Raja Ganapathy v. Sasi Kumar alias Sampath — 1998 DIGILAW 1252 (MAD)

Judgment 1. The prosecution witness No. 1 Raja Ganapathy has preferred a revision aggrieved against the order of acquittal dated 23.7.1997 passed by the learned Principal Sessions Judge in S.C.No.l 16 of 1996, wherein respondents 1 and 2 were found not guilty under Sec.302, I.P.C. 2. The case of the prosecution in brief is as follows: P.Ws.3 and 4 are the sons of P.W.I There is already enmity between the family of the accused and the family of P.W.1 relating to immovable properties. On 22.6.1995 at about 2 p.m. Sampath, another son of P.W.1, went out for some work and he did not return home till 7 p.m. on that day, P. Ws.3 and 4 came to the house at about 7.15 p.m. When P.W.1 enquired about the said Sampath, they stated that they have not seen him, The accused already attempted to do away the said Sampath, but some how he escaped. P.W.1 also sent P.Ws.3 and 4 to search for the said Sampath and they went to the bazaar at Elavur and returned at about 9 p.m. without him. P.W.2 Manickam on the next day came and informed that the said Sampath was lying with injuries near Periapalayathamman temple and thereafter P.Ws. 1 3 and 4 went to the place and took the injured Sampath to the hospital, but on the way he died. P.W.I went to the police station and gave a complaint on suspicion against the accused under Ex.P-1. 3. P. W.7 Inspector of Police registered a case in Cr.No.27 of 1995 under Sec.174 of the Code of Criminal Procedure. Ex.P-6 is the printed first information report. P.W.7 went to the place of offence that about 11.00 p.m. and prepared observation mahazar Ex.P-7 and brought sketch Ex.P-8. He held inquest on the body of the deceased in the presence of the Panchayatdars and Ex.P-9 is the inquest report. He also examined the witnesses and recorded their statements. He sent the body for post mortem through constable. 4. P.W.6 Dr.Dhayalan conducted autopsy on the body of the deceased and noticed the injuries and gave the certificate Ex.P-5 to the effect that the deceased died due to head injuries and also due to shock and loss of blood. The Inspector after examining P.W.6 altered the section of law into the under Sec.302 and prepared express report under Ex.P-10 and sent to the court as well as higher officials. The Inspector after examining P.W.6 altered the section of law into the under Sec.302 and prepared express report under Ex.P-10 and sent to the court as well as higher officials. On 8.3.1996 at about 2.00 p.m. the first accused was arrested in the presence of P.W.5 and one Murali by P.W.7 and the confession statement of the first accused was also recorded. Ex.P-11 is the admissible portion. The first accused took P. W.7 and other witnesses and produced M.O.I and it was recovered under a mahazar Ex.P-12 attested by the witnesses. The accused were sent to the court for remand. After completing investigation, he laid a charge sheet in the case. 5. On behalf of the prosecution, P.Ws. 1 to 7 were examined, Exs.P-1 to P-12 were marked and M.0.1 was produced. The trial court found the accused not guilty under Sec.302, I.P.C. and acquitted them and aggrieved against this P.W.1 has come forward with the present revision. 6. The learned counsel for the petitioner contended that the court below was not justified in acquitting the accused. The trial court ought to have convicted the accused on the basis of the confession statement and also the recovery of M.0.1. The deceased met with a homicidal death and there is sufficient evidence to come to the conclusion that the accused might have committed the offence. The court below ought to have summoned the F.I.R. registered following the complaint given by the first accused to the 3rd respondent police relating to the occurrence, in which he had also sustained injury. The recovery under Sec.27 of the Evidence Act, the admission portion the confession statement, the evidence of P.W.6 and the complaint given by the first accused against the deceased with the 3rd respondent police all cumulatively will establish the fact that the deceased was murdered by the accused. 7. The learned counsel for the accused contended that there is no direct evidence to prove the offence P.W.2 was the only eye witness examined in the case and he turned hostile. So far as the recovery under Sec.27 of the Evidence Act, P.W.5 also turned hostile and did not support the prosecution case. There is no legal evidence to implicate the accused in the case. This being a revision, unless there is glaring illegality or miscarriage of justice, no interference is called for. 8. So far as the recovery under Sec.27 of the Evidence Act, P.W.5 also turned hostile and did not support the prosecution case. There is no legal evidence to implicate the accused in the case. This being a revision, unless there is glaring illegality or miscarriage of justice, no interference is called for. 8. The point for consideration is whether there are any valid and sufficient cause to interfere in the finding given by the trial court. 9. Point:The deceased met with a homicidal death is proved by the evidence of P.W.6 Dr.Dhayalan and also the post mortem certificate Ex.P-5. The prosecution has to establish that the accused 1 and 2 alone are responsible for causing the death of Sampath P.W.1 is the father of the deceased as well as P.Ws.3 and 4. It is admitted that there is already enmity between the family of the accused and the family of P.W.1 relating to immovable properties. According to the prosecution, on 22.6.1995 at about 2.00 p.m. the deceased left the house for some work and he did not return the same day. Only on the next day, P.W.2 informed them that he had seen Sampath lying with injuries near Periapalayathamman temple and thereafter they went there and took the injured to the hospital but on the way he died. Ex.P-1 is the complaint given by P.W.1 in the Police Station against the accused on suspicion. 10. The learned counsel for the petitioner mainly contended that the trial court ought to have convicted the accused on the basis of admissible portion in the confession statement of the first accused under Ex.P-11, on the recovery of M.O.1 and the trial court ought to have summoned the complaint given by the first accused with the police relating to the injuries sustained by him at the hands of the deceased. There is no direct evidence relating to this occurrence. P.Ws.l, 3 and 4 have not actually seen the occurrence, but their evidence relates to the previous enmity between the parties. P.W.2 alone was examined as an eye witness to the occurrence and he turned hostile and did not support the prosecution case. The learned counsel pointed out that on the basis of the confession statement given by the first accused and also on the recovery of M.O.1, the conviction can be made. I am unable to agree with the contention. P.W.2 alone was examined as an eye witness to the occurrence and he turned hostile and did not support the prosecution case. The learned counsel pointed out that on the basis of the confession statement given by the first accused and also on the recovery of M.O.1, the conviction can be made. I am unable to agree with the contention. P.W.5 was the witness examined to prove about the confession statement marked under Ex.P-11 as well as the recovery of M.0.1 under a mahazar Ex.P-12. P.W.5 admittedly turned hostile and did not support the case of the prosecution. Further more, the prosecution has also not chosen to examine the other attestor to these documents. Moreover, M.O.1 was also not sent to chemical examination in order to find out whether it contained any blood so as to presume that it must have been used in commission of offence. 11. The learned counsel further pointed out that the petitioner already filed W.P.No.9449 of 1995 on the file of this Court relating to the same occurrence, wherein the first accused has filed a counter affidavit. In this counter affidavit, para 2 disclosed that on 22.6.1995 at 10 p.m. the first accused came to the police station and lodged a complaint that when he came by bicycle from Gummidipoondi, he was attacked by one Sampath Son of Raja Ganapathy and he was having injuries because of the attack. This document also would not improve the case of the petitioner in anyway. At best, it may be useful to come to a conclusion that on the night on 22.6.1995, there was some dispute between the first accused and the deceased and the first accused had sustained injuries. Now, the prosecution has not chosen to send for the first information report concerned in the case registered on the complaint of the first accused and also the wound certificate relating to him. The learned counsel now wanted that the prosecution should be directed to send for these documents for better and proper appreciation of the case. It is necessary to State that the revision has been filed by the private party and not by the State. Unless there is glaring illegality or any miscarriage of justice, no interference is called for in the revision. An opportunity cannot be given to a private party to fill up a lacuna in the case at the stage of revision. It is necessary to State that the revision has been filed by the private party and not by the State. Unless there is glaring illegality or any miscarriage of justice, no interference is called for in the revision. An opportunity cannot be given to a private party to fill up a lacuna in the case at the stage of revision. If there was improper investigation or is a biased one, naturally the petitioner ought to have taken proper steps at the earliest point of time to set right the matters. The petitioner having kept quiet for a long time and invited a finding has now come forward with a revision of this type. 12. It has been held in State of Maharashtra v. Annppa State of Maharashtra v. Annppa, A.I.R. 1979 S.C. 1410 thatbefore a court can act on circumstantial evidence the circumstances proved must be complete and of a conclusion nature so as to be fully inconsistent with the innocence of the accused and are not explainable on any other hypothesis except the guilt of the accused. 13. Similarly, it is observed in Pohalya v. State of Maharashtra Pohalya v. State of Maharashtra, A.I.R. 1979 S.C. 1949 that allthe proved circumstances must provide a complete chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. The aforesaid two decisions are clearly applicable to the case on hand. No doubt, there may be some suspicion against the first accused considering the fact that he has already given complaint before the same police that he had sustained injury at the hands of the deceased, but this cannot be equated to come to a definite conclusion that the first accused might have caused the death of the deceased. The trial court has rightly appreciated the evidence in this case and considering the fact that the case mainly rests upon the circumstantial evidence and when the chain is not complete, there is no other go for the court except to acquit the accused concerned in the case. It cannot be said that the finding of the court is perverse. The trial court has rightly appreciated the evidence in this case and considering the fact that the case mainly rests upon the circumstantial evidence and when the chain is not complete, there is no other go for the court except to acquit the accused concerned in the case. It cannot be said that the finding of the court is perverse. Moreover, the Apex Courtin Kishan Swaroop v. Government of Delhi Kishan Swaroop v. Government of Delhi, A.I.R. 1998 S.C. 990 has also held that the revision cannot be filed by a private person and unless there is glaring illegality or miscarriage of justice, no interference is called for. Having regard to the facts and circumstances of this case, I am of the view that no interference is called for. 14. For the reasons stated above, the revision fails and is dismissed.