Government Advocate (Crl.side)
1.Crl.A(MD)No.425 of 2009:-
State rep. by The Inspector of Police, ]Pavoorchatram Police Station, Tirunelveli District : Appellant/Complainant Vs.
1.Sundarsan
2.Nainar @ Murugan
3.Sekar
4.Ramaraja
5.Balu @ Balusamy
6.Mani @ Ponnusamy : R1 to R6/Accused
7.State rep by The Inspector of Police, Pavoorchatram Police Station, Tiruneveli District. : R7/Complainant Prayer: Criminal Revision filed under Section 378 of the Criminal Procedure Code, against the judgment of the Additional Assistant Sessions Judge, Tenkasi, in S.C.No.81 of 2006, dated 19.03.2009.
http://www.judis.nic.in 3 For Revision Petitioner : Mr.N.Mohideen Basha For R1 to R6 : Mr.V.Kathirvelu Senior counsel for Mr.K.Prabhu For 7th Respondent : Mr.A.Robinson Government Advocate (Crl.side) COMMON J U D G M E N T These criminal appeals have been directed against the order of acquittal, dated 19.03.2009 made in SC No.81 of 2006 on the file of the Additional Assistant Sessions Judge, Tenkasi.
2.The case of the prosecution is that on 18.08.2002 out of conspiracy when PW2 was talking to PW1, A1to A3 and another accused Leo Vincent entered into PW1 house with an intention to murder PW2 with deadly weapons and shouting that PW2 Madasamy should be chopped and A1 inflicted injury on PW2 on his head with a sickle, Accused Leo Vincent (no more) and A2 inflicted several injuries on PW2 and PW2 prevented the attack caused by A3 and A4 to A6 have conspired with the other accused. The Inspector of Police attached to Pavoorchatram Police Station has filed a final report against the accused examining witnesses. http://www.judis.nic.in 4
3.In the trial court, 15 witnesses were examined and 24 documents and7 material objects were marked. When the accused was questioned about the incriminating circumstances, they denied the same. The trial court acquitted all the accused from the charges levelled against them. Against the order of acquittal, the criminal revision as well as the criminal appeal have been filed.
4.The learned counsel appearing for the revision petitioner as well as the learned Government Advocate (Criminal side) appearing for the appellant argued that the trial court erred in acquitting the accused from the charges levelled against them and the trial court has not taken into consideration the evidence of PW1,who clearly stated about the facts of the case and also the involvement of the respondents/accused in this case and the evidence of PW2, reveals the overt-acts committed by the accused on him and the trial court has not taken into consideration the evidence of Medical Officer (PW10) who had treated Madasamy, issued wound certificate and also deposed about the injuries sustained by the said Madasamy and the reasons given by the trial Judge in acquitting the accused are against the evidence, both oral and documentary available on record and hence, the criminal revision as well as the criminal appeal have to be allowed. http://www.judis.nic.in 5
5.On the other hand, the learned Senior counsel appearing for the respondents 1 to 6 argued that there was no procedural illegality or manifest error of law in the judgment of the trial court and the trial court passing that order had not overlooked the evidence clinching the issue and the trial court only after analysing the entire evidence and document, acquitted the accused and prays that the criminal revision and the criminal appeal has to be dismissed.
6.Heard the learned Government Advocate (Criminal side) appearing for the 7th respondent and also perused the materials available on record.
7.The contentions raised on the appellant/complainant is that PW2 is the injured and he categorically deposed that all the accused had inflicted 8 injuries on him and further, PW1 the eye witness also clearly supported the prosecution case, which fortified by the fact that the occurrence itself took place inside her house and that the accused being aggressors, the motive is clearly established by the prosecution in this case and PW7 had clearly deposed about the involvement of the accused persons in the http://www.judis.nic.in 6 conspiracy hatched at the Rice Mill of A4 on 15.08.2002 I.e, three days priors to the occurrence and all the accused clearly identified by PW1 and PW2 during the identification conduction by the learned Judicial Magistrate and the weapons were also identified by the witnesses as well as the recovery of the said weapons were only expired on the admission of their confession statement attested by the witnesses and further, the evidence of PW1 and PW2 is corroborated with the evidence of medical evidence. But the trial Court wrongly came to the conclusion that the prosecution has failed to prove the case beyond reasonable doubt and prays that the accused are not entitled to acquittal.
8.In this case, PW1 is the complainant and concubine of PW2. PW2 is the injured. PW1 in her complaint stated that since she is the concubine of the injured Madasamy, there was previous enmity between A1 and PW1. On 18.08.2002 at 8.00 pm, she, her husband and her father were talking inside the house, at that time A1 and A3 outsiders with Aruval came in “eP vdJ tPl;L gf;fk; cs;s ngz;iz Nrh;j;Jf;nfhz;L> eP mbf;fb ,q;F uhj;jphpapYk;> gfypYk; gLj;Jtpl;L Nghfpwha;. cd;id ntl;b nfhd;wh> ,q;F ahh; Nfl;gh> ,NjhL eP nrj;J njhiye;J Ngh”and caused injury on the forehead of her husband, which extended to his ear and then her http://www.judis.nic.in 7 husband fell down and at that time, A1 further caused injury on the neck of her husband and three other persons, who accompanied with A1, caused injuries with Aruval on several parts of the body of her husband and when she and her father shouted, the above four persons ran away and then she took her husband to the Government Hospital, Tenkasi and further, there was severe injuries found on two hand palms of her husband and she gave a complaint.
9.PW1 during her evidence stated that due to previous enmity between A1 and her husband since she is the concubine of injured Madasamy, on 18.8.2002 at 8.00 pm, she, her husband and her father talking in the house, at that time A1 to A4 came with Aruval and A1 said towards her husband 'vq;fs; [hjpg;ngz;zplk;; ,uT> gfy; te;J jq;fptpl;L Nghfpwha; cd;id ntl;b nfhiy nra;jhy; ahh; Nfl;gh? ,NjhL nrj;J njhiye;JNgh”and assaulted on the forehead of her husband and then, her husband fell down and at that time, A2 attempted to cause injury on the neck of her husband and it was resisted by her husband and it caused injury on the right hand palm of her husband and A3 attempted to cause injury on his scalp of her husband and it was resisted by the http://www.judis.nic.in 8 right hand of her husband and it caused injury on the right hand palm of her husband and A4 caused injury on the right thigh and left side bedecks and then, the accused thought that the accused was dead and ran away and then, she took her husband to the Government Hospital, Tenkasi and Pavoorchatram Police came and she gave the complaint statement to the police and then her husband was referred to the Tirunelveli Government Hospital, for further treatment.
10.PW1 in her complaint stated that at that time of occurrence, she was inside her house, but the above facts was not stating during her evidence. PW1 in her complaint stated that A1 and three outsiders came. But, during her cross examination, she stated that 'm.rh.M.1-y; 4 Ngh;fspd; ngah;fis nrhy;ypAs;Nsd; vd;why; nrhy;ypAs;Nsd;. m.rh.M.1-y; nrhy;ypAs;s 4 Nghh;fis njhpAk; vd;why; njhpAk;”
11.PW1 in her cross examination stated that she already mentioned the name of A1 to A4 in the complaint. But on perusal of Ex.P1, PW1 has not mentioned the name of A2 to A4. http://www.judis.nic.in 9
12.It is seen that even-though, PW1 know the names of A2 to A4 before the occurrence, in her complaint, she mentioned only the name of A1, but failed to mention the name of A2 to A4. No explanation was given by PW1, why even-though she know the name of A2 to A4 before the occurrence, he failed to mention the names of A2 to A4 in the complaint. As per the prosecution case, PW1 only gave the complaint. But PW1 during her cross examination stated that 'm.M.1-y; vd;d vOjpapUf;fpwJ vd;W njhpAkh vd;why; njhpahJ. m.rh.M..1-I ahh; vOjpaJ vd;W njhpAkh vd;why; Vl;ilah vOjpdhh;”
13.PW1 during her cross examination stated that at that time of giving complaint-statement to the police, her husband was conscious. But the injured has not chosen to give the complaint to the police.
14.At this juncture, it is necessary to refer the cross examination of PW1 which would run thus:-
'm.rh.M.2-f;F fhak; Vw;gl;l gpwF tPl;by; itj;J ed;whf Ngrpf;nfhz;L ,Ue;jhuh vd;why; Ngrpf;nfhz;L ,Ue;jhh;;. ehd; m.rh.M.1 Gfhh; nfhLf;Fk; fhyj;jpy; m.rh.2 khlrhkp Ngrpf;nfhz;Ljhd; ,Ue;jhh; vd;why; rhpjhd;.” http://www.judis.nic.in 10
15.On careful perusal of the cross examination of PW1, it reveals that at the time of giving complaint by PW1, PW2 the injured is conscious. No explanation was given on the side of the prosecution, even-though at the time of giving complaint by PW1 the injured was conscious why the complaint was not received from the injured. Hence, it creates doubt about the prosecution case.
16.PW1 stated during her chief examination that she saw the occurrence. But during her cross examination stated as follows:- m.rh.2 blk;; jpBnud;W tPl;bw;Fs; te;J ntl;btpl;L nrd;whh;fNs vd;W m.rh.2 blk; Nfl;Nldh vd;why; Nfl;Nd;. m.rh.2 ahh; ahh; ntl;bdhh;fs; vd;W nrhd;dhuh vd;why; nrhd;dhh;. m.rh.2 nrhd;djpd; Nghpy; jhd; ehd; Gfhh; NghyPrpy; nfhLj;Njd; vd;why; Mkhk;. M];gj;jphpapy; itj;J m.rh.2blk; lhf;lh; fhaq;fs; Fwpj;J Nfl;lhuh vd;why; Nfl;lhh;. mg;NghJ m.rh.2 lhf;lhplk; 50 Ngh;fs; fk;G> mUths; itj;J ntl;bdhh;fs; vd;W nrhd;dhuh vd;why; ehd;F Ngh;fs; ntl;bajhf nrhd;dhh;”.
17.PW1 stated during her evidence that due to the assault by A1 to A4, there is blood on the injuries of her husband and the blood was in her Saree and the blood on her Saree was seen by the police. But, the above blood stained Saree was not recovered by the police.
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18.On careful perusal of the cross examination of PW1, it reveals that she has not seen the occurrence, but she only heard the occurrence. PW1 is the concubine of PW2. Hence she is the interested witness and no much importance given to the evidence of PW1.
19.PW2 is the injured. PW2 deposed that there was previous enmity between him and A1, since PW1 is his concubine, who belongs to the community of A1 and he belonged to other community and due to it, on 18.08.2002 at 8.00 pm, he, PW1 and the father of PW1 talking in the house of PW1, at that time, A1 and three others came with Aruval and A1 said “vq;fs; [hjpg; ngz;zplk; ,uT gfy; te;J jq;fptpl;L Nghfpwha;. cd;id ntl;b nfhiy nra;jhy; ahh; Nfl;gh? ,NjhL nrj;J njhiye;JNgh” and caused injury on the left side of his forehead and attempted to attack on his left side of his neck and it was resisted by him and other three persons caused injury on several parts of his body and then PW1 and the father shouted the accused ran away and PW1 and her father took him to the Government Hospital, Tenkasi and PW1 gave the complaint- statement to the police.
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20.PW2 during her chief examination stated that A1 to A4 attacked him. But during her cross examination, PW2 stated as follows:-
2 Kjy; 4 vjphpfSf;Fk; vdf;Fk; rk;gtj;jpw;F Kd;G ve;j gof;ftof;fKk; fpilahJ vd;why; fpilahJ. 2 Kjy; 4 vjphpfs; Fwpj;J ahUk; vd;dplk; NgrpaJ fpilahJ vd;why; rhpjhd;. 2 Kjy; 4 vjphpfis gw;wp Kg;Glhjpaplk; nrhy;ytpy;iy vd;why; rhpjhd;. Xl;Lnkhj;j gpur;rpidAk; vdf;Fk; Rjh;rDf;Fk; jhd; vd;why; rhpjhd;”.
21.PW2 stated that there was no dispute between A2 to A4.
But no explanation was given by PW2 why A2 to A4 attacked him. Further, PW2 has not stated during his evidence that at the instigation of A1, A2 to A4 attacked him. The above fact was not spoken by PW1 during her evidence. On careful perusal of the evidence of PW1 and PW2, there are lot of contradictions.
22.In this case, PW2 to PW5 are cited as eye witnesses, but they turned hostile and they did not support the case of the prosecution.
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23.PW6 is the first wife of PW2. She only a hearsay witness. Hence, no much importance can be given to the evidence of PW6. PW7 and PW8 are the confession and recovery witnesses. The Doctor, who gave treatment to PW2 was examined as PW10. PW10 deposed that PW1 told him that on 18.08.2002 at 8.00 pm, he was assaulted by five known persons with Aruval and stick, due to previous enmity in Amman Kovil Street, Sivakamipuram and he found injuries on left side scalp, left side neck and right hand fingers, right forearm, right hand palm, right index finger, right and left thigh and left knee.
24.PW1 in her compliant and evidence and PW2 during his evidence stated that A1 to A4 came only with Aruval. PW1 and PW2 have not stated that A1 to A4 came with stick. Further, PW2 told PW10 Doctor that he was assaulted by five known persons. But PW1 in her complaint and evidence stated that PW2 was assaulted by four persons. PW2 also deposed that he was assaulted by four known persons. No suggestion was put to PW1 and PW2 that PW2 was assaulted by 4 persons or five persons. http://www.judis.nic.in 14
25.On careful perusal of the evidence of PW1, PW2 and PW10, there was no corroboration in the oral evidence of PW1 and PW2 and the medical evidence of PW10.
26.In this case, to prove the conspiracy, PW7 was examined. PW7 deposed that the conspiracy was hatched in A4 Ramarajan's Rice Mill at Sivakamipuram. A1, A4 and A5 had hired deceased Leo to kill PW2. They also paid money to Leo to come and kill PW2 with his henchmen. This is illogical as A1, A2 and A3 also directly assaulted PW2 along with deceased accusaed Leo. The conspiracy is supposed to have been hatched on 15.08.2002 and executed on 18.08.2002. In the meantime, PW7 claims to have kept quiet out of fear. He is from PW2's community and is alleged to be a relative of PW2. Non alerting PW2 is suspicious. He is untrustworthy of credit because during cross examination, he says that police conducted an enquiry with him on 15.08.2002 itself I.e, 3 days before the occurrence, which is an impossibility. Hence, the evidence of PW7 is not at all acceptable. http://www.judis.nic.in 15
27.The alleged motive for the offence is the illegal contact between PW1 and PW2. No doubt, they belong to two different rival communities. However, they have been having this affair for the past 15 years. So, it is not possible that such a conducted all of a sudden provoked A1 to plan and execute the attack. In fact, he has been tolerating it for 15 years. In fact, it has also come into light from PW1 and PW2 and PW6's (wife and injured) evidence that PW2 had several other motivated people in civil disputed, aggrieved people in his money lending activities. He himself is an ex-accused in a case under
Section 307 IPC and his notorious character of raping girls has been depicted in a daily, for which he has not commenced any civil or criminal defamation cases.
28.In fact, PW1 herself has lodged a criminal complaint against him earlier. So alleged motive also fails. In fact, PW6 alleged previous motive between A6/Ponnusamy and PW2 over money lending, which is totally contradictory to the motive attributed for the offence. Though bad and immoral character of PW2 are irrelevant, they are circumstantial evidence and factors to be taken into consideration to come to the conclusion as to whether there could have been a more motivated enemy turned assailant. http://www.judis.nic.in 16 Previous accusations under Section 307 or 375 IPC can imply the existence of such persons.
29.At this juncture, it is necessary to refer the cross examination of PW7 which reads as follows:-
'15 tUlq;fshf m.rh.2-k; ehDk; xd;whf gofp te;J FbapUe;jJ rk;ge;jkhf Rjh;rd; ve;j tifapyhtJ njhe;juT nfhLj;jhuh? my;yJ fhty; epiyaj;jpy; Gfhh; nfhLj;jhuh? vd;why; ve;j njhe;juTk; nra;atpy;iy. fhty; epiyaj;jpy; Gfhh; nfhLf;ftpy;iy. vdf;Fk; m.rh.2 f;Fk; 1-tJ vjphpf;Fk; ve;jtpjkhd mbjb rz;il rr;ruT cz;lh? vd;why; fpilahJ”.
30.PW2 during his cross examination as follows:-
cs;sNghJ me;j tof;F ele;jJ. mUz;Nghpia Nrh;e;j rz;KifahTf;Fk; vdf;Fk; nfhLf;fy;
thq;fy; rk;ge;jkhf rptpy; tof;F ele;jjh vd;why; ele;jJ. MTilaDhiu Nrh;e;j Foe;ijf;Fk; vdf;Fk; nfhLf;fy; thq;fy; rk;ge;jkhf rptpy; tof;F ele;jjh vd;why; ele;jJ. cyfehjDf;Fk; vdf;Fk; nfhLf;fy; http://www.judis.nic.in 17 thq;fy; rk;ge;jkhf gpur;rpid ,Ue;jjh
vd;why; ,Ue;jJ. MTilaDhhpy; cs;s Nty; ehlh;fF ; k; vdf;Fk; gzk; nfhLf;fy; thq;fypy; gpur;rpid ,Ue;jjh vd;why; ,Ue;jJ. m.rh.1-I ehd; mtiu rhpahf ftdpf;fhjjhy; njd;fhrp kfsph; fhty; epiyaj;jpy; vd; kPJ Gfhh; nfhLj;jhh;
vd;why; nfhLj;jhh;.”
31.On careful perusal of the evidence of PW1 and Pw2, it reveals that already several enemies to PW2 in respect of his money lending business. Hence, the motive put forth on the prosecution side stating that only due to living of PW2 with PW1, the occurrence took place is not at all acceptable.
32.In this case, PW1 and PW2 deposed that PW2, who was assaulted by A1 to A4 with Aruval. But there is no recovery of incriminating articles, which are alleged to be used for the occurrence. In this case, sufficient time was granted to the Investigating Officers (LW18 and LW19) to give evidence. But they have not chosen to appear before this Court to depose. Hence, the Superior Officer of LW18 and LW19 is directed to take necessary action against LW18 and LW19.
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33.Further, at this juncture, it is more relevant to refer the decision reported in (2002) 9 SCC 393 [Thankappan Nadar and others vs. Gopala Krishnan and another), the Hon'ble Apex court has held as follows:-
“6.In a revision application filed by the de facto complainant against the acquittal order, the Court's jurisdiction under section 397 read with section 401 crpc is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decisions rendered by this Court. In Akalu Ahir v. Ramdeo Ram 1973 2 SCC 583 this Court has (in SCC pp. 587-88, para 8) observed thus:
“This Court, however, by way of illustration, indicating the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:
(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;
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(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;
(iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.” The Court further observed: (SCC p. 588, para 10) “10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself http://www.judis.nic.in 20 as if it is acting as a court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.” (emphasis added)
7.In our view, the emphasised portion of the aforesaid judgment is applicable in the present case. It is unfortunate that such a serious offence inspired by rivalry in the matter of election should go unpunished. However, that would not be a valid ground for ignoring or for not strictly following the law as enunciated by this Court, which does not empower the Court exercising the revisional jurisdiction to reappreciate the evidence.
8.In Vimal Singh v. Khuman Singh 1998 7 SCC 223 this Court after considering various decisions, observed as under: (SCC pp. 226-27, para 9) “9. Coming to the ambit of power of the High Court under
section 401 of the code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless http://www.judis.nic.in 21 there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. sub- section (3) of
section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.” http://www.judis.nic.in 22
34.On coming to the instant case on hand, there was no procedural illegality or manifest error in the order passed by the trial court. Hence, it is not necessary to interfere with the findings of the trial court. Keeping in mind the law laid down by the Hon'ble Apex court in the above decision and also the facts of this case, this court is of the considered view that the impugned order of the trial court do not call for any interference by this court.
35.In the result, both the criminal appeal and the criminal revision are dismissed.
13.06.2019 Index:Yes/No Internet:Yes/No vsd/er To,
1.The Additional Assistant Sessions Judge, Tenkasi, Tirunelveli District.
2.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
T.KRISHNAVALLI, J.
http://www.judis.nic.in 23 er Crl.RC.(MD)No.148 of 2009 and Crl.A(MD)No.425 of 2009 10.06.2019 http://www.judis.nic.in