Madras High Court
Sivakumar vs Thangaraj on 6 June, 2019
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 06.06.2019
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
CRL.R.C.(MD)No.920 of 2008
Sivakumar ... Petitioner
Vs
1.Thangaraj
2.Sivalingam Nadar
3.Sankarapandi
4.Marimuthu
5.Suyambulingam @ Syambu Rajan
6.Chairmadurai
7.Paul Durai
8.Sate of Tamil Nadu,
Rep. by Inspector of Police,
Ervadi Police Station Limits,
Tirunelveli District,
Crime No.84/2006. ... Respondents
PRAYER: Criminal Revision Petition filed under Section 397 r/w 401 of
Cr.P.C, praying, to allow the revision petition and set aside the order
dated 06.11.2007 made in S.C.No.359 of 2006 on the file of the
Principal Sessions Court, Tirunelveli.
For Petitioner : Mr.K.P.S.Palanivel Rajan
For R1 to R7 : Mr.N.Mohideen Basha
For R8 : Mr.C.Mayilvahana Rajendran
Additional Public Prosecutor
http://www.judis.nic.in
2
ORDER
The defacto complainant in Crime No.84 of 2006 on the file of the Ervadi Police Station who is P.W.1 in S.C.No.359 of 2006 on the file of the Principal Session Judge, Tirunelveli, is the revision petitioner herein. The said case was registered following the murder of one Jeyaraj who is none other than the brother of the P.W.1. The father of P.W.1 and the deceased is one Joseph Nadar. The said Joseph Nadar had two brothers namely Pachamal Nadar and Sivalinga Nadar who was arrayed as A2 in this case. There was a serious dispute between the family of the deceased and the family of the accused in respect of the partition of the family properties. The deceased is said to have assaulted A2-Sivalinga Nadar on 17.05.2006. A case was registered against him and he was also arrested. After he came out on bail, he was done to death on 11.06.2006 at about 05.00 a.m., when the deceased was returning from Yervadi to Valliyoor. The case was taken up for investigation and the final report was filed against A2- Sivalinga Nadar and his six sons. The case was committed to the file of the learned Principal Sessions Judge, Tirunelveli. The accused denied the charges framed against them and claimed to be tried. http://www.judis.nic.in 3
2.On the side of the prosecution, as many as 24 witnesses were examined. Ex.P1 to Ex.P48 were marked. M.O.1 to M.O.28 were also marked. The learned trial Judge, by judgment dated 06.11.2007, found the accused not guilty of the charges and acquitted them. Questioning the same, the wife of the deceased filed Criminal Appeal.
3.The Hon'ble Division Bench held that in as much as, the Judgment in question was passed on 06.11.2007 that is prior to the amendment made vide Central Act No.5 of 2009 which came into effect on 31.12.2009, the criminal appeal was held as not maintainable. In fact, even before the wife of the deceased filed the said criminal appeal, the present revision petitioner had filed this Crl.R.C.(MD)No.920 of 2008. The criminal appeal as well as the criminal revision case were taken up together by the Hon'ble Division Bench. While the criminal appeal filed by the wife of the deceased was dismissed as not maintainable, this criminal revision case was directed to be listed before the single Judge. That is how the case came up for hearing before me.
4.When the matter was taken up for hearing, the learned counsel appearing for the revision petitioner submitted that this case will have to be converted into the criminal appeal and heard http://www.judis.nic.in 4 accordingly. In support of this request, the learned counsel placed reliance on the order dated 12.09.2014 rendered in Crl.R.C.No.626 of 2009. The learned Judge, who directed converting the revision into the criminal appeal, was pleased to hold as follows:-
“2.Though the impugned judgment came to be passed prior to the amendment to Section 372 Cr.P.C., in 2009 and the criminal revision also came to be filed prior to the amendment, because of the change in law giving a right to the victim to file an appeal against acquittal, this Court deems it appropriate to convert the revision into an appeal. Such a course of action will avoid multiplicity of proceeding into the light of Section 401 of the Code of Criminal Procedure, especially sub- section (3) of the said section, which says that the revisional court can pass any order that may be passed in an appeal except the power of converting an order of acquittal into an order of conviction. In case, the revision proceeds, it will result in setting aside the judgment of the lower court acquitting the accused and remitting the case to trial Court for retrial. If the trial Court again acquits the accused, an appeal can be preferred by the victim in view of the change in law. The accused shall not be prejudicial because, in case the retrial ends in conviction and he has to appear as an appellant, he shall be at a disadvantages position. If the revision is converted into an appeal, he shall have the benefit of appearing as a respondent for whom the double presumption of innocence shall be available. Hence, the conversion is made using the inherent powers of the High Court. When the revision is converted into an appeal, the offence being http://www.judis.nic.in 5 one of murder punishable under Section 302 IPC, it shall be listed before a Divsion Bench”.
5.With utmost respect to the learned Judge, I am unable to agree. It is true that the revisional Court, while hearing the revision against the acquittal, will not have the power to convict the accused. Even if it is set aside, this Court can only remand the matter to the file of the Court below. The learned Judge was pleased to take note of the aforesaid amendment made to Section 372 of Cr.P.C., and directed that the revision should be converted into an appeal in order to avoid multiplicity of proceedings.
6.Of-course, in this case, such a course of action cannot be adopted because the Hon'ble Division Bench had already held that this criminal revision will have to be heard by a single judge. Now, the question is whether I can convert this criminal revision case into an appeal.
7.It is not in dispute that the Judgment was pronounced before the aforesaid amendment made to Section 372 of Cr.P.C. I cannot agree with the contention of the petitioner's counsel that the accused will not be put to prejudice. This scope of appeal and the scope of revision are different. That apart, the Hon'ble Supreme Court in the http://www.judis.nic.in 6 decision reported in 2018-2-L.W.(Crl.) (675 Mallikarjun Kodagali Vs. State of Karnataka), had already held that the right to appeal given to the victim would be prospective and enforceable with effect from 31.12.2009 only. In view of the authoritative pronouncement of the Hon'ble Supreme Court, I will have to necessarily disregard the observations made by vide order dated 12.09.2014 in Crl.R.C.No.626 of 2009.
8.Having held that I can only exercise revisional jurisdiction, I will have to now see if the Judgment of the Court below warrants intervention. The occurrence had taken place on 11.06.2006 at about 05.00 a.m. P.W.1 to P.W.3 are said to be the witnesses to the occurrence. According to the said eye witnesses, all the accused had come in an Alwin Nisan Van and that it was driven by A1 and that they hit the deceased, who was riding the vehicle from behind. After the deceased fell down, he was hacked by A7 and that he died on the spot. Overt-act had been attributed to the other accused also. The complaint/Ex.P1 was given at around 08.00 a.m. On the same day and Ex.P21/F.I.R, was registered at 08.00 a.m. In the said F.I.R., the names of the accused have not been mentioned. It is relevant to mention here that A2 is the father of the remaining accused. In other words, the entire family of Sivalinga Nadar had been implicated in the FIR. But then, the police had requisitioned the services of the dog http://www.judis.nic.in 7 squad. Ex.P46/dog squad report was also marked. The Column Number 11 setting out the history of the case is rather significant. It was originally mentioned that unknown persons had hacked the deceased to death. Thereafter, the same was corrected and there is over writing indicating that known persons had hacked the deceased to death. This clearly aroused the suspicion of the Court below. More than anything else, if the accused were already known, there was no need to requisition the services of the sniffer dog.
9.The learned trial Judge, after a careful consideration of the evidence on record, came to the conclusion that the very presence of the eye witnesses namely P.W.1 to P.W.3 is highly suspect. It is true that there is sufficient motive can be attributed for the occurrence of this crime. But then, whether all the accused were present and had taken part in the crime is highly doubtful. P.W.1 would claim that he had seen the occurrence and that he was chased by the accused 5 and 6 and that, he escaped from the scene of occurrence. This theory of escaping was again disbelieved by the learned trial Judge. Once, the presence of the eye witnesses had been disbelieved by the trial Court, the entire case of the prosecution falls to the ground.
10.After carefully going through the Judgment of the trial Court, I come to the conclusion that the reasons assigned by the trial Court http://www.judis.nic.in 8 for disbelieving the testimony of the eye witnesses do not deserve to be interfered with. The reasons are sound and acceptable. In this view of the matter, I do not deem it fit or appropriate to interfere with the well considered decision of the trial Judge. However, the matter cannot rest there. There can be no doubt whatsoever that the victim Jeyaraj was done to death.
11.The learned counsel appearing for the petitioner drew my attention to the decision rendered in 2015 (2) SCC 227 (Suresh and another Vs. Sate of Haryana) for directing the State to pay compensation to the widow of the victim.
12.I find the said request to be reasonable. However, I must take note of these two aspects. There has been a history of dispute between the two families. In fact, the deceased who was the nephew of A2, had physically assaulted his junior paternal uncle and he was arrested. This appears to be the motive for the entire occurrence. Therefore, the deceased cannot be considered as not having contributed to the whole occurrence. This aspect of the matter certainly weighs in my mind while determining the quantum of compensation. Therefore, even while dismissing the criminal revision case, I direct that Chitra/widow of the deceased Jeyaraj be paid compensation as per norms from out of the victim compensation fund. http://www.judis.nic.in 9 The District Legal Service Authority, shall ensure that this amount is disbursed to the said Chitra as expeditiously as possible.
06.06.2019 Index:yes/no Internet:yes/no rmi NOTE:Registry is directed to mark a copy to the District Judge, Tirunelveli.
To
1.The Principal Sessions Court, Tirunelveli.
2.The Inspector of Police, Ervadi Police Station Limits, Tirunelveli District.
3.The District Legal Services Authority, Tirunelveli.
http://www.judis.nic.in 10 G.R.SWAMINATHAN, J.
rmi CRL.R.C.(MD)No.920 of 2008 06.06.2019 http://www.judis.nic.in