(Prayer: Criminal Appeal filed under Section 374(2) of Code of Criminal Procedure Code, to set aside the order of conviction dated 31.03.2023 passed in S.C.No.125 of 2020 on the file of II Additional District and Sessions Judge at Tindivanam, in convicting the appellant (i) under Section 294(b), 332 of IPC and Section 3(i) of TNPPDL Act, 1992 sentencing to pay a sum of Rs.1000/- as fine for the offence 294(b) and in default to undergo simple imprisonment for a period of 2 weeks (ii) under Section 332 IPC and sentencing to undergo imprisonment for a period of 6 months and pay a fine Rs.1000/- and in default to undergo simple imprisonment for a period of 3 months (iii) under Section 3(i) of TNPPDL Act sentencing to undergo imprisonment for a period 1 year and fine Rs.16,600/- and in default thereof to undergo simple imprisonment for a period of 1 month.)
1. The Criminal Appeal challenges the Judgment dated 31.03.2023 passed in S.C.No.125 of 2020 by the II Additional District and Sessions Judge, Tindivanam, convicting and sentencing the appellant/accused as follows:
| Sl. No. | Offence under Section | Sentence imposed |
| 1. | 294(b) of IPC | To pay a sum of Rs.1,000/- as fine and in default to undergo two weeks simple imprisonment. |
| 2. | 332 of IPC | To undergo six months simple imprisonment with a fine of Rs.1,000/- and in default to undergo three months simple imprisonment. |
| 3. | 3(i) of Tamil Nadu Property (Prevention of Damage and Loss) Act 1992 | To undergo one year simple imprisonment with a fine of Rs.16,600/- and in default to undergo one month simple imprisonment. |
| The sentences were ordered to run concurrently | ||
(b). On the complaint given by PW1, the conductor of the bus, an FIR was registered by PW8 for the offence under Sections 332 and 294(b) of the IPC and Section 3(i) of Tamilnadu Property (Prevention of Damage and Loss) Act, 1992 and the FIR was marked as Ex.P6. PW8 conducted the initial investigation and handed over the investigation to PW10. PW10 after examining the witnesses and obtaining the certificate of damage, filed a final report before the learned Judicial Magistrate No.I, Tindivanam, against the accused for the offences under Sections 294(b), 332 of the IPC and 3(i) of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992.
(c) On the appearance of the accused, the provisions of Section 207 Cr.P.C., were complied with, committed to the Court of Sessions i.e., Principal Sessions Court, Villupuram and was made over to the learned II Additional District and Sessions Judge, Tindivanam, for trial, which was taken on file as S.C.No.125 of 2020. The trial Court framed charges against the accused for the offences under Sections 294(b) and 332 of the IPC and Section 3(i) of TNPPDL Act, 1992, and when questioned, the accused pleaded 'not guilty'.
(d) To prove its case, the prosecution had examined 10 witnesses as P.W.1 to P.W.10 and marked 10 exhibits as Exs.P1 to Ex.P10 besides two material objects as M.O.1 and M.O.2. When the accused was questioned, u/s.313 Cr.P.C., on the incriminating circumstances appearing against him, he denied the same. The accused neither examined any witness nor marked any document on his side.
(e) On appreciation of oral and documentary evidence, the trial Court convicted and sentenced the accused as stated above. Hence, the accused has preferred the instant appeal challenging the said conviction and sentence.
3. Mr.R.Veeramani, the learned counsel for the appellant/accused submits that the alleged occurrence has not been established by the prosecution; that the photographs of the damage caused to the bus have not been filed by the prosecution; that the report of the valuer in the absence of photographs is of no consequence; and that an altercation has been exaggerated by the complainant and hence prays that the impugned judgment may be set aside.
4. Mr.S.Raja Kumar, the learned Additional Public Prosecutor, appearing for the respondent police, per contra, submits that the prosecution has established the attack of PW1 by examining PW1, PW2, and PW4, who are the eyewitnesses to the alleged occurrence. The prosecution has also established the value of the damage caused to the bus by examining PW7, and therefore, he submitted that there is no infirmity in the impugned judgment passed by the trial Court and prayed for dismissal.
5. As stated earlier, the prosecution has examined ten witnesses. P.W.1 is the conductor of the bus, who is an injured witness; P.W.2 is the driver of the bus; P.W.3 is the bus depot supervisor, who speaks about the information received by him about the alleged occurrence and the damage caused to the bus; and P.W.4 is the passenger who travelled in the bus and is an eyewitness to the occurrence. P.W.5 is the witness to the seizure mahazar and marked the stone and broken glass pieces as P.MO.1 and P.MO.2; P.W.6 is the witness to the observation mahazar and seizure mahazar; P.W.7 is the valuer in the Regional Transport Office (RTO), who had valued the damage at Rs.15,600/-; P.W.8 is the Sub Inspector of Police, who had registered the FIR and conducted a part of the investigation; P.W.9 is the Doctor, who had treated PW1 and issued a wound certificate for PW1; P.W.10 is the Investigating Officer.
6. The cross-examination of PW1 done by the defence has not discredited PW1 in any manner. Similarly, P.W.2, whose evidence corroborates the evidence of P.W.1, has not been discredited. P.W.4 is not an interested witness. He was a passenger in the bus and his evidence is cogent and convincing. The only submission made by the learned counsel is that the ticket of P.W.4 has not been produced, and therefore, he has to be disbelieved. P.W.4’s evidence is more to corroborate the evidence of P.W.1 and P.W.2. Even if there is any infirmity in his evidence, that would not affect the prosecution case in any manner. The Doctor, who had treated the P.W.1 and issued Ex.P9 wound certificate, has stated that P.W.1 has sustained a lacerated injury in his nose measuring 1x1 cm.
7. Therefore, this Court is of the view that the prosecution has established its case, that the appellant had attacked PW1 on the date of occurrence and caused injuries.
8. As regards the damage to the bus, all three witnesses speak about the said damage. The value of the damage is spoken to by P.W.7, the Inspector attached to the Regional Transport Office. She had inspected the vehicle and observed that the vehicle’s windshield was broken. The Investigating Officer had collected the report issued by the Branch Manager at Tamilnadu State Transport Corporation, Gingee, who had valued the damage at Rs.15,600/-. However, the prosecution had not examined the said Branch Manager. Therefore, this Court is of the view that the valuation report marked as Ex.P10 is of no avail to the prosecution. The prosecution ought to have examined the witness, and the appellant ought to have been given an opportunity to cross-examine the said witness. Thus, though damage has been proved, the value of the damage has not been proved.
9. In the light of the above evidence, and considering the facts and circumstances of the case and the nature of the offence, this Court is of the view that the sentence imposed by the trial Court for the offence under Section 332 IPC can be reduced to 3 months SI from 6 months. The conviction and sentence imposed for the offence under Section 294(b) are confirmed. Similarly, for the offence under Section 3(i) of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, though the minimum sentence prescribed is 1 year, the section provides for imposing a lesser sentence for adequate and special reasons to be mentioned. In this case, as submitted by the learned counsel for the appellant, the prosecution has failed to produce any photographs and prove the value of the damage, as they had not examined the valuer. That apart, even according to the prosecution, the appellant did not intend to cause damage to the bus, and while attacking P.W.2, the said damage is said to have been caused.
10. Considering all the above factors, this Court is inclined to impose the sentence of 3 months of rigorous imprisonment (RI) for the offence under Section 3(i) of the Tamil Nadu Property (Prevention of Damage and Loss) Act, 1992, and to pay a fine of Rs.30,000/-, failing which the appellant shall suffer simple imprisonment for 3 months.
11. Accordingly, it is ordered as follows:
(i) The conviction and sentence imposed upon the appellant for the offence under Section 294(b) of the IPC, by the learned II Additional District and Sessions Judge, Tindivanam, vide judgment dated 31.03.2023 in S.C.No.125 of 2020, are confirmed.
(ii) The conviction of the appellant for the offence under Section 332 of the IPC is confirmed. However, the sentence imposed upon the appellant for the said offence i.e., to undergo six months of simple imprisonment, is reduced to three months of SI. The fine amount and the default sentence shall remain unaltered.
(iii) The conviction of the appellant for the offence under Section 3(i) of the Tamil Nadu Property (Prevention of Damage and Loss) Act 1992 is confirmed. However, the sentence imposed for the said offence i.e., to undergo one year of simple imprisonment with a fine of Rs.16,600/- and, in default, to undergo one month of simple imprisonment, is modified, and the appellant is sentenced to undergo 3 months of RI with a fine of Rs.30,000/- and, in default, to undergo 3 months of SI.
(iv) The sentences are directed to run concurrently.
(v) The fine amount already paid, if any, shall be adjusted against the fine amount imposed now.
(vi) On payment of the fine, the learned Magistrate shall pay a sum of Rs.20,000/- to the TNSTC towards compensation.
(vii) The period of sentence already undergone by the appellant shall be set off under Section 428 Cr.P.C.
12. In the result, the Criminal Appeal stands partly allowed.