SENTHIL KUMAR Vs. STATE

JUDGEMENT

(1.) The appellants/accused convicted by the Trial Court in S.C.No.72 of 2019 by judgment dtd. 1/9/2021 and sentenced to undergo three months simple imprisonment each for the offence under Sec. 294(b) IPC and to undergo four years simple imprisonment and to pay a fine of Rs.1,000.00 each, in default, to undergo one month simple imprisonment for the offence under Sec. 3 of Tamil Nadu Public Property (Prevention of Damage and Loss) Act [TNPDDL Act] r/w. 34 IPC. Against which, the present appeal is filed.

(2.) The prosecution case is that the respondent police received a complaint from the defacto complainant/P.W.1 stating that the defacto complainant is an Advocate of considerable age practising in Dharapuram, on 12/10/2018 at about 7.00 p.m., one Mekala Mythili, wife of Senthil Kumar/A1 along with her father came to his office and complained that her husband Senthil Kumar taken to liquor, constantly abusing and assaulting her, hence she needs divorce from him. As the said Senthil Kumar is an Advocate Clerk, the defacto complainant informed her that he will speak to her husband and try to sort out the issue. On the same day at about 12.40 a.m., during midnight the said Mekala Mythili called the defacto complainant and complained that her husband Senthil Kumar along with another Senthil Kumar in a drunken state, assaulting her. The defacto complainant informed her that he will speak to him on the next day. Following early hours on that day, both the appellants came to the defacto complainant's home in Alto Car, abused him using filthy languages and later, A1 had thrown a brass lock on the defacto complainant's Honda City Car damaging the wind shield, since the neighbours hearing the shout and noise came out of their houses, both appellants left the place in their Maruthi Alto car. On receipt of the complaint, P.W.12 registered FIR and placed before P.W.13/Investigating Officer, who visited the scene of occurrence, examined the neighbours and witnesses present near the scene of occurrence, namely, P.W.1 to P.W.5, recording their statements, prepared observation mahazar and rough sketch in the presence of P.W.7 and P.W.8, arrested the accused/A1 in presence of P.W.9 and P.W.10. On his confession, recovery made. P.W.11/Approved Assessor of Insurance Company gave a report for the damage caused on the defacto complainant's car. On completion of investigation, charge sheet filed. During trial, P.W.1 to P.W.13 examined, Ex.P1 to Ex.P16 marked, M.O.1 and M.O.2 produced on the side of the prosecution. On the side of the defence, no witness examined and Ex.D1/photographs marked through P.W.1. On conclusion of trial, the Trial Court convicted the appellants as above.

(3.) The contention of the learned counsel of the appellants is that the first appellant is an Advocate Clerk attached to one Sekar, who was earlier Junior to P.W.2/wife of P.W.1. Since the first appellant used to refer lot of motor accident claim cases to the said Sekar who was flourishing in the practice, hence there was animosity against the first appellant. P.W.1 being a leading Criminal Lawyer threatened the first appellant not to support the said Sekar. He would submit that in this case, the alleged occurrence is said to have taken place on 13/10/2018 in the early hours but the complaint was lodged with a delay of 8 1/2 hours. The Police Station is only few meters within walkable distance, P.W.1 being a Criminal Lawyer not informed the Police through phone or immediately went to the Police Station. He further submitted that in this case, the damage caused is to the wind shield of the defacto complainant's car which was parked inside the house, is not a public property and no offence under TNPPDL Act gets attracted. The case originates and the motive projected against the appellants is that P.W.6/wife of first appellant had some difference of opinion with the first appellant and she approached the defacto complainant, complained about the first appellant and she took advise for divorce, hence the first appellant got enraged, came in a drunken state picked up fight with the defacto complainant and caused damage to the defacto complainant's car. In this case, P.W.6 not supported the case of the prosecution. Hence, the foundational fact and the motive projected gets demolished. Now the prosecution projected P.W.1 to P.W.5 as eye witnesses to the occurrence in this case. P.W.1 is the defacto complainant, P.W.2 is the wife of P.W.1 and P.W.3 to P.W.5 are neighbours. P.W.1 confirms that after he shouted at the appellants and chased them out, P.W.3 to P.W.5 came later to the scene of occurrence, hence P.W.3 to P.W.5 cannot be eye witnesses. P.W.2/wife of P.W.1 confirms that she had seen the occurrence from window and she came down from the first floor, hence she cannot be an eye witness. Now except for P.W.1's statement there is no other witness to confirm that the appellants abused the defacto complainant and caused damage to his car. He further submitted that in this case, the valuation report for the damage to the wind shield was given by P.W.11/Approved Assessor of Insurance Company, who admits that P.W.2/wife of P.W.1 is the Panel lawyer to the Insurance Company and hence, he cannot be considered as an independent valuer. The prosecution not given any reason as to why no damage report obtained from the Motor Vehicle Department. Further, Ex.D1 to Ex.D5 photographs captured in the CCTV camera placed in the house of defacto complainant's neighbour Advocate Annadurai, not examined as witness. From Ex.D1 to Ex.D5, it is seen that the appellants not present at that point of time. The Trial Court not referred to Ex.D1 to Ex.D5. Further, there are contradictions between the evidence of P.W.1 to P.W.5, with regard to the manner in which abused started and the wind shield damage. The Trial Court though acquitted the appellants for the offence under Ss. 452 and 506(ii) IPC but convicted the appellants for the offence under Sec. 294(b) IPC and Sec. 3 of TNPPDL Act. The Trial Court further on its own gives a finding as though the first appellant acted as a tout to the said Sekar which is not proper. Thus the Trial Court not considered and analysed the evidence required but convicted the appellants on a preconceived notion to appease the defacto complainant and P.W.2 since both are Senior Advocates of the Bar.