Madras High Court
Chellathal vs Veerappa Gounder And Ors. on 4 April, 2006
Equivalent citations: 2006CRILJ2818, 2006 CRI. L. J. 2818, 2007 (1) AJHAR (NOC) 81 (MAD), (2006) 2 MAD LJ(CRI) 120, (2006) 4 CRIMES 49
ORDER S. Sardar Zackria Hussain, J.
1. The revision petitioner is the defacto complainant, wife of the deceased, and this revision is filed against the acquittal of the respondents / A-1 to A-4 in respect of the offence under Section 302 read with Section 34 I.P.C. on the file of the Additional District and Sessions Judge (Fast Track Court No. III), Dharapuram, in S.C. No. 51 of 2003 as per judgment dated 30.10.2003.
2. The facts that led to the filing of this revision are as follows:
(a) The first accused is the father of A-2 and A-3 and A-4 is the co-brother of A-2. P.W.1 is the wife of the deceased. The accused and the deceased are neighbouring land owners and close relatives. The deceased was working at Vellakovil in a Finance Company. There was some dispute in respect of enjoyment of land one day prior to the occurrence and during that time, A-1 to A-3 armed with Aruval criminally intimidated the deceased.
(b) On 02.9.2002 at 9.00 A.M., while the deceased was proceeded to Vellakovil for attending his job, he asked his wife P.W.1 to come in the evening for purchase of vegetables in the market. Accordingly, P.W.1 went there at 4.00 P.M. and when they were returning to their house at 7.00 P.M. after purchasing vegetables and fruits, in Karur Road in their bicycle, at Othakadai vaikkal medu, they were intercepted by A-1 to A-4 during which time, A-1 armed with Crowbar attacked the deceased on his left hand and left leg; A-2 and A-4 armed with crowbar attacked the deceased on his right hand and right leg; A-4 armed with crowbar attacked the deceased on the left hand upper part; and on the deceased and his wife P.W.1 falling down, the accused ran away from the scene of occurrence. The persons nearby came there and took them to Government Hospital, Kangayam, at 10.00 P.M., where the deceased was declared dead at 10.30 P.M. by P.W.13 Dr.Subramani, to whom the deceased informed that he was assaulted by four persons.
(c) P.W.13 on examination of the deceased noted four injuries on the body of the deceased and Ex.P.19 is the original of the Accident Register Extract issued by him.
(d) P.W.14 Doctor conducted post-mortem on the body of the deceased on 03.9.2002 and noted five external injuries. The Post-mortem Certificate is Ex.P.20 and he opined that the death of the deceased would have occurred due to shock and haemorrhage.
(e) P.W.15 Dr.Prakasam treated A-3 on 06.9.2002 and stated that he was assaulted by one person 02.9.2002 at about 2.00 P.M. and the Wound Certificate is Ex.P.21.
(f) On receiving the information, P.W.16 Sub-Inspector of Police, went to the Hospital; recorded the statement of P.W.1, which was reduced into writing under Ex.P.1 complaint; registered a case in Crime No. 359 of 2002 under Sections 341 and 302 I.P.C.; and sent the same to the Court of Judicial Magistrate with copies to the concerned officials. Ex.P.22 is the printed First Information Report.
(g) P.W.17, Inspector of Police, on receipt of the First Information Report, took up investigation; went to the scene of occurrence; prepared observation mahazar Ex.P.2 and Rough Sketch Ex.P.23 and collected blood stained earth M.O.8 and sample earth M.O.9 from the scene of occurrence. He conducted inquest on the body of the deceased and examined P.W.1, P.W.2, P.W.13 and two other persons and recorded their statements. On 05.9.2002 he arrested A-1 at 4.30 P.M. and recorded his confession statement (admissible portion) Ex.P.6 on the basis of which he recovered M.O.1 and M.O.2. On the same day, he arrested A-2 and A-3 and recorded their confession statements (admissible portion) under Exs.P.9 and P.11 respectively on the basis of which he recovered M.O.3 and M.O.4 respectively. A-4 surrendered before the Court on 16.12.2002 and he was taken to custody on 25.12.2002. After completing investigation, P.W.17 filed the final report on 31.12.2002.
3. In order to establish the guilt of the accused, the prosecution examined P.Ws.1 to 17 and marked Exs.P.1 to P.23 besides M.Os.1 to 9.
4. The trial Court, considering such evidence adduced, found that the accused are not guilty in respect of the charges levelled against them and accordingly, acquitted them. The acquittal of A-1 to A-4 is challenged by the defacto complainant, wife of the deceased, in this revision petition.
5. Heard the learned counsel for the revision petitioner / defacto complainant; learned counsel appearing for the respondents 1 to 4 and the learned Government Advocate (Criminal side) for the fifth respondent.
6. Learned counsel for the revision petitioner / defacto complainant submitted that despite the fact that satisfactory and clinching evidence have been let in on the side of prosecution through P.W.1, wife of the deceased, who is the ocular witness to the occurrence, which is supported by the First Information Report, the Sessions Court has acquitted the accused and the same cannot be said to be proper. In respect of the occurrence that had taken place on 02.9.2002, it is argued by the learned counsel that the occurrence took place at 7.00 P.M.; the deceased was taken to the Government Hospital, Kangayam, which is 25 Kms. away from the scene of occurrence, where he was admitted at 10.00 P.M. and declared dead at 10.30 P.M.; P.W.16 Sub-Inspector of Police went there at 11.30 P.M. and recorded the statement of P.W.1, which was reduced into writing under Ex.P.1 complaint, on the basis of which he registered First Information Report Ex.P.22 at 1.00 A.M. on 03.9.2002 and the same reached the Court at 2.00 A.M. on 03.9.2002. Learned counsel also submitted that the omission to mention the occurrence that had taken place on the previous day evening in the First Information report cannot be a ground to disbelieve the evidence of P.W.1. It is the further submission of the learned counsel that inasmuch as the ocular witness P.W.1 wife of the deceased has narrated the entire occurrence clearly, which is strongly supported by the First Information Report and the evidence of P.Ws.2 and 3, there is no need to give much reliance to the medical evidence and as such, the prosecution has proved the guilt of the accused beyond doubt and, therefore, the acquittal of A-1 to A-4 by the Sessions Court, in an erroneous approach, recording perverse finding, being improper, is to be set aside.
7. Learned counsel for the revision petitioner, in support of his contention, relied on the following decisions:
(i) In State of Punjab v. Jagir Singh , it has been held as under:
The fact that the eye-witnesses belong to the party of deceased and some of them are close relatives of the deceased would only make the Court scrutinize the evidence of these witnesses more closely. It is most difficult to believe that they would spare the real assailants and falsely mention the names of innocent persons as having caused the injuries to the deceased persons. If their evidence can stand that test, there is no reason why it should not be acted upon.
(ii) In Sukhchain Singh v. State of Haryana , Their Lordships held that the failure of investigating agency to take necessary steps to prove the guilt beyond reasonable doubt cannot be a ground to reject the prosecution version or statement of the eyewitnesses. It was further held that improvements and contradictions in the statements of Prosecution Witnesses must be shown to be in respect of material particulars of the case and the occurrence and the minor discrepancies not affecting the merits of the case are of no consequence.
(iii) In Sardul Singh v. State of Haryana , Their Lordships have held as under:
The evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth and if found acceptable and seems to inspire confidence, too, in the mind of the Court, the same cannot be discarded totally merely on account of certain variations or infirmities pointed or even additions and embellishments noticed, unless they are of such nature as to undermine the substratum of the evidence and found to be tainted to the core.
It was held by Their Lordships that it is the quality of evidence and not merely the quantity of evidence that really matters and where the evidence of Prosecution witness, the only ocular witness, was found to be truthful and acceptable and was sufficient to indict the appellants, mere non-examination of certain witnesses would not affect the prosecution case adversely and that if motive, which is not always capable of precise proof, is proved, it may only lend additional support to strengthen the probability of commission of the offence by the person accused but the absence of motive does not ipso facto warrant an acquittal.
(iv) In Gangadhar Behera v. State of Orissa (2002) 8 SCC 381, it was held by Their Lordships that merely because of witnesses being related to the deceased, that by itself would not affect the credibility of testimony of such witnesses. If for the plea of false implication, proper, foundation is laid, the Court, by adopting a cautious approach, will analyse the evidence to find its credibility. It was also held that the principle of Falsus in uno, falsus in omnibus has no application in India and it is only a rule of caution. Even when major portion of evidence of a witness is found unreliable, if the remaining part of the evidence inspires confidence, it is sufficient to prove the guilt of the accused and conviction can be based thereon and the Court has to separate chaff from grain and to find in each case as to what extent the evidence is acceptable. It has further been held that while normal discrepancies do not affect credibility of the case, material discrepancies do so.
In the above said decision, Their Lordships also held thus:
It would be appropriate to deal with the plea that ocular evidence and medical evidence are at variance. It would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the "variable" keeping the medical evidence as the "constant".
8. Learned counsel for the respondents 1 to 4 / A-1 to A-4 argued that inasmuch as the prosecution failed to establish the guilt of the accused, the Sessions court has rightly acquitted A-1 to A-4 refusing to accept the case of the prosecution relying on the evidence of sole eye-witness, viz., P.W.1 wife of the deceased. It is also argued by the learned counsel that the presence of P.W.1 in the scene of occurrence is very much doubtful. He also submitted that in Ex.P.19, original of the Accident Register Extract issued by P.W.13 Doctor, four injuries have been mentioned whereas Ex.P.18, carbon copy of the Accident Register Extract issued by the same Doctor P.W.13, discloses only three injuries as said to have been caused on the deceased. He also submitted that though at the time of occurrence, A-4 is alleged to have attacked the deceased with knife, the same has not been recovered. It is the further submission of the learned counsel that though it is alleged that the deceased and his wife P.W.1 were proceeding in their bicycle with a bag full of vegetables in the Karur Road, no reference has been made in the rough sketch about scattering of vegetables in the scene of occurrence after the assault of the deceased by the accused. It is further argued that though P.W.7 gave information to P.W.3 for taking the deceased to the Hospital, both have not stated in the evidence as to when they reached the scene of occurrence and that P.W.1 was also present there. He vehemently contended that though A-4 is known to P.W.1, it is not known as to why she has not clearly stated so in the complaint Ex.P.1 and that she has only stated that one known person besides A-1 to A-3, which throws doubt as to whether P.W.1 was present in the scene at the time of occurrence.
9. The learned counsel for A-1 to A-4 relied on the following decisions:
(i) In Lalitkumar Sharma and Ors. v. The Superintendent and Remembrancer of Legal Affairs, Government of West Bengal 1990 (10MWN (Cr.) 16, Their Lordships held thus: "It is now well settled that the power of an Appellate Court to review evidence in appeals against acquittal is as extensive as its powers in appeals against conviction; but that power is with a note of caution that the Appellate Court should be slow in interfering with the orders of acquittal unless there are compelling reasons to do so." (ii) In Thankappan Nadar v. Gopalakrishnan 2003 SCC (CRI) 1205, it has been held by Their Lordships as under:
In a revision application filed by the defacto complainant against the acquittal order, the Court's jurisdiction under Section 397 read with Section 401 Cr.P.C. is limited. The law as enunciated by the Supreme Court does not empower the Court exercising the revisional jurisdiction to re-appreciate the evidence.
In the present case, the High Court has not found any procedural illegality or manifest error of law in the order passed by the appellate Court. It is nobody's case that the appellate Court has shut out or has overlooked the evidence which clinched the issue. The High Court has only reappreciated the entire evidence and has taken contrary view for setting aside the acquittal order. This is not permissible while exercising the revisional jurisdiction at the instance of the defacto complainant against the order of acquittal.
10. Learned Government Advocate (Criminal Side) appearing for the fifth respondent / State advanced argument in similar line as submitted by the learned counsel for the revision petitioner.
11. As per the case of prosecution, P.W.1, wife of the deceased, and P.W.4 are the witnesses to the occurrence. But since P.W.4 turned hostile, not supporting the case of prosecution, we are left only with the evidence of P.W.1 wife of the deceased and as such, it is to be scrutinised thoroughly with reference to the First Information Report Ex.P.22 and medical evidence. According to the prosecution, the occurrence took place on 02.9.2002 at 7.00 P.M. in Karur Road at Vaikal medu Othakadai during which time, the deceased was returning in his bicycle with his wife P.W.1 after purchasing vegetables in the market. In the complaint Ex.P.1 preferred by P.W.1 on 02.9.2002 at 11.30 P.M. at Government Hospital, Kangayam, while narrating the occurrence, she has stated that P.W.4 Subban went to the village to inform her relatives and P.W.3 Ravi and Mani came in the Car and took the injured deceased to Kangayam Government Hospital. P.W.7 Karunanidhi has stated in his evidence that on 02.9.2002, while he was returning from Vellakovil, he found the deceased in pool of blood in Vaikal medu Othakadai; went to his house; informed P.W.3 over phone; then he came back to the scene of occurrence, where he found P.W.3 and Mani with the Car, and he sent the deceased in the Car to the Hospital. Thereafter, he found one bicycle with rice bag and fruits and handed over the same to one Swaminathan. P.W.3 also deposed accordingly that on reaching the scene of occurrence with Mani in the Car, he found the deceased with injuries in his hands and legs and they took him in the Car to the Government Hospital, Kangayam. It is pertinent to note that both P.W.3 and P.W.7 have not stated about the presence of P.W.1 in the scene of occurrence when they reached there. There is nothing in evidence to show that the deceased informed to P.W.3 and P.W.7 about the occurrence and that his wife also present there at that time. As such, the presence of P.W.1 and her witnessing the occurrence itself is very much doubtful.
12. It is seen that it is mentioned in the complaint that besides A-1 to A-3, another known person to P.W.1 was also present at the time of occurrence with knife and he stabbed on the right hand of the deceased. Though P.W.1 has stated in her evidence that the said person is A-4, she has not stated that A-4 attacked the deceased with knife on his right hand and the said knife has also not been recovered. On the contrary, she has only stated in her evidence that A-4 beat the deceased repeatedly, which is unbelievable. That apart, though it is stated by P.W.1 in her evidence that A-1 to A-3 made a threat to them on the previous day evening, not even a whisper has been made by her in the complaint Ex.P.1 about the same.
13. A perusal of Ex.P.19, original of the Accident Register Extract, issued by P.W.13, Doctor, would disclose four injuries as said to have been caused on the deceased whereas in Ex.P.18 carbon copy of the Accident Register Extract issued by the same Doctor, only three injuries have been mentioned and as such, it is crystal clear that the fourth injury referred to in Ex.P.19, original of the Accident Register Extract, has been added at a later date after the despatch or issuance of Ex.P.18 carbon copy of the Accident Register Extract and there is some force in the argument advanced as such by the learned counsel for the accused.
14. In the observation mahazar Ex.P.2, the Investigating Officer has not mentioned about vegetables, which, according to P.W.1, were purchased in the market and while returning with her husband in the bicycle, they got scattered in the occurrence place. There is no mention in the Rough Sketch Ex.P.23 also about the scattering of vegetables in the occurrence place.
15. Though it is the evidence of P.W.1 as well as her statement in the complaint Ex.P.1 that firstly A-3 attacked the deceased with crowbar on the left hand of the deceased and then A-1 and A-2 attacked him with crowbar on the left hand and right hand repeatedly, the Doctor P.W.13 noted only the fracture on the left hand of the deceased throwing doubt as to which of the accused caused such injury. The attack said to have been made on the left leg of the deceased by A-1 also has not been proved. It is also seen that no such injury is shown in Ex.P.18 carbon copy of the Accident Register Extract but it is shown as fourth injury only in Ex.P.19 original of the Accident Register Extract as a later addition. Similarly, the injuries said to have been caused by A-3 have also not been proved. It is further seen that there have been discrepancies with regard to the injuries on the body of the deceased noted down by Doctor P.W.13 and P.W.14. According to P.W.14, three injuries were noted on the right leg of the deceased and they are incised.
16. As per the case of prosecution, the occurrence took place at Othakadai Vaikkal medu in Karur Road at 7.00 P.M. on 02.9.2002. In the Rough Sketch Ex.P.23 and observation mahazar Ex.P.2, the street lights have not been shown and some of the houses, which are not nearby have been shown. Therefore, it is not known as to how P.W.1 had identified A-1 to A-3 at the time of occurrence and also another known person.
17. The trial Court, considering all these aspects in its proper perspective, recorded finding that the prosecution failed to prove the case against A-1 to A-4, which cannot be said to be perverse or erroneous and accordingly, acquittal of A-1 to A-4 need not be disturbed.
18. In the result, in view of the discussions made above, the revision is dismissed and the judgment of the trial Court dated 30.10.2003 passed in S.C. No. 51 of 2003 by the Additional District and Sessions Judge (Fast Track Court No. III), Dharapuram, is confirmed.