(Prayer : Criminal Appeal filed under Section 372 of Cr.P.C to call for the records in S.C.No.75 of 2014 dated 19.03.2019 passed by the learned Principal District and Sessions Judge, Theni and set aside the same and consequently convict the Accused.)

1. This appeal is directed against the judgment of acquittal passed by the learned Principal District and Sessions Judge, Theni, in S.C. No.75 of 2014, dated 19.03.2019.

2. On careful perusal of the records, it is found that the case in Crime No.47 of 2012 was registered by P.W.5-Baskaran, the then Sub-Inspector of Police, Jeyamangalam Police Station. On 30.04.2012, at around 10.40 a.m., P.W.5 received Ex.P.1-complaint from P.W.1. Based on the same, he registered Ex.P.2-First Information Report for the offences punishable under Sections 294(b) and 506(ii) of the I.P.C. and Section 3(1) of the TNPPDL Act. He forwarded the original F.I.R. to the Court, and copies of the same were forwarded to the authorities and one copy was retained for the purpose of investigation. P.W.7-Nirmala Devi, the then Sub-Inspector of Police, Jeyamangalam Police Station, took up the investigation of the above case on 30.04.2012, visited the place of occurrence, and prepared Ex.P.4-observation mahazar and Ex.P.5-rough sketch in the presence of witnesses, viz., P.W.4- Veeranan and one Kamanan. She examined the defacto complainant and the witnesses Murugan, Pandi, Veeranan and Kamanan and recorded their statements. The photographs of the scene of crime were taken by the Constable-Iyyappan. Since the Accused had obtained anticipatory bail, they were not arrested. She recorded the statement of Police Constable-Iyyappan. Thereafter, she handed over the case diary to the Inspector of Police for further investigation. P.W.8 took up the investigation of the above case on 18.06.2012. He visited the place of occurrence and examined the witnesses. Since the witnesses had deposed the same facts before him as they had deposed before the Sub-Inspector of Police, he did not record any further statements. He examined the Special Sub-Inspector of Police, Baskaran, who had registered the First Information Report, and Nirmala Devi, who had conducted the preliminary investigation, and recorded their statements. On completion of the investigation, on 18.06.2012, he laid a final report before the learned Jurisdictional Magistrate for the offences punishable under Sections 294(b) and 506(ii) of the I.P.C. and Section 3(1) of the TNPPDL Act.

3. The learned Judicial Magistrate, Periyakulam, had taken cognizance of the said final report and issued summons to the Accused. On their appearance, copies of the documents relied upon by the prosecution were furnished to them under Section 207 of the Code of Criminal Procedure. Since the offence under the provisions of the TNPPDL Act is exclusively triable by the Court of Sessions, he made over the said case under Section 209 of the Cr.P.C. to the Principal District and Sessions Court, Theni, The Principal District and Sessions Court, Theni, had taken cognizance of the said case in S.C.No.75 of 2014 and made over the case to the Assistant Sessions Judge, Periyakulam, for trial in accordance with law. In view of the decision of this Court in C.Guhamani and others v. State, by the Assistant Commissioner of Police, Crime Branch CID, Coimbatore, and others, by order dated 11.02.2016 in Crl.O.P(MD) Nos.253, 254, 270 and 271 of 2016., the case was re-submitted to the Principal District and Sessions Court on 20.09.2016.

4. The learned Principal District and Sessions Judge, after hearing both sides, framed charges against the Accused for the offences punishable under Sections 294(b) and 506(ii) of the I.P.C. and Section 3(1) of the TNPPDL Act. The charges were read over and explained to the Accused, which they denied as false, and therefore, they were ordered to be tried by the trial Court.

5. On the side of the prosecution, P.W.1 to P.W.8 were examined, and Ex.P.1 to Ex.P.5 were marked. Pending trial, the second Accused, Vellaiyan, died on 19.01.2018, and his death was recorded by the trial Court. The proceedings as against A.2 were abated.

6. Upon closure of the prosecution evidence, the incriminating circumstances appearing in the evidence were put to the Accused under Section 313(1)(b) of the Cr.P.C. The Accused denied the same as false and stated that they had witnesses on their side. However, no witness was examined on the side of the defence. Therefore, the defence evidence was closed. After hearing both sides, the trial Court found Accused Nos.1 and 3 not guilty of the offences punishable under Sections 294(b) and 506(ii) of the I.P.C. and Section 3(1) of the TNPPDL Act and acquitted them of the charges. Aggrieved by the said judgment of acquittal, the complainant/P.W.1 is before this Court with this appeal.

7. Notice was issued to the respondents/Accused. Pending appeal, it was reported that R.2/A.3 died. Therefore, the appeal inso far as R.2/A.3 is concerned stands abated. Now, the present appeal is pressed only against R. 1/A.1. Though notice was served on R.1 and his name is printed in the cause-list, no one has appeared for R.1. The learned counsel for the appellant was heard and the learned Government Advocate (Criminal Side) for the State was also heard. The trial Court records were called for and perused.

8. The point for determination is whether the judgment of acquittal passed by the learned trial Court in favour of the first respondent/A.1 is sustainable or not?

9. On careful perusal of the records, it is found that the defacto complainant/P.W.1 has presented the present appeal. The first and foremost question that arises for consideration in this appeal is whether the defacto complainant/P.W.1 can maintain an appeal against the judgment of acquittal passed by the learned Principal District and Sessions Judge, Theni. In this connection, it is to be noted that, ordinarily, an appeal against acquittal has to be preferred only by the State. The law did not provide for an appeal by the defacto complainant or the victim. Only in the year 2009, by way of Act 5 of 2009, a proviso was added to Section 372 of the Cr.P.C. The said proviso reads as follows:

                     “372. No appeal to lie unless otherwise provided.

                     No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force.

                     Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the Accused or convicting him for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”

10. The word “victim” was defined under Section 2(wa) of the Cr.P.C., which reads as follows:

                     “2(wa). ‘Victim’ means a person who has suffered any loss or injury caused by reason of the act or omission for which the Accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir.”

Therefore, as per the above definition, the victim is a person who has suffered any loss or injury due to the act or omission of the Accused.

11. The word “injury” is defined in Section 44 of the I.P.C. As per Section 44 of the I.P.C., the word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property.

12. It is the case of the prosecution that the property, in which the damage is alleged to have been caused by the first respondent, is owned by one Jeyapaul of Thamaraikulam. In view of Section 2(wa) of the Cr.P.C., read with Section 44 of the I.P.C., the said Jeyapaul has suffered injury to his property and, therefore, he is the victim in respect of the present case. However, the said Jeyapaul has not preferred any appeal, nor has he given any authorisation to this appellant to prefer the present appeal for and on his behalf. Therefore, in so far as the offence under Section 3(1) of the TNPPDL Act is concerned, this appellant cannot maintain an appeal on behalf of Jeyapaul. Therefore, in so far as the offence under Section 3(1) of the TNPPDL Act is concerned, the present appeal is dismissed as not maintainable.

13. Further, if we look into the evidence adduced on the side of the prosecution, it is found that P.W.1 is claimed to be the accountant of one J.C. Bus Company. On 17.04.2012, he had gone to inspect his owner's land. In that land, a survey was conducted and survey stones were fixed. Along with him, the watchmen Murugan and Pandi accompanied him. At around 06.00 a.m., one Vellaian, his son Murugan and Chinnakamatchi came there and broke the survey stones with a sledgehammer. They damaged 48 stones. He and the watchmen questioned them. For that, A.1-Murugan abused them in filthy language. Further, they came to cut them with a sickle. They shouted and, therefore, ran away from the place of occurrence. At that time, his owner was out of station. On 30.04.2012, on his return, he went and gave Ex.P.1-complaint.

14. On a careful perusal of the evidence of P.W.1, it is found that he is a chance witness. Only on that day, he visited the scene of occurrence to inspect the land belonging to his owner. The evidence of a chance witness has to be considered with great care and caution.

15. According to P.W.1, he had taken the watchmen, viz., P.W.2 and P.W.3, with him. P.W.2-Murugan and P.W.3-Pandi have also deposed in line with P.W.1. On going through the evidence of P.W.1 to P.W.3, they claimed that, on 17.04.2012, they visited the land belonging to the owner of the J.C. Bus Company and, at that time, the Accused, including the first respondent, had broken the fence stones laid by them. From the evidence of P.W.1, it is found that the fence was damaged with a sledgehammer. P.W.2 and P.W.3 have not spoken anything about how the fence stones were damaged.

16. Further, though P.W.2 and P.W.3 claimed to be the watchmen of the said land and P.W.1 claimed to be the accountant of the J.C. Bus Company, no document was produced to show that they were working for the J.C. Bus Company in the said capacities. Further, no document was produced on the side of the prosecution to show that the subject land belonged to the said J.C. Bus Company.

17. Further, from the evidence of P.W.1, it is found that P.W.1 claimed that he and the watchmen questioned the Accused. They abused them, attempted to cut them and, hearing their shouting, they ran away. Whereas P.W.2, in his evidence, deposed that the Accused and their men drove them away. They went and brought their people. Before that, they had damaged 48 stones and gone away. P.W.3 did not depose that they had questioned the Accused. He stated that they had gone to see that the fence stones had been damaged by the Accused and that they had gone to bring their men, and before that, they had run away from the scene of occurrence.

18. On close reading the evidence of P.W.1 to P.W.3, it is found to be contradictory with regard to the manner in which the stones were damaged. Further, neither they attempted to prevent the said damage nor they raised any alarm at the time of the occurrence. Though PW2 and PW3 claimed that they went and brought their men, no one was examined to prove the said fact. Therefore, the presence of P.W.1 to P.W.3 at the time of the occurrence becomes doubtful.

19. Further, on careful perusal of the records, it is seen that the occurrence was said to have happened on 17.04.2012 at around 06.00 a.m., but P.W.1 gave the First Information Report to the police station only on 30.04.2012 at around 10.45 a.m., after a delay of 13 days from the date of occurrence. The delay in registering the First Information Report creates further doubt regarding the presence of the defacto complainant and the witnesses at the place of occurrence at the time of the occurrence.

20. Though P.W.1 claimed that, on the date of occurrence, his owner was out of station and that, on his return, he lodged the complaint on 30.04.2012, the owner of the property, Jeyapaul, was not examined before the trial Court to prove that he was out of station on the date of occurrence and that, only on his instruction, P.W.1 gave the complaint to the police.

21. Further, from the cross-examination of P.W.1 by the Accused, it is found that the owners of the said land were Jeyapaul and Hemanth. They did not lodge any complaint with regard to the alleged damage. Further, they did not go to the place of occurrence to see the damage. The conduct of the owners in not visiting the place of occurrence and not lodging the complaint creates further doubts in the case of the prosecution.

22. The learned counsel for the appellant contended that the owners are very busy people and, therefore, they did not lodge a complaint or visit the place of occurrence. Even assuming that they are very busy people and did not lodge a complaint with the police, they could have appeared before the Court and given evidence. The non-examination of the owner of the land creates further doubts in the case of the prosecution.

23. The defence has brought to the notice of the Trial Court that a civil case is pending between the owners of the land and the Accused herein in O.S. No.145 of 2011 on the file of the learned Munsif Court, Periyakulam. In view of the pendency of the civil suit, the possibility of false implication also cannot be ruled out.

24. Further, on careful perusal of the evidence adduced on the side of the prosecution through P.W.1 to P.W.3, though the defacto complainant, P.W.2 and P.W.3 claimed that the Accused abused them in filthy language, the exact words used by the Accused were not brought on record. According



as found in his chief-examination. P.W.2, in his chief-examination, did not state the exact words used by the Accused. His evidence is very vague. He was not specific as to who had uttered the abusive words. Further, P.W.3 did not state that the Accused herein had abused them using obscene words. Therefore, the evidence of P.W.1 was not corroborated by P.W.2 and P.W.3. The words said to have been used against P.W.1 by R.1 herein may, no doubt, be vulgar words, but they cannot be stated to be obscene words.

25. Further, this Court in Savarimuthu Nadar & Others Versus State represented by Sub Inspector of Police, Ambasamudram & Another reported in 1994 (1) MLJ (Crl) 154 held as follows.:-

                     '4. I have carefully considered the submissions made by the rival counsels. I shall first take up the submissions regarding offence under Sec.294(b), I.P.C. Sec.294(b), I.P.C. reads as follows:

                     "294. Obscene acts and songs: whoever, to the annoyance of others.

                     (a).......

                     (b) Sings, recites or utters any obscene songs, ballad or words, in or near any public place, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine, or with both".

                     The word "obscene" is not defined in Indian Penal Code. But there is reference to the word "obscene" in Sec.292, I.P.C. Sec. 292(1) reads as follows:

                     "292. Sale etc., of obscene books etc.: (1) For the purposes of sub-sec. (2), a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises of two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it“. The very reading of the section would show that only for the purpose of sub-sec. (2) the word “obscene” is defined in the manner specified therein. But yet it is indicative of the meaning of the word” “obscene”.

                     5. In Jafar Ahmad Khan v. State, A.I.R. 1963 All. 105, a single Judge of the Allahabad High Court had pointed out that no precise or arithmetical definition of the word “obscene” which would cover all possible cases can be given. It will have to be judged on the facts of each case whether in the context of its surroundings the questioned act is obscene or not. In the Lexicon Webster Dictionary, meaning of “obscene” is given as “objectionable or repugnant to acceptable standards of decency of morality; indecent pornographic; offensive in language or action: tending to incite lust or depravity”.

                     6. In P.T.Chacko v. Nainan Chacko 1967 M.L.J. (Crl.) 815, the Kerala High Court had occasion to consider “obscenity” with reference to Sec.294 (b) I.P.C. The learned Single Judge had observed as follows:

                     “The only point argued was that the 1st Accused had not committed an offence punishable under Sec.294 (b) Indian Penal Code by uttering the words above mentioned. The Courts below have held that the words uttered were obscene and the utterance caused annoyance to the Public. I am not inclined to take this view. In The Queen v. Hicklin, Cockbura, C.J. laid down the test of ‘obscenity’ in these words: “.....the test of obscenity in this, whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences.”

                     This test has been uniformly followed in India. The Supreme Court has accepted the correctness of the test in Ranji D. Udeshi v. State of Maharashtra. In Samuel Roth v. U.S.A., Chief Justice Warren said that the test of ‘obscenity’ is the “Substantial tendency to corrupt by arousing lustful desires.” Mr.Justice Harlan observed that in order to be ‘obscene’ the matter must tend to sexually impure thoughts“. I do not think that the words uttered in this case have such a tendency”.

                     With respect, I agree with the view expressed by the Kerala High Court, I am fortified in expressing such a view by the indication given in Sec.292, I.P.C. with regard to the obscene books.

                     7. If the words uttered in this case are examined, in the light of the test, with which I have agreed, evidently it would not satisfy the test. The words used might have no doubt annoyed the person towards whom those words were used. It may be vulgar words. But they cannot be equated to “obscene” words. So I accept the first submission made by Miss.Shymala that the allegations would not make out the offence under Sec.294(b) I.P.C.

From the above decision, it is clear that the abusive words said to have used must have the tendency to deprave and corrupt those whose minds are open to such immoral influences. Though the words said to have used herein are no doubt vulgar words, the same shall not stand on the above test of obscenity. Hence, this Court is of the considered view that the prosecution has failed to prove the charge under Section 294(b) IPC also.

26. Further, P.W.1 to P.W.3, none of them have deposed that the Accused herein had threatened them by saying that, if they came near, they would murder them. Therefore, the offence punishable under Section 506(ii) of the I.P.C would also not be attracted in this case. The trial Court has rightly held that the respondents are not guilty, and the same is upheld by this Court.

27. In the result, this Criminal Appeal stands dismissed. The judgment passed by the learned Principal District and Sessions Judge, Theni, in S.C. No.75 of 2014, dated 19.03.2019, is hereby confirmed.