Madras High Court
Rajendran vs Prabhu on 6 September, 2010
Crl. A. (MD)No.84 of 2018
B E F O R E T H E MADU RAI B E N C H O F MADRA S HIGH C O U RT
DAT E D : 0 5 . 0 2 . 2 0 2 0
C O R AM:
T H E HO N O U R A B L E MR. J U S T I C E T. RA J A
and
T H E HO N O U R A B L E MR. J U S T I C E B . P U G A L E N DHI
C rl. A . (MD)N o. 8 4 o f 2 0 1 8
Rajendran ... Appellant/P.W.6
Vs.
1.Prabhu
2.Suresh
3.Veera (a) Veeraselvam
4.Pandi (a) Chellapandi
5.Raja (a) Pandiaraja
6.Pandi (a) Periyapandi ... Respondents 1 to 6/A1 to A6
7.The Inspector of Police,
B1 Vilakuthoon Police Station,
Madurai. ... 7th Respondent/Complainant
Prayer: Criminal Appeal filed under Section 372 of the Criminal Procedure Code,
praying to call for the records in S.C.No.73 of 2010 on the file of the learned
Additional District and Sessions Judge cum Fast Track Court No.1, Madurai and
set aside the acquittal order dated 06.09.2010.
For appellant : Mr.M.Koushikan
for M/s.S.M.A.Jinnah
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For Respondent 1 to 6 : Mrs.S.Prabha
Legal Aid Counsel
For 7th Respondent : Mr.K.K.Ramakrishnan
Additional Public Prosecutor
J U DG ME N T
(Judgment of the Court was delivered by T. RA J A , J . )
This Criminal Appeal has been filed by P.W.6 – Rajendran, challenging
the correctness of the Judgment of acquittal dated 06.09.2010, made in S.C.No.
73 of 2010, by the file of the Additional District and Sessions Judge, Fast Track
Court No.1, Madurai, acquitting accused Nos.1 to 6/respondents 1 to 6 herein.
2. Facts leading to the filing of this Criminal Appeal, relevant for the
purpose of disposal of this case, briefly narrated, are as follows:
2.1.It is the case of the prosecution that P.W.6 is the father of the
deceased Vallarasu, who was working as a load man. On 27.10.2008, at 11.00
a.m., while the deceased walking on the Yanaikal Bridge (Yanaikal Kalpalam),
Madurai, he was hit by A1, due to which, there was a quarrel between them.
Pursuant to which, A1 threatened the deceased saying that he could see what
he is going to do by bringing persons. On the same day, at 1.00 p.m., A1
brought A2 to A6 in an auto driven by P.W.5 - Jeyapaul and indiscriminately cut
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the deceased and after the commission of the offence, they fled away from the
place of occurrence in the same auto.
2.2.P.W.1 – Suresh, friend of the deceased went to Villakuthoon Police
Station, Madurai at 3.00 p.m. and lodged a complaint (Ex.P15), based on which,
P.W.18 – Jeyaraman, Sub-Inspector of Police has registered a case in Crime No.
1163 of 2008 under Sections 147, 148 and 302 I.P.C. on 27.10.2008. The printed
F.I.R. was marked as Ex.P16.
2.3.P.W.18 despatched the original F.I.R. and the original complaint to
the Court of jurisdictional Magistrate and copy of the same to the higher
officials. P.W.22 – Jegadeshkumar, Inspector of Police, Vilakuthoon Police Station,
took up the case for investigation and went to the occurrence place at 4.15 p.m.
prepared Ex.P.10 – Observation Mahazar and Ex.P.22 – rough sketch and
recovered M.O.1 series – Blood stained Cement Concrete pieces and M.O.2
series – Ordinary Cement Concrete Pieces in the presence of P.W.11 – Pandi and
one Raja. Then, he conducted inquest over the body of the deceased and
prepared Ex.P.23 – Inquest report. He made arrangement to take photographs in
the scene of occurrence through P.W.17 – Murugiah, Photographer working in
Madurai City Police Photography Section. Thereafter, he sent the body of the
deceased for conducting postmortem through P.W.15 – Veerapathiran, Head
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Constable.
2.4.P.W.14 – Dr.Vanitha, Tutor in Government Rajaji Hospital examined
the body of the deceased and confirmed his death. The copy of the Accident
Register recorded by her was marked as Ex.P.12.
2.5. P.W.21 – Dr.M.Alavutheen, was a Tutor in Forensic Medicine,
Madurai Medical College, Madurai, who conducted postmortem on 28.10.2010
at 10.15 a.m. and noted the following antemortem injuries:
“1.A transverse oblique cut injury on the base of the lower
jaw measuring 5 x 0.5cm x bone depth. On dissection, the wound
passes obliquely towards right cutting the underlying muscles and
bone partially.
2.A transverse oblique cut injury below the lower jaw
measuring 6 x 0.5cm x bone depth. On dissection, the wound passes
obliquely towards right cutting the underlying muscles, vessels, nerves
and bone partially.
3.A transverse oblique cut injury below the right ear
measuring 5.5 x 0.5cm x bone depth. On dissection, the wound passes
obliquely downwards cutting the underlying muscles and bones
partially.
4.A transverse oblique cut injury on the back of head right
side near right ear, size 5cms x 0.5cm x bone depth. On dissection, the
wound passes obliquely towards left cutting the underlying muscles
and bone partially.
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5.A transverse oblique cut injury on the middle of back of
head, size 6cms x 0.5cm x bone depth. On dissection, the wound
passes obliquely downwards cutting the underlying muscles and
bones partially.
6.A transverse oblique cut injury on the back of right
shoulder 6 x 0.5cm x bone depth. On dissection, the wound passes
obliquely downwards cutting the underlying muscles and bone
partially.
7.A transverse oblique stab injury on the middle of frontal
region 3 x 0.5cm x bone depth. On dissection, the wound passes
obliquely backwards and ends on the bone.
8.A transverse oblique stab injury on the left hip 4 x 0.5cm x
bone depth. On dissection, the wound passes obliquely downwards
ends on the bone.
9.A transverse oblique stab injury 2cms above the injury no.
8, 3 x 05.cm x cavity deep. On dissection, the wound passes obliquely
backwards and ends on the peritoneum.”
The postmortem report was marked as Ex.P.21. P.W.21 opined that the deceased
would appear to have died of shock & Haemorrhage due to multiple cut and
stab injuries 14 to 16 hours prior to autopsy.
2.6.After postmortem P.W.22 – Inspector of Police recovered M.Os.3
and 4 blood stained cloths of the deceased through P.W.15. He examined the
witnesses and recorded their statements. On 28.10.2008, accused surrendered
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before the Judicial Magistrate, Nilakottai. On 12.11.2008, he took police custody
of the accused and at 5.00 p.m., and on enquiry, A1 voluntarily gave the
confession statement and the same was recorded in the presence of P.W.7 -
Sankar and one Prakash. He also recorded the confession statements of other
accused also. Ex.P.24 is the admissible portion of the confession statement of A1.
Pursuant to the same, on 13.11.2008 at 11.30 a.m., he recovered M.Os.6 to 11 –
Four sickles and two knifes under a cover of Mahazar Ex.P.25 from a push on the
western side of Northern side Yanaikal Kalpalam. Then, he remanded all the
accused to judicial custody and handed over the Material Objects to the
concerned Court under Form 95. On 14.11.2008 he examined P.W.5 and
recorded his statement. On 17.11.2008, he recovered the auto TN-59-A-9412
used for the occurrence in the presence of P.Ws.9 and 10 under a cover of
mahazar Ex.26 and remanded the auto to judicial custody. He produced P.W.5
before P.W.20 – J.Venkatesan, learned Judicial Magistrate No.4, Madurai and
recorded P.W.5's statement under Section 164 Cr.P.C. On 28.11.2008 he
examined the witnesses and the doctors and recorded their statements.
2.7. After P.W.22's transfer, P.W.23 – Jeyaram, Inspector of Police
continued the investigation and he had filed the Charge Sheet on the file of the
Court of Judicial Magistrate No.4, Madurai, charging the appellant/accused for
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the aforesaid offences, who took it on file in P.R.C.No.29 of 2009.
2.9. Pursuant thereto, the Committal Court issued summons to the
accused and on their appearance, furnished him copies of documents under
Section 207 CrPC and having found that the case is exclusively triable by the
Sessions Court, had committed the same to the Principal District Court.
Madurai, which in turn made over the same to the Additional District and
Sessions Judge, Fast Track Court No.1, Madurai, which took it on file in S.C.No.73
of 2010. Thereupon, the respondents/accused were issued with summons and
on their appearance, charges under Sections 148 and 302 IPC have been
framed.
2.10.The prosecution, in order to sustain its case, examined PWs.1 to
23, marked Exs.P1 to P26 and also marked M.Os.1 to 11. The respondents/
accused were questioned under Section 313(1)(b) Cr.P.C. with regard to the
incriminating circumstances made out against them and they denied it as false.
The respondents 1 to 6/accused 1 to 6 did not examine any witness or marked
any document.
2.11.P.W.1, the friend of the deceased has admitted his signature (Ex.P.
1) in the complaint and the evidence of P.W.1 has also been supported by the
evidence of P.W.2, who is also the friend of the deceased, deposed that the
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complaint was given by P.W.1 to P.W.18. The eyewitnesses P.Ws.1 to 5 turned
hostile.
2.12.The learned Trial Court, on a consideration of oral and
documentary evidence and other materials, acquitted the accused on the
ground that the charges framed against them are not proved beyond
reasonable doubt, vide impugned judgment dated 06.09.2010 and challenging
the same, the present Criminal Appeal is filed by P.W6, father of the deceased.
3.Learned counsel appearing for the appellant/P.W.6/father of the
deceased, assailing the approach and the findings recorded by the trial Court,
heavily contended that it is a clear case of conviction to be awarded against all
the accused on the basis of the evidence of P.Ws.2 and 5. But the trial Court
completely misreading the evidence of P.Ws.2 and 5 and erroneously gave the
benefit of doubt to the accused, as a result, there is miscarriage of justice. He
would further submit that P.W.2, who is a friend of the deceased clearly
deposed before the trial Court as to how the occurrence has taken place, in
which the deceased was indiscriminately cut by the accused A1 to
A6/respondents 1 to 6 by travelling in the auto driven by P.W.5.
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4.He would further submit that ironically, the learned trial Court
instead of carrying forward the cross-examination of P.W.8 either on the same
day ie., 03.05.2010 or on the next day or on a reasonable gap, wrongly
adjourned the case to three months on 05.08.2010. In the meanwhile, the
accused by taking advantage of the long gap from the date of chief-
examination of the witnesses has overpowered P.W.2. In view of the long gap
that has happened, the evidence of P.W.2 could not be effectively made use of.
Moreover, P.W.5 – auto driver, who has all along witnessed A1 to
A6/respondents 1 to 6 herein while carrying them from Palam Station Raod to
the place of occurrence and during the transit he has overheard the conspiracy
of the accused while sitting in the auto till they reached the place of
occurrence, has clearly spoken about the occurrence A1 to A6 before the trial
Court that he has seen all the accused and they are known to him and they
have also carried the deadly weapons with them in his auto for killing the
deceased. Moreover, when he has further spoken before the trial Court that all
the accused after getting down from the auto indiscriminately cut the deceased
and before going to the place, where the deceased was standing, A1 warned
him that he should wait till they come back after commission of offence, for no
reason, the learned trial Court has wrongly disbelieved the evidence of P.W.5.
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Ironically, in the present case, treating P.W.5 as a hostile witness, the trial Court
wrongly failed to make use of the evidence of P.W.5.
5.Explaining further, the learned counsel appearing for the appellant
would submit that even before the trial Court treats the P.W.5 as a hostile
witness because he has taken a contra stand in the cross-examination, as per the
well settled legal position, the learned trial Court should have seen whether his
evidence can be separated. Because, it is the duty of the trial Court to separate
the chaff from the grain as laid by the Hon'ble Apex Court in R i z a n v . S t a t e
o f C h h a t i s g a r h [( 2 0 0 3 ) 2 S C C 6 6 1 ] , wherein it is clearly held that it is
the duty of the court to separate the chaff from the grain. Where the chaff can
be separated from grain, it would be open to the court to convict the accused
notwithstanding the fact that evidence has been found to be deficient to prove
guilt of other accused persons. The reason being that when P.W.5 deposed in
the cross examination that he has known all the accused and they only hired his
vehicle often and also spoken clearly that all the accused travelled in his auto
and indiscriminately cut the deceased, such an eyewitness cannot be branded as
a lier. Since the trial Court has committed a grave error in throwing the
evidence of witnesses and giving benefit of doubt to the accused, the order of
acquittal passed by the trial Court is liable to be set aside.
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6.The learned counsel would further add that the overtacts and the
roles of A1 to A6 have been specifically spoken by the eyewitness P.W.5, who
has been supported by P.W.21, the postmortem doctor, the recovery of weapons
pursuant to the admissible portion of the confession leading to recovery and
also Ex.P.14 – Serological report, which shows that the blood of the deceased
found in his cloths tallied with the blood found in the weapons used by the
accused. Hence, the trial Court ought not to have given the benefit of doubt to
the accused.
7.The learned Counsel would further submit that the trial Court has
committed a grave error in adjourning the case from 03.05.2010 to 05.08.2010
beyond three months for taking the evidence of P.W.2, by relying on the
decision of the Hon'ble Apex Court in V i n o d K u m a r v . S t a t e o f P u n j a b
[( 2 0 1 5 ) 3 S C C 2 2 0 ] , wherein it has been held that it is the duty of the
Court to conduct the trial in a requisite manner and not to defer the cross-
examination of a witness at their pleasure or at the leisure of the defence
counsel. In the present case, the learned counsel for the defence in the trial
Court went on delaying the case when P.Ws.2 and 5 were giving evidence
against the accused. The learned trial Court has adjourned the case giving three
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months time. Taking advantage of the long gap of three months, the accused 1
to 6/respondents 1 to 6 have overpowered the witness P.W.2, as a result, he
took a contra stand that he never seen the accused. Therefore, for these
reasons, the impugned judgement passed by the trial Court acquitting all the
accused should be set aside and the accused should be convicted for the
offences under Sections 148 and 302 I.P.C. In support of his submission, he
relied on the decision of the Hon'ble Apex Court in S h a n k a r K e r b a
J a d h a v a n d o t h e r s v . S t a t e o f M a h a r a s h t r a [( 1 9 6 9 ) 2 S C C 7 9 3 ] ,
wherein it is held that in disposing of an appeal, from an order of acquittal, the
High Court is competent to pass a sentence which the trial Court was
empowered to pass.
8.When the matter was repeatedly taken adjournments and when
there was no one to conduct the case of the respondents 1 to 6/accused 1 to 6,
considering the fact that there was an order of acquittal and a reasonable
opportunity should be granted to the accused, we deem it fit to appoint
Mrs.S.Prabha, who was the Government Advocate (Criminal side) for
considerable long time and put in 14 years of standing in the Bar on the
criminal side, as a legal aid counsel for the respondents 1 to 6/accused 1 to 6.
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9.Mrs.S.Prabha, learned legal aid counsel appearing for the
respondents 1 to 6 urged this Court to dismiss the appeal by raising several
points. Firstly, Mrs.S.Prabha, learned counsel argued that all the eyewitnesses
P.Ws.1 to 5 turned hostile, therefore, the trial Court finding huge flaw in the
evidence furnished by P.Ws.2 and 5, who also turned hostile, finding no other
way to fix the accused 1 to 6/respondents 1 to 6 has rightly disbelieved the case
of the prosecution. Though P.W.2 supported the case of the prosecution in the
chief examination, he spoke in the cross examination that he never seen the
accused. Even if we take the evidence of P.W.5, who is an auto driver. He has
committed three significant errors before the trial Court while speaking for the
prosecution. Firstly, he spoke that the auto belongs to him. On the other hand it
was not and he was the hirer of the auto. He has spoken that he only carrying
them to the place of occurrence. But he was not able to say who has given
which below and which blow was responsible for the cause of death. When the
prosecution also not able to segregate the overtacts made by each accused, it
would be highly unsafe to convict them. P.W.5 auto driver has spoken in the
chief examination that he has not seen the accused. The prosecution has
miserably failed to elicit any particular overtact of the accused. Therefore, the
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trial Court disbelieved P.Ws.2 and 5 along with other witnesses and passed an
order of acquittal, that does not call for interference.
10.Again in support of the impugned judgment she argued that when
P.W.5 has brought to the notice of the trial Court that he has seen A1 to A6
nothing prevented the prosecution to come for holding identification parade.
But in the present case the prosecution also has miserably failed to make
arrangements even for holding an identification parade. Considering the said
lapses as a fatal to the prosecution, the trial Court has no other option except
to disbelieve the case of the prosecution. Moreover, when the investigation
officer deposed that there was no identification parade and there were three
criminal cases pending against the deceased, it could be presumed that some
other person could have caused the death of the deceased. Therefore, it is
highly unsafe to convict the accused as responsible for the death of deceased.
11.Finally, taking support from S a m p a t B a b s o K a l e v . S t a t e o f
M a h a r a s h t r a [( 2 0 1 9 ) 4 S C C 7 3 9 ] , the learned counsel appearing for
the respondents 1 to 6 would submit that in the said judgment, the Hon'ble
Apex Court has laid down the proposition regarding appeal against acquittal
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that the appellate Court must bear in mind that if two reasonable conclusions
are possible on the basis of the evidence on record, the appellate court should
not disturb the finding of acquittal recorded by the trial Court. More over, in
the case of acquittal, there is double presumption in favour of the accused.
Firstly, presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to be
innocent unless he is proved guilty by a competent court of law. Secondly, the
accused having secured his acquittal, the presumption of his innocence is
further reinforced, reaffirmed and strengthened by the trial Court. Therefore,
applying the principles laid down in the afore said judgment, the trial Court has
rightly disbelieved the evidence of P.Ws.2 and 5. P.W.5, an auto driver, who in all
fairness should also be impleaded as one of the accused, which has not been
done, therefore, the Criminal Appeal deserves to be rejected.
12.Mr.K.K.Ramakrishnan, learned Additional Public Prosecutor
appearing for the 7th respondent/complainant also agreed with the arguments
advanced by the learned counsel appearing for the appellant with regard to the
principles laid down by the Apex Court in R e z a n v. S t ate of
C h h a tti s g a r h [( 2 0 0 3 ) 2 S C C 6 6 1 ] . In the said case it is stated that it is
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the duty of the trial Court to remove the chaff from the grain and hence if the
trial Court had separated the unwanted evidence adduced by P.W.5, the charge
against Accused could have been easily proved. That has not been done by the
trial Court and an error has been committed by the trial Court. Moreover, in
view of the grave error committed, it is always open to the appellate Court to
pass a sentence, which the trial Court was empowered to pass.
13.This Court paid its anxious consideration to the rival submissions
made and also perused the oral and documentary evidences and other materials
placed on record including the impugned Judgment as well as the original
records.
14.The following questions arise for consideration:-
[i] Whether the impugned judgment passed by the trial Court holding
that the respondents 1 to 6/accused 1 to 6 are not guilty of the charges is
sustainable? and
[ii] Whether the impugned judgment of acquittal is liable to be
reversed?
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Question No. [i] :
15.Having heard the counsel appearing on either side, we think, at the
out set it may be mentioned that the trial Court in paragraph 20 of the three
page judgment giving the benefit of doubt to the accused, erroneously reached
the conclusion that P.W.2 was not considered as a hostile witness. “m.rh.2
muRjug;gpy; gpwH;rhl;rpahf ghtpf;fg;glt[k; ,y;iy.”But he was treated as a hostile
witness. When P.W.2 was treated as a hostile witness, it is not known how the
trial Court held that P.W.2 was not treated as a hostile witness. If the conclusion
arrived at by the trial Court is correct, the trial Court could have convicted the
accused based on the evidence of P.W.2, which has been supported by P.W.5,
who spoke right from the date of coming to the Court that he has spoken to
the investigation officer and also before the learned Judicial Magistrate, who
recorded his statement under Section 164 Cr.P.C. that he has carried all the
accused in his auto rickshaw and the accused after coming out of the auto went
to the deceased and indiscriminately cut him till he fell down, which was not
cross-examined. For no reason, this evidence can be disbelieved. The reason
being that he has specifically mentioned that A1 to A6 were known to him as
they were regularly hiring him, therefore, when P.W.5 know the accused there is
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no need to hold identification parade, hence, in our considered view, the trial
Court ought not to have disbelieved the evidence of P.W.5. Our view is further
fortified on the basis of the evidence given by P.W.21, doctor, who also
specifically spoke about the 9 injuries caused by all the 6 accused. When P.W.5 –
auto driver, witnessed the occurrence has clearly spoken that all the six accused
indiscriminately cut the deceased, it goes without saying that all the nine
injuries have been caused by the accused only. Moreover, the recovery of the
weapons, pursuant to the confession leading to recovery and Ex.P.14 –
Serological Report, which also shows that the presence of the blood of the
deceased clearly tallying with the blood stains found in the weapons used by
the accused, again proves the guilt of the accused.
16.In addition thereto, we may also mention as a abundant caution
that it may be argued that even the registration number of the auto was not
mentioned anywhere. However, the evidence of the investigation officer while
deposing before the trial Court has clearly mentioned the auto number as
TN-59-A-9412. Therefore, it cannot be argued that there was no evidence about
the registration number of the auto, hence, we hold that the findings recorded
by the trial Court suffer from infirmity.
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17.As highlighted by us above, in paragraph No.20 of the judgment it
is held as follows:
“m.rh.2 muRjug;gpy; gpwH;rhl;rpahf ghtpf;fg;glt[k; ,y;iy.”
A reading of the above observation shows that when P.W.2 was already held as a
hostile witness, the trial Court has approached as though P.W.2 was not a hostile
witness. When P.W.2 was not a hostile witness, then the evidence of P.W.2 should
have been appreciated, in view of the clear evidence given by P.W.5 separating
the grain from the chaff ie., truth from falsehood.
18.Further, the evidence of P.W.5 elicited in favour of the prosecution
during the cross-examination has not been put to cross by the defence side. For
the reason that he has not been cross-examined by the respondents 1 to
6/accused 1 to 6, his evidence, which stood the rigour of the cross-examination
clearly supports the prosecution version and establishes the guilt of the
accused.
19.The two infirmities committed by the trial Court are improbable
and inexcusable in law. Firstly, when P.W.2 was examined on 03.05.2010, the trial
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Court ignoring the vital aspect that after chief examination was over, the witness
cannot be cross-examined after three months, on 05.08.2010 for cross-
examination, overlooking the fact that due to passage of long time of gap he
could be overpowered by the other side. Secondly, it is common knowledge
that any one who speaks in the chief examination cannot be expected to
remember the same thing after three months, because there may be error of
memory due to lapse of time. In this context, the Hon'ble Apex Court in R i z a n
v . S t a t e o f C h h a tti s g a r h [( 2 0 0 3 ) 2 S C C 6 6 1 ] has held that it is the
duty of the Court to separate the grain from the chaff. Where chaff can be
separated from grain, it would be open to the Court to convict an accused
notwithstanding the fact that evidence has been found to be deficient to prove
the guilt of the accused person. The relevant paragraph No.12 of the said
decision is given as under:
“12. Stress was laid by the accused-appellants on the non-
acceptance of evidence tendered by some witnesses to contend about
desirability to throw out the entire prosecution case. In essence,
prayer is to apply the principle of fal s u s in u n o fal s u s in
omnibus (false in one thing, false in everything). This plea is clearly
untenable. Even if a major portion of evidence is found to be
deficient, in case residue is sufficient to prove guilt of an accused,
notwithstanding acquittal of a number of other co-accused persons
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his conviction can be maintained. It is the duty of the court to
separate the grain from the chaff. Where the chaff can be separated
from the grain, it would be open to the court to convict an accused
notwithstanding the fact that evidence has been found to be deficient
to prove guilt of other accused persons. Falsity of a particular material
witness or material particular would not ruin it from the beginning to
end. The maxim fal s u s in u n o fal s u s in omnibus has no application in
India and the witnesses cannot be branded as liars. The
maxim f a l s u s i n u n o f a l s u s i n o m n i b u s has not received
general acceptance nor has this maxim come to occupy the status of
a rule of law. It is merely a rule of caution. All that it amounts to, is
that in such cases testimony may be disregarded, and not that it must
be disregarded. The doctrine merely involves the question of weight
of evidence which a court may apply in a given set of circumstances,
but it is not what may be called “a mandatory rule of evidence”.
(See N i s a r A l i v. S t a t e o f U. P. [ A I R 1 9 5 7 S C 3 6 6 : 1 9 5 7
C r i L J 5 5 0 ] ) Merely because some of the accused persons have
been acquitted, though evidence against all of them, so far as direct
testimony went, was the same does not lead as a necessary corollary
that those who have been convicted must also be acquitted. It is
always open to a court to differentiate accused who had been
acquitted from those who were convicted. (See G u r c h a r a n
S i n g h v. S t a t e o f P u n j a b [ A I R 1 9 5 6 S C 4 6 0 : 1 9 5 6 C r i
L J 8 2 7 ] .) The doctrine is a dangerous one, specially in India for if a
whole body of the testimony were to be rejected, because a witness
was evidently speaking an untruth in some aspect, it is to be feared
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that administration of criminal justice would come to a dead stop.
Witnesses just cannot help in giving embroidery to a story, however
true in the main. Therefore, it has to be appraised in each case as to
what extent the evidence is worthy of acceptance, and merely
because in some respects the court considers the same to be
insufficient for placing reliance on the testimony of a witness, it does
not necessarily follow as a matter of law that it must be disregarded
in all respects as well. The evidence has to be sifted with care. The
aforesaid dictum is not a sound rule for the reason that one hardly
comes across a witness whose evidence does not contain a grain of
untruth or at any rate exaggeration, embroideries or embellishment.
(See S o h r a b v. S t a t e o f M . P. [( 1 9 7 2 ) 3 S C C 7 5 1 : 1 9 7 2
S C C ( C r i) 8 1 9 ] and Ug a r A h i r v. S t a t e o f B i h a r [ A I R
1 9 6 5 S C 2 7 7 : ( 1 9 6 5 ) 1 C r i L J 2 5 6 ] .) An attempt has to be
made to, as noted above, in terms of the felicitous metaphor, separate
the grain from the chaff, truth from falsehood. Where it is not
feasible to separate truth from falsehood, because the grain and the
chaff are inextricably mixed up, and in the process of separation an
absolutely new case has to be reconstructed by divorcing essential
details presented by the prosecution completely from the context and
the background against which they are made, the only available
course to be made is to discard the evidence in toto. (See Z w i n g l e e
A r i e l v. S t a t e o f M . P. [ A I R 1 9 5 4 S C 1 5 : 1 9 5 4 C r i L J
2 3 0 ] and B a l a k a S i n g h v. S t a t e o f P u n j a b [( 1 9 7 5 ) 4 S C C
5 1 1 : 1 9 7 5 S C C ( C r i) 6 0 1 : A I R 1 9 7 5 S C 1 9 6 2 ] .) As
observed by this Court in S t a t e o f R a j a s t h a n v. K a l k i [( 1 9 8 1 )
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Crl. A. (MD)No.84 of 2018
2 S C C 7 5 2 : 1 9 8 1 S C C ( C r i) 5 9 3 : A I R 1 9 8 1 S C 1 3 9 0 ]
normal discrepancies in evidence are those which are due to normal
errors of observation, normal errors of memory due to lapse of time,
due to mental disposition such as shock and horror at the time of
occurrence and those are always there, however honest and truthful a
witness may be. Material discrepancies are those which are not
normal, and not expected of a normal person. Courts have to label
the category into which a discrepancy may be categorized. While
normal discrepancies do not corrode the credibility of a party's case,
material discrepancies do so. These aspects were highlighted recently
in K r i s h n a M o c h i v. S t a t e o f B i h a r [( 2 0 0 2 ) 6 S C C 8 1 :
2002 SCC ( C r i) 1220 : JT (2 0 0 2) 4 SC 1 8 6]
and G a n g a d h a r B e h e r a v. S t a t e o f O r i s s a [( 2 0 0 2 ) 8 S C C
3 8 1 : 2 0 0 3 S C C ( C r i) 3 2 : ( 2 0 0 2 ) 7 S u p r e m e 2 7 6 ] .
Accusations have been clearly established against the accused-
appellants in the case at hand. The courts below have categorically
indicated the distinguishing features in evidence so far as the
acquitted and convicted accused are concerned.”
In the said decision the Hon'ble Apex Court has held that the Court has a duty
to see in each case as to what extent the evidence is worthy of acceptance, and
merely because in some respects the court considers the same to be insufficient
for placing reliance on the testimony of a witness, it does not necessarily follow
as a matter of law that it must be disregarded in all respects as well. In view of
the settled legal position we are of the view that the trial Court has overlooked
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a vital aspect that due to long gap of 3 months from the date of Chief
Examination 03.05.2010 till date of cross-examination 05.08.2010 error of
memory due to lapse of time would occur and that would result in
administration of criminal justice would go to dead spot. In the case on hand
when P.W.2, a friend of the deceased Vallarasu, came to the Court and deposed
that P.W.1 gave a complaint. After 3 months from the Chief Examination he has
been overpowered and resultantly he has turned hostile.
20.The second infirmity committed by the trial Court is that when P.W.
5 – auto driver has spoken clearly in the cross examination that all the accused
have hired out his auto rickshaw and reached the place of occurrence carrying
deadly weapons with a conspiracy to kill the deceased and after reaching the
place of occurrence of the accused went straight to the place of occurrence
and cut the deceased indiscriminately till he fell down. The said evidence should
not have been disbelieved. The Hon'ble Apex Court in Rizan case (supra) at
paragraph 12 has held that even if a major portion of evidence is found to be
deficient, in case residue is sufficient to prove guilt of an accused,
notwithstanding acquittal of a number of other co-accused persons his
conviction can be maintained. It is the duty of the court to separate the truth
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Crl. A. (MD)No.84 of 2018
from falsehood. Where the chaff can be separated from the grain, it would be
open to the court to convict an accused notwithstanding the fact that evidence
has been found to be deficient to prove guilt of other accused persons. This is
for the reason that falsity of a particular material witness or material particular
would not ruin it from the beginning to end. Based on the said ratio as
highlighted above. At the risk of repetition it may be mentioned that P.W.5 –
auto rickshaw driver has deposed before the trial Court that the accused were
known to him because they were regularly hiring his auto and his evidence that
they only travelled through his auto to reach the place of occurrence cannot be
brushed aside.
21. While coming to the power of the appellate Court against the
order of acquittal, the Hon'ble Apex Court in C h a n d r a p p a v . S t a t e o f
K a r n a t a k a [( 2 0 0 7 ) 4 S C C 4 1 5 ] has laid down the following principles:
“42. From the above decisions, in our considered view, the
following general principles regarding powers of the appellate court
while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the order of
acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no
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limitation, restriction or condition on exercise of such power and an
appellate court on the evidence before it may reach its own
conclusion, both on questions on fact and of law.
(3) Various expressions, such as, “substantial and compelling
reasons”, “good and sufficient grounds”, “very strong circumstance”,
“distorted conclusions”, “glaring mistakes”, etc. are not intended to
curtail extensive powers of an appellate court in an appeal against
acquittal. Such phraseologies are more in the nature of “flourishes of
language” to emphasise the reluctance of an appellate court to
interfere with acquittal than to curtail the power of the court to
review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in
the case of acquittal, there is double presumption in favour of the
accused. Firstly, presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having secured his
acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial Court.
(5) If two reasonable conclusions are possible on the basis
of the evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial Court.”
The above reading of the precedent of the Hon'ble Apex Court shows that the
Code of Criminal Procedure, 1973 put no limitation or restriction on the power
of the Appellate Court to reach its own conclusion based on evidence both on
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questions of fact or on law. One of the principles laid down by the Hon'ble
Apex Court in that decision is that if two reasonable conclusions are possible on
the basis of the evidence on record, the appellate court should not disturb the
finding of acquittal recorded by the trial Court. But in the present case there is
no question of two reasonable conclusions, for the simple reason that when P.W.
5 – auto driver has clearly spoken that only the accused A1 to A6 hired his auto
and came to the place of the deceased and further spoken clearly that they only
indiscriminately cut him till he collapsed, the trial Court which can very well
separate the truth from falsehood has completely disbelieved the evidence of
P.W.5, causing miscarriage of justice, therefore, disagreeing with the
unacceptable reasons and ill-findings given by the learned trial Court, we are of
the view that the impugned judgment passed by the trial Court holding that the
respondents 1 to 6/accused 1 to 6 are not guilty of the charges is not
sustainable in law because they are against the available evidences.
Question No. [ii] :
22. In view of the reasons assigned above, while reviewing the
evidence placed before the trial Court under Sections 378(1)(b) and 386 Cr.P.C.,
this Court of the considered view that the acquittal of A1 to A6 for the
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commission of offences under Sections 148 and 302 I.P.C. necessarily warrants
interference.
23.Therefore, this Criminal Appeal is allowed by setting aside the
judgment of acquittal dated 06.09.2010, made in S.C.No.73 of 2010 by the
learned Additional District and Sessions Judge, Fast Track Court No.1, Madurai
and convicting the accused Nos.1 to 6 for the commission of offences under
Sections 148 and 302 I.P.C. The 7th respondent police is directed to produce
respondents 1 to 6/Accused 1 to 6 before this Court on 12.02.2020 for
questioning them regarding the sentence to be imposed on them under Section
235(2) Cr.P.C..
24.We place our appreciation for the assistance rendered by
Mrs.S.Prabha, learned legal aid counsel appearing for the respondents 1 to
6/accused 1 to 6. The Legal Aid Services committee attached to this Bench is
directed to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) for the service
rendered by her as honorarium.
Call the matter on 12.02.2020.
[T.R. , J . ] [B. P. , J . ]
0 5. 0 2. 2 0 2 0
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Crl. A. (MD)No.84 of 2018
Index : Yes / No
Internet : Yes / No
sj
To
1.The Additional District and Sessions Judge,
Fast Track Court No.I,
Madurai.
2.The Judicial Magistrate No.I,
Madurai.
3.The Inspector of Police,
B1 Vilakuthoon Police Station,
Madurai.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl. A. (MD)No.84 of 2018
T.R A J A , J .
and B . P U G A L E N DHI , J .
sj C rl. A . (MD)N o. 8 4 o f 2 0 1 8 0 5.0 2.2 0 2 0 30/33 http://www.judis.nic.in Crl. A. (MD)No.84 of 2018 C rl. A . (MD)N o. 8 4 o f 2 0 1 8 T.R A J A , J .
and B . P U G A L E N DHI , J .
O R DE R (Order of the Court was made by T.RAJA, J.) As directed by this Court, the respondents 1 to 6 / accused 1 to 6 have appeared before this Court today. When they were questioned with regard to sentence, they pleaded innocence and prayed for leniency.
2.Considering the nature of the offences and the request made by the respondents 1 to 6 / accused 1 to 6, this Court imposes the sentence as follows:
The respondents 1 to 6 / accused 1 to 6 are sentenced to undergo,
(i) life imprisonment and to pay a fine of Rs.1,000/-(Rupees one thousand only) each and in default of payment of fine amount, to undergo simple imprisonment for a period of three months each for the offence under Section 302 I.P.C.; and
(ii) three years rigorous imprisonment for the offence under Section 148 I.P.C.
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3.Registry is directed to commit them to prison to undergo the sentence imposed on the respondents 1 to 6/accused 1 to 6.
[T.R. , J . ] [B. P. , J . ]
1 2. 0 2. 2 0 2 0
sj
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and B . P U G A L E N DHI , J .
sj C rl. A . (MD)N o. 8 4 o f 2 0 1 8 1 2.0 2.2 0 2 0 33/33 http://www.judis.nic.in