Animadverting upon the order dated 5.10.2005, passed by the Special Judicial Magistrate, Darapuram, in C.C.No.11 of 2005, this criminal revision case has been focussed.
2. A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this criminal revision case would run thus:-
(a) The police laid the police report in terms of
Section 173 Cr.P.C. for the offence under
Sections 294(b) and
323 IPC alleging that on 3.2.2005 at about 15.00 hours, in the common path way leading to Ponnapuram, the accused 1 to 3 due to previous enmity in furtherance of common intention uttered out unparliamentary and indecent words as against Tamilselvi, who was proceeding along that path way, and attacked her and caused simple injuries to her.
(b) Inasmuch as the accused pleaded not guilty, the learned Magistrate conducted the trial. On the prosecution side P.Ws 1 to 8 were examined, Exs.P1 to P7 were marked and M.O.1 was marked. On the defendants' side no oral or documentary evidence was adduced. Ultimately the learned Magistrate acquitted the accused of all the offences, with which, the accused were charged.
(c) Being aggrieved by and dissatisfied with the judgement of acquittal, the de-facto complainant, namely, Tamilselvi, filed this revision on the main ground that the lower Court was perverse in screening and scrutinising the evidence and in ultimately acquitting the accused unjustifiably.
3. The learned Additional Public Prosecutor took notice on behalf of the State. Notices to accused were served, but they did not turn up.
4. Heard both sides.
5. The point for consideration is as to whether the trial Court was perverse in scrutinising and scanning the evidence and in acquitting the accused.
6. The learned Additional Public Prosecutor drawing the attention of this Court to the medical record, namely, Ex.P4 as well as the deposition of P.W.2-the injured witness and eye witnesses, namely, P.Ws.3, 4 and 5, including the evidence of P.W.7-the Doctor, would develop his argument that even though, those witnesses clearly spoke in support of the prosecution, and thereby, the prosecution proved the case beyond all reasonable doubts, the learned Magistrate with an intention to simply acquit the accused, observed as though the place of occurrence was not proved and that there are contradictions among the depositions of the prosecution witnesses.
7. A bare poring over and perusal of the judgement of the lower Court would reveal and evince, indicate and display that at paragraph 8, the learned Magistrate simply, instead of framing the points for determination, as contemplated under
Section 354(1)(b) Cr.P.C., in general terms formulated a point as to whether the prosecution proved its case. I am of the considered opinion that in a perfunctory manner such framing of point for determination should not be made.
Section 354(1)(b) Cr.P.C. is extracted here under for ready reference.
"354. Language and contents of judgment.- (1) . . . . . .
(a) . . . .
(b) Shall contain the point or points for determination, the decision thereon and the reasons for the decision;"
8. In accordance with the above Section, the learned Magistrate ought to have framed the points for determination in the following manner:-
1. Whether the accused in furtherance of their common intention on 3.2.2005 at about 15.00 hours, in the common path way leading to Ponnapuram, uttered out abusive and scurrilous, vituperative and non-U words as against Tamilselvi-the de-facto complainant?
2. Whether at the same time and place, the accused, in furtherance of common intention, intentionally inflicted simple injuries on Tamilselvi?
3. What are the offences committed by the accused?
Instead of framing the points for determination as per law, the learned Magistrate simply, in an unsatisfactory manner dealt with the matter.
9. In paragraphs 9 to 11, the learned Magistrate concentrated only on the evidence relating to place of occurrence. There is nothing to indicate from the discussion of the learned Magistrate as to whether the eyewitness are partison witness or not and as to why they should speak as against the accused falsely. The brief recording of the history of the case by P.W.7-the doctor in Ex.P7 is relevant as per the decision of the Honourable Apex Court in REHMAT VS. STATE OF HARYANA(1997 CRL.L.J.764), 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."
but the learned Magistrate has not taken into consideration that piece of evidence at all. In fact, in this case, peculiarly, soon after the occurrence, the injured appeared before the Doctor and narrated the history of the case, which was recorded by the Doctor in Ex.P4 itself.
10. No doubt, generally speaking this is a small case and not involving only grave offence. Even then, once the de-facto complainant approaches the Court for justice, the Court cannot simply turn the de-facto complainant out of Court without properly scanning the evidence and delivering a proper judgement. I am fully aware of the fact that revisional jurisdiction of the High Court in respect of acquittal matters is very much limited. Nevertheless, if the Court finds that the Magistrate dilli dallied with the matter and thereby threw the baby along with bath water, then normally it should be taken as perverse attitude on the part of the Magistrate in handling the case. There is also nothing to indicate as to why P.W.1 being a lady should go to the extent of setting the criminal law in motion falsely and the other witnesses also should commit perjury. Without considering in detail the various aspects of the matter, just by picking holes here and there the learned Magistrate in a perfunctory manner acquitted the accused, warranting the upsetting of the said findings of the lower Court by this Court while exercising revisional jurisdiction.
11. Accordingly, the judgement of the trial Court is set aside and the matter is remitted back to the Special Judicial Magistrate, Darapuram, for reconsidering the matter after hearing both sides au fait with law and au courant with facts. The learned Magistrate is expected to see that the matter is disposed of within two months from the date of receipt of copy of this order. Send both the records immediately to the lower Court.
Msk To
1. The Special Judicial Magistrate, Darapuram.
2. The Public Prosecutor, High Court