they wanted to destroy P.W.2 and that has been proved by way of examining P.Ws.6 and 7, even though they have turned hostile. Learned Government Advocate prayed for dismissal of the Criminal Appeal. 6. P.Ws.1 to 3 and P.W.6 and 7 are the residents of Chozankudikadu Village. P.Ws.1 to 3 were aware of A.1 to A.4. It is true that there was a Panchayat in respect of A.2, who attempted to outrage the modesty of Kayalvizhi, who was under the care and custody of P.W.2, since her father and brother were abroad and in the Panchayat, the brother-in-law of A.1 and A.2 paid the fine amount of Rs.1,000/- each to the Temple, which is an admitted fact. It is also an admitted fact that A.1 and A.2 have given a complaint against P.W.1 stating that during the Panchayat, A.1 and A.2 were assaulted https://hcservices.ecourts.gov.in/hcservices/ by P.W.1. Admittedly, P.W.1 is facing criminal proceedings before Jayankondam Court. 7. The case of the prosecution is that on 16.7.2000, the farm house (fhl;Lf; bfhl;lif) (a hut on the land) was set fire and it was destroyed. Learned counsel for the appellants/A.1 to A.3 would emphasise his argument that there is a delay in preferring the complaint. Admittedly, as per the evidence of P.Ws.1 to 3, the occurrence has taken place on 16.7.2000 at about 9 p.m. and Ex.P-1 complaint and Ex.P-4 FIR show the same as 17.7.2000 at 1 p.m. So, there is a delay of about 15-16 hours. This Court has to see as to whether convincing explanation has been offered by the prosecution for the delay in preferring the complaint. 8. While considering the evidence of P.W.1, he has stated that it is a remote village and the distance between the Police Station and the place of occurrence is 20 Kms. P.W.1 has stated that in the morning, there was a discussion and since there was no amicable settlement reached between the parties, P.W.1 came forward with Ex.P- 1 complaint. Thus, the explanation has been given by the prosecution is convincing and hence, the delay in preferring the complaint does not vitiate the entire prosecution case. Therefore, I am of the view that the delay in preferring the complaint is not fatal to the case of the prosecution. The trial Court came to the correct conclusion that the delay is not fatal. 9. Learned counsel for the appellants-A.1 to A.3 would further contend that P.Ws.6 and 7 who are alleged to be the eye-witnesses and whose names find a place in Ex.P-1 complaint, turned hostile. In Ex.P-1 complaint, it was stated that P.Ws.6 and 7 alone intimated the fact that A.1 to A.4 have set fire to the hut on the land. In Ex.P-1 complaint, it was stated by P.W.1 as follows: @ ////// vd; mg;gh vd;/jpUehuhazrhkpia vd; rpj;jg;gh thy;rhkpa[k;. mtuJ kidtp bghd;Koa[k; miHj;J bfhz;L tPl;ow;F Xo te;jhh;fs;/ mg;g v';f rpj;jg;gh ek;g Ciu nrh;e;j 1) gHdpnty;. j-bg/ gd;dPh;bry;tk;. 2) nty;KUfd; j-bg/ fypabgUkhs;. 3) , sturd;. j-bg/ md;gHfd;. 4) unkc;&. j-bg// Rgukzpad; ,e;j ehd;F ngUe;jhd; beUg;g[ itj;Jtpl;L ,d;idnahl cd; fij Ko";RJlh vd;W brhy;yp bfhz;nl Xodh';fd;D brhd;dhU/ ehDk; vdJ rpj;jg;ght[k; Xo ghh;j;njhk;/ ,Ul;Ly Xo kiw";Rl;lh';f/ /////@ 10. So, as per Ex.P-1 complaint, P.W.1 has got information only from the mouth of P.W.6 that the accused alone set fire. Since P.Ws.6 and 7 have turned hostile, there is no evidence to convict the accused for the offence under Section 436 IPC. https://hcservices.ecourts.gov.in/hcservices/ 11. At this juncture, learned Government Advocate would submit that P.Ws.1 and 2 have categorically deposed before Court that they witnessed the accused running away from the place. He culled out the relevant portions of the evidence of P.Ws.1 and 2. P.W.1, in his chief examination has stated as follows: @ ///// 16/7/2000 njjp ,ut[ 9 kzpastpy; vd; mg;gh jz;zPh; fl;Ltjw;fhf vd; tPl;oypUe;J 300 mo J}uj;jpy; cs;s bfhl;liff;F nghdhh;/ m';F nghdt[ld; tPL vhpfpwJ vd;W rj;jk; nghl;lhh;/ ehDk; vd; rpd;dk;kh bfhs";rpak;khSk;. clnd Xondhk;/ mth;fs; Tg;gpl;ljpypUe;J eh';fs; ghjp J}uj;jpw;F brd;Wtpl;nlhk;/ eh';fs; te;jt[ld; 4 vjphpfSk;. Xodhh;fs;/ eh';fs; mth;fis ghh;j;njhk;/ M$h; vjphpfspy; 4 ngh;fspy; xUth; ,j;Jld; ehuhazrhkp fij Koe;Jtpl;lJ vd;W brhy;yp Xodhh;fs;/ ////@ P.W.2, in his chief examination has stated as follows: @ //// mjpypUe;J g[ifa[k;. xU xspa[k; bjhpe;jJ/ ehd; clnd vd; kfd; Mde;jid rj;jk; nghl;L Tg;gpl;nld;/ ehd; ghh;f;Fk;nghJ vd;Dila bfhl;lif thrg;goapypUe;J gHdpntYk;. unkc&%k; cs;ns ,Ue;J Xote;jhh;fs;/ bfhl;lif gw;wp vhpe;jJ/ mth;fs; XLk;nghJ ehuhazrhkp fij Koe;Jtpl;lJ vd;W brhy;yp Xodhh;fs;/ kw;w 2 ngh;fSk;. Kd;dho Xoa nty;KUfDk;. ,sturDk;. cs;ns jP itj;Jbfhz;oUe;j gHdpntYk;. unkc&%k; th';flh vd;W brhy;yp Xodhh;fs; /////@ 12. Even though P.Ws.6 and 7 turned hostile, the evidence of P.Ws.1 and 2 is sufficient to convict the accused for the offences under Section 436 IPC. 13. At this juncture, this Court has to consider the cross examination of P.Ws.1 and 2. While P.W.1 was cross examined, a suggestion was posed to him that no such occurrence has taken place, and the same was denied by him. A suggestion was also posed to him that on the date of occurrence, the accused persons were not present in the place, which was denied by P.W.1. In his cross examination, P.W.1 has stated as follows: @ ////// rhd;W Mtzk; 1y; vdJ mg;ght[k;. ghl;oa[k; nkw;go fhl;L bfhl;lifapy; , Ue;jjhf rhd;W Mtzk; 1y; brhy;ytpy;iy/ rhd;W Mtzk; 1y; ehd; brhy;ypa[s;s 4 ngUk; beUg;g[ itj;Jtpl;L. ehuhazrhkp fij Koe;Jtpl;lJ vd;W brhy;yp Xodhh;fs; vd;w tpc&aj;ij vd; mg;gh brhd;dhh;/ ehd; ePjpkd;wj;jpy; brhd;d vjphpfis ghh;j;njd; vd;W brhy;tJ jhd; rhpahd rhl;rp/ rhd;W Mtzk; 1y; vdJ rpd;dk;kh bghd;Ko new;Wjhd; rhae;jpuk; 5 kzpf;f ,g;gona nghFk;nghJ me;j fpHtd; ehuhazrhkpia ,uhj;jphpapy; ,';fjhd; gLg;ghd;/ ,tid capnuhL vhpj;J bfhiy bra;Jtplyhk; vd;W ngrpf;fpl;L nghdjhf cd; rpd;dk;kh brhd;d tpguj;ij rhd;W Mtzk; 1y; brhy;ypa[s;nsd; ////@ In the cross examination of P.W.2, nothing against his evidence in the chief examination, has been culled out. 14. It is pertinent to note that in the cross examination of P.Ws.1 and 2, a suggestion was posed that no such incident has taken https://hcservices.ecourts.gov.in/hcservices/ place, which has been denied by them, but P.W.4 Sub-Inspector of Police, after registering a case, went to the place of occurrence and prepared observation mahazar and he seized M.Os.1 and 2 under Ex.P-3 mahazar. This shows that the hut belonging to P.Ws.1 to 3 which was on the land, has been damaged by fire. 15. Furthermore, even though the appellants/A.1 to A.3 have posed a suggestion to P.Ws.1 and 2 during their cross examination, stating that on the date of incident, they were not at the village, and the said suggestion was not proved by way of examining the defence witnesses. 16. In such circumstances, I am of the view that the argument advanced by learned counsel for the appellants-A.1 to A.3 that merely because P.Ws.6 and 7 turned hostile, the evidence of P.Ws.1 and 2 does not prove that the accused has set fire to the hut on the land, does not merit acceptance. So, the evidence of P.Ws.1 and 2 has clearly proved that the accused alone have set fire to the hut of P.Ws.1 to 3. So, the hostile attitude of P.Ws.6 and 7 does not in any way affect the case of the prosecution. 17. As stated by the learned Government Advocate, the complaint/FIR is not an Encyclopaedia, because as soon as the incident, each and every person's mentality is entirely different. During the investigation only, they will incorporate all the things which were questioned by the investigating officer. So, mere contradictions in the FIR and the statements of the witnesses recorded under Section 161 Cr.P.C., will not affect the case of the prosecution. 18. Hence, I am of the view that the evidence of P.Ws.1 and 2, has clearly proved that the accused alone set fire to the hut on the land of P.Ws.1 to 3. So, the prosecution has proved that the accused are guilty of the offence under Section 436 IPC beyond reasonable doubt. The trial Court is correct in holding that the accused are guilty of the offence under Section 436 IPC and convicted them as indicated above. The conviction under Section 436 IPC is sustainable and it does not warrant any interference. 19. The next limb of argument advanced by learned counsel for the appellants is that P.W.2 is the Headmaster and he has not given any complaint in respect of A.2, who attempted to outrage the modesty of Kayalvizhi. I do not find any force in the said argument, because, naturally, in the village side, to safeguard the modesty of a woman, no one will give complaint immediately. Moreover, it is only attempt to outrage the modesty and in respect of the same, in the Panchayat, fine has also been imposed and the brother-in-law of A.1 and A.2 paid the fine amount of Rs.1,000/- each to the Temple, which is admitted. It is also admitted that at the time of Panchayat, P.W.1 was alleged to have assaulted A.1 and A.2, who in turn have gave a complaint and https://hcservices.ecourts.gov.in/hcservices/ on that basis, a criminal case is stated to be pending before the Judicial Magistrate, Jayankondam and P.W.1 is facing criminal proceedings. In such circumstances, not giving a complaint before the Police Station in respect of attempt to outrage the modesty of Kayalvizhi, will not in any way affect the case of the prosecution. 20. As narrated above, as per the evidence of P.Ws.1 and 2, the trial Court has come to the correct conclusion that the accused are guilty of the offence under Section 436 IPC and so, the conviction for the offence under Section 436 IPC is sustainable. 21. In respect of the quantum of sentence, learned counsel for the appellants-A.1 to A.3, would contend that the damages are quantified at Rs.5,000/- approximately and it is only a hut in the land, where wooden furnitures, gunny bags, kerosene barrel, etc., were damaged and the electric wire has also damaged. So, considering the damages, the sentence imposed by the trial Court on the appellants/A.1 to A.3 is somewhat grave and hence, learned counsel for the appellants-A.1 to A.3 prayed for reduction in the sentence imposed by the trial Court. 22. Considering the damages in the hut, which in the present case, is not a dwelling house and it is only place where agricultural products were stored and at the time of occurrence, wooden one wooden furnitures, gunny bags, kerosene barrel, electric wire, etc., were damaged and considering the enmity between both parties, I am of the view that the sentence imposed on the appellants/A.1 to A.3 shall be reduced from four years to one year rigorous imprisonment and the fine amount imposed on the appellants/A.1 to A.3 by the trial Court, shall be enhanced from Rs.3,000/- to Rs.5,000/- each. It is stated that already, Rs.3,000/- fine amount has been paid by the appellants/A.1 to A.3 and hence, Rs.2,000/- each (totalling Rs.6,000/-) is to be paid by A.1 to A.3, and out of Rs.6,000/-, Rs.5,000/- is to be paid to P.W.1 as compensation. 23. In the result, (a) the Criminal Appeal filed by the appellants/A.1 to A.3, is dismissed. (b) The conviction for the offence under Section 436 IPC as against the appellants/A.1 to A.3 is confirmed. (c) The sentence of imprisonment imposed by the trial Court for the said offence, is reduced from four years to one year rigorous imprisonment each. (d) Since the appellants/A.1 to A.3 are on bail, the trial Court is directed to take steps to secure their custody to undergo the remaining period of sentence. (e) The period of imprisonment already undergone by the appellants/A.1 to A.3, shall be set-off under Section 428 Cr.P.C. (f) The fine amount of Rs.3,000/- ordered by the trial Court, is enhanced to Rs.5,000/- each. It is stated that the appellants/A.1 to https://hcservices.ecourts.gov.in/hcservices/ A.3 have already paid Rs.3,000/- each. Now, the appellants/A.1 to A.3 are directed to pay the balance fine amount of Rs.2,000/- each, totalling Rs.6,000/-, out of which, Rs.5,000/- is to be paid as compensation to P.W.1. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. cs To 1. The Additional Sessions Judge (Fast Track Court), Ariyalur. 2. The Principal Sessions Judge Perambalur 3. The Superintendent Central Prison, Tiruchirapalli 4. State: Rep. by the Inspector of Police, Vallam Police Station, Perambalur District. (Cr.No.79 of 2000) 5. The Public Prosecutor, High Court, Madras. + 1 cc to Mr.T.Ravichandran, Advocate, Sr 11735 Crl.A.No.730 of 2003 KA (CO) RH (2.3.10) https://hcservices.ecourts.gov.in/hcservices/