VICTOR PAUL Vs. STATE

JUDGEMENT

(1.) THE appellants in this appeal stand convicted in S.C.No. 231 of 1992 on the file of the learned Sessions Judge, Madurai for the offence punishable under Sec. 3(1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced to undergo one year rigorous imprisonment together with a fine of Rs.500 carrying a default sentence. Heard Mr.M. Ravindran, learned senior counsel appearing for the appellants and Mr.V. Jayaprakash Narayanan, learned Government Advocate appearing on the criminal side for the State.

(2.) THE investigating agency had filed the final report directly before the Court of Sessions, thereby treating the Court of Sessions as the original Court empowered to take cognizance of the offence. But recently the Hon'ble Supreme Court of India held that the Court constituted under the Act cannot take cognizance of offences under the SC and ST (Prevention of Atrocities) Act directly without the case being committed to it. THE case on hand had it's origin in the year 1992 and no objection whatsoever had been taken before the learned trial Judge about the absence of power in it to take a cognizance of the offence directly. In a later judgment, the Hon'ble Supreme Court of India held that unless objections are taken at the earliest stage and if no prejudice is shown to have been caused to the accused on account of such taking cognizance, the judgment cannot be set aside on the sole ground of absence of power to take cognizance of the offence. This later judgment of the Hon"ble Supreme Court of India governs the fact situation in this case. In fact learned senior counsel appearing for the appellants would fairly state that he would not be in a position to press the point of absence of power in the Court of sessions to take cognizance of the offence directly.

(3.) P.W.1 is employed as an attender and P.W.3 is employed as a clerk in the service organisation run by Babu. There is no averment in Ex.P-1 that P.W.3 was inside the office of Babu and on P.W.1 being pulled out to the road by A-1, he also followed them. P.W.2's evidence also does not show the presence of P.W.3 inside the office on that day. She would further state that she is not aware where Raja and Nagarajan/n.W.3 inside the office on that day. She would further state that she is not aware where Raja and Nagarajan/n.W.2 were, when she was involved in the quarrel with the accused in the office of Babu. Her evidence shows that women working in the office of Babu did not protest in any manner regarding the above referred to quarrel. In her evidence in cross P.W.2 admits that Raja and Nagarajan/n.W.3 came there only when P.W.1 was taken to the road by the accused. Therefore it stands definitely established by the recitals in Ex.P-1 and the oral evidence of P.W.2 that P.W.3 was not in the office of Babu at all at any point of time and at best the oral evidence of P.W.2 would show that Babu arrived at the scene only when P.W. 1 and the accused were on the road. In the above context, I perused the evidence of P.W.3. Though he would state that he was inside the office on the evening of the day of occurrence, yet in view of the materials noted earlier in this paragraph, I am not prepared to believe the evidence of P.W.3 that he was also in the office on the evening of the day of occurrence. In any event he is definitely an interested witness and therefore the Court expects corroboration to the oral evidence of P.Ws. 1 and 3 from independent witnesses, which is definitely lacking in this case. P.W.3's evidence is to the effect that the passer-by in the road also jointed them in separating the quarrelling people. I have already noticed that P.W.2 had stated in her evidence that no other public intervened to separate the quarrelling people namely, P.W. 1 on the hand and A-1 and A-2 on the other hand. P.W.3 had been examined by the police only on the next day. This Court is fully aware that the place in which the offence is committed may be a public place by itself is open to "public view" or any other place which also should be open to "public view" I have already referred to that P.W.3 in his evidence in chief had not mentioned about the presence of any public in the place where the offence was committed while in his evidence in cross he had stated that the public also intervened thereby showing that the offence was committed in a place within "public view". P.W.3 had admitted in his evidence that he is not aware whether any of the residents of the street witnessed the occurrence. On the facts noticed above, I have a grave doubt about the presence of P.W.3 at the scene of occurrence, where the offence is stated to have been committed.