Yakub Sahib and Others vs Kannusamy Chettiar

Ramakrishnan, J.—The trial Court, namely, the Sub-divisional Magistrate of Ulundurpet, out of the 13 accused in the case, convicted

accused 4, 5, 7, 8, 9, 12 and 13 u/s 147 (rioting) with six months rigorous imprisonment each and u/s 426, Indian Penal Code with a fine of Rs. 50

in default sentence of imprisonment. In addition, accused 9 and 12 were convicted of causing simple hurt but no separate sentence was awarded

because of the sentence u/s 147, Indian Penal Code. The remaining accused, namely, accused 1 to 3, 6, 10 and 11 were discharged as no prima

facie case was made out against them. The convicted accused appealed to the learned Sessions Judge of South Arcot, who set aside the

conviction of the Appellants for the offence u/s 147, Indian Penal Code, but confirmed the conviction of the Appellants before him u/s 426, Indian

Penal Code as well as the fine there under; in the case of accused 9 and 12 confirmed the conviction u/s 323, but since the fine u/s 147 had been

cancelled, he imposed on them a fine of Rs. 25 each. Now this revision case before this Court is filed by the abovesaid convicted accused.

Learned Counsel Sri. C.K. Venkatanarasimhan appearing for the Petitioners in this case, has not seriously pressed the case in regard to accused

9 and 12. But in regard to the rest of the Petitioners who were convicted by the lower appellate Court, he urged an objection which appears to me

to be well substantiated. The allegation made against the accused is that at the instigation of the accused, the president of the Panchayat Board,

they (the accused) went to the hut of P.W. 1 and demolished the fence around it, besides causing injuries to P.W. 1. The reason for this apparently

high handed action was that P.W. 1 had trespassed on the natham poramboke vesting in the panchayat. Learned Counsel appearing for the

Petitioners referred to two points which appear to me to be of weight. The first is this. Immediately following the occurrence, a report was given at

the Police station by P.W. 2 which is the first information report in this case. Therein the act of pulling down the fence is attributed only to accused

4 and 9. It is only in a complaint which emerged nearly nine days after the occurrence and given by P.W. 1 was the allegation made in an omnibus

fashion that all the accused pulled down the fence. The first point urged by the learned Counsel for the Petitioners is that the Court below have not

given proper weight to the discrepancy between the first information report and the evidence in Court and that if the first information report is

referred to for corroborating the testimony of the witnesses in Court, such corroboration would exist only in. the case of accused 4 and 9.

Secondly it was pointed out by the learned Counsel for the Petitioners that the judgments of both the Courts below were defective in that they did

not discuss the case of the individual accused separately.

So far as the offences u/s 426, Indian Penal Code, is concerned, it would be seen that the Courts below accepted the statement of P.Ws. 1 to

4, the only eye-witnesses to the occurrence, made in an omnibus fashion that all the accused were responsible for the removal of the fence and the

consequent offence of mischief. Both the Courts below failed to give weight to the discrepancy between the evidence of the witnesses given in

Court and their earlier statements. It often happens in the case of witnesses in this country that their earlier statements given soon after the

occurrence are nearer the truth and their version gets embellished or curtailed with the passage of time according to their susceptibility to being

influenced by one party or the other. Unless a Court takes into consideration this circumstance and gives full weight to it, it may often lead to a

miscarriage of justice. Therefore, the judgments of the lower Courts do suffer from serious defect mentioned above in that they have not gone into

the question whether on testing the testimony of the witnesses in the Court with their earlier statements their version in Court can be accepted or

not.

On applying this test to the evidence in this case, the result that follows is this P.W. 1 is the person who gave a complaint to the Magistrate. But

this was nine days after the occurrence. The delay reduces greatly the value of this statement. Therein he had implicated 14 persons as participants

in both the offences of rioting and mischief. Seeing that six of the persons thus implicated by P.W. 1 have been discharged and seeing that even the

earlier version given by P.W. 1 was given nine days after the occurrence, the value of his testimony is considerably reduced. P.W. 2 gave a report

at the Police station which is the first information report in this case within a short time after the occurrence and this first information report in my

opinion, should have been used by the Courts below as a valuable touch-stone to test the accuracy of the evidence given in Court. In this first

information report, only accused 4 and 9 have been implicated by P.W. 1 as the persons who took part in the removal of the fence. When this was

put to P.W. 2 in cross-examination, he admitted that only accused 4 and 9 pulled down the fence, and that the other accused were merely standing

near the fence. P.W. 3, though he said in examination-in-chief that all the accused pulled down the fence, in cross-examination, he was forced to

admit that when he went to the scene, only accused 4 and 9 were standing near the fence and were pulling it. But immediately afterwards, he said

that the other accused were pulling down the fence on the west. P.W. 4, who in Court implicated all the accused with the offence of mischief, when

examined u/s 202, Code of Criminal Procedure by the Magistrate did not implicate any of the accused except accused 1, 9, 12 and 13. It would,

therefore, appear not safe to accept the testimony of the witnesses given in an omnibus manner in the Court implicating all the Petitioners with the

offence of mischief but we have to test their evidence with reference to the first information report. That would show that only accused 4 and 9 can

be satisfactorily charged and convicted for the offence of mischief. There is reasonable probability of more people being implicated in this offence

by subsequent after-thought. For the aforesaid reasons, I am of the opinion that only the conviction of accused 4 and 9 for the offence u/s 426 and

the conviction of accused 9 and 12 for the offence u/s 323 can be satisfactorily maintained. As regards the second objection, P.Ws. 2 and 3 have

consistently spoken to the part of accused 4 and 9 in this offence and this statement is corroborated by the first information report. I, therefore,

allow the petition in respect of the remaining accused. The convictions and sentences of accused 4 and 9 u/s 426, Indian Penal Code and of

accused 9 and 12 u/s 323, Indian Penal Code will stand. The fines imposed on the Petitioners who succeed in this petition, if paid, will be ordered

to be refunded.