Appeal dismissed against acquittal of accused under S.C./S.T. Act. Court found no evidence that abusive caste remarks were made in public view to attract the Act; occurrence at residence and lack of corroboration justified acquittal.
Appeal dismissed; order of acquittal of the accused is upheld and not set aside.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CRL.A.(MD)No.336 of 2016
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 21.04.2021 DELIVERED ON : 22.06.2021
CORAM
THE HONOURABLE MR.JUSTICE SATHI KUMAR SUKUMARA KURUP
CRL.A.(MD)No.336 of 2016
M.Sri Ramar
: Appellant
Vs.
1.The Deputy Superintendent of Police, Office of the Deputy Superintendent of Police, Aruppukottai, Virudhunagar District.
2.The Inspector of Police, Aruppukottai Town Police Station, Virudhunagar District. (Crime No.306 of 2003). ... Respondents 1 & 2/Complainants
3.R.Ramamoorthy ... 3rd Respondent/Sole Accused
PRAYER : Criminal Appeal filed under Section 372 of Criminal Procedure Code, to call for the records pertaining to the judgment in S.C.No.127 of 2009, dated 10.09.2015 on the file of the Principal District and Sessions Court, Virudhunagar at Srivilliputhur in Cr.No.306 of 2003 on the file of the Respondent No.1 and to set aside the same.
For Appellant :Ms.T.Seeni Syed Amma for Mr.T.Lajapathi Roy For R1 and R2 :Mr.A.P.G.Ohm Chairma Prabhu Government Advocate (Crl.side)
For R3 :Mr.T.Antony Arulraj
JJUDGMENT
This is an appeal filed by the de-facto complainant/PW-4 against the judgment of acquittal passed by the learned Principal District and Sessions Judge, Virudhunagar at Srivilliputhur.
2.As per the grounds of appeal, the learned Principal District and Sessions Judge, Virudhunagar at Srivilliputhur, failed to appreciate the facts involved in the case in the light of the weight of evidence against law and probabilities of the case. The Trial Court acquitted the third respondent/accused on flimsy grounds
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without considering the facts and circumstances of the case.
3.The third respondent/accused working as Special Officer in the Primary Agricultural Co-operative Credit Society, Puliampatti, Aruppukottai Taluk and the appellant was working as Salesman. The third respondent/accused wrote a confidential note in the service register of the appellant, as if he belongs to Scheduled Caste community and he is a terrorist; he is not loyal to this Bank; he is an active sympathizer of “Puthiya Thamilagam” political party; he is a petition monger; he is not even fit to serve as a Salesman under any circumstances; he belongs to “Puthiya Thamilagam' party. In short, he is the worst man, whom might not have met in my life and career and his conduct and character are very worst. The service register of the appellant is exhibited as Ex-P6.
4.It is crystal clear that the third respondent/accused had acted upon illegally and with an intention to abuse the appellant by his caste remarks. Therefore, the conduct of the third respondent attracts the provisions of offences under Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989. The said vital point was not considered by the learned Principal District and Sessions Judge. The alleged occurrence attracting the provisions of Section 3 of the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, was not considered by the learned Trial Judge. Therefore, the order passed by the learned Principal District and Sessions Judge, Virudhunagar at Srivilliputhur, had to be set aside.
5.The learned Counsel for the appellant restricted his arguments to Section 3(i)(x) of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, as it stood in 1989. Section 3(i) (ix) of the Act is with regard to public servant. Section 3(i)(x) of the Act is with regard to humiliate a public servant in public view. The learned Counsel for the appellant submitted that he is confining his arguments only with regard to Section 3(i)(x) of the Act.
6.In support of his submissions, the learned Counsel for the appellant had relied on the Ruling of the Honourable Supreme Court reported in (2008) 8 SCC 435 , in the case of Swaran Singh and others vs State through Standing Counsel and another and submitted that the order of the learned Principal District and Sessions Judge acquitting the third respondent/accused is to be set aside and the third respondent is to be sentenced.
7.The learned Government Advocate (Crl.side) appearing for the respondents 1 and 2 adopts the arguments of the learned Counsel for the appellant/de-facto complainant.
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8.The third respondent, who is the accused before the Principal District and Sessions Court, had engaged a Counsel. As per the submissions of the learned Counsel for the third respondent, provisions of Section 3 of the Act is not attracted in this case. The learned Counsel for the third respondent had requested this Court to consider the grounds of appeal. In the grounds of appeal, it is mentioned that the appellant herein was working as Salesman and the third respondent was working as Special Officer in the Primary Agricultural Co-operative Credit Society, Puliampatti, Aruppukottai Taluk. The Special Officer had made entries in the service register, which reads as follows:
“the appellant belongs to Scheduled Caste community and he is terrorist; he is not loyal to this Bank; he is an active sympathizer of “Puthiya Thamilagam” political party; he is a petition monger; he is not even fit to serve as Salesman under any circumstance; he belongs to “Puthiya Thamilagam' party. In short, he is the worst man, whom might not have met in my life and career and his conduct and character are very worst.”
that is not the grounds of appeal. The grounds of appeal shall be based on the facts agitated before the Trial Court. Here, a new fact is stated in the grounds of appeal. The grounds of appeal proceed, as though the cause of action for filing of the case under the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989, had been invoked by the appellant herein based on the entry in the service register of the appellant by the third respondent, that is not the case. The appellant herein had gone to the house of the third respondent, whereas, the third respondent protested and stated that who gave you the power to come to my house. The same words uttered, will not attract the provisions of the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989.
10.The learned Counsel for the third respondent drew the attention of this Court to the grounds of the appeal, wherein, the appellant had mentioned that the entry in the service register of the appellant is one of the grounds for filing this appeal. The appellant/de-facto complainant had given the complaint. Based on which, the preliminary enquiry was conducted by the SC/ST Minorities Commission and legal opinion was given that the provisions of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 had not been violated, therefore, further action was dropped and that the complaint was closed. Subsequently, the appellant herein had influenced the prosecuting agency and reopened the case only to wreak vengeance on his superior by misusing the provisions of law to threaten a law abiding duty conscious Officer, who was the Manager of the Bank.
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11.This appellant was the Salesman and he was not respecting his colleagues as well as his superior Officers. On 19.03.2003, the appellant herein, who is the de-facto complainant, had gone to the house of the third respondent/accused. He had shouted at his superior Officer, when the superior officer was in his residence. That annoyed him. He had shouted at the appellant herein/de-facto complainant that, who gave you the power to come to my house? and get out? was the only word used. Whereas, in the FIR, it is stated that in the public place, the third respondent abused the appellant/de-facto complainant by using his caste name. Therefore, the witness, who was mentioned in the complaint by the appellant, was also summoned and examined. He had let in evidence as PW-5. He had not spoken to anything about the caste name or other atrocities.
12.The learned Counsel for the third respondent drew the attention of this Court to page No.66 of the typed set of papers furnished along with the appeal and in paragraph 32, the learned Principal District and Sessions Judge had clearly stated that the corroborating witness, PW-4, had not spoken anything in his evidence regarding the actual words used by the third respondent to attract the provisions of Sections 3(i)(ix) and 3(i)(x) of the Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989. Therefore, the learned Principal District and Sessions Judge had analysed the facts and the Indian Evidence Act to satisfy herself that the case whether attracts Section 3 of the Act. Likewise, the prosecution had marked Ex-P6, which was a photostat copy of the service Register of PW-4, the appellant herein. The photostat copy cannot be marked, as it is treated as secondary evidence. If the defacto complainant had obtained certified copy of the service register, it could have been marked. It was not done. Hence, this Court cannot consider Ex-P6. As per Section 63 of the Indian Evidence Act, secondary evidence cannot be considered.
13.The Investigation Officer in this case had deposed as PW-7. In his evidence during cross examination, he had admitted that he had not obtained the service register or the adverse remarks passed by the third respondent against the appellant herein and he had not conducted any investigation regarding the entry in the service register of the appellant herein. PW-4, who is the appellant herein, had also not stated anything in his chief examination.
14.The learned Counsel for the third respondent drew the attention of this Court to page Nos.14 and 15 of the typed set of papers filed by the appellant regarding the claim of the appellant, wherein, it has been stated as follows:
“ehd; nrhy;fpw Ml;fSf ;nfy;yhk; murpd; kz;nzz ;iz rhkhd;fis gzk; thq;fhky; nfhLf;fNtz;Lk ; vd;W nrhd;dhh;. ehd; mthplk; Neubahf mt;thW nfhLf;fKbahJ vd;W nrd;Ndd;. ,jdhy; vjphpf;Fk ; vdf;Fk ; rpwpJ
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fUj;JNtWghL ,Ue;Jte;jJ. i\ vjphp vd;Dil gzpgjpNtl;by ; Fwpg;gplg;glhj thh;j ;ijfisAk; e P xU jho;j ;jg ;gl ;lth; r%fj;ij rhh;e ;jth; vd;Wk ;> e P xU gaq;futhjp vd;Wk ;> e P xU gpuhL vd;Wk ;> e P xU [hjp ntwpgpbj;jth; vd;Wk ; e P xU Gjpa jkpoh;fs ; ghh;l ;b vd;Wk ; e P Ntiyf;F yhaf;F ,y;yhjth; vd;Wk ; cd;id Ntiyiatpl;L fhypnra;Aq ;fs ; vd;Wk ;> ,th; khWjyha; nry;Yk ; nghOJ 14.5.2002 md;W vd;Dila gzpgjpNtl;by ; gjpT nra;Js ;shh ;. i~ tptuk; vdf;F njhpatu ehDk; vdJ ez;gUk; MWKfjh]; vd;gtUk; vjphpt P l ;bw ;F nrd;Nwhk;. i~ tptuk; rk;ge ;jkhf Nfl;gjw;fhf t P l ;L thry;gb epd;Nwhk;. mg;NghJ vjphp Nghdpy; Ngrpf;nfhz;bUe;jhh;. vq;fisg; ghh;j ;jTld; ntspapy; te;jhh;. vq;fsplk; vd;ntd;W Nfl;lhh;. mjw;F ehd; vd;Dila tho;f ;ifia Vd; ,g;gb tpisahLfpw P h ;fs ; vd;W Nfl;Nld ;. mjw;F mth; jhnahop kfd;> gs;sg ;gaNy vd;Wk; vd; t P L thry;gb kpjpf;ff ;$lhJ vd;Wk ; e P fnyf;lh ; Jizgjpthsh; MfpNahhplk; kDnfhLj;Js ;sha ; mij ehd; ghh;j ;Jnfhs;Ntd; vd;Wk ; , dpNky; vd; t P l ;L thrg;gbf ;Fte;jhy; cd;id Ms; itj;Jf ;nfhy ;yhky ; tplkhl;Nld ; vd;Wk ; mbf;f fk;Gld; Xbte;jhh;. ehDk; vd;Dld; nrd;w MWKfjh]; vd;gtUk; Xbte;Jtpl;Nlhk;. mJrkak; ,lj;ij Rw;wp Rkhh; 20 egh;fs ; $btpl;lhh;fs ;.”
15.After the evidence of the prosecution was closed, Ex-D1 was marked in cross examination of PW-4, the complaint preferred by the appellant herein to the District Collector. He had admitted that he had sent a petition to the District Collector subsequent to the filing of the case by the SC/ST (POA) Wing of the police. Another letter marked as Ex-D2 had been filed by the appellant, wherein, PW4, the appellant herein, had stated that the third respondent had used the word “gs;sg ;ga kfNd Nghlh ntspNa”. In the said letter, he further stated that on 19.03.2003, he had given complaint to the SC/ST (POA) Wing and they had not taken steps till 28.04.2003 and requested the Collector to direct them to file investigation report. Ex-D3 is a document also written by the appellant herein to the Revenue Divisional Officer for not taking steps on the complaint preferred by the de-facto complainant.
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17.The FIR proceeds, as if the third respondent threatened the appellant herein that he shall not stand in front portion of his house and he came with a wooden stick to beat him and scared the appellant/de-facto complainant and that he ran away from front portion of the third respondent's house. At that time, the third respondent has stated that “gs;sg ;ga kfNd Nghlh ntspNa”.
Points for consideration:
18.Whether the appeal against the acquittal is to be allowed and the judgment and order passed by the learned Principal District and Sessions Judge is to be set aside and the third respondent is to be convicted?
19.As rightly pointed out by the learned Counsel for the third respondent, even though the FIR proceeds with the words, the words were not spoken to. Therefore, further proceeding by the Investigation Agency was closed. After that the appellant herein sent reminders to the Collector seeking to investigate the case and lay charge sheet against the third respondent. The appellant herein had himself let in evidence as PW-4. In the evidence, he had not stated anything that the third respondent threatening the appellant by using abusive words “gs;sg ;ga kfNd Nghlh ntspNa” and it was seen by a person mentioned in the complaint. But, the said witness was not examined. On assessment of evidence, it is found that PW-4 had not stated anything. Likewise, PW-7 the Investigation Officer had admitted that he had not seized the service register of the appellant from the Cooperative Bank.
20.The judgment relied upon by the learned Counsel for the appellant/de-facto complainant, reported in (2008) 8 SCC 435 , in the case of Swaran Singh and others vs State through Standing Counsel and another will not be applicable to the facts and circumstances of the case. That was a case, where, the accused in that case had called the de-facto complainant “chamar” (the name used in North India for cobblers). Therefore, after registration of the case and investigation pending, the persons, who were arrayed as accused in the FIR, moved the Court to quash the FIR. That was not done. That is a case where the parties had stated to have used the word “chamar”, causing annoyance to the de-facto complainant.
21.In this case, even though the FIR had stated some words and mentioned the witnesses, the place of occurrence is the entrance to the residence of the superior Officer of the appellant herein. PW-4 himself had not spoken to in his deposition regarding the claim that the third respondent used abusive words against the caste to which the appellant belongs. When there is no incriminating evidence available to convict the third respondent/accused, the Court is justified in acquitting the accused from the charges.
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22.As rightly pointed out by the learned Counsel for the third respondent, when the Trial Court had acquitted and the Appellate Court hears the appeal from the aggrieved de-facto complainant, the Appellate Court is not expected to disturb the findings of the Trial Court on the ground that the Trial Court had the benefit to appreciate the evidence and demeanor of the witness, whereas, the Appellate Judge will not be able to appreciate the body language of the witness. Therefore, at the lightest pretext, the Appellate Court will not disturb the findings of the Trial Court, if the findings are based on proper appreciation of evidence. The appeal against the conviction invariably will be heard and decided on a narrow restricted space and until otherwise, the appreciation of evidence by the learned Trial Judge is found perverse, usually the Appellate Court will not disturb the findings of the Trial Court. Therefore, the learned Counsel for the third respondent seeks indulgence of this Court to dismiss this appeal as having no merits.
23.On perusal of the FIR, the deposition of PW-4, Sri Ramar, PW-7, Investigation Officer, clearly attracts the Court regarding the incriminating evidence not available in the deposition of PW4/de-facto complainant. When that being the case, no purpose will be served by setting aside the order of acquittal by the learned Principal District and Sessions Judge. When materials are not available, the Court cannot, on its own motion, mark an unmarked document, for which PW-7, the Investigation Officer, had clearly stated that he had not enquired the employer of PW-4 regarding Service Register. When that being the case, in the grounds of appeal, instead of appreciation of evidence, it is stated that the case was based on the Service Register entry and the service register entry itself gives presumption for the Court to act upon, based on the entry in the service register by the third respondent. The actual fact is that on coming to know about the adverse entry in the Service Register by the third respondent, the appellant herein went to the residence of the third respondent. On seeing the appellant herein, the third respondent shouted that how can you come to my house; who gave you the power to stand in front of my house?; you get out from this place. These ingredients will not attract the provisions of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act, 1989 and end up in conviction. Therefore, when the de-facto complainant, as PW-4 himself, had not stated the actual words used attracting the provisions of Section 3(i)(x) of the Act.
24.In the light of the above discussion, the point for consideration is answered in favour of the third Respondent and against the prosecution. The order of acquittal passed by the learned Principal District and Sessions Judge, Virudhunagar, at Srivilliputhur cannot be set aside.
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25.In the result, this appeal has no merits and dismissed.
Sd/-
Assistant Registrar(CS-I) // True Copy //
/ /2021 Sub Assistant Registrar(CS)
cmr
To
1.The Principal District and Sessions Judge, Virudhunagar at Srivilliputhur.
2.The Deputy Superintendent of Police, Office of the Deputy Superintendent of Police, Aruppukottai, Virudhunagar District. 3.The Inspector of Police, Aruppukottai Town Police Station, Virudhunagar District. 4. The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai. Copy to The Section Officer,Criminal Section(Records), Madurai Bench of Madras High Court, Madurai.(2 copies)
+1 CC to M/s.T.LAJAPATHY ROY, Advocate ( SR-20133[F] dated 24/06/2021 )
Judgment made in CRL.A.(MD)No.336 of 2016 22.06.2021 SGS(CO) TR(05.07.2021) 8P 8C
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3 issues framed by the court
Whether the appeal against the acquittal of the accused under the Scheduled Castes and Tribes (Prevention of Atrocities) Act, 1989 should be allowed?
Whether the alleged remarks regarding caste made at the accused's residence attract the provisions of Section 3(i)(x) of the Act?
Whether the findings of fact by the Trial Court acquitting the accused should be disturbed on appeal?
Colour shows how this judgement treated each authority
Swaran Singh and others vs State through Standing Counsel and anotherDistinguished¶20
(2008) 8 SCC 435 · Who else cites this
2 provisions across 2 enactments
M.Sri Ramar
The Deputy Superintendent of Police, Aruppukottai
The Inspector of Police, Aruppukottai Town Police Station
R.Ramamoorthy
SATHI KUMAR SUKUMARA KURUP
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
