Madras High Court
C.Dhas vs Thavasimuthu : 1St on 14 June, 2018
Author: T.Krishnavalli
Bench: T.Krishnavalli
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 14.06.2018
Date of Reservation
11.06.2018
Date of Judgment
14.06.2018
CORAM
THE HONOURABLE MRS. JUSTICE T.KRISHNAVALLI
Crl.R.C(MD)Nos.1106 of 2008 and 1107 of 2008
1.Crl.R.C(MD)No.1106 of 2008:-
C.Dhas : Petitioner/Third
Party/PW1
Vs.
1.Thavasimuthu : 1st respondent/Appellant/
2nd Accused
2.Sub Inspector of Police,
Arumanai Police Station,
Arumanai,
Kanyakumari District. : 2nd Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Section 397 r/w 401 of
Criminal Procedure Code, against the judgment passed in C.A.No.246 of 2005,
dated 13.10.2008 on the file of the Sessions Court, Kanyakumari Division,
Nagercoil, reversing the judgment passed in C.C.No.11 of 2002, dated
26.09.2005 on the file of the Judicial Magistrate No.1, Kuzhithurai, by
acquitting the first respondent.
2.Crl.R.C(MD)No.1107 of 2008:-
C.Dhas : Petitioner/Third
Party/PW1
Vs.
1.Deva Raj : 1st
respondent/Appellant/
1st Accused
2.Sub Inspector of Police,
Arumanai Police Station,
Arumanai,
Kanyakumari District. : 2nd Respondent/Respondent/
Complainant
Prayer: Criminal Revision has been filed under Section 397 r/w 401 of
Criminal Procedure Code, against the judgment passed in C.A.No.240 of 2005,
dated 13.10.2008 on the file of the Sessions Court, Kanyakumari Division,
Nagercoil, reversing the judgment passed in C.C.No.11 of 2002, dated
26.09.2005 on the file of the Judicial Magistrate No.1, Kuzhithurai, by
acquitting the first respondent.
!For Revision Petitioner : Mr.A.Thiruvadi Kumar
(Both cases)
^For 1st Respondent : Mr.K.N.Thampi
(Both cases)
For 2nd Respondent : Ms.M.Anantha Devi
(Both cases) Government Advocate
(Criminal side)
:COMMON JUDGMENT
These Criminal Revisions are directed against the judgment passed in C.A.No.240 of 2005, dated 13.10.2008 on the file of the Sessions Court, Kanyakumari Division, Nagercoil, reversing the judgment passed in C.C.No.11 of 2002, dated 26.09.2005 by the Judicial Magistrate No.1, Kuzhithurai.
2.The case of the prosecution is that on 27.04.2001 at 14.30 hours, due to previous enmity, A1/Devaraj attacked the victim with Vettukathi on the parietal region of his head and A2/Thavasimuthu assaulted him with a stick and thereby caused injuries. The Sub Inspector of Police, attached to Arumanai Police Station, Kanniyakumari District, filed a final report under Sections 326, 323 r/w 34 IPC against the accused examining the witnesses.
3.In the trial court, 7 witnesses were examined, 11 Exhibits and 2 material objects were marked. When the accused were questioned about the incriminating circumstances, they denied the same. On the side of the accused, two witnesses were examined and two documents were marked. The trial court convicted A1 for the offences under Section 326 IPC and sentenced to undergo 2 years RI and to pay a fine of Rs.2,000/-, in default to undergo one month SI and A2 found guilty under Section 323 IPC and sentenced to undergo 2 months of RI and to pay a fine of Rs.1,000/-, in default to undergo one month SI. Aggrieved by the judgment passed by the trial court, A1 and A2 have filed appeals in C.A.Nos.240 and 246 of 2005, which were heard by the Sessions Judge, Kanyakumari District @ Nagercoil. The first appellate Court reversed the findings of the trial court. Hence, these criminal revisions.
4.The learned counsel for the revision petitioner/PW1 submitted that the first appellate court has taken the view that there were contradictions in the evidence of PW2 and only on that basis, he has reversed the well versed judgment of the trial court without considering the evidence of PW1 and it is not necessary to examine all the witnesses present at the time of occurrence and the first appellate court has disbelieved the evidence of PW1 on the ground that he has not disclosed the fact that two known persons have assaulted with Vettukatti and a stick to the Doctor at the earliest point of time and that PW1 has clearly stated that two known persons attacked him and it cannot be a ground to reject his testimony and that the first appellate court has not assigned any cogent or sufficient reason for disagreeing with the findings of the trial court, without analysing the evidence on record and it is based on surmises and conjectures and prays that the criminal revisions are to be allowed.
5.On the other hand, the learned counsel appearing for the 1st respondent submitted that the first appellate court appreciated the evidence in a proper manner and having regard to the nature of the offence, acquitted the accused and passed proper sentence, which does not require any interference by this court and prays that the criminal revisions may be dismissed.
6.Heard the learned Government Advocate (Criminal Side) appearing for the 2nd respondent.
7.PW1 is the injured and he gave Ex.P1 complaint. PW1 in his complaint and in his evidence stated that due to previous enmity, on 27.04.2001, while he was in his garden, which lies in front of his house, at that time A1 and A2 came with Vettukathi and stick respectively and A1 with Vettukathi caused injury on the left side of the scalp and A2 with stick caused injury on the left forearm and on the back side and the above occurrence witnessed by Devan and Gnana Dhas and then he gave the complaint.
8.PW1 further stated in his complaint stated that due to previous enmity, A1 and A2 attacked him. PW1 during his cross examination stated that there was property dispute between him and the accused in respect of boundaries. But to prove the property dispute, no civil suit was filed by PW1, which was admitted by PW1 during his cross examination. No explanation was given by PW1 as to why he has not filed civil suit in respect of the property dispute.
9.Further, PW1 during his cross examination stated as follows:-
?ehd; rk;gt ehs; bjd;idapd; K:l;oy; cs;s g[y;iy gpLq;fp bfhz;oUe;njd; ehd; kl;Lk; jhd; ntiy bra;J bfhz;oUe;njd; mjw;F Kd;dhYk;> jyrpKj;Jt[k; njtuh$Pk; vd;id ghh;g;gJ cz;L mg;nghJ vd;id mth;fs; mog;gjw;nfh kw;Wk; fhag;gLj;Jtjw;nfh tutpy;iy ,e;j tHf;fpw;F gpd;dhYk; ehd; mth;fis ghh;g;gJz;L mg;nghJ ve;j gpur;rida[k; ,y;iy.?
10.Further, PW1 has not stated that prior to the occurrence, there was a quarrel between him and the accused in respect of the property. PW1 in his complaint and in his evidence stated that the place of occurrence is in his garden, which lies in front of his house. The garden of PW1 lies in front of the house of PW1. But in front of the garden, the house of PW1 was not shown in the rough sketch and in front of the garden of PW1, Mithappan Code to Billavinai Road only runs.
11.Further, on perusal of the rough sketch, the property of A2 is not adjacent to the property of PW1 and there was an Odai runs between the property of PW1 and A2. No complaint was given against A1 and A2 stating that they removed the boundary stone in the property of PW1. Hence, the evidence of PW1 stating that due to property dispute, A1 and A2 attacked PW1 is not believable.
12.PW2 is cited as eye witness. PW2 during his evidence stated that while PW1 was doing some work in his garden, A1 and A2 came and attached with Vettukathi and stick respectively and A1 with Vettukathi caused injury on the scalp of PW1 and A2 with stick caused injury on the left forearm and on the back side of PW1. PW2 during his cross examination stated that when A1 and A2 attempted to attack PW1, he shouted and after hearing the voice of PW1, he saw A1 and A2. But the fact was not stated by PW1, either in his complaint or in his evidence. Further, PW2 during his cross examination stated PW1's wife caught PW1. But PW2 has not taken any steps to prevent the occurrence. It was admitted by PW2 during his cross examination. Further, PW2 during his cross examination stated that after the occurrence, he went to his house. An ordinary prudent man can help the injured when the injured sustained grievous injury. But PW2 has not done any help to PW1. But he said that after the occurrence, he went to his house. Hence, it creates doubt about the presence of PW2 in the occurrence place. PW2 stated during his evidence that PW1 is his friend. Hence, this court is of the considered view that PW2 is an interested witness. Therefore, his evidence cannot be believable
13.The Doctor, who gave treatment to PW1 was examined as PW5. PW5 stated during his evidence that PW1 told him that on 27.04.2001 at 2.30 pm, he was assaulted by known persons with Vettukathi and he found a cut injury on the left side head. The statement given to PW5 is the first statement. But PW1 failed to inform PW5 that he was assaulted with stick. PW5 admitted during his cross examination that PW1 has not stated him that he was assaulted with stick. PW5 has not found any injury on the left forearm and on the back side of PW1. Further, PW5 has not found any stick mark on the left forearm and on the back side of PW1.
14.The learned counsel for the revision petitioner argued that non- mentioning of stick to PW5 Doctor is not fatal to the prosecution and it is the settled principle of law that the information provided to the Doctor in the Accident Register copy has no great significance and in this case, in the Accident Register, it is stated that the assault of PW1 by two known persons by using Vettukathi would substantiate the involvement of A2 and the evidence of PW1 is corroborated with the evidence of PW5 and prays that the accused is not entitled to acquittal. For that, the learned counsel for the revision petitioner submitted the ruling reported in (2018)1 MLJ (Crl) 108 ( Hari Kumar Vs. State by Inspector of Police, H-3 Tondairpet Police Station, Chennai.). In the above case, it was stated in para 11,which would thus:-
?11.The next line of enquiry is, whether the accused in this case were involved in the attack. It is true that in the Accident Register Copy (Ex.P8), it is mentioned ?alleged assault by unknown persons with knife?. When this was put to Balaraman (PW1), he denied and said that he had not stated so at the time of admission. Balaraman's (PW1) ear got severed and he was bleeding profusely. He was taken to the Appollo Hospital by one Mutbuvel, who was not examined. The said information to the duty Doctor was not provided by Balaraman (PW1), because he has specifically denied that in the cross-examination. Such information recorded by the Doctor in the Accident Register (Ex.P8) has no great significance in the light of categorical pronouncement of the Supreme Court in the following cases:-
(1)Pattipati Venkaiah V. State of Andhra Pradesh AIR 1985 SC 1715 : (1985) 4 SCC 80:
?A doctor is not at all concerned as to who committed the offence or whether the person brought to him is a criminal or an ordinary person, his primary effort is to save the life of the person brought to him and inform the police in medico-legal cases. In this state of confusion, PWs1 and 2 may not have chosen to give details of the murder to the doctor. It is well settled that doctors before whom dead bodies are produced or injured persons are brought, either themselves take the dying declaration or hold the post- mortem immediately and if they start examining the informants they are likely to become witnesses of the occurrence which is not permissible.?
(2)P.Babu and Others V. State of Andhra Pradesh (1994)SCC (Crl)424:
?It is a matter of common knowledge that such entry in the injury certificate does not necessarily amount to a statement. At that stage the doctor was required to fill up that column in a normal manner and it was not the duty of the doctor to enquire from the injured patient about the actual assailants and that the inquiry would be confined as to how he received the injuries namely the weapons used etc.?
(3)B.Bhadriah and Others V. State of Andhra Pradesh (1995) SCC (Crl)
370.
15.In the above citation, the injured denied that he has not stated to the Doctor that he was assaulted by unknown persons with knife. But in the case, the above statement of PW1 was not denied by PW1. In the above citation, the injured denied the statement given to the Doctor, hence, it was held that the Accident Register copy to the above injured has no great significance. But in this case, the statement of PW1 to PW5 was not denied by PW1. Further, PW1 admitted that he has not stated to the Doctor that he was assaulted by A2 with stick. Hence, the non-mentioning of PW1 stating that the assault by A2 with stick creates doubt about the prosecution case.
16.Further, PW1 during his cross examination stated that due to assault by A1, he sustained cut injury and there was blood stain in the place of occurrence. But in this case, the blood stain cloth was not recovered. No confession was recorded from A1 and A2 and the weapon used the alleged occurrence was not recovered.
17.On careful perusal of the evidence of witnesses and records, it reveals that PW1's evidence is not corroborated with the evidence of PW5 Doctor. Hence, it has held that the non-recovery of weapons from A1 and A2 is fatal to the prosecution. In the rough sketch, the place of occurrence is shown on the boundary of the PW1's garden. But PW1 stated during his evidence that when he was doing work in his garden, the accused assaulted him.
18.Further, the learned counsel for the revision petitioner argued that A1 and A2 raised alibi and the plea of alibi was not proved and A1 only produced the work permit to substantiate the plea of alibi, which was found to be insufficient and A1 and A2 only assaulted PW1 and hence, on the ground of alibi, the accused are not entitled to acquittal.
19.In this case, A1 was not acquitted only on the basis of the plea of alibi, but on the other grounds, A1 and A2 were acquitted. Hence, it is held that it will not affect the prosecution case.
20.In (2002)9 SCC 393 (Thankappan Nadar and others vs. Gopala Krishnan and another), the Hon'ble Apex Court has held as follows:-
?6.In a revision application filed by the de facto complainant against the acquittal order, the Court's jurisdiction under section 397 read with section 401 crpc is limited. The law on the subject is well settled. Instead of referring to various judgments, we would only refer to a few decisions rendered by this Court. In Akalu Ahir v. Ramdeo Ram 1973 2 SCC 583 this Court has (in SCC pp. 587-88, para 8) observed thus:
?This Court, however, by way of illustration, indicating the following categories of cases which would justify the High Court in interfering with a finding of acquittal in revision:
(i) Where the trial court has no jurisdiction to try the case, but has still acquitted the accused;
(ii) Where the trial court has wrongly shut out evidence which the prosecution wished to produce;
(iii) Where the appellate court has wrongly held the evidence which was admitted by the trial court to be inadmissible;
(iv) Where the material evidence has been overlooked only (either) by the trial court or by the appellate court; and
(v) Where the acquittal is based on the compounding of the offence which is invalid under the law.
These categories were, however, merely illustrative and it was clarified that other cases of similar nature can also be properly held to be of exceptional nature where the High Court can justifiably interfere with the order of acquittal.?
The Court further observed: (SCC p. 588, para 10) ?10. No doubt, the appraisal of evidence by the trial Judge in the case in hand is not perfect or free from flaw and a court of appeal may well have felt justified in disagreeing with its conclusion, but from this it does not follow that on revision by a private complainant, the High Court is entitled to reappraise the evidence for itself as if it is acting as a court of appeal and then order a retrial. It is unfortunate that a serious offence inspired by rivalry and jealousy in the matter of election to the office of village mukhia, should go unpunished. But that can scarcely be a valid ground for ignoring or for not strictly following the law as enunciated by this Court.? (emphasis added)
7.In our view, the emphasised portion of the aforesaid judgment is applicable in the present case. It is unfortunate that such a serious offence inspired by rivalry in the matter of election should go unpunished. However, that would not be a valid ground for ignoring or for not strictly following the law as enunciated by this Court, which does not empower the Court exercising the revisional jurisdiction to reappreciate the evidence.
8.In Vimal Singh v. Khuman Singh 1998 7 SCC 223 this Court after considering various decisions, observed as under: (SCC pp. 226-27, para 9) ?9. Coming to the ambit of power of the High Court under section 401 of the code, the High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked. These are the instances where the High Court would be justified in interfering with the order of acquittal. sub-section (3) of section 401 mandates that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.?
21.On coming to the instant case on hand, there was no procedural illegality or manifest error of the order passed by the trial court. Hence, it is not necessary to interfere with the findings of the trial court.
22.For all the reasons stated above, this court is of the considered view that the judgment of the first appellate court do not suffer from any infirmity or illegality. In the result, these criminal revisions are dismissed.
To,
1.The Judicial Magistrate No.1, Kuzhithurai.
2.The Sessions Judge, Kanyakumari Division @ Nagercoil.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.