The petitioners, who have been convicted by the trial Court for offences under Section 148, and sentenced to undergo imprisonment for a period of two months, convicted for an offence under Section 447 of the Indian Penal Code and sentenced to undergo imprisonment for a period of two months, convicted for an offence under Section 352 of the Indian Penal Code and sentenced to pay a fine of Rs. 100/- and convicted for an offence under Section 427 of the Indian Penal Code and sentenced to pay a fine of Rs. 200/- which convictions and sentences have been confirmed in appeal, have filed the present revision, challenging the convictions and sentences.

2. The gravaman of the charge against the petitioners is that on 23-7-1980 at 10.15 P.M they formed themselves into an unlawful assembly, along with another accused sampath since dead, armed themselves with deadly weapons and damaged the compound wall and the flooring of Ramalingam (P.W.2).

3. The petitioners are ranked in this revision in the same order in which they were before the trial Court and will hereinafter be referred to with reference to the ranking in the trial Court. A.4 is the son of the deceased accused Sampath and resides in Door No.32 in Kalappa Mudali Street. A.6 is the son of A.5 and reside in Door No.33 A.3 resides in Door No. 34. Opposite to Door Nos.31 to 34, is Door No.29 belonging to P.Ws.2 and 4 who are husband and wife. There was civil litigation between the parties regarding the exact width of the street in that portion and it had been decided that the Street was only 14 feet broad, as contended by P.Ws 2 and 4, and not 20 feet as contended by the accused party. P.Ws.2 and 4 constructed a compound wall around this extended portion and also had new flooring. This was resented to by the accused party and accordingly, P.W.2 gave a complaint to the Commissioner of Police on 22-7-1980. The next day, on 23-7-1980 at 9.30 P.M when P.Ws 2 and 4 were inside the house, they heard a noise outside and they saw the accused armed with crowbar, abusing them and demolishing the wall as also the flooring. P.W.4 ran to the house of P.W.3 which was two furlongs away, informed P.W.3 who in turn gave a call to the control room to phone No.100 and came to the scene along with P.W.4 They saw part of the occurrence. At that time, the head Constable from the Veperi Police Station, within whose limits the scene of occurrence, was, came there as also P.W.1, the Head Constable of the patrolling party which was patrolling that area in a van. They had received a message from the control room and had reached the scene. The Constable of Vepperi enquired the accused and P.Ws.2, 3 and 4 and asked them to come to the Police Station. The accused refused to get into the van and promised to come over to the Police Station by walk. In the Police Station, some of the accused were inquired and were let off. P.W.2 did not give any written complaint to anyone since, the Inspector Jayaraman was a friend of P.W.3 He, therefore, went to the Commissioner the next day and orally informed him about the occurrence and the Commissioner promised to forward his petition presented the day prior to the occurrence for necessary action. Since no action was taken, the private complaint was filed.

4. During trial, on behalf of the complainant, the Head Constable attached to the patrolling van was examined as P.W.1, the complainant himself, who is the respondent herein as P.W.2, his friend Balu as P.W.3, his wife as P.W.4 and another witness who says he saw a woman crying that night as P.W.5 Exs P.1 to P.7 were marked, the accused when questioned, denied the occurence and had no evidence to offer. On Page: HC159the trial, court accepting the prosecution case and convicting and sentencing the accused as shown above and the same having been confirmed in appeal, the aggrieved accused have filed this present revision.

5. Thiru. K. Doraisamy and Thiru.K.V.sridharan counsel for the petitioner would refer to the various discrepancies in the evidence of P.Ws.2, 3 and 5 would urge that the evidence of the interested witnesses cannot be accepted, particularly, in the absence of any written complaint by P.W.2 soon after the occurrence thereby, giving room for false implication. The learned counsel also commented upon the fact that the alleged complaint made to the Commissioner of Police on 22-7-1980 was not before court, that the Commissioner of Police to whom the complainant is said to have made an oral complaint after the occurrence, has not been examined, that even the Headconstable of the Vepperi Police Station who is said to have arrived at the scene first, seen the miscreants and conducted an enquiry the same night in the Police Station has not been examined, and as such, it is totally unsafe to accept the private complaint, given a month after the occurrence.

6. Per contra, Thiru, P.R Selvaraj, Learned counsel for the respondent would urge that the respondent had succeeded in the civil suit and had constructed the compound wall and had put up the flooring, that the incident was preplanned and complained to the local police was not given since Jayaraman, the Sub Inspector was close friend of A.3 and the respondent had been humiliated and abused. Learned counsel also urged ‘that the accused were all known persons and as such, there could be no difficulty in identifying them.

7. This is a conviction on a private complaint, not preceded by an immediate report and a police investigation, recording of statements under Section 161 of the Code of Criminal Procedure, preparation of observation Mahazars or recovery of relevant material object to substantiate the prosecution case. No doubt, in a private complaint, all these factors would be lacking but and in such a situation, the oral evidence of witnesses, untested by an earlier investigation and not corroborated by any recoveries will have to be scrutinised with great caution lest innocent persons are convicted on the basis of stereotyped tutored evidence of interested witnesses, put up long after the occurrence.

8. In the instant case, even if the houses of some of the accused face the house of P.Ws.2 and 4, that by itself would not indicate that an occurrence had taken place or that the accused were the persons who actually committed the offence. Even if we accept the evidences of P.Ws.2, 3 and 4 that a portion of the compound wall was damaged and a portion of the flooring was also damaged, the more important question would be whether it was these accused who committed the offences. It is not necessary that all these who resided opposite to the house of P.Ws.2 and 4, should have physically taken part in an occurrence, even if an occurrence had taken place. Even if they had shared the motive, it would not automatically lead to the inference that they had committed the offence. The prosecution will have to establish by satisfactory evidence, that these accused had committed the offence.

9. It is on this aspect that the evidence of P.Ws.2, 3 and 4 have to be subjected to scrutiny. Needless to say, their evidence is not corroborated in any manner. P.W.3 is no doubt a close friend of the family of P.Ws.2 and 4. It is rather doubtful whether P.W.4 at 9.30 P.M would have gone all alone for two furlongs to the house of P.W.3 The evidence of P.Ws.2 and 3 do not tally nor does the evidence of P.Ws.3 and 4. P.W.3 refers only to one accused and that is A.1 He merely mentions that A.2 is the son of A.1, but does not even say that A.2 was present. P.W.4 refers to some more of the accused. The only outsider is P.W.3 and his evidence is vague. His evidence regarding the actual participants in the crime is totally vague.

10. Whatever that be, the more serious flaw in the prosecution case is the fact that P.W.2 has not chosen to give any complaint about the occurrence till he filed the private complaint nearly one month later. In a criminal case, Courts look Page: HC160forward to an immediate report so that the possibility of false implication might be ruled out. If, P.W.2 had given an immediate complaint to any authority, whoever the authority might be, and had mentioned the names of all these accused as having taken part in the occurrence, one could proceed with confidence to accept the evidence of P.Ws.2 and 4, on the contrary, in a criminal case, wherein no complaint had ever been made to any authority and for the first time it is made in the form of a private complaint one month after the occurrence implicating as many as seven persons, the possibility of false implication can never be ruled out. After one month, it would have been easy for P.W.2 to think and implicate all those whom he wants to implicate. P.W.2 is said to have made an oral complaint to the Commissioner of Police. Even, the Commissioner of Police has not been examined to find out whether P.W.2 mentioned the names of these seven persons as the participants in the offence. P.W.2 would say that on the day prior to the occurrence that on 22-7-1980, he gave a complaint against these accused and for protection for his life and property. It is quite possible that when an occurrence of this type had taken place, assuming for the moment that it did take place, P.W.2 decided to show as accused, the very same seven persons against whom he had earlier given a complaint.

11. It is also significant that the prosecution has not examined the Head Constable attached to the Veperi Police Station who had first gone to the scene on receipt of the message from the control room. This Headconstable is said to have visited the spot, enquired the accused and directed them to get into the van along with P.W.1 to go to the station and had gone to the station and is said to have enquired the accused that same night. “At least, if this Headconstable had been examined and he had stated that all these accused were present at the scene, it could lend assurance to the evidences of P.Ws.2 and 4. The non-examination of this head constable, particularly in the absence of any F.I.R or complaint is a great lacuna in the prosecution case, which the evidences of P.Ws.2 and 4 cannot fill further, P.Ws.2, 3 and 4 would admit that the message that was received at the control room was that people were creating trouble. and that as soon as P.W.1 and the Head Constable at Veperi Police Station came to the scene, they asked who were creating . The suggestion of the accused is that some drunken persons were creating trouble in the street and that, that was the message that had been conveyed to the control room and this occurrence had never taken place and the accused had never been there. To corroborate, P.W.3 the message recorded in the control room ought to have been summoned, when this massage is conveyed to the Veperi Police Station and the Head Constable leaves the Police Station, he would have made an entry in the general diary of the station, containing the gist of the message. When he returns to the station and holds an enquiry, he would have made a general diary entry regarding the persons who came to the station and whom he enquired that night. All these are necessary if the interested testimony of P.Ws.2 and 4 regarding the actual participants in the crime is to be accepted. The fact that there has been no F.I.R in this case and no written complaint to any authority after the occurrence and for the first time seven persons are to be shown as accused one month after the alleged occurrence can never be lost sight of. The non-production of the above documents and the non-examination of the above witnesses render it totally unsafe to accept the interested testimony of P.ws.2,3 and 4, to record a conviction. In matters such as this, nothing could be presumed in favour of the prosecution and the duty of the prosecution to prove the case by satisfactory and convincing evidence beyond all reasonable doubt and beyond the slightest possibility of false implication is always there, whether, the case arises out of a police report or on a complaint. Both the courts below have failed to go into this vital area, which has to be gone into in every criminal prosecution. In the background of these facts, it is totally unsafe to act on the interested testimony of P.Ws.2, 3 and 4, to convict the accused. The prosecution has not proved the case beyond reasonable doubt. The benefit of the reasonable doubt has to be given to the accused.

12. In the result, the revision is allowed. The conviction and sentence are set aside. The fine if paid, shall be ordered to be refunded to the accused.