Thangamuthu and others vs State

M. Karpagavinayagam, J.—In S.C. No. 136 of 1991, on the file of 1st Additional Assistant Sessions Judge, Erode, the petitioners were

tried for the offences under Sections 147, 148, 451, 427, 323, 324, 323 r/w. 149, 324 r/w. 149, 366 and 366 r/w. 149, I.P.C., on the allegations

that on 9-11-1989 at about 5:30 p.m., all the accused/petitioner''s formed themselves into unlawful assembly and committed rioting, armed

themselves with dangerous weapons, trespassed into the house of P.W. 4 Visalakshi and assaulted P.W. 1 Kuppusamy and P.W. 2 Saraswathi,

caused damage to the door of the house of P.W. 4 Visalakshi and forcibly abducted her.

The trial Court after completion of trial by judgment dated 28-4-1992, convicted and sentenced A-1, A-3 and A-6 u/s 147, I.P.C. and to

undergo R.I. for three months each, convicted and sentenced A-2, A-4 and A-5 u/s 148, I.P.C. and to undergo R. I. for four months each. A-1 to

A-6 were convicted and sentenced u/s 451, I.P.C. and to undergo R.I. for three months. A-2 was convicted and sentenced under Sec. 323,

I.P.C., and to undergo R.I. for three months. A-4 was convicted and sentenced u/s 324, I.P.C., and to undergo R.I. for 6 months. A-1 was

convicted and sentenced u/s 366, I.P.C., and to undergo R.I. for 4 years and to pay a fine of Rs. 2,000/- in default to undergo S.I. for six months.

A-2 to A-6 were convicted and sentenced u/s 366 r/w 149, I.P.C., to undergo R.I. for four years and to pay a fine of Rs. 2,000/- in default to

undergo. S.I. for six months each. The substantive sentences were directed to run concurrently. However, the learned trial Judge acquitted A-5

Subramanian of the charges under Sections 427, 323 r/w 149, I.P.C. and 324 r/w 149, I.P.C. As also, A-1, A-3 and A-6 were acquitted of the

charges under Sections 323 r/w 149, I.P.C. and 324 r/w 149, I.P.C. and A-4 was acquitted of the charge u/s 323 r/w 149, I.P.C.

Aggrieved over this judgment, the accused 1 to 6 have filed an appeal before the Sessions Court, Erode. The learned Principal Sessions Judge,

by Judgment dated 28-7-1993 in C.A. No. 19 of 1992, dismissed the appeal, confirming the conviction and sentence imposed by the trial Court

on the accused. Hence this revision.

Let me state the facts of the case as discernible from the evidence available on record :-

P.W. 1, Kuppusamy is the resident of Azahiyanalayem. All the accused/petitioners belong to Resipalayam. One Palaniyathal and Chellathal are the

sisters of P.W. 1 Kuppusami. The said Palaniyathal was married to one Doraisemi at Rasipalayam. P.W. 4 Visalakshi is their daughter. Ten

months prior to the occurrence, the parents of the A-1 Thangamuthu came to the house of P.W. 4 Visalakshi and requested her parents to give

their daughter in marriage with A-1. However, the parents of P.W. 4 refused for the same. Then onwards, misunderstanding developed between

the family of the accused and the family of P.W. 4. Then the parents of P.W. 4 arranged for marriage of their daughter with the Muthsamy, and the

marriage date was also fixed. M.O. 1, is the marriage invitation.

On 9-11-1989, P.W. 1 Kuppusami, P.W. 2. Saraswathi and P.W. 3 Selvaraj came to the house of Palaniyathal in order to take the bride with

them to the temple. At about 5:30 p.m., all the accused came in a white car bearing registration No. TN-33-Y-0477 and enquired P.W. 1

regarding the whereabouts of the bride. P.W. 1 Kuppusamy asked them, as to why they search for the girl. At that time, A-2 Doraisamy fisted

P.W. 1 with his hand. While P.W. 2 Saraswathi, intervened and questioned this, A-4 Kuppusami beat P.W. 2 on her left hand with M.O. 2

Ulakkai. Then, A-4 Kuppusami throttled the neck of P.W. 2, while the A-2 Duraisami by showing the Soorikathi (M.O. 4) threatened all the

witnesses and as P.W. 1 and P.W. 2 got afraid they went and stood on the verandah side. On seeing the high handed act of the accused/

petitioners, P.W. 4 Visalakshi entered inside the house and locked the doors. Then, A-5 Subramanian, with crow bar broke-open the lock and

entered into the house and thereafter A-5 and A-3 forcibly pulled P.W. 4 from out of the house and took her in the car. Then the car sped away.

The witnesses immediately, took effective steps to trace-out the bride, but the same proved to be futile. They went to the police station and gave

Ex. P-1 complaint. Then the police sent them to the Hospital along with memo.

In the mean time, the accused along with P.W. 4 Visalakshi the victim went to Pollachi and purchased some new clothes and thereafter went to

tailoring shop, for stitching. Next day, on compulsion of the accused, P.W. 4 the victim took bath and prepared herself to be ready as bride for the

marriage. After reaching a particular place, she was compelled to sit near A-1 Thangamuthu and then, A-1 tied thali around the neck of P.W. 4.

The Police officer who received the complaint Ex. P-1 registered the case and took up investigation and they finally traced the place and

rescued P.M. 4 Visalakshi from the custody of the accused. The clother (M.Os. 5 to 8) and thali (M.O. 9) worn by P.W. 4 were recovered by

the police. The Police Officer examined P.W. 5, Ramasamy, a taxi driver who drove the taxi in which the girl was said to have been abducted.

On 10-11-1989 P.W. 7 Doctor Sivashanmugham, examined the injured P.W. 1 and P.W. 2 and issued Exs. P-5 and P-6, accident register

extracts. P.W. 9 Mufarak, Salesman of the textile shop was examined by the Police Officer, who spoke that all the accused along with P.W. 4

came and purchased clothes. P.W. 13 Murali, Inspector of Police, who took up further investigation, went to the spot, observed all the formalities

and after finishing the investigation, filed the charge-sheet against the accused/petitioners on 7-10-1990.

When the accused were questioned u/s 313, Cr.P.C., to explain the incriminating circumstances brought on record in evidence against them,

they denied their complicity in the crime. On behalf of A-1 Thangamuthu, a written statement was filed before the trial Court. In this statement, A-1

stated that P.W. 4 Visalakshi, voluntarily came out of the house, in order to avoid the marriage fixed against her will and so A-1 and others in

order to help P.W. 4 and at the instance of P.W. 4 arranged for the marriage between A-1 and P.W. 4 and while the marriage was performed,

police came and forcibly compelled P.W. 4 to come to the Police Station and that then she was handed over to her parents against her will.

On termination of trial, the trial Court convicted the accused under Sections 147, 148, 451, 323, 324, 366 and 366 read with 149, I.P.C. and

dealt with them as stated earlier. Against this judgment, the accused filed an appeal, in which, the learned Principal Sessions Judge, Erode,

confirmed the conviction and sentence imposed upon the accused by the trial Court. Aggrieved over the same, the present action has been

resorted to by the petitioners.

Mr. A. K. Sridharan, learned counsel appearing for the petitioners took me through the entire evidence adduced by P.Ws. 1 to 13 and the

relevant portions of the judgments rendered by the Courts below. Though he made several submissions, I am in agreement with the sole

submission, viz. the non-consideration of the evidence of P.W. 5 Ramasami, a taxi Driver, by both the Courts below. The evidence of P.W. 1 to

P.W. 4 according to the Courts below are cogent and convincing in proving the aspects of trespass, assault and abduction. Only on the basis of

their evidence, both the Courts below have come into a conclusion that these offences have been proved beyond doubt. It is a specific evidence of

P.W. 4 Visalakshi, that she was forcibly taken away from the house of P.W. 1, by the accused, in a taxi and when she cried, she was threatened

and that she was asked to accompany them to the textile shop and tailoring shop and also she was compelled to come to the marriage place for

marrying A-1 Thangamuthu.

But in the light of the evidence of P.W. 5 Ramasami, the taxi driver, a doubt is created over the evidence of P.W. 4, the victim in this case.

P.W. 5 is an independent witness who drove the taxi throughout, from the place of alleged abduction till the police rescued P.W. 4 at the marriage

place. In fact, P.W. 5 took the police and pointed out the place, in which P.W. 4 was available. A perusal of the evidence of P.W. 5 would clearly

show, that the accused along with P.W. 4/the victim came in the car and before they reached the destination, the car was stopped near a tea shop

and tea was supplied by the accused to P.W. 4, which was willingly received and drunk by P.W. 4, and the occupants of the taxi, viz. all the

accused, P.W. 4 Visalakshi and the other ladies were all in a jubiliant mood and they happily conversed with each other while they were travelling

and that even P.W. 4 was also talking with other ladies and she went to textile shop and tailoring shop happily, that she spent some time in

jewellery shop and other shops and that she did not cry or resist them in any way. The relevant portion of evidence as spoken to by P.W. 5 is as

follows :

These portions of the evidence completely contradict the evidence of other prosecution witnesses. As such the evidence of P.W. 5 would reveal

that P.W. 4 was a willing party to go along with A-1 Thargamuthu and others. P.W. 5 deposed that P.W. 4 stated to the police, when they came

and rescued her as follows :-

The above portion of the evidence shows that she did not like to go with the police, as she had married A-1 Thangamuthu. In fact, an attempt was

made by the prosecution to treat P.W. 5 as a hostile witness. But the lower Court correctly refused to treat P.W. 5 as a hostile witness, because

his statement before the Court was quite consistent with his earlier statement given u/s 161, Cr.P.C., before the police. In such circumstances, I am

of the view that the evidence of P.W. 5 is an important piece of evidence, which has been omitted to be considered by both the Courts below. On

this aspect, learned Government Advocate represents that if the evidence of P.W. 4 is believed, the evidence of P.W. 5 has to be rejected and on

the contrary if the evidence of P.W. 5 is accepted, there is no case for the prosecution.

It is important to note that this aspect of vital contradiction has not been taken note of by both the Courts below. They simply observed that

P.W. 5 deposed in support of the case of defence. At the same time, they have not given any reason to reject the evidence of P.W. 5. More so he

was not treated as a hostile witness by the trial Court.

In the light of the evidence adduced by P.W. 5, the entire case of the prosecution relating to abduction becomes doubtful. Consequently, I feel

that the benefit of doubt, in regard to the offence of abduction, has to be given to the accused concerned. However, the charges under Sections

147, 148, 451, 323 and 324, I.P.C., against the accused, with which they were charged respectively, have been proved beyond doubt, through

the evidence of ocular witnesses viz., P.Ws. 1 to 3.

In view of the above discussion, the conviction and sentence imposed upon A-1, A-3 and A-6 by the Courts below under Sections 147 and

451, I.P.C are confirmed. As also, the conviction and sentence as imposed upon A-1. A-4 and A-5 by the Courts below under Sections 148 and

451, I.P.C., are confirmed. The conviction and sentence as against A-2 u/s 323, I.P.C., and as against A-4 u/s 324, I.P.C., are also confirmed.

The conviction and sentence imposed by the Courts below upon A-1 u/s 366, I.P.C., and upon A-2 to A-6 u/s 366 read with 149, I.P.C., are set

aside and they are found not guilty and are acquitted of the same. The fine amount, if paid in respect of this charge is directed to be refunded to the

accused/petitioners forthwith.

At this stage, learned counsel for the petitioners submits that the petitioners are entitled to the benefit of remission as per G.O. Ms. No. 296,

Home (Prison-IV) Dept., dated 20-2-1993 and G.O. Ms. No. 205, Home (Prison-IV) Dept. dated 23-2-1994, for a period of one year.

Learned Government Advocate, does not dispute this. As the period of sentence confirmed in this revision as against the petitioners/ accused are

wiped out as per the above said G.Os., the petitioners need not surrender before the prison authorities.

The revision is allowed in part, to the extent as indicated above.

Order accordingly.