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2007 DIGILAW 2433 (MAD)

Chinnasamy v. Subramania Gounder & Others

2007-08-03

A.C.ARUMUGAPERUMAL ADITYAN

body2007
Judgment :- This revision has been preferred by the complainant (P.W.1) in C.C.No.190 of 2000 on the file of the District Munsif-cum-Judicial Magistrate, Perundurai. 2. The short facts of the case of the prosecution is that on 17. 2000 at about 5.45 pm due to previous enmity related to a civil dispute A2 & A3 have wrongfully restrained P.W.1 and A1 assaulted P.W.1 on the head with a stone causing simple injury and A2 had attacked him with a small knife on the right palm causing simple injury. 3. The case was taken on file by the learned Judicial Magistrate under sections 323, 341, 324 & 506(ii) IPC. On appearance of the accused on summons, the learned Judicial Magistrate had furnished copies under Section 207 of Cr.P.C., to the accused and framed charges under Section 323 & 506(ii) IPC against A1, under Section 341 & 506(ii) IPC and under Section 324 IPC against A2 and under Section Section 341 & 506 (ii) IPC against A3 and when questioned, the accused pleaded not guilty. On the side of the prosecution P.W.1 to P.W.6 were examined, Ex.P.1 to Ex.P.7 were exhibited and M.O.1 to M.O.3 were marked. 4. P.W.1, the revision petitioner herein, is the injured witness. According to him, on 17. 2000 at about 4.45 pm when the accused were destroying the cart track in his land with JCP machine, he rushed to the spot and restrained the accused from destroying the existing cart track. A1 got infuriated and assaulted P.W.1 with a stone on the back of his left ear causing simple injury and A3 caught hold of him to facilitate A2 to attack with a small knife on his right palm causing simple injury. Immediately he had preferred Ex.P.1-complaint with Kanchikoil police. He had identified M.O.1 as his blood stained white shirt, M.O.2 as the stone used by A1 in hitting him and M.O.3 as the knife used by A2 in attacking him. 5. P.W.2 would corroborate the evidence of P.W.1 to the effect that on 17. Immediately he had preferred Ex.P.1-complaint with Kanchikoil police. He had identified M.O.1 as his blood stained white shirt, M.O.2 as the stone used by A1 in hitting him and M.O.3 as the knife used by A2 in attacking him. 5. P.W.2 would corroborate the evidence of P.W.1 to the effect that on 17. 2000 at about 4.45 pm the accused with the help of JCP machine tried to deface the cart track in the land of P.W.1, there arose a quarrel between P.W.1 and the accused, which ended in A1 hitting P.W.1 with a stone and A2 attacking P.W.1 with small knife causing simple injuries and that A3 had caught hold of P.W.1 thereby facilitating A2 to attack him (P.W.1) with a small knife on the right palm causing simple injury. Since it was profusely bleeding P.W.1 had preferred the complaint against the accused with the police. 6. P.W.3 also corroborates the evidence of P.W.1 and P.W.2 and also speaks about the specific overtact attributed against the accused. 7. P.W.6 is the then head constable of Kanchikoil Police Station. He had registered the case under Cr.No.108 of 2000 under Section 341, 323, 324 & 506(ii) IPC on the basis of the complaint preferred by P.W.1. Ex.P.5 is the copy of the FIR. He had recovered the blood stained shirt from P.W.1 under Ex.P.6. He visited the place of occurrence and prepared Ex.P.2-observation mahazar in the presence of P.W.4. He had also drawn rough sketch Ex.P.7 for the place of occurrence. He has recovered the stone and the small knife used by A1 and A2 respectively at the time of occurrence under Ex.P.3-recovery mahazar in the presence of P.W.4. 8. P.W.5 is the Doctor. He had examined the injured on 17. 2000 at about 8.00 pm, who was sent with police memo, and issued Ex.P.4 copy of the accident register. The doctor has observed an incised wound measuring ½ cm x ½ cm x ½ cm behind the left pinna and a lacerated injury on his right palm. 9. P.W.6 after completing the formalities had filed the charge sheet against the accused on 9. 2000. 10. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., they would deny their complicity with the crime. 9. P.W.6 after completing the formalities had filed the charge sheet against the accused on 9. 2000. 10. When incriminating circumstances were put to the accused under Section 313 of Cr.P.C., they would deny their complicity with the crime. After going through both the oral and documentary evidence, the learned Judicial Magistrate has come to the conclusion that the charges levelled against the accused have not been proved beyond any reasonable doubt and accordingly acquitted the accused from all the charges levelled against them, which necessitated P.W.1 to prefer this revision. 11. Now the point for determination in this revision is whether the findings of the learned trial Judge is manifestly illegal or perverse in nature resulting miscarriage of justice? 12. The Point:- 12(a) Heard the learned Counsel Mr.N.Manokaran appearing for the revision petitioner and Mr.Selvaraj learned counsel appearing for R1 to R3 and Mr.V.R.Balasubramaniam learned Additional Public Prosecutor for the State and considered their respective submissions. 12(b) The learned counsel appearing for R1 to R3 Mr.Selvaraj relying on 2002(6) SCC 650 (Bindeshwari Prasad Singh @ B.P. Singh and others Vs. State of Bihar (now Jharkhand) and another), would contend that under Section 401 of Cr.P.C., the scope of the High Court in case of revision is very limited unless it is brought to the notice of the Court sitting on revision that the findings of the learned trial judge is manifestly illegal and perverse in nature resulting in miscarriage of justice, the findings of the learned trial Judge cannot be interfered with by a Court exercising revisional Jurisdiction. The relevant observation of the Honourable Apex Court in the above said ratio decidendi at para 12 runs as follows:- "We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code of Criminal Procedure. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. Sub-section (3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction. The aforesaid sub-section, which places a limitation on the powers of the revisional Court, prohibiting it from converting a findings of acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of Criminal Procedure. If the High Court could not convert a finding of acquittal into one of conviction directly, it could not do so indirectly by the method of ordering a retrial." In order to controvert this point, the learned counsel for the revision petitioner Mr.N.Manokaran relying on AIR 2004 SC 4583 (Ram Brish Singh and others Vs. Ambika Yadav and another), contended that the Honourable Apex Court has held that if trial court has overlooked the material evidence placed before it in arriving at a findings that the accused are not guilty for the offence will lead to manifest illegality and gross miscarriage of justice and that High Court is empowered to set aside the order of acquittal in exercise of revisional jurisdiction and order retrial. The learned counsel for the revision petitioner would contend that the trial Court has failed to take into consideration the evidence of the injured witness viz. P.W.1, which was corroborated by the medical evidence. 12(c) According to P.W.1, the accused have erased the cart track in his land with help of a JCP machine and that when this was intervened by him, A1 had hit him with a stone on the back of left pinna and A2 had attacked him with a small knife while A3 caught hold of him to facilitate A2 to attack with a small knife which caused injury on his left palm. P.W.5 is the doctor, who has examined the injured P.W.1 on the date of occurrence i.e., 17. 2000 at 8.00 pm and has found an incised wound on the back of the left pinna measuring ½ x ½ x ½ cm and an abrasion on the right palm. Ex.P.4 is the copy of the accident register. The evidence of P.W.1 has been corroborated by P.W.2 & P.W.3. 2000 at 8.00 pm and has found an incised wound on the back of the left pinna measuring ½ x ½ x ½ cm and an abrasion on the right palm. Ex.P.4 is the copy of the accident register. The evidence of P.W.1 has been corroborated by P.W.2 & P.W.3. The evidence of P.W.2 & P.W.3 were attacked by the learned counsel for the respondents on the score that they are relatives to P.W.1 and he would also contend that the date of occurrence is on 17. 2000 at 5.45 pm but the FIR and other connected records were received by the Court only on 17. 2000. But the fact remains that Ex.P.1-complaint was preferred by P.W.1 at 6.30 pm on 17. 2000 i.e., on the date of occurrence itself, within 45 minutes from the time of occurrence. So it cannot be said that there is an inordinate delay in preferring the complaint. These are all the manifest errors I could see in the judgment of the Trial Court, for which, in my view the findings of the learned trial judge is liable to the set aside and the matter is to be remanded to the trial Court for retrial. At this juncture it is brought to the notice of this Court the ratio decidendi in AIR 1962 SC 1788 (K.Chinnaswamy Reddy Vs. State of Andhra Pradesh and another), wherein the Honourable Apex Court has held, in a case of similar nature, that it is open to the revisional Court to remand the matter to the trial Court for retrial. Point is answered accordingly. 13. In fine the revision is allowed and the findings of the learned trial Judge in C.C.No.190 of 2000 on the file of the District Munsif-cum-Judicial Magistrate, Perundurai, is set aside and the matter is remanded to the trial Court for retrial. It is made clear that the trail Court shall not be carried away by any of the observation made by this Court in this case. The trial court is directed to dispose of the case within two months from the date of receipt of copy of this order.