V. Rajaram vs State Represented By The Inspector Of ...

3. Brief facts which led to filing of these appeals are as under:- 1

4. On the basis of complaint made by SI-Aladiyan (PW-1), on 09.05.2007, FIR was registered in Othakadai Police Station in Cr. No.226 of 2007 at 01:00 p.m. under Sections 147, 148, 449, 436, 302, 307, 332 and 120B IPC, under Sections 4 and 5 of the Explosive Substances Act and under Section 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act against accused No.1-V.P. Pandi @ Attack Pandi and others. Lakshmanan, Inspector of Police (PW-70) had taken up the initial investigation and sent the bodies of deceased persons for post-mortem. Dr. G. Natarajan (PW- 3

63) who conducted the autopsy opined that the cause of death of all the deceased is suffocation associated with head injuries. PW-70 prepared the observation mahazar (Ex.-P181) and Rough sketch (Ex.-P219). PW-70-Investigating Officer seized the material objects- broken glass pieces and burnt two wheelers and other material objects from the scene of occurrence and proceeded with the investigation. Investigation of the case was transferred to the CBI as per notification No.SC/2816-2/2007 dated 10.05.2007 under Section 6 of Delhi Special Police Establishment Act, 1946 issued by the Government of Tamil Nadu and also notification No.228/25/2007 AVD II under Section 5 of Delhi Special Police Establishment Act. In pursuance of these notifications, on 18.05.2007, Cr.No.226 of 2007 of Othakadai Police Station was transferred to CBI and re-registered as R.C.6/S/2007/CBI/SCB/Chennai by CBI and taken up for investigation. On completion of investigation, charge sheet was filed on 06.08.2007 against seventeen accused persons. A1 to A16 were charge-sheeted for the offences punishable under Sections 147, 148, 449, 302 read with Section 149 IPC, 436 read with Section 149 IPC and under Sections 4 and 5 of the Explosive Substances Act and under Section 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act. The appellant-accused No.17 who was the then jurisdictional Deputy Superintendent of Police was charge- 4 sheeted for the offences punishable under Sections 217 IPC and 221 IPC.

7. In the appeal preferred by CBI, the High Court reversed the acquittal and convicted 9 out of 16 main accused under Sections 147, 148, 449, 302 read with Section 149 IPC, 436 read with Section 149 IPC, under Sections 4 and 5 of the Explosive Substances Act and under Section 4 of the Tamil Nadu Property (Prevention of Damage and Loss) Act. The High Court also reversed the acquittal of the appellant-accused No.17 and convicted him under Sections 217 IPC and 221 IPC and sentenced him to undergo rigorous imprisonment for one year and four years respectively. The High Court held that it has been clearly established through the evidence of T.S. Anbu, Superintendent of Police (PW-29) that the police pickets, which were posted for protecting the Dinakaran office, were headed by Selvaraj (PW-30) and assisted by the appellant-accused-Rajaram, Deputy Superintendent of Police. The High Court held that from the photographs and video footage, it was noticed that the appellant 6 was seen going along with accused No.1 and that the appellant did not take any action to prevent the crime and to apprehend the criminals. The High Court further held that failure of the CBI to prosecute Additional Superintendent of Police Selvaraj (PW-30) cannot absolve the appellant from criminal liability. Observing that the trial court erred in ignoring the evidence of PW-77-Goutham Roy, Senior Scientific Officer, Central Forensic Science Laboratory and in discarding the photographs and videographs, the High Court allowed the appeal preferred by CBI and reversed the acquittal of the appellant and convicted and sentenced him to undergo imprisonment as aforesaid. The revision preferred by one Poongodi, mother of Vinoth Kumar (Deceased No.1) was closed. The appellant was questioned on sentence in Crl. A. (MD) No.274 of 2011 i.e. criminal appeal preferred by the CBI. The sentence of imprisonment was imposed on the appellant in Crl.A. (MD) No.274 of 2011.

11. Appellant was the then jurisdictional Deputy Superintendent of Police. The appellant was arrayed as accused No.17 and was charged for the offences punishable under Sections 217 IPC and 221 IPC alleging that the appellant who was on bandobust duty, did not take effective steps to prevent the crime and to apprehend the criminals on the spot and thus, alleged to have acted in aid of the accused. The allegation against the appellant (who was the Deputy Superintendent of Police, Oomachikulam Sub-Division at the 10 relevant point of time) is that despite being present at the time of incident in Dinakaran office and despite having a team of thirty-nine police personnel with two rifles, fifty live rounds and other arms and accessories, apart from accessories like helmet, shields, lathis, etc. posted for bandobust duty at Dinakaran newspaper premises, he did not take effective steps to prevent the crime. Further allegation against the appellant is that he deliberately refrained from issuing orders to thirty-nine police personnel present at the spot to prevent the incident and no step was taken to apprehend the miscreants, rather the appellant intentionally omitted to apprehend the miscreants despite the fact that they committed various cognizable offences in his presence and alleged to have intentionally aided them in escaping from the place of occurrence.

12. PW-2-A. Muthupandiyan, News Editor of Dinakaran Newspaper in Madurai has stated that on 09.05.2007, Dinakaran Newspaper has published an opinion poll regarding the political heir of M. Karunanidhi as to “Who is the political heir of Karunanidhi?”, which created furore. PW-2 has stated that in the morning of 09.05.2007, a huge group of people came to Dinakaran Newspaper office and attacked and damaged the office building and that he started evacuating the women staff to safety and also tried to 11 protect the computers and other important items inside the office. PW-2 has also stated that Dinakaran office was set fire and that he called the fire service immediately and also complained to the Othakkadai Police Station and asked the police to give protection to their employees and the office. PW-2 has stated that he has also informed about this attack to PW-3-R.M.R. Ramesh, Chief Operating Officer of Dinakaran in Chennai. PW-2 has further stated that since the police did not take any action for giving protection, he obtained the mobile number of the appellant standing outside and asked PW-3 to talk to the appellant. PW-2 further stated that PW-3- Chief Operating Officer has spoken to the appellant and that he does not know what they had talked and later, PW-3 has spoken to another DSP, Kalifullah Khan.

13. PW-3-R.M.R. Ramesh who has been working as Chief Operating Officer of Dinakaran Newspaper, Head office at Chennai has stated that PW-2-Muthupandiyan had called him at 09:00 a.m. on 09.05.2007 and informed him about the attack on Dinakaran Newspaper office. PW-3 has also stated that on being informed by PW-2, he spoke to the appellant who was standing outside the office and the appellant told him that their police group was on their way and the action would be taken immediately. PW-3 further stated 12 that since he was informed that more people started entering their office, he again called the appellant and requested him to take action at once. PW-3 further stated that the appellant informed him that he has not yet received any order from his superiors and that PW-3 obtained the number of another DSP, Kalifullah Khan and he spoke to the said DSP who told PW-3 that he would supply more police personnel to bolster up security since more people were inside. PW-3 further stated that by that time it was 11:00 a.m. and he was informed by PW-2 that the entire reception was in flames and that he asked PW-2 to ensure protection of the employees and the machines. PW-3 also stated that by 01:00 p.m., PW-2 called him and told him that the entire office building was engulfed in flames and that two employees have lost their lives by the billowing smoke cloud and that he informed the Chairman, Dinakaran and immediately, they went to Madurai by flight. Submissions regarding M.O.45-CD, photographs and the Compact Discs (M.Os. 49 to 54)

24. Ex.-P82 is the bandobust duty list as ordered by PW-29-T.S. Anbu, Superintendent of Police. As per Ex.-P82, police officials were present in the place of occurrence for bandobust and PW-30- Selvaraj-Additional Superintendent of Police, a superior officer of the appellant, is mentioned at serial No.1. PW-1-Sub-Inspector of Police has stated that on the date of occurrence, bandobust was under the leadership of PW-30-Selvaraj, Additional Superintendent of Police who came to the place of occurrence with striking force and they chased the agitators along with the appellant. PW-1 has also stated that police personnel were divided into seven groups and were directed to be on bandobust duty on seven points. SI-PW- 1 has stated that about ten persons of Madurai Armed Reserve Police Force came in a single vehicle and that the appellant had asked that the vehicle to be parked away safely and asked the police force that they should be scattered sparsely without standing together at one place. In his chief examination, PW-1 has also 21 stated that all of them along with the appellant and other police personnel had used force on the agitators and they chased away the agitators. PW-1 also stated that the appellant was informing about the development in the place of occurrence then and there through wireless to PW-29, Superintendent of Police. In his cross- examination on behalf of the appellant, PW-1-SI-Aladiyan has stated as under:-

54. The High Court referred to the report of PW-77, Senior Scientific Officer of CFSL and held that the evidence of PW-77 shows that the photos and the videos have not been doctored. Referring to M.O.45-CD and other material objects-Compact Discs, the High Court observed that the trial court erred in brushing aside the video footage and the photos contained in the Compact Discs on a presumptuous ground that the same could have been doctored and 18 that the said approach of the trial court is perverse. On such findings, the High Court reversed the acquittal of all the accused and also the acquittal of the appellant-accused No.17. Since the appeals against other accused convicted under Section 302 IPC are admitted and pending before the Supreme Court, we do not propose to go into the merits of the contentions regarding M.O.45- CD, photographs and other Compact Discs-M.Os.49 to 54. Lest, it might affect the interest of the parties in other criminal appeals which are pending before in the Supreme Court. We therefore, consciously refrain from expressing our views on the contentions regarding M.O.45-CD and other Compact Discs (MOs.49 to 54) and the photographs and other electronic evidence relied upon by the prosecution and the news published in Nakkeeran Bi-weekly Magazine.

32. As pointed out earlier, one of the essential ingredients to make out the offence under Section 217 IPC is that the public servant should have disobeyed any directions of law with the intention to save any person from legal punishment. In the present 28 case, there is no evidence to show that the appellant has disobeyed the directions of any law. On the contrary, there is clear evidence to show that the appellant, PW-1-Sub-Inspector of Police and other police personnel have used mild force against the miscreants and thus, chased them away to prevent any further untoward incident. Absolutely, there is no evidence to show that the appellant did not obey the command of PW-30 or PW-29-Superintendent of Police who were present on the spot for issuing directions and commands. There is no evidence to prove that the appellant omitted to do any act to sustain the conviction under Section 217 IPC.

33. Insofar as the conviction under Section 221 IPC is concerned, one of the essential ingredients of Section 221 IPC is the intentional omission to apprehend a person or intentionally aiding such person to escape. PW-29-Superintendent of Police and PW-30-Additional Superintendent of Police who were present on the spot issued directions and accordingly, the appellant acted. After the occurrence was over, PW-29 directed the appellant to search for the accused. Accordingly, the appellant went in search of the accused and arrested accused No.1 (V.P. Pandi @ Attack Pandi) on 15.05.2007; accused No.2 (M. Thiruchelvam) on 16.05.2007 and accused Nos.3 and 4 (Prabhu @ Arockiyaprabu and M. Saravanamuthu) on 10.05.2007. There is no evidence to show that the appellant 29 intentionally omitted to apprehend the accused on the spot to sustain the conviction under Section 221 IPC.

36. The appellant was charged for the offences punishable under Sections 217 IPC and 221 IPC alleging that he disobeyed the laws with intention to save the accused and that he was not diligent in apprehending the accused. Upon consideration of oral evidence adduced by the prosecution, we have held that the charges against the appellant under Sections 217 IPC and 221 IPC are not proved and the conviction of the appellant has been set aside and the appellant is acquitted. The appellant is not in any way involved in the main occurrence. The very charge against the appellant for which he was tried is different and distinct from the charge for which the other accused were tried. Hence, the instant appeal was heard separately. The other accused who have been convicted under Section 302 IPC and other offences have preferred appeals and those appeals are pending before the Supreme Court. The appeals preferred by the other accused shall be considered on their own merits and the findings in these appeals shall not have a bearing one way or the other in those appeals.

37. In the result, the impugned judgment and order dated 21.03.2019 and 25.03.2019 passed by the High Court of Madras at Madurai Bench in Crl.A. (MD) No.274 of 2011 convicting the appellant-accused No.17 under Sections 217 IPC and 221 IPC are 31 set aside and these appeals are allowed and the appellant is acquitted of the aforesaid charges.

November 26, 2019.