On 07.05.2015, a dispute arose with respect to breaking of the Hundi of local Ayyanar temple and right to worship between caste Hindus and members of the Dalit community in the village, in which both sides sustained injuries.
2. On the complaint given by one Elumalai, the police registered a case in crime No.138 of 2015 under
Sections 147,148,294(b),323,324 and
506(ii) of I.P.C.,1860 r/w
Section 3(1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities Act) Act, 1989 (for brevity the SC/ST Act) against S.Silambarasan and 6 others belonging to Hindu Vanniyar Community. Similarly, on the complaint lodged by one Ramamoorthy, the police registered a case in Crime No.139 of 2015 under
Sections 147,148,294(b),323 and
307 IPC against Bakyaraj and others belonging to the Dalit community. Thus, the complainant in Crime No.138 of 2015 is the accused in Crime No.139 of 2015 and the complaint in Crime No.139 of 2015 is the accused in Crime No.138 of 2015. The police completed the investigation in Crime No.138 of 2015 and filed a charge sheet in Special S.C.No. 32 of 2016 before the Special Court for exclusive trial of cases registered under the SC/ST Act, Villupuram, against S.Silambarasan and 6 others.
3.On the appearance of the accused, they were furnished with the documents under
Section 207 Cr.P.C and charges were framed against them for the offences under
Section 147,148,294(b),323,324 and
506(ii) of IPC r/w
Section 3(1) (x) of the SC/ST Act. When the accused were questioned about the charges, they pleaded not guilty.
4.On behalf of the prosecution, 16 witnesses were examined and 16 exhibits were marked and three material objects were marked. The accused were questioned under
Section 313 Cr.P.C. on the incriminating materials appearing against them and they denied the same. On behalf of the accused, no witness was examined.
5.The Trial Court, after considering the evidence adduced by the prosecution , acquitted all the accused in Special S.C.No.32 of 2016 by order dated 13.04.2017, aggrieved by which, the complainant has filed the present appeal against the order of acquittal.
6.Heard Mr.R.Rajasekaran, learned counsel for the complainant, Mr.P.Thamilavel, learned counsel for the accused and Mr.K.Madhan, the learned Government Advocate (Criminal Side) for the eight respondent.
7.It is trite that special leave to appeal against an order of acquittal is not an automatic one and leave can be granted only if the Court is satisfied that there are prima facie materials to show that the trial Court had committed a serious irregularity either on law or on fact, in acquitting the accused.
8. It may be necessary to extract the following passage from the judgment of the Supreme Court in Arulvelu & another vs. State rep. by the Public Prosecutor and another [2009 (10) SCC 206]:
"36. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment can not be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law."
9.On a reading of the order of acquittal, it is seen that the accused were acquitted on the ground that the prosecution had completely suppressed the case in Crime No.139 of 2015, in which the accused in this case suffered serious injuries due to attack by the complainant and his party.
10. Mr. R.Rajasekaran, the learned counsel for the petitioner submitted that there is no suppression inasmuch as the police have completed the investigation in Crime No.139 of 2015 and they have filed a charge sheet against the complainant and members of the Dalit Community and that the case is pending for trial in S.C.No.274 of 2017 before the Assistant Sessions Judge, Villupuram.
11.Thus, from the above, it is clear that this is a case and counter. It is a settled law that both the cases should have been conducted in the same court so that the Judge could appreciate the evidence adduced in both the cases and follow the procedure laid down by the Hon'ble Supreme Court in Nathi Lal & Others v. State of Utter Pradesh [1990 (Suppl.) SCC 145].
12.In this case, the same has not been done. That apart, PW1 and PW2 and other witnesses have not spoken anything about occurrence in Crime No.139 of 2015, in which the accused sustained injuries. Had they stated in their evidence as to the injuries caused by them to the accused as a measure of self-defence, then, the situation would be a little different. Thus, When there are two views possible, one in favour of the accused and the other in favour of the complainant, the view favouring the accused would merit consideration in an appeal against acquittal. The acquittal of the accused would not mean that the complainant and his party would suffer prejudice in Crime No.139 of 2015. The accused in Crime No.139 of 2015 may also suffer the same prejudice on account of the trial not having been conducted simultaneously by the same Court.
13. Be that as it may, in view of the above, this Court is of the view that this is not a fit case to grant special leave to appeal. Accordingly, this petition stands dismissed. Connected Crl.A.SR28267 of 2017 is closed.