Madras High Court
Panchavarnam vs State Rep. By Inspector Of Police on 23 August, 2016
Crl.A.(MD) No.276 of 2017
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 2 . 0 8 . 2 0 1 9
C O R AM:
T H E HO N O U R A B L E MR. J U S T I C E M. S AT H YA N A R AYA N A N
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. 2 7 6 o f 2 0 1 7
Panchavarnam ... Appellant/P.W.1
Vs.
1.State rep. by Inspector of Police,
Paralachi Police Station,
in Thiruchuli Circle Police Station,
Virudhunagar District.
(In Crime No.124 of 2011) ... 1st Respondent/Complainant
2.Anuraman
3.Senbagaraman
4.Pappammal ... Respondents 2 to 4/A1, A3 & A4
Prayer: Criminal Appeal filed under Section 372 of the Criminal Procedure Code,
against the judgment of acquittal in S.C.No.165 of 2012 on the file of the
Principal Sessions Court, Virudhunagar District at Srivilliputtur dated 23.08.2016.
For Petitioner : Mr.G.Marimuthu
For 1st Respondent : Mr.S.Chandrasekar
Additional Public Prosecutor
For 2nd Respondent : Mr.S.Bharathi
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For Respondents 3 & 4 : Mr.S.G.L.Rishwanth
J U DG ME N T
(Judgment of the Court was delivered by M. S AT H YA N A R AYA N A N , J . )
P.W.1, who is the son of the deceased, is the appellant. A1 to A4 were
prosecuted for the commission of offences under Sections 302, 302 r/w 34, 307
and 307 r/w 34 I.P.C. The Court of Principal District and Sessions Judge,
Virudhunagar District at Srivilliputtur vide impugned judgment dated 23.08.2016
after full-fledged trial had acquitted A1, A3 and A4 and during the pendency of
the Trial A2 died and therefore, the charge against him got abated. Challenging
the said judgment of acquittal, he came forward to file this Criminal Appeal.
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. P.W.1 is the son of the deceased viz., Ambigapathi. The deceased
was owning 2 ½ acres of land and the said was sold by A2 in favour of some
other person. Therefore, at 9.45 hours on 26.12.2011, P.Ws.1 and 2 were resting
on the pial of their house and at this juncture, father of P.W.1 viz., Ambigapathi
started castigating Accused No.2 and enraged by the same, A1, who is the son
of A2 and A2 son of A3 and A4 wife of A3 came together for the purpose of
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taking away the life of Ambigapathi and with that common intention A1
attacked Ambigapathi with M.O.1 – Aruval on the left side head, A2 cut him on
the left chest and when P.W.1 went there to protect his father, A2 attacked him
with M.O.2 on the right hand wrist, right hand index finger and right hand little
finger and A3 also attacked P.W.1 below the right hand shoulder and A4
attacked him on the left forearm with tube light holder. Ambigapathi, father of
P.W.1 on account of the said attack died on the spot.
2.2. P.W.1, son of the deceased proceeded to Paralachi Police Station
and lodged a complaint under Ex.P.1 and based on which, P.W.19, Sub-Inspector
of Police registered a case in Crime No.124 of 2011 at about 23 hours on
26.12.2011 for the commission of offences under Sections 307 and 302 I.P.C. The
printed F.I.R. was marked as Ex.P22. Thereafter, P.W.19 despatched the original
F.I.R. to the jurisdictional Magistrate and also despatched the copies to the
higher officials and also sent P.W.1, who was found injured, through medical
memo to Government Hospital, Aruppukottai.
2.3. P.W.20 was Inspector of Police of Thiruchuli Circle and on
27.12.2011 at about 12.05 a.m. reached the scene of occurrence and
commenced the investigation. He availed the services of the photographer viz.,
P.W.10 and took the photographs. The photographs were marked as M.O.3
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series. P.W.20 in the presence of P.W.8 and another prepared Observation
Mahazar and Rough Sketch marked as Exs.23 and 24 respectively and in the
presence of the same witnesses recovered bloodstained earth and sample earth
marked as M.Os.7 and 8 under the cover of Mahazar Ex.P.25.
2.4. P.W.20 on 27.12.2011 at about 9.00 hours, conducted inquest in
the presence of witnesses and panchayatdars on the body of the deceased and
prepared inquest report under Ex.P.26. P.W.20 for the purpose of conducting
postmortem on the body of the deceased, through P.W.13, sent the body to
Government Hospital, Aruppukkottai along with requisition.
2.5.P.W.16 was the Senior Civil Surgeon of Government Hospital,
Aruppukkottai and he received the body of Ambigapathi along with requisition
at about 11.45 a.m. on 27.12.2011 and noted the following features:
“Identification and caste marks:
1) A black mole left chest.
2) A black mole left groin.
3) An old scar left knee.
The body was first seen by the undersigned at 12.45 P.M. on
27.12.11. Its condition then was Rigor mortis present all four limbs.”
P.W.16 commenced the postmortem at about 12.45 p.m. and noted the
following external injuries and on dissection found the following:
“Post-mortem commenced at 12.45 P.M. on 27.12.11. Appearances
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found at the post-mortem moderately built and nourished male body
lies on its back. Arms on the side. Legs extended. Tongue within oral
cavity. Eyes closed.
8 8
8 8
External Injuries:
1) An oblique cut injury 5 x 3 x 2 cm left parietal head. 2.
An oblique cut injury 12 cm x 5 cm x 7 cm left chest from U/3rd lateral
border of sternum to left chest 10 cm below the left clavicle.
Internal Examination : While exploring wound 2 – sternum fractured
at the U/3rd lateral border. Inter costal muscles cut opened. A
lacerated injury 7 x 3 x 2 cm left upper (NC) of lungs. One litre of
blood in the thoracic cavity.
C/S Pale Injury 1 limited upto scalp. No skull bone injury.
Abdomen : Stomach empty intestines bloated with gas.
Liver : 1500 gms C/S pale. Spleen 200 gms C/S Pale.
Kidneys : 100 gms C/S pale. No pelvic fracture.
Heart : 300 gms C/S pale. Skull No fracture membrane intact.
Brain : 1400 gms C/s pale. Spinal column intact. Hyoid bone intact.”
P.W.16 has reserved his opinion pending disposal of the viscera report and after
receipt of the report gave the final opinion that the deceased would appear to
have died of vital organ injury 12 – 24 hours prior to autopsy. The postmortem
certificate is marked as Ex.P.17.
2.6.P.W.20 continued the investigation and examined P.Ws.1 to 9 and
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one Kaalaisamy and recorded their statement under Section 161(3) Cr.P.C. After
postmortem was over, the clothes worn by the deceased viz., M.Os.3 to 7 were
despatched to the jurisdictional Magistrate under From 95. P.W.20 examined
Muniammal and Mahaganapathy and recorded their statements. He sent the
internal organs and the material objects for chemical examination through the
Court of jurisdictional Magistrate.
2.7. P.W.20 came to know that A1 and A2 surrendered before the
Court of Judicial Magistrate No.6 and took necessary steps and obtained their
police custody on 23.01.2019 and at about 17.30 hours in the presence of P.Ws.
11 and 12, A1 and A2 voluntarily gave confessions and the admissible portion
of the confession statements are marked as Exs.P.27 and P.28 and pursuant to
the same M.Os.1 and 2 – Aruvals used by A1 and A2 and some incriminating
materials were recovered. P.W.20 sent A1 and A2 to Court for remanding them
to judicial custody and also sent the material objects for chemical analysis
through the Court.
2.8. P.W.20 recorded the statements of P.W.16 as well as Dr.Sampath,
who initially gave treatment to P.W.1 at Government Hospital, Aruppukkottai
and he also examined P.Ws.13 to 15, 17 and 19 and recorded their statements.
P.W.20 re-examined P.W.1 and recorded his statement and after completing the
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investigation, he filed the final opinion on 13.07.2012 on the file of the Court of
Judicial Magistrate, Aruppukkottai, charging A1 and A2 for the commission of
offence under Sections 302 I.P.C. and A3 and A4 for the commission of offence
under Section 302 r/w 34 I.P.C. and A2 and A4 for the commission of offence
under Section 307 I.P.C. and against A1 and A3 for the commission of offence
under Section 307 r/w 34 I.P.C. and the learned Judicial Magistrate took it on file
in P.R.C.No.34/2012.
2.9. The Committal Court issued summons to the accused and on their
appearance, they were furnished with 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. Thanjavur, who took it
on file in S.C.No.165 of 2012. The accused were issued with summons and on
their appearance, charges were framed against A1 and A2 for the commission
of offence under Section 302 I.P.C. and against A3 and A4 for the commission of
offence under Section 302 r/w 34 I.P.C. and against A2 to A4 for the commission
of offence under Section 307 I.P.C. and against A1 for the commission of
offence under Section 307 r/w 34 IPC.
2.10.The prosecution, in order to sustain its case, examined PWs.1 to
20, marked Exs.P1 to P31 and also marked M.Os.1 to 10. The accused were
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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 accused
examined D.Ws.1 to 3 and also marked Exs.D1 to D13.
2.11. The Trial Court, on a consideration of oral and documentary
evidence and other materials, had found the respondents 2 to 4/accused Nos.1,
3 and 4 not guilty of the offences and acquitted them as stated above, vide
impugned judgment dated 23.08.2016 and and since A2 died during the
pendency of the Trial, the charge against him got abated and challenging the
legality of the same, the son of the deceased filed the present Criminal Appeal.
3.Mr.G.Marimuthu, learned counsel appearing for the appellant/son of
the deceased has drawn the attention of this Court to the impugned judgment
of acquittal and made the following submissions:
(I) P.Ws.1 to 5 were cited as eyewitness and though P.Ws.4 and 5 did
not support the prosecution and has been treated as hostile, P.Ws.1 to 3 fully
supported the case of the prosecution and more particularly P.W.1, son of the
deceased, is also an injured witnesses and therefore, his testimony carries much
weight and his deposition has been amply corroborated through P.Ws.2 and 3.
(ii) Original of complaint – Ex.P.1 as well as F.I.R. - Ex.P.22 reached the
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jurisdictional Magistrate Court without any loss of time.
(iii) The trial Court committed a grave error in arriving at a finding
that the testimonies of P.Ws.1 to 3 - eyewitnesses were interested testimonies
and therefore, it should have been corroborated by P.Ws.4 and 5. Since P.Ws.4
and 5 have turned hostile, eschewing their evidence, the trial Court ought to
have properly appreciated the evidence of P.Ws.1 to 3. It is settled position of
law that it is because interested, the testimony cannot be thrown and
corroboration should be exercised while appreciating the testimony.
(iv) The trial Court has considered the trivial discrepancies viz., place
of occurrence, availability of light and the witnesses to the recovery turned
hostile as a major one and awarded the benefit of doubt to the accused
overlooking the settled legal position of law and the fact that the investigation
officer has cogently spoken about the arrest and recovery and that apart the
eyewitnesses are very categorical that the occurrence took place in front of the
house of the deceased himself. Eyewitnesses and accused are known to each
other and as such appreciation of the material witnesses done by the trial Court
is p e r s e perverse.
(v) The trial of the case was conducted nearly after four years from
the date of occurrence and there bounds to be some discrepancies and since
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the said discrepancies are very minor in nature and the eyewitnesses
corroborated with each other and supported by scientific evidences and other
witnesses, the trial Court erred in acquitting the accused and therefore, prayed
for setting aside the order of acquittal and impose upon them the maximum
sentence.
4.Mr.S.Chandrasekar, learned Additional Public Prosecutor appearing
for the first respondent/State would submit that the State did not prefer any
appeal against the impugned judgment of acquittal passed by the trial Court
and he would further add that the testimonies of P.Ws.1 to 3 should be given
much importance, especially, the testimony of P.W.1. Though it is alleged that
there were lapses in the investigation for the reason though P.W.1 was available,
as per testimony of P.W.2 and P.W.3 when the police came to the spot, he was
not examined and that apart eyewitnesses were not examined during the
inquest and since these are minor and trivial discrepancies, the trial Court ought
not to have acquitted the accused and prays for appropriate orders.
5.Mr.S.Bharathi, learned counsel appearing for the 2nd respondent/A1
and Mr.S.G.OL.Rishwanth, learned counsel appearing for the respondents 3 &
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4/A3 and A4 in extenso drawn the attention of this Court to the testimonies of
witnesses and would submit that it is the version of the prosecution that
immediately after the occurrence took place P.W.1 proceeded to the police
station and lodged a complaint and from the police station itself he was sent to
Government Hospital, Aruppukkottai for treatment as he had sustained injuries,
whereas his wife P.W.2 as well as P.W.3 spoken about the presence of P.W.1 when
the police came to the spot and it was admitted by P.W.20 that though
eyewitnesses were present during the inquest, they were not examined and that
apart the inquest report was despatched to the Court on the next day and the
statements of the material witnesses recorded under Section 161(3) Cr.P.C. has
belatedly reached the Court only on 18.05.2012 and despite a specific question
to P.W.20, he failed to offer any tenable explanation.
6.It is the further submission of the learned counsel appearing for the
respondents 2 to 4/A1, A3 and A4 that the occurrence did not take place in
front of the house of the deceased but in front of the house of one Irakimittal
and the investigation officer has deposed that he did not note the house of
Irakimittal in the Rough Sketch and in view of the same a doubt was created as
to whether the occurrence took place in front of the house of the deceased and
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the said discrepancy creates a doubt as to whether P.W.1 had witnessed the
occurrence at all. It is also their submission that admittedly P.Ws.1 to 3 are very
closely related to the deceased and though the prosecution has cited two other
witnesses viz., P.Ws.4 and 5 as eyewitnesses, they did not support the case of the
prosecution and since the evidence of P.Ws.1 to 3 is the interested testimony, it
has to seek certain corroboration, however, such corroboration was utterly
lacking. It is further pointed out by the learned counsel appearing for the
respondents 2 to 4 that the witnesses to the Mahazar and recovery also turned
hostile and the trial Court on thorough consideration and appreciation of oral
and documentary evidence has rightly reached the conclusion that the
prosecution has failed to prove its case beyond any reasonable doubt and
hence, pray for dismissal of the appeal.
7.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.
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8.The question arises for consideration in this Criminal Appeal is
whether the reasons assigned in the impugned judgment passed by the trial
Court for acquitting the respondents 2 to 4/accused 1, 3 and 4 are sustainable?
Question No. [i] :
9.P.W.1 is the son of the deceased viz., Ambigapathi and immediately
after the occurrence, he proceeded to Paralachi Police Station and lodged the
complaint under Ex.P.1 and in the chief examination as P.W.1, he deposed in
consonance with Ex.P.1. P.W.1 spoken about the sale of their property by the
accused and therefore his father/deceased started castigating them and
infuriated by the same all the accused came to spot and A1 and A2 armed with
lethal weapons attacked him and so also A3 and A4 and they shared the
common intention and due to the cumulative effect of the attack infringed, he
died on the spot. P.W.1 would state that his father viz., Ambigapathi
castigated/abused the accused and aggrieved over the same, the accused
attacked the deceased. P.W.1 denied the suggestion that as against him and his
father there are very many criminal cases numbering 10 registered by Paralachi
Police Station and they were also facing criminal prosecution for sale of illegal
liquor and denied the suggestion that his father was doing real estate business
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and cheated very many persons and earned very many enemies. P.W.1 would
admit during the course of cross-examination that he was taking rest in front of
the house of one Perumal and at that only the occurrence took place. P.W.1
would concede that when the investigation officer P.W.10 came to the spot he
was present in the spot and further he would admit that when he went to
Paralachi Police Station to lodge the complaint he was issued with medical
memo and on receipt of medical memo he did not go to the hospital.
Therefore, the presence of P.W.1 at the scene of occurrence, when P.W.20 came
to the spot has been substantiated.
10.P.W.2 is the wife of P.W.1 and in the cross-examination she would
state that the police came to the spot at 12.00 midnight on 26.12.2011 and she
was examined and her statement was also recorded and her husband came to
the spot at 12.30 p.m. from the police station and at that time police were
present and from there he proceeded to the hospital. P.W.2 denied the
suggestion that the occurrence took place in front of Irakkimittal house but
only in front of the house of her father-in-law and in latter portion would state
that body of her father-in-law was found in front of the Irrakkimittal and P.W.4
accompanied her husband when he went to the police station to lodge the
complaint.
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11.P.W.3 is wife of the deceased, mother of P.W.1 and mother-in-law
of P.W.2 and she was cross-examined only with regard to the motive. P.W.11 was
examined with regard to arrest of A1 and A2 and recovery and he was treated
as hostile witness.
12.P.W.13 is the Constable attached to the Paralachi Police Station and
he has spoken about the handing over the body of the deceased along with the
requisition letter for postmortem. In the cross-examination he would state that
at about 10.00 a.m. on 26.12.2011 the information with regard to the murder of
Ambigapathi was received by the police station and it was informed to the Sub-
Inspector of Police and he went to the hospital at 11.30 p.m. along with the
body and along with him the injured person also come and he was present in
the hospital at 11.30 p.m. on 26.12.2011 till 12.00 p.m. on 26.12.2011.
13.P.W.15 was the Assistant Professor and Civil Surgeon of
Government Rajaji Hospital as well as Madurai Medical College Hospital and he
would state when he was on duty on 26.12.2011, P.W.1 was referred to by
Dr.Sampath of Aruppukottai Government Hospital, where he was given first aid
and he issued the wound certificate marked as Ex.P.16. It is the submission of
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the learned counsel appearing for respondents 2 to 4/A1, A3 and A4 that P.W.15
has spoken about the treatment given by Dr.Sampath at Aruppukottai
Government Hospital and though he was examined during the investigation he
was not cited as witness and no tenable or plausible or acceptable reason has
been assigned by P.W.20 as to his non-examination and that apart the accident
register pursuant to the treatment given by Dr.Sampath attached to
Government Hospital, Aruppukkottai was also not produced. P.W.20 was very
well aware of the fact that P.W.1 was initially given treatment at Government
Hospital, Aruppukkottai by Dr.Sampath who was examined during investigation,
however, he did not take any step to seize the accident register.
14.P.W.16 is the doctor, who conducted autopsy, has issued the
postmortem certificate marked as Ex.P.17 and opined that the deceased died on
account of injury to the vital organs and in the cross-examination it was
suggested that the injury No.2 might have been caused on account of falling
upon flour grinding stone and he has also answered positively to the said
suggestion. The postmortem report as well as other scientific evidences would
disclose that the deceased died on account of homicidal violence.
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15. P.W.20 – the investigation officer in the cross-examination would
state that he reached the scene of occurrence at about 05.00 hours on
27.12.2011 and he was informed of the said occurrence by the Constable who
registered the F.I.R. viz., P.W.19, through telephonic information. A specific
question was put to P.W.20 that when he came to the scene of occurrence
whether he noted the presence of P.W.1, he denied it. However, it is to be
pointed out at this juncture that it is the categorical testimony of P.W.1 that he
was present in the scene of occurrence when the police came there and that is
also corroborated by the testimony of P.Ws.2 and 3. P.W.20 would further state
that when eyewitnesses were present during the course of examination, they
should be examined without any delay and conceded that when he came to the
scene of occurrence the eyewitnesses were present and therefore, the
statements recorded were despatched to the Court and inquest report marked
as Ex.P.26 were despatched to the Court on the next day i.e., on 27.12.2011. P.W.
20 would further concede that at the time of cross-examination, he did not
examine the eyewitnesses at the time of inquest and as per the contends of the
inquest report except the Panchayatars he did not examine any eyewitness and
would further state that in column No.3 of the inquest report he noted that P.W.
1 had seen the attack inflicted on the deceased. It is further conceded by P.W.20
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that when eyewitnesses are examined during the inquest their separate
statements has to be recorded and once again conceded that he did not
examine P.Ws.1 to 3 – eyewitnesses during the inquest.
16.P.W.20 would submit that the statements of material witnesses viz.,
eyewitnesses P.Ws.1 to 3 have reached the Court only on 18.05.2012. A specific
suggestion was also put to P.W.20 that the statements of eyewitnesses were
falsely prepared, altered and the occurrence did not take place in the date of
time projected by the prosecution. P.W.20 would concede that the house of
Irakkimittal was not noted in the rough sketch and the house Irakkimittal
located opposite to the house of Perumal and P.W.1 during the course of
investigation did not state that all the accused surrounded and attacked his
father.
17.The learned counsel appearing for the appellant/P.W.1 has also
placed reliance upon the judgments reported in A . I . R . 2 0 1 3 S C 3 7 2 6
[Subodh N at h v. S t ate of Tr i p u r a ] , (2 0 1 6) 2 MLJ 409
[ M u t h u k u m a r v . S t a t e] , A I R 2 0 1 2 S C 3 5 3 9 [ S h y a m a l G h o s h v .
S t a t e o f W e s t B e n g a l] a n d 2 0 1 0 C r l . L . J . 3 8 8 9 [ S t a t e o f U. P. v .
K r i s h n a M a s t e r] in support of the proposition that trivial discrepancies due
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to belated commencement of the trial would not affect the core of the
prosecution and that every omission cannot take the place of a contradiction in
law so as to doubt the case of the prosecution. There cannot be any difficulty in
accepting the said proposition but, it has to be seen as to whether in the case
on hand, the prosecution has proved its case beyond any reasonable doubt.
18.As already pointed out, P.W.1 immediately after the occurrence
went along with P.W.4 to the Paralachi Police Station and lodged the complaint
under Ex.P.1. It is the categorical submission of P.W.19, who registered the F.I.R.
that he was sent to Aruppukkotai Government Hospital along with medical
memo and P.W.1 in the course of cross-examination stated that he did not go to
the hospital with the medical memo but in fact came to the scene of
occurrence and saw the presence of the police. P.W.2, his wife also corroborated
the said version. P.W.13 the postmortem Constable would concede that when he
took the body for postmortem, he was accompanied by the injured person,
which in all probability is P.W.1. P.W.1 was taken to Government Hospital,
Aruppukkottai and he was initially treated by Dr.Sampath. P.W.20 would state
that he examined Dr.Sampath during investigation but he was not cited as a
witness and the accident register copy was also not marked as exhibit. P.W.20
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was extensively cross-examined as to the preparation of inquest report and he
would concede that when the eyewitnesses are present their submissions should
be recorded individually during the course of inquest, but he did not do so.
Though P.W.20 would state that P.W.1 did not present when he came to the
spot, in the light of the above testimonies this Court is of the considered view
that P.W.1 was present when the investigation officer – P.W.20 came to the spot.
P.W.20 did not take steps to examine the eyewitnesses on the same day but
examined them at a later point of time. It is also to be noted at this juncture
that though the statements of eyewitnesses were recorded after the occurrence
on 27.12.2011, it reached the jurisdictional Magistrate Court only on 18.05.2012.
A specific suggestion was put to P.W.20 – Investigation Officer that the
statements of the witnesses were prepared belatedly and that the occurrence
did not take place at the time and date as projected by the prosecution and it
was foisted against the accused.
19.It is relevant here to refer to the judgment of the Hon'ble Supreme
Court of India reported in 1 9 7 4 L . W. ( C r l .) 1 9 0 [K a r u n a k a r a n
J a b a m a n i N a d a r I n r e ].
“15. ... it is imperative that the following documents should
be despatched immediately, without any delay by the investigating
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officers to the Sub-Magistrate. The Station House Officer should
record the time of the actual despatch of the various documents in
the various registers, particularly, the statement recorded under S.
154 of the Code of Criminal Procedure. On receipt of the said
documents, the Magistrate should initial the same, noting therein the
time and date of the receipt of those documents. This would provide
the only judicial safeguard against subsequent fabrication of such
documents in grave crimes Therefore, as the Manual of Instructions
for the Guidance of Magistrates in the Madras State does not contain
any instructions to the Magistrates in this regard, we suggest that the
same may be brought up to date by incorporating in it the circulars
which had been issued from time to time for the guidance of the
Magistrates. The following are documents of special importance
which, in our opinion, should be despatched by the investigating
officers without any delay to the Magistrates, and they should bear
the initials of the Magistrate with reference to both the time and date
of their receipt.
1. The original report or complaint under S. 154 of the
Code of Criminal Procedure.
2. The printed form of the first information report prepared
on the basis of the said report or complaint.
3. Inquest reports and statements of witnesses recorded
during the inquest.
4. Memo, sent by the Station House Officers to doctors for
treating the injured victims who die in the hospital subsequently and
the history of the case-treatment.
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5. Memo, sent by the doctor to the police when a person
with injuries is brought to the hospital, or the death memo, sent by
the doctor to the police on the death of the person admitted into the
hospital with injuries.
6. Observation mahazars and mahazars for the recovery of
material objects, search lists and the statements given by the accused
admissible under Section 27 of the Evidence Act, etc. prepared in the
course of the investigation.
7. The statements of witnesses recorded under Section 161
(3) of the Code of Criminal Procedure.
8. Form No. 91 accompanied by material objects.”
20.P.W.2 though initially in the course of cross-examination would
state that the occurrence took place in front of her father-in-law's house,
however, latter the body was found in front of the house of Irakkimittal. P.W.20
would state that he did not note the house of Irakkimittal in the sketch. P.W.20
would further state that he did not examine the Electrical Inspector to found
whether there was electricity supply and the street light was burning or not.
21.The trial Court recorded the finding that the testimony of P.Ws.1 to
3 – eyewitnesses have not been corroborated by P.Ws.4 and 5 and they turned
hostile. However, it is to be noted at this juncture that the statements of
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Crl.A.(MD) No.276 of 2017
material witnesses, though the investigation is under obligation to despatch the
statements of the material witnesses P.Ws.1 to 5 immediately to the Court, but
the fact remains that they did not do so and it was despatched only on
18.05.2012, for which no tenable or acceptable or plausible explanation has
been offered and that apart despite series of specific questions were put to P.W.
20 as to the non-examination of eye-witnesses during the inquest, though P.W.
20 would state that he is very well aware of the procedure, he did not offer any
explanation as to the non-examination of eyewitnesses during the inquest.
22.It is well settled position of law that whatever be the gravity of the
offence, if the prosecution has failed to prove the case beyond any reasonable
doubt, the benefit of doubt shall enure in favour of the accused. It is a case of
appeal against acquittal and the Hon'ble Supreme Court enunciated the
following while dealing with appeal against acquittal:
(i) In ( 1 9 3 3 - 3 4 ) 6 1 I A 3 9 8 : ( 1 9 3 4 ) 3 6 B o m L R 1 1 8 5
[ S h e o S w a r u p v . K i n g-E m p e r o r], in paragraph 9 it is held as follows:
"9. .. .. the High Court should and will always give proper
weight and consideration to such matters as (1) the views of the trial
Judge as to the credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption certainly not
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Crl.A.(MD) No.276 of 2017
weakened by the fact that he has been acquitted at his trial; (3) the
right of the accused to the benefit of any doubt; and (4) the slowness
of an appellate Court in disturbing a finding of fact arrived at by a
Judge who had the advantage of seeing the witnesses."
(ii) In A I R 1 9 5 2 S C 5 2 : 1 9 5 2 C r i L J 3 3 1 [ S u r a j p a l S i n g h
v . S t a t e] it is held as follows:
"7.It is well-established that in an appeal under section 417
of the Criminal Procedure Code, the High Court has full power to
review the evidence upon which the order of acquittal was founded,
but it is equally well settled that the presumption of innocence of the
accused is further reinforced by his acquittal by the trial court, and
the findings of the trial court which had the advantage of seeing the
witnesses and hearing their evidence can be reversed only for very
substantial and compelling reasons."
(iii) In ( 2 0 1 4 ) 5 S C C 7 3 0 : ( 2 0 1 4 ) 2 S C C ( C r i) 6 9 0
[ M u r a l i d h a r v . S t a t e o f K a r n a t a k a ], the Hon'ble Supreme Court of
India has culled out the principles with regard to the power of this Court to
interfere with the order of acquittal and it is relevant to extract paragraph No.
12:
"12. .. .. (i) There is presumption of innocence in favour of
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an accused person and such presumption is strengthened by the
order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of the appeal against
acquittal;
(iii) Though, the powers of the appellate court in
considering the appeals against acquittal are as extensive as its powers
in appeals against convictions but the appellate court is generally
loath in disturbing the finding of fact recorded by the trial court. It is
so because the trial court had an advantage of seeing the demeanour
of the witnesses. If the trial court takes a reasonable view of the facts
of the case, interference by the appellate court with the judgment of
acquittal is not justified. Unless, the conclusions reached by the trial
court are palpably wrong or based on erroneous view of the law or if
such conclusions are allowed to stand, they are likely to result in
grave injustice, the reluctance on the part of the appellate court in
interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on re-appreciation
and re-evaluation of the evidence is inclined to take a different view,
interference with the judgment of acquittal is not justified if the view
taken by the trial court is a possible view. The evenly balanced views
of the evidence must not result in the interference by the appellate
court in the judgment of the trial court."
23.Though this Court on appreciation of evidence can reach a
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Crl.A.(MD) No.276 of 2017
different conclusion, unless it records the finding that appreciation of evidence
on the part of the trial Court is perverse, it cannot interfere with the order of
acquittal passed by the trial Court. It is also to be noted that the trial Court also
had the benefit of weighing the demeanour of witnesses during their
examination and this Court has the added benefit while appreciating the
reasons assigned by the trial Court. In the considered opinion of this Court, in
the light of the above facts and the reasons assigned by the impugned
judgment of acquittal passed by the trial Court, does not warrant interference.
24.In the result, this Criminal Appeal is dismissed confirming the
judgment dated 23.08.2016, made in S.C.No.165 of 2012 by the Principal District
and Sessions Judge, Viruthunagar District at Srivilliputtur.
[M. S . N. , J .] [ B. P. , J . ]
0 2.0 8.2 0 1 9
Index : Yes / No
Internet : Yes / No
sj
To
1.The Principal District and Sessions Judge,
Virudhunagar District,
@ Srivilliputtur.
2.The Judicial Magistrate,
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Crl.A.(MD) No.276 of 2017
Aruppukottai,
Virudhunagar District.
3.The Inspector of Police,
Paralachi Police Station,
in Thiruchuli Circle Police Station,
Virudhunagar District.
4.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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Crl.A.(MD) No.276 of 2017
M. S AT H YA N A R AYA N A N , J .
and B . P U G A L E N DHI , J .
sj C rl. A . (MD)N o. 2 7 6 o f 2 0 1 7 0 2.0 8.2 0 1 9 28 http://www.judis.nic.in