Challenging and impugning the order dated 12.4.2006 passed by the District Munsif cum Judicial Magistrate, Denkanikottai, in C.C.No.50 of 2004, this criminal revision case is focussed.
2. A 'resume' of facts, absolutely necessary and germane for the disposal of this criminal revision case would run thus:
The police laid the police report in terms of
Section 173 of Cr.P.C. as against four accused persons for the following offences:
Case No. Accused Offence C.C.No,.50 of 2004 1st accused Sec.324, 506(ii) IPC 2 to 4 Sec.323, 506(ii) IPC Inasmuch as the accused pleaded not guilty, the trial was conducted.
(b) During trial, on the prosecution side P.W.1 to P.W.8 were examined and Exs.P1 to P5 were marked. On the accused side, no oral or documentary evidence was adduced.
(c) Ultimately, the trial Court acquitted all the accused.
3. Being aggrieved by and dissatisfied with the judgement of the lower Court, this revision is focussed on various grounds, the warp and woof of them would run thus:
Ignoring the evidence of P.W.1 and other eyewitnesses in this case and also the medical record, the lower Court acquitted unjustifiably all the accused.
4. Despite service of notice to the accused and printing their names, none appeared.
5. Heard the learned counsel for the revision petitioner and also the learned Government Advocate(Crl.Side).
6. The learned Government Advocate would state that the State has not preferred any appeal as against acquittal.
7. The point for consideration is as to whether there is any perversity or non-application of law on the part of the trial Court in acquitting the accused.
8. The learned counsel for the revision petitioner would detail and delineate the facts and advance his argument to the effect that Ex.P5-the Wound Certificate was marked in view of the clear and categorical endorsement made by the counsel for the accused in Crl.M.P.No.417 of 2006 as under:
"No objection to marking the documents because the genuineness of the documents may be admitted."
9. In such a case, the trial Court should have placed reliance on the Wound Certificate and the evidence of P.Ws.1,2 and 5 and recorded the conviction as against the accused for the offences, with which they were charged. But, unjustifiably, all the accused were acquitted.
10. At this juncture, it is just and necessary to pithily and precisely narrate the case of the prosecution.
On 17.12.2003 at about 8.30 a.m. at Dhali Kothanoor, A1 to A4, in furtherance of their common intention to attack the injured, namely, Jogappa, with dangerous/deadly weapon, inflicted injuries on him in connection with some land dispute and also ownership over a tree. The injured Jogappa went to the hospital and took treatment, after narrating the incident to the Doctor. Whereupon, the doctor recorded the history, narrated before him by Jogappah, in Ex.P5 and gave him treatment. The Doctor also set out the injuries sustained by Jogappa in Ex.P5.
11. The core question arises as to whether the history recorded by the Doctor in Ex.P5 is admissible in evidence.
12. At this juncture, my mind is reminiscent and redolent of the following decisions of the Honourable Apex Court:
(1997 CRL.L.J.764)-REHMAT VS. STATE OF HARYANA, an excerpt from it would run thus:
"10. There is also another aspect which goes in favour of the appellant. Admittedly Padam Singh (P.W.4) along with Vijay Singh had first gone to the Primary Health Centre for medical help but he did not disclose the name of the assailant to the Doctor. Ordinarily, in a medico legal case, the doctor is supposed to write down the history of the injured but admittedly in this case, medical papers of Padam Singh (PW4) do not indicate the name of the assailant. The names were disclosed only at the time when the complaint was recorded by SI Narain Singh at about 9.00 p.m.which was treated as a formal FIR. The learned counsel for the appellant, therefore, rightly urged that the appellant was later on implicated in the present crime at the instance of the complainant and his friends. It may also be stated that the prosecution case even otherwise appears to us improbable because Padam Singh (PW4) claims to have got up early in the morning and saw the appellant running from the side of his room at about 3.30 a.m.In these circumstances, it is not possible to sustain the conviction of the appellant under Sections 307/
393 of the Indian Penal Code.(emphasis supplied).
13. A plain reading of the above judgement of the Honourable Apex Court would reveal that the history recorded by the Doctor in the Wound Certificate should be taken as evidence in adjudging the criminal case.
14. P.W.1 and P.W.5 are brothers and they corroborated each others versions. However, P.W.2, would implicate A1 alone as the person, who attacked the injured Jogappa with a bamboo stick.
15. The question arises as to whether the evidence of P.W.2 is worthy of being considered.
16. Undoubtedly, the accused is presumed to be an innocent as per criminal jurisprudence. Even then when there is positive evidence given by the injured as P.W.1, and it is corroborated partly by the eyewitness, who is not termed as a partison witness, naturally, the trial Court is expected to give due weightage to that much piece of evidence.
17. Peculiarly in this case, Ex.P5 was marked with the consent of the counsel for the accused. In fact, the learned counsel for the accused made endorsement in Crl.M.P.417 of 2006, as extracted supra.
18. At this juncture, I recollect and call up the following Full Bench judgment of the Hon'ble Allahabad High court:
1981 Cri.L.J.379 (Saddiq and others vs. State), an excerpt from it would run thus:
"11. In Jagdeo Singh vs. State (1979 Cri LJ 236) a Division Bench of this Court held "it was not permissible to exhibit the post-mortem report under
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294 </act>Cr.P.C and even if it was done the report could not be used as substantive piece of evidence until and unless the doctor concerned was examined in Court. Documents that
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C contemplates reading in evidence upon admission about genuineness by the opposite party are only such documents which when formally proved speak for themselves. It does not refer to any document, which even if exhibited cannot be read in evidence as substantive evidence". With great respect, we are unable to agree with the view taken by this Court in the above mentioned case. As mentioned earlier, there is no restriction placed on documents in sub-section (1) of
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C and it applies to all documents filed by the prosecution or the accused. If the genuineness of any document filed by the prosecution or the accused under sub-section 91) of
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C is not disputed by the opposite party sub-section (3) of
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C is applicable and it may be read as substantive evidence. It is true that prior to the coming into force of the Code of Criminal Procedure, 1973 the post-mortem report after it was proved was not substantive evidence but only corroborated the statement of the doctor made in court and even now if the genuineness of the post-mortem report is disputed by the accused, the doctor must be examined to prove the injuries found on the body of the deceased and also the post-mortem report and the post-mortem report may only be used to corroborate or discredit his testimony which is the substantive evidence. This, however, cannot lead to the conclusion that the post-mortem report cannot be read as substantive evidence under sub-section (3) of
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C if its genuineness is not disputed by the accused. As already mentioned, the very object of enacting
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294 </act>Cr.P.C would be defeated if the signature and the correctness of the contents of the post-mortem report are still required to be proved by the doctor concerned even if its genuineness is not disputed by the accused.
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294 </act>Cr.P.C is clear and unambiguous. It is only when the genuineness of the post-mortem report filed by the prosecution is not disputed by the accused that sub-section (3) of
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C is applicable and the post-mortem report may be read as substantive evidence and the signature and the correctness of its contents need not be proved by the doctor concerned. We are, therefore, clearly of the opinion that if the genuineness of the post-mortem report filed by the prosecution under sub-section (1) of
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C is not disputed by the accused, it may be read as substantive evidence under sub-sec(3) of
<act id=4LGxPokB_szha0nWDtBn section=294>Section 294,</act> Cr.P.C."
19. The Full Bench judgment of the Hon'ble Rajasthan High Court reported in 1996, Cri.L.J, 2015 (Shabbir Mohammad vs. State of Rajasthan) is also in consonance with the Full bench judgement of the Hon'ble Allahabad High court, cited supra.
20. A plain reading of the aforesaid decisions would clearly indicate that if a document is marked with the consent of other side under
Section 294 of Cr.P.C., the same could be relied on and it would be too late in the day on the part of the accused to veer round by having a volte face and dispute the genuineness of such a document, for which, consent was given already.
21. In this case, the trial Court should have given due weightage to all these facts set out supra, but taking into consideration that some of the witnesses turned hostile and P.W.2 had not fully implicated all the accused, the learned Magistrate had chosen to throw the baby along with bath water, which, in my opinion warrants interference. The Magistrate should have considered at least the case as against A1, in the light of Ex.P5 and also the evidence of P.W.1, but that was not considered, without applying the proper law.
22. At this juncture, my mind his reminiscent and redolent of the following decisions of the Honourable Apex Court:
(i) 2002 Supreme court cases (crl) 1448 - Bindeshwari Prasad Singh alias B.P.Singh and Others vs. State of Bihar (now Jharkhand) and another; an excerpt from it would run thus:
"13. The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.
14. We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that of the trial court. But that by itself is no justification for exercise of revisional jurisdiction under
Section 401 of the Code of Criminal Procedure against a judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial vitiating the trial itself.
(ii) 2005 Supreme Court Cases (cri) 276 Sathyajit Banerjee and Others vs. State of W.B.and others, an excerpt from it would run thus:
"22. The cases cited by the learned counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in flagrant miscarriage of justice."
23. A bare perusal of those decisions would exemplify and demonstrate that the High Court, while exercising its revisional jurisdiction is not expected to interfere with the finding of fact arrived at by both the Courts below simply because one other view is possible or a different view could be taken.
24. It is clear that acquittal by the trial Court tantamounts to re-enforcement of the presumption that the accused is an innocent person. But in all cases, that should not be taken as the infallible Rule to be applied.
25. Here, the order, which is challenged in this criminal revision warrants interference because the Magistrate did not take into account the relevant law points and also the evidence so far accused No.1 is concerned.
26. No doubt, there is enormous delay on the part of the police in registering the FIR as well as in sending the FIR to the Court. The core question arises as to who has to be blamed for that and whether the de-facto complainant should suffer because of the police officials' inaction.
27. It is a peculiar case, where soon after the incident, the injured approached the Doctor and took treatment, as revealed by Ex.P5, a genuine document. In such a case, the delay in lodging the FIR, and also in sending it to the Magistrate would die down in oblivion and all the defects would get relegated to a lower level. The Court has to separate the grain from the chaff and accordingly, if viewed, the acquittal passed as against A1 should be set aside and the matter has to be sent back to the lower Court for considering afresh the available evidence after hearing both sides and arrive at a conclusion, as per law relating to A1 alone.
28. Accordingly, the criminal revision case is partly allowed. On receipt of a copy of this order, the Magistrate shall do well to see that within a period of two months from the date of receipt of this order, after hearing both sides, the matter is disposed of on merits in accordance with law.
Msk To
1.The District Munsif cum Judicial Magistrate, Denkanikottai.
2.The Public Prosecutor, High Court, Madras