(Prayer: This Criminal Appeal is filed under Section 378 of Code of Criminal Procedure, 1973, to set aside the order of conviction dated 20.09.2019 passed in Special S.C.No.9 of 2017 on the file of the learned Special Sessions Judge under SC & ST Act, Villupuram and acquit the appellants.)
1. On 18.06.2015, when P.W.8 was on duty at Thirunavallur Police Station, P.W.1, Babu appeared before him and lodged a complaint to the fact that he is a resident of Kalamaruthur Village and he is running a vegetable shop and he belongs to the Scheduled Caste Community. While so, the accused, Anandan and other persons, belonging to the Vanniyar Caste, abused him by using his caste name and threatened him to vacate the vegetable shop before a period of one month. While so, again on 16.06.2015, all those persons came to the spot and slapped him on his cheek and abused him by his caste name and threatened him as to how dare he put his shop. On the strength of the said complaint, a case was registered in Crime No.369 of 2015 for the offences under Sections 147, 294 (b), 352 r/w Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act. P.W.9 took up the case for investigation, completed the same and laid the charge sheet, proposing the accused guilty for the offences mentioned in the First Information Report. The Special Court considering the materials on record, confirmed the charges against all the six accused under Sections 147, 294 (b), 352, 427 r/w Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act and upon questioning, all the accused denied the charges and stood trial.
2. So as to bring home charges, prosecution examined the defacto complainant one Babu. One Pandiyan, who was also a resident of the village, independent witness, was examined as P.W.2. One Selvan, who is also a resident of the village, was examined as independent witness as P.W.3. One Murugan, was the witness to the observation mahazar, was examined as P.W.4. One Rajarajan, the Revenue Divisional Officer, who issued the community certificate to P.W.1 was examined as P.W.5. One Veeramani, P.W.6, who was also to be a resident of the village, an independent witness turned hostile. One Balamurugan, P.W.7, who was also a resident of the village and sought to be an independent witness turned hostile. One Jagadesan, who registered the First Information Report was examined as P.W.8. The Investigating Officer was examined as P.W.9.
3. On behalf of the prosecution, Exhibit P.1 to Exhibit P.8 were also marked. Upon being questioned about the material evidence on record and the incriminating circumstances under Section 313 of the Code of Criminal Procedure, the accused denied the same as false. Thereafter, no evidence was laid down on behalf of the defence. The Trial Court therefore proceeded to hear the learned Special Public Prosecutor on behalf of the prosecution and the learned counsel for the accused and by judgment dated 20.09.2019, while acquitting the accused for the other offences, convicted the accused one to six for offence under Section 147 of the Indian Penal Code and imposed fine of Rs.1,000/- and in default of payment of fine, to undergo three months simple imprisonment and convicted the first accused for the offence under Section 3(1)(r)(s) of the SC & ST (Prevention of Atrocities) Act and imposed punishment of one year rigorous imprisonment and a fine of Rs.1,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of three months and convicted the first accused for offence under Section 352 and imposed punishment of fine of Rs.500/- and on default of payment of fine to undergo one month simple imprisonment and convicted the accused two to six under Section 427 of the Indian Penal Code and imposed a fine of Rs.1,000/- each and in default of payment of fine, to undergo three months simple imprisonment. Aggrieved by the same, the present appeal is laid before this Court.
4. Heard Mr.A.Saravanan, lerarned counsel appearing on behalf of the appellants and Mr.S.Vinoth Kumar, learned Government Advocate (Crl. Side), appearing on behalf of the prosecution. Even though notice was served, no appearance on behalf of the defacto complainant.
5. Learned counsel for the appellants would submit that, in this case, the allegation against the first appellant for convicting him for the offence under Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act is that he had insulted P.W.1 in public view, by abusing him using his caste name. In support of the allegation, there is no other witnesses or evidence except the evidence of P.W.1 alone. The independent witnesses, examined as P.W.2 and P.W.3 do not speak of any abuse by the accused by using the caste name. The other two independent witnesses sought to be examined as P.W.6 and P.W.7 did not support the case of the prosecution and turned hostile. Therefore, he would submit that it is unsafe to convict the appellants only on the ipse dixit of the defacto complainant P.W.1. Even, he would further submit that this was an eviction drive pursuant to the resolution passed by the Panchayat. Therefore, when P.W.1, who was encroaching upon the crowded public place, was removed by the Panchayat and since the appellants, being the residents of the village merely accompanied the Panchayat officials in carrying out the eviction drive. He would submit that the provisions of the Act has been misused by P.W.1 and in any event, he would submit that there is no categorical evidence that the abuse was in a public place and therefore prayed that the first appellant be acquitted of the offence under Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act. Once the accused is acquitted of the offences under Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act, he would submit that the entire evidence on record would suggest that it was not an unlawful assembly and therefore, no offence has been committed and all the accused deserve to be acquitted for the other offences under Sections 147, 352 and 427 of the Indian Penal Code also.
6. Per contra, learned Government Advocate (Crl. Side) would submit that, in this case, apart from the evidence of P.W.1, P.W.2 and P.W.3 have spoken about the occurrence. Even though they do not speak about the factum of using of the caste name and abuse, otherwise, they corroborate the facts about the incident. In this background, when P.W.1 is belonging to the Scheduled Caste and the accused all belonging to the Most Backward Caste, they have resorted to the offence of insulting P.W.1 in a public place. Admittedly, even as per the defence that the number of persons had assembled and even as per the case of the defence that it was an eviction drive, then it goes without saying that the entire occurrence took in a public place and therefore, the prosecution has proved the offence and the Trial Court has rightly convicted the accused.
7. I have considered the rival submissions made on either side and perused the material records of this case. 8. Firstly, to consider the conviction for the offence under Section 3(1)(x) of the SC & ST (Prevention of Atrocities) Act, as contended by the learned counsel for the appellants, the solitary evidence is that of the evidence of P.W.1 and no other witnesses supports the version of the prosecution. The independent witnesses have turned hostile or the other independent witnesses P.W.2 and P.W.3, even though had stated about the occurrence, do not speak about the abuse of P.W.1 by using his caste name. Therefore, it is to be seen whether the evidence of P.W.1 is categorical and unwavering and stellar in quality so that it can be relied upon and the accused can be convicted. In this regard, originally, a perusal of the complaint, it is clear that when the complainant spoke about the incident a month ago, in which he has mentioned that he has been selling vegetables in his cart. However, at the time of occurrence on 16.06.2015, he has stated that the accused came near his cart and hit him and also abused him. However, while when he was cross examined, he did not stick to his stand that he was selling vegetables in his cart on the road. However, he deposed as follows:
However, thus, it may be seen that while alleging the offence the SC & ST (Prevention of Atrocities) Act, P.W.1 tends to depose that as if he was selling vegetables in cart in public place but when the cross examination was on the line about eviction drive, he turned coat and stated as if he was having a shop in the place belonging to Thiruvengadam. It is in this context, the suggestions are clearly made to P.W.1 that it was the eviction drive and the place was required for the extension of road as well as for completing of drainage and the relevant part of the cross examination is as follows:
9. Therefore, when the evidence of P.W.1 is contradictory in respect of the material part, this Court is of the view that it cannot be held to be as stellar in quality so as to confirm the conviction of the first accused and therefore, I am of the view that in the absence of clear cut evidence, even from P.W.1, as to the place in which he was abused and in the absence of corroborative evidence in respect of the verbal abuse by using the caste name by the independent witness, the first accused is entitled for benefit of doubt in respect of the offence under Section 3(1)(
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x) of the SC & ST (Prevention of Atrocities) Act and accordingly, I upturn the finding of guilt. Similarly, a perusal of the cross examination of P.W.1 as well as the Investigating Officer, wherein he has admitted that P.W.1 was having his cart on the highway and that he did not know whether any Panchayat resolution was made or not and that P.W.1 has stated before him that totally fifty persons came to the spot and threatened him, I am of the view that there is a possible defence that there was a lawful eviction drive and therefore, it could not be said that with the intent to form any unlawful assembly the accused one to six joined together and committed the offence under Section 147 or committed the offence under Sections 352 or 427 of the Indian Penal Code. Accordingly, I am of the view that all the accused are entitled for benefit of doubt. 10. Therefore, this criminal revision is allowed. Accused one to six are acquitted of all the charges by giving the benefit of doubt. Fine amount if any paid, shall be ordered to be returned.