KENNEDY Vs. STATE REP. BY DEPUTY SUPERINTENDENT OF POLICE, KALLAKURICHI DIVISION, VILLUPURAM DISTRICT. (CRIME NO.459 OF 2007, KACHIRAPALAYAM POLICE STATION)

JUDGEMENT

(1.) This Criminal Appeal is filed against the judgment dated 03.09.2010 passed in S.C.No.96 of 2009 on the file of the Special Court (Principal Sessions Court), Villupuram, in and by which, the appellants/A1 and A2 were convicted and sentenced as tabulated hereunder: <IMG>JUDGEMENT_194_LAWS(MAD)8_2016.jpg</IMG>

(2.) The gist of the prosecution case leading to conviction of the appellants/A1 and A2 is that P.W.1/de-facto complainant, namely Selvi, is a Hindu Malayali and she is a resident of Vadakkanandhal Village. She is residing near the house of the appellants/A1 and A2 and very often, the appellants used to dump the garbage and other decayed particles near the kitchen of P.W.1. This was questioned by P.W.1 and enraged over the same, on 27.10.2007 at about 1 p.m., the appellants/A1 and A2 have blocked the pathway to the house of P.W.1 by keeping the thorny bushes of the trees. Hence, P.W.1 questioned them as to why they are harassing her. Enraged over the same, they have entered into the house of P.W.1 and scolded her in filthy language by referring her as Hindu Malayali and by scolding her so, A1 made an attempt to attack P.W.1 with stones and A2, by abusing her in filthy language, made an attempt to assault her with stick. On witnessing the attack, P.W.2 Kannan, one Manokaran and one Moorthy, prevented the appellants/A1 and A2 from attacking P.W.1. Thereafter, the appellants left the place by uttering, they will not leave her without killing her . Since P.W.1's husband was out of station, after his arrival, on the next day, P.W.1 went to the Police Station along with her husband and lodged Ex.P-1 complaint, dated 28.10.2007. P.W.5 Inspector of Police received the said complaint at about 6 p.m. on that day from P.W.1 and registered a case in Crime No.459 of 2007 for the offences under Sections 294(b), 506(i) Penal Code and Sec. 3(1)(x) of the SC and ST (Prevention of Atrocities) Act. Ex.P-4 is the FIR. Thereafter, P.W.5 forwarded the copy of the complaint/FIR to the jurisdictional Magistrate and also to his higher official, subsequent to which, PW.7 Deputy Superintendent of Police, on receipt of the complaint/FIR, took up the case for investigation and went to the place of occurrence at about 9 p.m. along with P.W.4 Ravi and one Mottiah Pillai. P.W.7 prepared Ex.P-3 observation mahazar and drew Ex.P-6 rough sketch and recorded the statement of P.W.1-defacto complainant, one Manokaran, P.W.2 Kannan, Moorthy, Parvathi, Ravi and Mottiah Pillai. Thereafter, he submitted an application to the Revenue Divisional Officer as well as to the Tahsildar concerned to ascertain the community of P.W.1 and the appellants. On 07.11.2007, P.W.7 examined and recorded the statement of the concerned RDO and obtained a report with regard to the community of P.W.1. On 19.11.2007, he recorded the statement of P.W.3 Krishnasami (Tahsildar) and obtained a report with regard to the community of the appellants. The community status report revealed that P.W.1 belongs to Hindu Malayali community and the appellants/accused belong to Hindu-Saaliyar community. Thereafter, he examined P.W.6 RDO Vanitha. After completion of all formalities and after concluding the investigation, P.W.7 filed charge-sheet before the trial Court. The case was taken on file in S.C.No.96 of 2009 by the trial Court. During the course of trial, on the side of prosecution, P.Ws.1 to 7 were examined and Exs.P-1 to P-6 were marked. When the appellants/A1 and A2 were questioned under Sec. 313 Crimial P.C. they denied their complicity in the crime. They neither examined any witness nor marked any document. Upon hearing the submissions of both sides and considering the oral and documentary evidence available on record, the trial Court convicted and sentenced the appellants/A1 and A2 as tabulated above. Challenging the said judgment of conviction and sentence, the appellants/A1 and A2 have filed this appeal.

(3.) When the appeal is taken up for hearing, learned counsel for the appellants/A1 and A2 submitted that the prosecution has not produced any document to establish the fact that P.W.1/de-facto complainant/victim belongs to SC/ST community. In fact, the community status report produced by the prosecution, which is marked as Ex.P-5 report of the victim, in which, it is indicated that she is Hindu Malayali . Since the prosecution failed to establish the caste/community of P.W.1 by producing documentary evidence, on this lone and sole ground, the entire case of the prosecution gets vitiated.