Madras High Court
Kuppammal vs State Rep. By on 5 April, 2017
1
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 : 1 9 . 0 7 . 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 9 1 o f 2 0 1 7
Kuppammal ... Appellant/P.W.4
Vs.
1.State rep. by
The Inspector of Police,
Madhukkur Police Station,
Thanjavur District.
(In Crime No.189 of 2005) ... 1st Respondent/Complainant
2.Apti @ Thiyagamani
3.Kundumani @ Balasubramani
4.Saminathan
5.Veerakumar
6.Periasamy ... Respondents 2 to 6/A1 to A5
Prayer: Criminal Appeal filed under Section 372 of the Criminal Procedure Code,
against the judgment of acquittal in S.C.No.111 of 2015 on the file of the
Principal District and Sessions Court, Pudukkottai dated 05.04.2017.
For Petitioner : Mr.M.Ramu
For 1st Respondent : Mr.S.Chandrasekar
Additional Public Prosecutor
For Respondents 2 to 4 & 6 : Mr.A.Thiruvadikumar
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For 5th Respondent : No appearance
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 . )
The wife of the deceased, viz., Kamatchi is the appellant and
challenging the judgment of acquittal dated 05.04.2017 made in S.C.No.111 of
2015 on the file of the Court of Principal District and Sessions Judge,
Pudukkottai 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. The deceased is the elder brother of P.W.1 viz., Veeraian.
2.2. The wife of the absconding accused viz., Govindamani was
suffering due to some illness and for the purpose of curing it, he approached
P.W.1, who promised to cure the same by giving talies on receiving a sum of
Rs.300/-. The absconding accused Govindamani having found that it did not
yield any result and that his wife continued to live with the same illness,
demanded the amount of Rs.300/- paid to P.W.1. However, P.W.1 sought some
time to part with the same. Aggrieved by the same, the absconding accused
forcibly took the bike of P.W.1 bearing registration No.TN-49-3233 and handed
over the same to one Ayyappan with an instruction that until P.W.1 gives the
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said sum of Rs.300/-, the vehicle should not be returned. In this regard P.W.1
also lodged a complaint on the file of Madhukkur Police Station and therefore,
they developed an enmity.
2.3.On 27.07.2005 at about 2.30 p.m., P.W.1 along with his elder
brother Kamatchi and P.W.2 were proceeding in the two wheeler – M.O.6 to
Periakottai in Perugavazthan main road and when they were nearing Avvaiyandi
Road Paraiyan burial ground Bridge, the first accused viz., Apti @ Thiyagamani
came in a Ambassador Car bearing registration No.TN 49 0049 from Avvaiyandi
Road and hit the motor cycle and thereafter halted it. The first accused
instigated the rest of the accused to get down from the car with lethal weapons
and wooden logs and they formed into an unlawful assembly and on seeing
them P.Ws.1 and 2 and the deceased Kamatchi started running and Kamatchi
could not keep pace with P.Ws.1 and 2. The accused in the present sessions case
along with the absconding accused chased them and got the deceased in the
field of one Senthil and attacked him with lethal weapons and wooden logs and
he sustained grievous injuries. The occurrence was also witnessed by the
persons, who were in the neighbouring lands and also the other eyewitnesses
viz., P.Ws.3, 5 to 7 and 12 and from the field of Senthil, the injured was taken to
the main road and the service of a TATA Ace was used to take the injured
initially to the Government Hospital, Pattukottai, where he was seen by P.W.9,
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and after examination P.W.9 issued Ex.P.4 Accident Register and thereafter, on
advise he was taken to Thanjavur Government Medical College Hospital and he
survives for 3 days and without responding to treatment he died on 30.07.2005.
2.4.When the injured was taken to the Government Hospital,
Pattukottai, P.W.1 proceeded to Madhukkur Police Station and lodged a
complaint and based on which, P.W.11, Sub-Inspector of Police registered a case
in Crime No.189 of 2005 for the commission of offences under Sections 147,
148, 341, 324 and 307 I.P.C. The printed F.I.R. was marked as Ex.P6.
2.5.Thereafter, P.W.11 despatched the original F.I.R. and the original
documents to the jurisdictional Magistrate and for the purpose of investigation
forwarded the papers to P.W.14. P.W.14, who was the Inspector of Police
attached to Madhukkur Police Station and on receipt of the F.I.R. commenced
investigation on 27.07.2005 at 16.30 hours and proceeded to the scene of
occurrence and in the presence of Chandran and Maheswaran prepared the
Observation Mahazar Ex.P.8 and Rough Sketch – Ex.P.9 and in the presence of
the same witnesses had recovered blood stained earth M.O.7 and sample earth
M.O.8 under the cover of mahazar Ex.P.10. The motor cycle recovered was
marked as M.O.6. Thereafter, P.W.14 examined P.Ws.1 to 3, 6, 7, Chandran and
Maheswaran and recorded their statements under Section 161(3) Cr.P.C. P.W.14
went in search of the accused and on 29.07.2005 at 8.00 a.m. effected arrest of
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Govindamani and Kriti @ Balakrishnan and accused Govindamani voluntarily
came forward to give a confession statement and as per the admissible portion
of the confession statement he recovered M.Os.1 to 5 under the cover of
Mahazar Ex.P.12. P.W.14 on receipt of the information from the Thanjavur
Medical College Hospital that at about 12.10 a.m. on 30.07.2005 the injured
Kamatchi died without responding to the treatment, altered the F.I.R. for the
commission of offences under Sections 147, 148, 341, 324 and 302 I.P.C. and the
alteration report was marked as Ex.P.13. The deceased's body was kept in the
mortuary and at about 9.00 a.m. on 30.07.2005, he conducted inquest on the
body of the deceased in the presence of witnesses and panchayatdars viz.,
Rajkumar, Shanmugam, Jeyabalan, Poyyamozhi and P.W.2 and the Inquest Report
was marked as Ex.P.14. P.W.14, thereafter made a request for conducting
postmortem on the body of the deceased and sent a requisition letter through
P.W.10 Head Constable to Government Medical College Hospital, Thanjavur.
2.6.Dr.Vijalakshmi was the Police Surgeon and Professor of Forensic
Medicine, Medical College Hospital, Thanjavur and based on the request
received from P.W.14/Investigation Officer at 11.45 p.m. on 30.07.2005, seen the
body of the deceased at 12.00 noon on 30.07.2005 and noted the following
features before commencing the postmortem:
“(1) An old wound scar over the middle of front of left Thigh.
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(2) A black mole over the middle of medial aspect of right upper arm.
(3) Tatoo MARKS: 1.Figure of Lion over both infra clavicular areas.
2.Figures of OM MURUGA over the front of right forearm.
The body was first seen by the undersigned at 12.00 Noon on
30.07.05. Its condition then was Rigor mortis present all over the
body. Postmortem commenced at 12.00 Noon on 30.07.05.
Appearances found at the postmortem: Moderately nourished body of
a male.”
The following external injuries as well as other features were noted:
1. Plaster of paris cost dressing noted over the whole of left
upper limb and right lower limb.
2. A curved oblique sutured cut lacerated wound with intact silk
sutures noted over the left side parietal eminence areas
measuring 8cmx2cmxbone deep with surrounding abraded
contusion and the cut lacerated Brain matter was found coming
through this wound.
3. A vertical sutured cut wound with intact silk sutures noted over
the middle of right side occipital region measuring
6cmx1cmxbone deep.
4. Multiple oblique cut wounds noted over the palmar aspects of
bases of right thumb, Index finger and middle fingers each
measuring 3cmx2cmxbone deep with cut fractures of the
underlying phalanges which were found exposed outside.
5. An oblique sutured cut wound with intact silk sutures noted
over the upper third of front and medical aspect of Right leg
measuring 10cmx2cmxbone deep with wide cut fracture of the
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underlying Tibia Bone.
6. A Transverse cut wound found sutured and with intact silk
sutures noted over the middle of front of right leg measuring
10cmx2cmxbone deep with cut fracture of the underlying Tibia
bone.
7. An wide gaping Transversely placed sutured cut wound with
intact silk sutures noted over the back of left wrist measuring
14cmx3cmxwrist joint cacity deep with Traumatic amputation of
left Hand from the wrist level exposing the cut fractured
portions of all the carpal bones and lower ends of Radius and
Ulna Bones.
8. An wide gaping cut wound over the whole of base of left
Thumb on the palmar aspect measuring 7cmx3cmxbone deep
found sutured with silk sutures with Traumatic amputation of
left thumb.
9. An oblique sutured cut wound with intact silk sutures over the
upper part of front and medial aspect of left upper arm
measuring 7cmx1cmxbone deep with cut fracture of the
underlying humerus bone.
10. 10 A cut wound over the left scapular area measuring
2cmx2cmxbone deep.
11. Diffuse contusion over the left scapular area over an area of
4x4cm.”
The doctor after concluding the postmortem opined that the deceased would
appear to have died due to multiple cut wounds involving the vital organ
namely the brain. The postmortem certificate is marked as Ex.P.7.
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2.7.P.W.14 continued with the investigation and on 31.07.2005 at
about 6.00 a.m. near Keezhakurichi Bus Stop, arrested A2 to A5 and sent them
for judicial custody. On 02.08.2005 at about 16.00 hours, he seized the car in the
presence of one Amanullah and Ramachandran and sent it to the Court under
Form 95. The vehicle was handed over to A1 subject to certain conditions. It
also appears that petitions were filed for transfer of investigation and trial and
therefore, the trial was transferred from Sessions Court, Thanjavur to Sessions
Court, Pudukkottai. As directed by this Court, P.W.14 re-examined the witnesses
P.Ws.1 and 2 and on 09.01.2006, he examined Subramanian, Driver Rakesh,
P.W.9-Dr.Chellappan, Dr.Vijayalakshmi, the doctor, who conducted autopsy and
P.Ws.10 and 11 and after obtaining opinion from the Public Prosecutor he had
filed the Charge Sheet on 31.03.2006 on the file of the Court of Judicial
Magistrate, Pattukottai charging the appellant/accused for the aforesaid
offences, who took it on file in P.R.C.No.8/2006.
2.8. The Committal Court issued summons to the accused and three
of them had absconded and on the appearance of the accused herein, 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.
107 of 2017, which was later transferred to the Court of Principal District Judge,
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Pudukkottai, who took it on file in S.C.No.111 of 2015. The respondents 2 to
6/accused Nos.1 to 5 were issued with summons and on their appearance,
charges under Sections 148, 341, 302 r/w 149 IPC have been framed.
2.9.The prosecution, in order to sustain its case, examined PWs.1 to
14, marked Exs.P1 to P15 and also marked M.Os.1 to 9. The respondents 2 to
6/accused Nos.1 to 5 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 2 to 6/accused Nos.1 to 5 did not examine
any witness and not marked any document.
2.10.The Trial Court, on a consideration of oral and documentary
evidence and other materials, had found the respondents 2 to 6/accused Nos.1
to 5 were not guilty of the offences and acquitted them as stated above, vide
impugned judgment dated 05.04.2017 and challenging the legality of the same,
the wife of the deceased filed the present Criminal Appeal.
3.Mr.M.Ramu, learned counsel appearing for the appellant/wife of the
deceased has drawn the attention of this Court to the impugned judgment of
acquittal and made the following submissions:
(i) The trial Court held that the motive aspect has not been proved by
the prosecution overlooking the well settled position of law that in case the
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prosecution case rests upon the testimonies of eyewitness the motive pale into
insignificance. P.W.1 has categorically spoken about the dispute between him
and the absconding accused Govindamani as to the remedial measures
suggested by tying talis and demand for return of money and as such the
motive has been proved by the prosecution. It is also the case of the
prosecution that on 27.07.2005, P.Ws.1 and 2 and the deceased were proceeding
in a two wheeler and the accused came in an Ambassador Car and halted it and
all the accused chased P.Ws.1 and 2 and the deceased and since the deceased
was unable to run and rather unable to cope up with the pace of P.Ws.1 and 2,
he stopped in the field of one Senthil and he was done to death by the accused
simply because he is the brother of P.W.1 and therefore it cannot be stated that
the motive aspect has not been proved by the prosecution.
(ii) The trial Court has disbelieved the eyewitnesses P.Ws.3, 5 to 7 and
12 on the ground that Ex.P.1 did not speak about their presence there. The said
finding is un-sustainable for the reason that the F.I.R., which is registered on the
basis of the complaint Ex.P.1, is not an encyclopedia of all dates and events and
it is only a document, which enables the police to commence the investigation
and the statement of the eyewitnesses recorded during the investigation would
reveal the role played by all the accused and the testimonies of other witnesses
also corroborates the evidence of P.Ws.1 and 2.
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(iii) The trial Court committed a grave error in giving a finding that
the place of occurrence has been shifted or rather not identified overlooking
the evidence of P.Ws.1 and 2 that the deceased stopped on the field of one
Senthil and thereafter he was surrounded and done to death by the accused
and the Observation Mahazar – Ex.P.8 would also disclose that the occurrence
took place in the field of one Senthil and Ex.P.9 is also to the said effect and
M.Os.7 and 8 were also recovered from the said place and therefore, it cannot
be said that the place of occurrence has not been identified.
(iv) The trial Court has given much importance to testimony of P.W.9
and Ex.P.14 overlooking the fact that the contents of the accident report can be
relied upon only for the nature of the injuries sustained by the injured and it is
not the substantive piece of evidence; however, the trial Court has given undue
importance to the entries made in the accident register.
(v) The trial Court was wrong in coming to the conclusion that the
confession as well as recovery has not been proved on the ground that the
witness to the arrest and recovery viz., P.W.8 had turned hostile, overlooking the
fact that the Investigating Officer – P.W.14 spoken about the said fact and it
would suffice to conclude that the arrest and recovery has been proved by the
prosecution.
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(vi) The trial Court has also given undue importance as to the non-
production of the records relating to the treatment given to the injured
between 27.07.2005 and 30.07.2005 at Government Medical College Hospital,
Thanjavur, overlooking the evidence of Dr.K.Tamilmani, who had spoken about
the autopsy conducted by Dr.Vijayalakshmi coupled with Ex.P.7 – postmortem
report, which proved the fact that the deceased died on account of head injury
sustained by him and thus the prosecution has proved that the deceased died
on account of homicidal violence and it was the accused who caused his death.
(vii) The trial Court had concluded that the blood stained clothes
from P.Ws.1 and 2 have not been recovered by ignoring the evidence of P.Ws.14,
who had stated that the said witnesses did not say that their clothes were
tainted with blood while taking the injured to the Hospital and as such there
was no necessity to seize the alleged blood stained clothes worn by P.Ws.1 and 2
and even in the absence of seizure of blood stained clothes said to have been
worn by P.Ws.1 and 2, the prosecution through the exhibits and the material
objects proved its case beyond reasonable doubt.
(viii) It is also to be pointed out that on account of the abscondence
of three accused, the trial Court could not proceed with the case, despite the
occurrence took place on 27.07.2005, the examination of witnesses commenced
only on 28.09.2016 and therefore, due allowance has to be given to the memory
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of the eyewitnesses.
(ix) In sum and substance, it is the submission of the learned counsel
appearing for the appellant/wife of the deceased that the trial Court, by
pointing out the probabilities with triviality had granted the benefit of doubt to
the accused, whereas, the prosecution has proved its case beyond all reasonable
doubts and therefore, prays for conviction of respondents 2 to 6 and imposition
of sentence of imprisonment and fine as well as compensation.
4.Mr.S.Chandrasekar, learned Additional Public Prosecutor appearing
for the first respondent/State would submit that the State did not prefer appeal
against the impugned judgment of acquittal and insofar as the absconding
accused are concerned, the accused with fatal overt act viz., Govindamani
continued to be absconding and insofar as other absconding accused viz. Kriti
@ Balakrishnan and Sankar are concerned, the matter is still pending in
committal proceedings in P.R.C.No.62 of 2014 on the file of Judicial Magistrate,
Pattukkottai and undertakes to instruct the investigating officer to take the case
seriously and to apprehend the absconding accused and to split up the case in
respect of other two accused.
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5.Mr.A.Thiruvadikumar, learned counsel appearing for the
respondents 2 to 4 and 6/A1 to A3 and A5 made the following submissions:
(i) In Ex.P.1 given by P.W.1, the presence of other eyewitnesses viz.,
P.Ws.3, 5 to 7 and 12 have not been stated and therefore, they cannot be stated
as eyewitnesses to the occurrence.
(ii) P.Ws.1 and 2 said to have purchased grocery and they along with
deceased came in a two wheeler on the fateful day, however, the said grocery
said to have been purchased has not been seized.
(iii) The motive aspect, as rightly pointed out by the trial Court, have
not been proved by the prosecution for the reason that even as per their case,
the target would be only P.W.1 and not the deceased, who is nothing to do with
alleged transaction and the promise between P.W.1 and the absconding accused
Govindamani and he has got no axe to grind against the deceased.
(iv) There is a vital and grave discrepancy with regard to the scene of
crime and that according to the eye-witnesses viz., P.Ws.1 and 2, they were
chased for some time along with the deceased and whether the occurrence
took place in the road or in the field of Senthil has not been established and
that apart P.W.14 also did not examine the owner of the field, in which, the
deceased is said to have been found dead and as such in the absence of proof
regarding the scene of crime, it cannot be said that the prosecution has proved
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its case beyond reasonable doubt.
(v) The material witnesses viz., P.Ws.1 and 2 had made very many
improvements from that of the statements recorded under Section 161(3)
Cr.P.C. during the investigation and contradictions were also elicited through the
investigating officer – P.W.14 and if the contradictions are taken into account
the presence of second respondent/A1 in the scene of occurrence is highly
doubtful and with regard to the overt acts attributed to the rest of the accused
there are very many material improvements and since there are material
improvements, it is not safe to rely upon the evidence of the said witnesses and
the trial Court has also concluded so.
(vi) Insofar as accident register, marked as EX.P.4 coupled with the
evidence of P.W.9 is concerned, according to the testimony of P.W.2 when P.W.1
went to police station to lodge the complaint, he alone took the injured and
gone to Pattukottai Government Hospital, and if he has really accompanied the
injured his initial statement would have been recorded in the relevant column in
EX,.P.4 and therefore, the presence of P.W.2 in the scene of occurrence was also
highly doubtful.
(vii) Even as per the evidence of P.W.2, the deceased was having very
many disputes with very many persons and they might have grouse against him
and in the absence of tenable and quality evidence, the trial Court has rightly
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reached the conclusion to award the benefit of doubt to the accused and
acquitted them.
6.On the legal aspects with regard to the interference with the order
of acquittal made, the learned counsel appearing for the respondents 2 to 4
and 6/accused Nos.1 to 3 and 5 would submit that the trial Court on thorough
application of mind and consideration of oral and documentary evidence had
reached the conclusion that the prosecution has failed to prove the case
beyond reasonable doubt and this Court cannot take a different view and he
further pointed out that nearly 14 years have lapsed from the date of the said
occurrence and at this distant point of time it may not be correct to disturb the
order of acquittal and he also pointed out that one main accused still remains
absconding and in respect of other two accused are concerned the case is in
committal stage and hence prays for confirmation of the judgment of acquittal
by the trial Court.
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 following questions arise for consideration:-
[i] Whether the impugned judgment passed by the trial Court holding
that the respondents 2 to 6/accused 1 to 5 are not guilty of the charges is
sustainable? and
[ii] Whether the impugned judgment of acquittal is liable to be
reversed?
Question No. [i] :
9.This Court before deciding the questions posed by this Court for
consideration in this appeal would like to analyse the legal position with regard
to the interference in the order of 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
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."
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(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
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
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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."
10.This Court is vested with the power of re-appreciating the evidence
available on record, however, while doing so, such interference is not
permissible on the ground that different view is possible and if the order of
acquittal passed by the trial Court is justified in the light of the reasons assigned
we should not interfere with it normally. This Court keeping in mind the well
settled legal position, which stood test of time, we proceed to analyse the
materials, which weighed the minds of the trial Court to pass the order of
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acquittal against respondents 2 to 6/accused 1 to 5.
11.P.W.1 is the own brother of the deceased and in Ex.P.1 – complaint
given by him to Madhukkur Police Station, he has stated the overt act on the
part of Govindamani (Absconding Accused), A3 – Saminathan and Kriti @
Balakirshnan (Absconding Accused) and he would further state that known
persons without knowing their names also attacked him with wooden logs. It is
also to be noted at this point, he did not speak about the presence of rest of
the eyewitnesses apart from P.W.2. The defacto complainant, who has given his
evidence as P.W.1 in the cross-examination, made a submission with regard to
the horoscope and other allied matters, the dispute is between him and the
absconding accused Govindamani but not between his brother and the accused.
He had also spoken about the stains of the blood in his clothes while lifting the
deceased for the purpose of admitting him in the hospital. In the cross-
examination on behalf of A2 to A4, certain contradictions were also elicited and
it will be dealt with by this Court while considering the evidence of P.W.14. P.W.2
said to have accompanied P.W.1 and the deceased and he also made
submissions about the chasing and running and the overt act on the part of the
absconding accused viz., Govindamani, A3 - Saminathan, absconding accused
Kriti @ Balakrishnan and also that his clothes were tainted with bloods of the
then injured Kamatchi while he took him. In the cross-examination done on
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behalf of the accused certain contradictions were elicited.
12.As far as the motive aspect is concerned, P.W.1 has clearly stated
that the dispute is between him and the absconding accused Govindamani and
the learned counsel appearing for respondents 2 to 4 and 6/accused Nos.1 to 3
and 5 sought to sustain the finding of the trial Court with regard to the motive
as there was no enmity existing on the part of the respondents 2 to 6/accused 1
to 5 to do away with the life of the brother of P.W.1 for the reason that as
against him they have no axe to grind or motive.
13.It is to be noted at this juncture, it is P.W.1, in Ex.P.1 – complaint
and in his testimony as P.W.1 has stated that on 27.07.2005, when he along with
P.W.2 and his deceased brother were proceeding in a two wheeler, the accused
came in an Ambassador Car halted the vehicle and thereafter got down from
the vehicle and at the instance of absconding accused Govindamani chased
them and all the three of them started running and the deceased Kamatchi
could not keep pace with them and he was done to death in the field of Senthil
and for this there is a direct charge for the commission of offence under
Section 302 I.P.C. The prosecution projected the case on the testimonies of
eyewitnesses. In the case of eyewitness, the motive aspect pale into significance.
If the submission of the learned counsel appearing for the respondents 2 to 4
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and 6/accused Nos.1 to 3 and 5 is accepted, it would be due to anomaly for the
reason that in the absence of any motive if a person is subjected to the
homicidal violence, the concerned persons cannot be connected with the
commission of offence. That is not the law. The fact is that the deceased
Kamatchi died on account of homicidal violence. Therefore, this Court is of the
considered view that the prosecution had proved the motive for the
commission of offence, however, moot question is whether he was done to
death by the respondents 2 to 6.
14.The primordial submission of the learned counsel appearing for
the respondents 2 to 4 and 6/accused Nos.1 to 3 and 5 is that in the light of the
material improvements made by P.Ws.1 and 2, coupled with the fact that even
for sake of arguments their testimonies can be accepted, till the prosecution
had failed to prove the evidence of the rest of the eyewitnesses and as such the
trial Court was right in rendering not guilty finding. In this connection, this
Court was taken through the cross-examination of the investigating officer viz.,
P.W.14. In the cross-examination done on behalf of the second respondent/A2
the said witness deposed that the body of the deceased was taken from the
field via road to put in a TATA Ace vehicle and taken to the hospital and he did
not recover blood stains from the spot as well from the vehicle. P.W.14 would
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also state that P.W.1 in the course of investigation did not speak about the
second respondent/A1 coming to the spot and not at all spoken about his
presence in the scene of crime. Similarly in the statement recorded on
27.07.2005 also, he did not speak about A1 in the scene of occurrence, so also
P.W.3. It is to be noted at this juncture, it is a material improvement made by
P.Ws.1 and 3 from the statements recorded during the course of investigation
under Section 161(3) Cr.P.C. and the contradictions elicited from P.Ws.14 in the
considered opinion of this Court was material contradiction as to the presence
of A1 in the scene of occurrence. Therefore, the prosecution was unable to
prove the presence of A1 in the scene of occurrence.
15.In the cross-examination done on behalf of A2 to A4, P.W.14 would
disclose that A3 viz., Saminathan in the course of his confession has stated that
he cut the deceased Kamatchi on his head. Since the admitted portion of the
confession is not marked, this Court is prepared to ignore the said statement
made by the investigation officer during the cross-examination.
16.P.W.14 in the cross-examination further stated that P.W.1 while
recording the statement under Section 161(3) Cr.P.C., did not say that A2 cut the
deceased on his shoulder. It is also to be pointed out on this juncture that a
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specific charge against A2 was also framed for the commission of offence under
Section 302 I.P.C. and the overt act attributed against him is that he cut the
injured on the shoulder. Similarly in respect of A3 viz. Saminathan the charge
was that he cut the deceased on the left side of the shoulder and with regard to
the said statement contradiction was elicited through the testimony of P.W.14
and he has deposed that he has not stated as above. As regards recovery of
blood stained clothes from P.Ws.1 and 2 is concerned, according to P.W.14, P.Ws.
1 and 2 did not say so during the examination at the time of investigation. P.W.
14 would further admit that with regard to the treatment given to the injured in
Thanjavur Hospital between 27.07.2005 and 30.07.2005, he did not seize any
records from the Government Medical College Hospital at Thanjavur and
though P.W.14 would state that the commission of offence was witnessed by the
persons who were grazing their cattle, he did not take any steps to record their
statements.
17.In the cross-examination done on behalf of A4, P.W.14, the
investigation officer would state that the witnesses did not state that after
halting the motor cycle the accused did not suddenly got down from the car
and also made a crucial admission that P.Ws.1 and 2 during the course of
investigation did not specifically state that except them the rest of the witnesses
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were aware of the incident. Contradictions made by the concerned witnesses
were also put to P.W.14 investigation officer and the cross-examination would
reveal that the material witnesses as well as the eyewitnesses viz., P.Ws.1 and 2
made material improvements from that of the submissions recorded during the
examination under Section 161(3) Cr.P.C..
18.At this juncture, the learned counsel appearing for the petitioner
would submit that the trial has commenced nearly after 11 years from the date
of occurrence and hence there may be some memory loss and he is right to say
so. However, as pointed out, the improvements are major and material in nature
from that of the statements recorded during the investigation. The testimonies
of P.Ws.1 and 2 would disclose that except them all the eyewitnesses projected
by the prosecution would not have seen the occurrence and it is also fortified
by the cross examination done on behalf of A4 with the investigation officer as
pointed out supra.
19.The learned counsel appearing for the private respondents made a
forceful and vehement submission as to the entry made in the accident register
and has placed reliance on very many judgments. However, it is relevant to
consider the judgement of this Court in ( 2 0 0 9 ) 1 M L J ( C r l) 1 3 3 [ P a tt u
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v . S t a t e], wherein the legal position with regard to the accident register has
been succinctly stated. It is relevant to extract paragraph No.21:
“21.The doctor is not at all concerned as to who has
committed the offence, as his primary effort is to save life. See
Pattipatti Venkaiah v. State of A.P. AIR 1985 SC 1715 : (1985) 4 SCC
80 : (1986) MLJ (Crl) 23, paragraph 17. Further, the doctor can also
ignore any statements made by persons who brought the injured for
treatment either to the occurrence or as to the name of the
assailants, whether known or unknown. See Basheer v. State 1993
Crl.L.J.2173.”
It is also relevant to extract paragraph 19 of the decision of this Court in
( 2 0 0 7 ) 1 M L J ( C r l) 3 1 9 [ A n n a m a l a i v . S t a t e]:
“19 . T h e M a dra s M e di c al C o d e ( Vol.I) S e c ti o n 10
p a r a g r a p h-622 gi v e s g ui d elin e s o r in str u cti o n s t o th e d o ct or a s t o
h o w th e c ol u m n s in w o u n d c e rtific at e a r e t o b e fill e d u p. P a r a-622
( vi) r e a d s :
"M e di c al o ffi c e r s h o ul d a s c e rt ain a n d in c o r p o r at e in th e
c e rtifi c at e o nly th e all e g e d c a u s e a s t o th e m a n n e r in w hi c h th e
injuri e s w e r e inflict e d , th e w e a p o n u s e d a n d th e ti m e ."
T h e M e di c al O ffi c e r s h o ul d a s c e rt ain th e c a u s e o f th e injury, w e a p o n
u s e d , ti m e , e t c . th e r e b y s h o wi n g n o p o w e r i s v e s t e d u p o n th e
M e di c al O ffi c e r, t o a s c e rt ain fr o m th e injur e d o r th e p e r s o n
a c c o m p a ni e d th e injur e d , w h o i s th e c a u s e f or th e a s s a ult, w h e t h e r it
i s k n o w n o r u n k n o w n e v e n . T h e d o ct or i s c o n c e r n e d , t o a s c e rt ain
a n d in c or p o r at e in th e c e rtific at e , h o w th e injuri e s w e r e inflict e d a n d
w h at i s th e w e a p o n u s e d , in clu din g th e ti m e , s o a s t o fin d o ut , at
lat e r p oi nt o f ti m e , w h e t h e r th e injury w o ul d h a v e b e e n c a u s e d b y
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th e w e a p o n p r o d u c e d o n b e h alf o f th e p r o s e c uti o n s ai d t o h a v e
b e e n u s e d b y th e a s s aila nt s o n th e b a si s o f th e r e c o v e r y, if a n y. In
thi s vi e w, if th e d o ct or h a d in c or p o r at e d a b o ut th e s t at e m e nt m a d e
b y th e p e r s o n w h o b r o u g ht th e d e c e a s e d , th at c a n b e ig n o r e d , w hi c h
a p p e a r s t o b e th e di ct u m o f th e A p e x C o urt al s o in B a s h e e r v. S t at e
1993 ( C rl.L. J. 2173) .”
20.It also prima-facie appears that the fatal overt act has been mainly
attributed against the absconding accused in P.R.C.No.62 of 2014, which is still
pending on the file of the Court of Judicial Magistrate, Pattukottai. As rightly
pointed out by the trial Court, though the injured survived for 3 days from the
date of fatal attack, the investigation officer P.W.14 did not take any steps to
seize the treatment records and file it as exhibit and also failed to examine the
causality medical officer, attached to Thanjavur Government Medical College
Hospital in that record.
21.Though it is argued by the learned counsel appearing for the
appellant that the names of the rest of the eyewitnesses did not find a place in
Ex.P.1 – complaint, in the light of settled legal position that F.I.R. is not the
encyclopedia of all dates and events and it is only a document to enable the
prosecution to commence the investigation, the evidence let in by the
prosecution coupled with the testimony of P.W.14 would clearly disclose that
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the rest of the eyewitnesses other than P.Ws.1 and 2 would not have been
present in the scene of occurrence. Though it was also brought to the
knowledge of this Court that pursuant to the orders of transfer passed by this
Court, further statements of the witnesses were recorded after a distance point
of time, by eliciting material contradiction through the testimony of P.W.14, the
private respondents were able to establish that the other eyewitnesses were not
present in the scene of crime and even from the testimonies of P.Ws.1 and 2
with regard to the over tact on the part of the present private
respondents/accused there were vital material discrepancies.
22.In the light of the well settled legal position with regard to the
interference in the orders of acquittal as enunciated in the decision of the
Hon'ble Apex Court cited above, this Court finds no tenable reasons to interfere
with the order of acquittal passed by the trial Court.
Question No. [ii] :
23. In view of reasons assigned above, the impugned judgment of
acquittal passed by the trial Court does not warrants interference.
24.The learned counsel for the appellant/wife of the deceased has
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brought to the knowledge of this Court that she is in a state of penury on
account of the fact that the sole breadwinner/her husband died in terrific
circumstances and hence prays for compensation in terms of Section 357-A
Cr.P.C. and on the said submission, this Court heard the learned Additional
Public Prosecutor appearing for the State also.
25.The appellant is at liberty to submit a representation in this regard
to the District Legal Services Authority, Thanjavur within a period of three weeks
from the date of receipt of a copy of this order and the District Legal Services
Authority, Thanjavur is directed to consider the said representation in terms of
Section 357-A Cr.P.C. and take appropriate steps and inform the decision to the
appellant within six weeks thereafter.
26.In the result, this Criminal Appeal is dismissed confirming the
judgment dated 05.04.2017 made in S.C.No.111 of 2015 by the Principal District
Judge, Pudukkottai. It is made clear that the findings given herein are only for
the disposal of this Criminal Appeal and this Court do not touch upon the
merits of the pending committal proceedings/trial in P.R.C.No.62 of 2014,
pending on the file of the Court of Judicial Magistrate, Pattukottai and the trial
Court on committal is to adjudicate the case on merits depending upon the
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evidence adduced. Since the proceedings are going on for a decade, the first
respondent police is directed to take necessary steps to apprehend the
absconding accused and if necessary, also take steps to split up the case in
respect of the remaining accused, who are facing committal proceedings in
P.R.C.No.62 of 2014.
[M. S . N. , J .] [ B. P. , J . ]
1 9.0 7.2 0 1 9
Index : Yes / No
Internet : Yes / No
sj
Note: Registry is directed to mark a copy of
this order to the Superintendent of Police,
Thanjavur District.
To
1.The Principal District and Sessions Judge,
Pattukottai.
2.The Judicial Magistrate,
Pattukottai.
3.The Superintendent of Police,
Thanjavur District.
4.The Inspector of Police,
Madhukkur Police Station,
Thanjavur District.
5.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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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 9 1 o f 2 0 1 7 1 9.0 7.2 0 1 9 http://www.judis.nic.in