Pazhanivel v. State Rep. by

ORDER Challenge in this Criminal Revision is made to the judgment dated 29.03.2019 passed in Criminal Appeal No.56/2018, on the file of the I Additional District and Sessions Judge, Cuddalore, in and by which the conviction made in the judgment dated 13.07.2018 passed in C.C. No.86/2012 on the file of the learned Judicial Magistrate-II, Cuddalore, was confirmed but the sentence was modified.

¶2The revision petitioners are the accused in C.C. No.86/2012 on the file of the Judicial Magistrate-II, Cuddalore. The Inspector of Police, Cuddalore Port Police Station, filed a final report against the three accused including the present revision petitioners for the offences under Sections 379 IPC r/w 4(1)(A) r/w Section 21 of the Mines and Minerals (Development and Regulation) Act 1957.

¶3The case of the prosecution in a nutshell is as follows:

3.1 Thiru.Dakshinamurthi (P.W.1), the then Tahsildar of Cuddalore during routine rounds on 22.08.2010 got an information that some miscreants are taking oysters from the river bed of Thiyagavalli Madura, Nocchikadu Village, and went to the scene of offence along with Ramachandran (P.W.3), Village Administrative Officer of Thiyagavalli Village and Govindan (P.W.4) his assistant at about 10 p.m. They saw 5 persons loading Oysters (M.O.2) in a lorry bearing Registration No. TN 21 Q 1199 (M.O.1). On seeing the Tahsildar, 4 persons out of 5 made good their escape and the accused Palanivel (1st revision petitioner) was caught hold by the Tahsildar. On enquiry the said Palanivel informed the Tahsildar that he was the driver of the lorry which belonged to one Abdul Azeez (A2) and that they did not have any licence to take Oysters. P.W.1 seized the lorry under the cover of a mahazar (Ex.P2) in the presence of the revenue officials and public. He also recorded the confessional statement of the accused and handed over the accused and the seized vehicle (M.O.1) and oysters weighing 4 tons (M.O.2) to the Station House Officer of Cuddalore Port Police Station along with a complaint (Ex.P1), on the same day i.e. 22.08.2010. P.W.2 to P.W.4 corroborated the versions of P.W.1.

3.2. Thiru. Annamalai (P.W.5), Special Sub Inspector of Police, Cuddalore Port Police Station, in his deposition had stated that he received the complaint (Ex.P1) on 27.08.2010 from Govindan (P.W.4) and registered FIR (Ex.P3) in Crime No.87/2010 against the three accused, namely, Palanivel, Abdul Azeez and Dhakshinamurty, for the offences punishable under Sections 379 IPC r/w 4(1)(A) r/w Section 21 of the Mines and Minerals (Development and Regulation) Act 1957. He arrested the accused 1 and 3 and produced them before the concerned Judicial Magistrate for remanding them to judicial custody. He also produced the seized lorry and the oysters under Form 95 (Ex.P4) in the court. He recorded the statements of the witnesses and after completing the investigation laid a final report before the Judicial Magistrate-II, Cuddalore, against the three accused for the offences punishable under Sections 379 IPC and 4(1)(A) r/w Section 21 of the Mines and Minerals (Development and Regulation) Act 1957.

3.3. Since the police could not secure the presence of A2, final report was filed showing him in absconding column. The learned Judicial Magistrate, split up the case against A2 in C.C. No.56/17 and tried the case against the present revision petitioners alone.

3.4. The learned Judicial Magistrate after furnishing copies of records to the accused 1 and 3/revision petitioners under Section 207 Cr.P.C., framed charges against them under Sections 379 IPC and 4(1)(A) r/w Section 21 of the Mines and Minerals (Development and Regulation) Act 1957. Since the accused pleaded not guilty, the case was posted for trial.

3.5. On the side of the prosecution, 6 witnesses were examined and 4 documents were marked and 2 Material Objects were also marked. When the accused were questioned under Section 313 Cr.P.C., they denied of having committed any offence. However, no oral/documentary evidence was adduced on their side.

3.6. After going through the evidence on record, the trial court found the accused 1 and 3 guilty of the offence punishable under Section 379 IPC and sentenced them to undergo Simple Imprisonment for a period of one year, vide judgment dated 13.07.2018. The accused were acquitted under Section 4(1)(A) r/w Section 21 of the Mines and Minerals (Development and Regulation) Act 1957.

3.7. Aggrieved over the said conviction and sentence passed by the Trial Court Judge, the accused 1 and 3 preferred an appeal in Criminal Appeal No. 56 of 2018 before the Additional District and Sessions Judge,Cuddalore. The learned Additional District and Sessions Judge,Cuddalore, confirmed the conviction of the accused for the offence under Section 379 IPC, but however, modified the sentence that the accused should undergo Simple Imprisonment for a period of 6 months. He set off the period of sentence already undergone by them under Section 428 Cr.P.C.

3.8. Aggrieved over the same, the present Criminal Revision Case is filed.

¶4This Court while exercising its revision jurisdiction under Section 397 Cr.P.C. cannot act as a second appellate court. However, Mr.E.V. Chandru, learned counsel for the revision petitioners contended that the story of the prosecution which is built on the materials placed on record seems to be devoid of truth and that the findings of the courts below though concurrent do not merit of acceptance or approval. His contentions are, i. P.W.1, though in his deposition had stated that he caught hold of A1 and seized the lorry with oysters on 22.08.2010 at 10. p.m. and handed over the accused, lorry and oysters on the same day to the Station House Officer, Cuddalore Port Police Station, P.W.5, the Sub Inspector of Police had deposed that he received the complaint (Ex.P1) from P.W.4 only on 27.08.2010 and registered FIR on the same date. Thus registration of FIR itself is doubtful. ii. P.W.1 had deposed that he recorded the confession statement of the accused but it has not seen the light of the day. iii. Mahesh (P.W.2) Revenue Inspector during the course of cross examination stated that P.W.1 caught hold of 3 or 4 persons in the place of occurrence and enquired them and that the police reached the spot within half an hour thereby contradicting the versions of P.W.1 and P.W.2. iv. There is a delay of 5 days in sending FIR to Court . v. Both the courts below have not properly appreciated the evidence on record.

¶5Per contra, Mr. R. Vinothraja, learned Government Advocate (Crl.side) contended that both the courts below, after analysing the evidence on record, rightly convicted and sentenced the accused and therefore, no interference is warranted by this court and prayed for dismissal of the Criminal Revision Petition.

¶6A bare perusal of the judgments passed by both the courts below shows that both the courts did not analyse the evidence on record. The trial court and the appellate court after summarising the chief examination of P.W.1 to P.W.5 had concluded that the accused are guilty of the offence under Section 379 IPC. The judgment of the trial court is extracted hereunder: "14.Mtzq;fs; ghprPypf;fg;gl;lJ. flY}h; tUtha; tl;lhl;rpah; 22.08.2010 md;W ,uT Nuhe;J gzpapd; NghJ 2-tJ vjphpf;F nrhe;jkhd yhhpapid 3-tJ vjphp thliff;F vLj;J 1-tJ vjphp mjd; Xl;Leuhf ,Ue;J mjpy; fdpkq;fs; kw;Wk; Ruq;fq;fs; (tsh;r;rp kw;Wk; Kiwg;gLj;Jjy; rl;lk; 1957)-d; fPo; fdpkkhf fUjg;gLk; Rkhh; 4 ld; vilAs;s Rz;zhk;G fpspQ;ry;fis chpa mDkjp rPl;by;yhky; vLj;jJ rk;ge;jkhf Nkw;gb yhhpapd; Xl;LeiuAk;> yhhp kw;Wk; fdpkj;jpidAk; ifg;gw;wp 26.08.2010 md;W jdJ Gfhhpid jghy; topahf flY}h; JiwKf fhty;epiya cjtp Ma;thsUf;F mDg;gp mjid fhty;epiyaj;jpdh;

27.08.2010-y; ngw;W Kjy; jfty; mwpf;if gjpT nra;Js;sdh;. gpd;dh; Nkw;gb yhhp vz;.TN 21– Q-1199-vd;w gjpntz; nfhz;l tz;bAk;> 4 ld; vilAs;s Rz;zhk;G fpspQ;ry;fSk; rp.gp.177/2010-y; vd;gjpy; tof;F nrhj;jhf;fg;gl;L gpd;dh; 20.09.2010-y; fhty;epiyak; trNk ePjpkd;wj;jhy; xg;gilg;G nra;ag;gl;Ls;sJ. Crl.R.C.oNo.1302oofo2023 andoCrl.M.P.No.14836oofo2023oo

15.2-tJ vjphpia nghWjJ; tof;F jdpahf gphpff; g;gl;L rp.rp.56/2017 Mf cs;sJ.

16.,tt; of;fpy; tl;lhl;rpah>; tUtha; Mat; hsh;> fpuhk epht; hf mYtyh>; fpuhk cjtpahsh; MfpNahh; m.rh.1 Kjy; m.rh.4 Mf tprhhpf;fg;gl;Ls;sdh;. mth;fs; %yk; m.rh.M.1 GfhUk; m.rh.M.2 ifg;gwW; jy; kfrUk; FwpaPL nra;ag;glL; s;sJ.

17.fdpkq;fs; kwW; k; Ruq;fq;fs; (tshr; ;rp kwW; k; Kiwg;gLj;Jjy); rl;lk; 1957 gphpT 4(1-A)d; gb ve;jnthU egUk; fdpkq;fis vLjJ; r; nry;yNth> ,Ug;G itff; Nth $lhJ. mt;thW nra;gth; mr;rll; gphpT 21(1)d; gb jz;lidf;Fhpath; Mfpwhh;. NkYk; mr;rl;lg; gphpT 22d; gb ve;jnthU ePjpkd;wKk; murhq;fj;jhy; epakpf;fgg; l;l eghpd; vOjJ; %ykhd Gfhh; ,y;yhky; ve;jnthU tof;ifAk; tprhhpff; f; $lhJ vdW; cs;sJ. Mdhy; ,tt; of;fpy; tUtha; tl;lhl;rpahpd; Gfhhpd; Nghpy; Kjy; jfty; mwpf;ifahdJ fdpkq;fs; kw;Wk; Ruqf; q;fs; (tsh;r;rp kw;Wk; Kiwg;gLj;Jjy); rl;lk; 1957 gphpT 21(1)d; gbAk>; ,.j.r gphpT 379-d; gbAk; tof;F gjpT nra;ag;glL; > Fw;wr;rhlL; tidagg; lL; s;sJ. MfNt ,e;ePjpkd;wk; murhy; epakpff; g;gl;l eghpd; vOjJ; %ykhd Gfhh; ,yy; hjjpdhy; fdpkq;fs; kwW; k; Ruq;fq;fs; (tshr; ;rp kw;Wk; Kiwgg; Lj;Jjy;) rl;lk; 1957 gphpT 21(1)d; gb Nkwg; b tof;fhdJ js;Sgb nraa; gg; l Ntz;Lnkd;W jPh;khdpf;fpwJ. Pageo10oofo18

18.NkYk; ,.j.r gphpT 378-d;gb ve;jnthU eghpd; mDkjpapy;yhky; xU mirAk; nrhj;jpid mtUila clikapy; ,Ue;J Neh;ikaw;w topapy; vLg;ghNuahdhy;

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Fw;wkhFk;. fdpkq;fs; kw;Wk; Ruq;fq;fs; (tsh;r;rp kw;Wk; Kiwg;gLj;Jjy;) rl;lk; 1957-d; gb Mw;Wg; gLiffs;> JiwKf flw;fiu gFjpfspy; ,Uf;Fk; ve;jnthU fdpkKk; muRf;F nrhe;jkhdjhFk;. me;j fdpkq;fis chpa mDkjpapd;wp vLf;Fk; nray;fSf;fhd jz;lid tptuq;fis Nkw;gb rl;lk; tpthpf;fpwJ. Mdhy; nghJr;rl;lkhd ,.j.r gphpT 378-d; gb 1 kw;Wk; 3-tJ vjphpfspd; nra;ifahdJ ,.j.r gphpT 379d; gb jz;bf;fj;jf;f Fw;wkhFk;. muR jug;G 1 kw;Wk; 3 vjphpfs; kPjhd Fw;wj;ij re;Njfj;jpw;F mg;ghw;gl;L ,jr gphpT 379-d; gb ep&gpj;Js;sdh; vd ,e;ePjpkd;wk; KbT nra;fpwJ. MfNt 1 kw;Wk; 3 vjphpfs; ,.j.r. gphpT 379-d; gb jz;bf;fj;jf;f Fw;wj;ij Ghpe;Js;sjhf ,e;ePjpkd;wk; jPh;khdpf;fpwJ." The judgment of the appellate court is as under :

¶17"In order to prove the case prosecution has cited 9 witnsses and has examined six witnesses as P.W.1 to P.W.6 and Ex.P1 to Ex.P4, M.O.1 and M.O.3 have been marked. On the side of the accused no oral or documentary evidence is produced.

¶18The P.W.1 Dakshinamurthy has deposed to the effect that on 22.08.2010 at 10.00 p.m. when he was on rounds, he got information over phone that in Nochikadu area, near River Bank, shells to be taken. Immediately, he went there and found that there was a lorry and five persons are loading the shells in the lorry and on seeing him, except the driver other 4 have run away. When the driver was examined, he said that his name is Pazhanivel. No licence for taking shells with him. He informed him that without licence, taking of shells is an offence. He seized the lorry through a mahazar. He recorded the confession statement. He handed over lorry with shells to the Port Police Station, Cuddalore. Ex.P1 is his complaint. Ex.P2 is the Mahazar. M.O.1 is seized lorry bearing No.TN 21 ACA 1199 and M.O.2 is the shells weighing 4 tones.

¶19The P.W.2 is the Revenue Inspector, P.W.3 is the Village Administrative Officer and P.W.4 is the Village Assistant. The evidence of P.W.2,P.W.3 and P.W.4 are well corroborating the evidence of P.W.1. The P.W.5 is the Sub Inspector of Police and P.W.6 is the Inspector of Police who had deposed about their part in the investigation. The evidence of P.W.1 toP.W.6 are cogent and satisfactory.

¶20After trial, the learned Judicial Magistrate No.2, Cuddalore acquitted the Accused 1 to 3 under Section 21(1) of the Mines and Minerals Act 1957 and has convicted the accused 1 and 3 under Section 379 IPC and sentenced to undergo Simple Imprisonment for one year. In view of Section 248(2) Cr.P.C. The evidences of P.W.1 to P.W.6 remains stable, even after cross examination. There is no infirmity in the judgment of the learned Judicial Magistrate, No.II, Cuddalore. Hence, it warrants no interference. As such, the judgment of the learned Judicial Magistrate No.II, Cuddalore, is confirmed. However, on considering the age of the accused, nature of the offences their socio economic back ground it is decided to modify the sentence of imprisonment. Accordingly, the accused 1 and 3 are convicted under Section 379 IPC and sentenced to undergo Simple Imprisonment for 6 months". Thus it is clear the evidence of P.W.1 to P.W.5 have not at all been analysed especially when there are glaring discrepancies in their evidence, as rightly pointed out by the learned counsel for the revision petitioners. When P.W.1 states he saw five persons loading the lorry bearing Registration TN 21 Q 1199 (M.O.1) and four persons made good their escape on seeing the team of revenue officials, P.W.2 has deposed that P.W.1 enquired all the five persons at the spot. According to P.W.1, he seized the vehicle (M.O.1) after recording the confessional statement of the 1st revision petitioner Palanivel and handed over the accused, lorry and oysters on the same night of 22.08.2010 along with his complaint (Ex.P1) to the Station House Officer, Cuddalore Port Police Station. On the contrary P.W.5 had deposed that he received the complaint from P.W.4 only on 27.08.2010 and registered FIR on the same date. This is also infact clearly mentioned in the FIR. Thus the basis on which the FIR is registered itself is highly doubtful. The so called 'confessional statement' of A1 was also not marked. The seizure mahazar (Ex.P2) states that lorry (M.O.1), oysters (M.O.2) were seized in the presence of public. None of the witnesses were examined to prove the alleged seizure. There is also a delay of 5 days in sending the FIR to court.

¶7Apart from this, according to the police, A2 is absconding and the final report was filed showing him as absconding accused and the learned Judicial Magistrate-II, Cuddalore, split up the case as against him in CC No.56/2017. However, it is perplexing to note that the Lorry (M.O.1) was returned to A2 by the concerned Judicial Magistrate.

¶8Be that as it may, there are many inconsistencies and irregularities in the case of the prosecution as rightly pointed out by Mr.E.V.Chandru, learned counsel for the revision petitioners. Merely because the witnesses are official witnesses, their evidence cannot be treated as Gospel truth. Hence the benefit of doubt is given to the accused and the accused are acquitted of the offence under Section 379 IPC.

¶9In the result, i. the Criminal Revision Case is allowed. Consequently, connected Criminal Miscellaneous Petition is closed. ii. the judgement dated 29.03.2019 passed in Criminal Appeal No.56/2018, on the file of the I Additional District and Sessions Judge, Cuddalore. and the judgment dated 13.07.2018 passed in C.C. No.86/2012 on the file of the learned Judicial Magistrate-II, Cuddalore, are set aside. iii. The accused are acquitted from the charges of which they are charged

.09.2023

Index: Yes/No Internet: Yes/No Speaking/Non-Speaking order bga To

1.State represented by The Station House Officer Cuddalore O.T.P.S. Crime No.87/2010

2.The I Additional District and Sessions Judge, Cuddalore.

3.The Judicial Magistrate-II, Cuddalore.

R. HEMALATHA, J. bga

Crl.R.C.No.1302 of 2023

27.09.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 27.09.2023 CORAM : THE HONOURABLE MRS. JUSTICE R.HEMALATHA Crl.R.C.No.1302 of 2023 and Crl.M.P.No.14836 of 2023 1. Pazhanivel 2. Dhakshinamurthi ...Petitioners Vs. State represented by The Station House Officer Cuddalore O.T.P.S. Crime No.87/2010 ...Respondent Prayer : Criminal Revision Case filed under Section 397(1) r/w 401 Cr.P.C. against the judgement dated 29.03.2019 passed in Criminal Appeal No.56/2018, by the I Additional District and Sessions Judge, Cuddalore, partly modifying the judgment dated 13.07.2018 passed in C.C. No.86/2012 on the file of the learned Judicial Magistrate-II, Cuddalore. For Petitioners : Mr. E.V. Chandru For Respondent : Mr. R. Vinothraja Government Advocate (Crl.side)