Allowed

Balasubramanian v. State Rep. by

Madras HC20 Oct 2021CRL RC/827/2015

Case brief

AI extract

What is this about?

In a criminal revision, the High Court allowed the petition, setting aside convictions under the Protection of Civil Rights Act. The court found the prosecution case weak due to the absence of independent witnesses for an alleged incident during a festival and the existence of prior enmity in a civil suit regarding property partition.

What did the court decide?

The order passed in Crl.A.No.15 of 2015 dated 14.07.2015 was set aside.

Balasubramanian Vs State Rep. by — Caste Atrocities | Madras HC (2021)

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BAIL SLIP

¶2

The appellant / accused No.2 namely Indira,
D/o.Balasubramanian, was directed to be released on bail in and
by the order of this court dated 10.08.2015 and made in
CRL.M.P.No.1 of 2015 in CRL.R.C.No.827 of 2015.

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 27.08.2021

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 PRONOUNCED ON : 20.10.2021

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CORAM:

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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CRL.R.C.NO.827 OF 2015

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1.Balasubramanian

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2.Indira

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... Petitioners/Accused

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Vs.

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The State represented by the Inspector of Police,
P.C.R. Cell Police Station,
Pondicherry.
(Crime No.21 of 2012)

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... Respondent/Complainant

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Prayer: This Criminal Revision Case has been filed under Section
397 read with Section 401 of Cr.P.C. against the order dated
14.07.2015 passed in Crl.A.No.15 of 2015, on the file of the
learned III Additional Sessions Judge, at Puducherry, which
confirming order dated 19.03.2015, passed in STC.No.37 of 2013,
on the file of the learned Chief Judicial Magistrate,
Puducherry.

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https://hcservices.ecourts.gov.in/hcservices/

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For Petitioner: Mr.Prakash Adiapadam
For Respondent: Mr.Bharatha Chakravarthy
 Public Prosecutor (Pondicherry)

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O R D E R

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(The case has been heard through Video Conference)

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The convicted accused 1 and 2 are the revision
petitioners herein.

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2.This Criminal Revision Case has been filed against the
order dated 14.07.2015, passed in Crl.Appeal.No.15 of 2015, on
the file of the learned III Additional Sessions Judge, at
Puducherry, which confirming the order dated 19.03.2015, passed
in STC.No.37 of 2013 on the file of the learned Chief Judicial
Magistrate, at Puducherry, which confirming order dated
19.03.2015 passed in STC.No.37 of 2013, on the file of the
learned Chief Judicial Magistrate, at Puducherry.

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3.The respondent police filed charge sheet against the accused alleging that on 27.12.2012 at about 06.00 hours at No.29, Nilaya street, Shanmugapuram, Puducherry the accused persons viz., A1 & A2, who belonged to Marudhuvar Caste, infurtherance of common intention joined together, insulted the complainant viz., Chitradevi, who belonged to Scheduled Caste Community by mentioning her caste name on the grounds of untouchability by saying gu njtoah ehna eP vg;go vd; tPl;L thrypy; nfhyk; nghlyhk; and also criminally intimidated her due to wordy quarrel and therefore, the accused have committed offences punishable under Sections 506(I) of IPC and 7(1)(d) of PCR Act, 1955 read with 34 IPC.

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4.The victim girl/defacto complainant was examined as
PW1; husband of PW1 is PW2; friend of PW2 is PW3 &PW5; PW4 is
the Deputy Tahsildhar, who had issued the community certificate;
PW6 is the Investigating Officer. PW3 & PW5 are the attestors of
the Observation Mahazar. Ex.P1 is the complaint; Ex.P2 is the
Caste Certificate; Ex.P3 is FIR; Ex.P4 is Crime detail form. The
requisition letter given by PW6/Investigating Officer for the
community certificate of the accused and PW1 is marked as Ex.P5.

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https://hcservices.ecourts.gov.in/hcservices/

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5.The Trial Court viz., the learned Chief Judicial
Magistrate, Puducherry, taken the case as STC.No.37 of 2013 and
held that the charge under Section 506(ii) of IPC is not made
out and accordingly, acquitted the accused however, chosen to
convict the accused for the offence under Section 7(i)(d) of
Protection of Civil Act, 1955 and imposed sentence for six
months simple imprisonment and to pay a fine of Rs.500/- by each
accused, in default to pay the fine amount, to undergo further
simple imprisonment for one month by each accused. On appeal in
Crl.A.No.15 of 2015, the learned III Additional Sessions Judge,
Puducherry, had confirmed the conviction and sentence as stated
supra and hence, the Criminal Revision Case.

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6.Heard both the learned counsels and perused the
materials placed on record.

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7.The points that arise for consideration in this
Criminal Revision Case is:

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(i)Whether the conviction passed by both the Courts below
under Section 7(1)(d) of Protection of Civil Rights Act,1955 is
sustainable.

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(ii)Whether the sentence is excessive.

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8(a).After hearing rival submissions and also perusing
the Lower Court records, the case of the prosecution is that the
defacto complainant belongs to the Schedule Caste, two years
before she married PW2, who belongs to OBC, while A1 is the
brother of PW2 and A2 is the wife of A1. PW1 & PW2 and accused
persons were living in the same house at separate portions. As
PW2 married PW1, she belongs to Schedule Caste, the accused
persons quarreled with them and insulted PW1 by mentioning her
caste name and giving trouble to vacate the house where PW1 is
living. In this regard, a civil case is pending before
Puduchery Court.

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8(b).On 27.12.2012 at 6.00 hrs while PW1 was putting Rangoli at the entrance of the house, the accused persons came and scolded her with filthy language and also insulted her by mentioning her caste name on the ground of untouchability by saying gu njtoah ehna eP vg;go vd; tPl;L thrypy; nfhyk; nghlyhk; and also criminally intimidated her with dire consequences. When

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https://hcservices.ecourts.gov.in/hcservices/

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PW2/husband of PW1 asked about this, A1 slaped on his face and
caused injuries to the right eye brow. Since it was a raining
season, after three days PW1 gave complaint at the police
station i.e., on 31.12.2012.

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9.The suggestive case of the defence is that there is a
civil suit between the brothers viz., PW2 and A1. In view of
the civil case, which is pending between PW2 and A1, PW2 had
instigated his wife PW1, who is member of Schedule Caste
Community to give a false case against the accused persons so
that he can take away property, which is the subject matter of
the Civil Suit.

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10.The admitted factual matrix of the case are as under:

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(a).The first petitioner/first accused is the husband of
the second petitioner/second accused; PW1/defacto complainant is
the wife of PW2, who is none other than the brother of first
petitioner/first accused, the petitioners/accused persons (A1 &
A2) and PW2 are belongs to “Muruthuvar Community” and PW2
married PW1 about two and half years ago i.e., around in the
year 2010, who hailing from Manaparai (Tamil Nadu) and said to
be belongs to “Parayan Caste”, which fall under “Schedule Caste
Community”.

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(b)The petitioners/A1 & A2, PW1 &PW2 are residing in the
same house which situated at No.29, Nilaya Street,
Shanmugapuram, Puducherry. The petitioners/accused Nos.1 and 2
are residing in the house by occupying front portion and PW1 &
PW2 are residing in the house by occupying back portion.

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Allegation:

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(c)On 27.12.2012 at about 06.00 a.m., when PW1 (defacto
complainant) was drawing “Rangoli” in front of the house in
furtherance of common intention both the petitioners/accused
Nos.1 & 2 were jointly abused PW1 with filthy language and they
insulted PW1 by mentioning her caste and consequently, they
threatened her life with dire consequences. On 31.12.2012, PW1
went to the respondent police station lodged a complaint against
the petitioners/accused Nos.1 & 2 and based on her complaint,
the respondent police herein has registered a case in Crime
No.21 of 2012, dated 31.12.2012, for the offence under Section
506(i) and Section 7(1)(d) of Prevention of Civil Rights Act,
1955 read with Section 34 of IPC.

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https://hcservices.ecourts.gov.in/hcservices/

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(d)The learned Chief Judicial Magistrate, Pudhucherry,
took the case as STC.No.37 of 2013, after recording of the
prosecution side evidence, the petitioners/accused were
questioned under Section 313 of Cr.P.C., as to the incriminating
circumstances found in the evidence of prosecution witnesses,
wherein, it is specifically stated by the accused that in order
to wreck vengeance on the first accused for filing a Civil Suit
against PW2 (husband of PW1). The said suit number is O.S.No.13
of 2012, before the learned Principal District Judge,
Pudhucherry. PW2 had instigated PW1 to give false complaint.

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11.It is seen from the cross examination of PW1 & PW2
that it was suggested that the present case is false complaint,
which has been filed with a malafide intention to vacate the
accused from the house since the partition suit is pending
between the accused and the defacto complainant. As per the
first accused in the said O.S.No.13 of 2012, on the file of the
learned Principal District Judge, Pudhucherry, wherein, he
claims 1/4th share, two shares for the brothers viz., A1 & PW2
and other share is for the sisters. According to PW2 the sister
has no share in the property. The property has to be divided by
1/2 share between the brothers only.

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12.The relationship between the parties, as extracted
supra is not disputed. The content of Civil Suit in O.S.No.13 of
2012 has also not disputed. The suit is earlier point of time,
suit ready for recording of evidence. The allegation as stated
in the complaint is at the relevant point of time. It is also
not disputed that the accused 1 & 2/revision petitioners1 & 2
are residing in the front portion of the house while PW1 & PW2
residing back portion of the house.

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13.The alleged date of occurrence is 27.12.2012 at about
06.00a.m., during the Marghazhi Festival celebrated both in the
Tamil Nadu and Puducherry, it is tradition and customary to have
the house decorated by putting kolam and rangoli, it is not only
confine to the single persons but also in the entire state
assumes significance.

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14.On 27.12.2012 at about 6.00 a.m. when PW1 (defacto
complainant) was drawing “rangoli” in front of the house in
furthernce of common intention both petitioners/accused Nos.1 &
2 were jointly abused PW1 with filthy language and they insulted

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https://hcservices.ecourts.gov.in/hcservices/

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PW1 by mentioning her caste and consequently they threatened her
life with dire consequences. But during cross examination both
PW1 & PW2 categorically admitted that “the Petitioners/Accused
Nos.1 & 2 were not residing in the house, where the occurrence
is allegedly said to have been taken place, and further she
admitted that the Petitioners/Accused Nos.1 & 2 were shifted
their place of residence somewhere else”. This deposition “ipso
facto” proves that PW-1 (defacto complainant) had lodged false
complaint against petitioners/accused with ulterior motive to
wreak vengeance on the petitioners/Accused Nos.1 & 2 for
initiating civil case against them.

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15.Both the Courts rightly came to the conclusion that
“PW3 to PW5 are friends of PW2 and they deposed that they had
also seen the occurrence. But as per prosecution they are not
the occurrence witnesses. Therefore no possibility to give much
importance to their evidence. Therefore the only available
evidence for the occurrence is the evidence of PW1 and PW2, who
are none other than defacto complainant and her husband”. On
relying the evidence of PW1 & PW2 the Courts below were wrongly
convicted the petitioners/accused Nos.1 & 2 as discussed infra.

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16.During cross examination of PW1, she categorically
admitted & deposed that “the occurrence was took place at the
public place and several neighbours were watching the incident
and further, she categorically deposed that the mother-in-law of
PW1 is also residing in the room, which is adjacent to her
portion. But the prosecution neither examined mother-in-law of
PW1 nor other neighbours, who were all residing in that area and
watching the incident at that time, which is allegedly said to
have taken place on 27.12.2012 about 6.00 a.m. The non
examination of mother-in-law of PW1 or other neighbours, who
were all residing in that area and watching the incident at that
time, which is allegedly said to have taken place on 27.12.2012
about 6.00 a.m., is fatal.

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17.Both the Courts below have not appreciated the basic
facts as projected by the prosecution. The alleged date of
occurrence is on 27.12.2012. During the Marghazhi festival when
PW1 was putting rangoli kolam in front of their house at 06.00
a.m., there is every possibility that the others who are putting
kolam in the neighbouring houses would also been present. Both
the Courts below have simply negatived the plea projected by the

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https://hcservices.ecourts.gov.in/hcservices/

¶52

accused that had such incident been happened definitely the
family members and the neighbors, who are putting kolam at the
similar point of time would have noticed the occurrence.

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18.This Court finds force in the said contention taking
note of the subject that 27.12.2012 falls during the festival
time of Marghazhi, where it is customary practice to put rangoli
and hence, non-examination of the independent witness is also
fatal, caused serious doubt in the prosecution theory.

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19.It remains to be stated that Civil Suit is pending
which is prior in time. Admittedly, PW2 claims 100% higher
share as he is entitled to win the Civil Suit and non-
examination of the independent witness also cause serious doubt
as to the presence of the accused.

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20.Utterance of the caste word in public place in order
to humiliate the person in the name of the caste is made offence
which essence of Section 7(1)(d) of Protection of Civil Rights
Act, 1955. Section 7(1)(d) of the PCR Act, 1955, reads as
“insults or attempts to insult, on the ground of
“untouchability”, a members of a Scheduled Caste”.

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21.If no one is present, the question of humiliation of
PW1 does not arise. PW2 is none other than the own brother of
the accused. With regard to the partition, they are on logger
head with the first accused.

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22.It is admitted by PW2, in the cross-examination that
the relationship between the brothers PW2 and A1 is strained due
to the partition suit pending before the Court. In the cross
examination, she has also admitted that the accused are residing
in some other place and hence, the version of PW2 found to be
tainted with malafide.

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23.The suggestive case of the defence is that due to the
ill motive generated after filing of the Civil Suit, there is
enimity between the brothers. Previous enimity as a motive is a
double edged weapon it may be used to create an offence or it
may be misused to falsely implicate the accused. In such
circumstances, the duty is cast upon the Court to weigh the
evidence in all probability.

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https://hcservices.ecourts.gov.in/hcservices/

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24.Taking note of the fact that PW3 & PW5, who are
projected as attestor of the Observation Mahazar have deposed as
if they are occurrence witnesses, this Court finds that such an
extended statement of PW3 and PW5 is suffers from improvement
amounting to embellishment of material facts. Both the Courts
below have rightly come to the conclusion that PW3 & PW5
attestor of the Observation Mahazar and furthermore, the reason
assigned by PW3 and PW5 to visit house of PW2 is found to be
artificial. In view of the answer elicited in the cross
examination, the reasons appears to be lame and also lacks
reliability, both the Courts below have rightly concluded that
the evidence of PW3 and PW5 has to be eschewed from
consideration and hence, the evidence of PW1 and PW2 alone are
need to be analyzed. Admittedly PW2 is having previous enmity
being brother has grievance over the partition suit as it is
self proclaimed claim of 1/2 share in the suit property in stead
of 1/4th share. PW2 wanted to deny the share of the daughters.
The first accused want to give share to the daughters.

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25.In view of the discussion in the preceding paragraphs
that had their been any such incident as projected by the
prosecution viz., “ at 06.00 a.m., during the Marghazhi Festival
time on 27.12.2012 definitely, the neighbors could have
witnessed the scene”. For the reasons best known, PW1 and PW2
have not mentioned any one of the neighbours or witnesses,
witnessing the occurrence. The Investigating Officer has also
not let any attempt to enquire the neighbours. In view of the
specific plea raised by the prosecution about the date which
squarely falls on the Marghazhi Festival time and had there been
any such occasion as projected by the prosecution, it could have
been very well be witnessed by the neighboring house owners, who
will be putting rangoli or kolam as per the tradition and hence,
from genesis of the crime it appears to be shaky coupled with
the previous enmity of PW2 in respect of the Civil Suit in
O.S.No.13 of 2012 pending before the learned Principal District
also cause serious doubt as to the prosecution theory.

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26.In view of the infirmities found in the version of PW1
& PW2 and non examination of the neighbouring people who alleged
to have been put rangoli and kolam during the Marghazhi festival
also cause serious doubt as to the prosecution theory and hence,
I find that the suggestive case of the defence is more probable
than the prosecution theory. The evidence adduced by the

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https://hcservices.ecourts.gov.in/hcservices/

¶64

prosecution does not form a positive evidence to prove the
prosecution theory beyond reasonable doubt. Consequently,
benefit of doubt goes to the accused. Giving benefit of doubt to
the accused, I hold that charge under Section 7(1)(d) of the
Protection of Civil Right not made out.

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27.Accordingly, this Criminal Revision Case is allowed.
The order passed in Crl.A.No.15 of 2015, by the learned III
Additional Sessions Judge, Puducherry, dated 14.07.2015, which
confirming the order passed in STC.No.37 of 2013, by the learned
Chief Judicial Magistrate, Puducherry, dated 19.03.2015 is
hereby set aside.

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Sd/-

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Assistant Registrar(CS-VIII)

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// True Copy //

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Sub Assistant Registrar

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dua

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To:

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1. The III Additional Sessions Judge, Puducherry.

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2. The Chief Judicial Magistrate, Puducherry.

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3. The State represented by the Inspector of Police,

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P.C.R. Cell Police Station, Pondicherry.

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4. The Public Prosecutor, Pondicherry.

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Crl.R.C.No.827 of 2015

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PMK(CO)

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RLP(22/11/2021)

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Balasubramanian v. State Rep. by

Case brief

What is this about?

What did the court decide?

Balasubramanian v. State Rep. by

Case brief

What is this about?

What did the court decide?

What the court decided

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