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2011 DIGILAW 660 (MAD)

Pandian v. Ponnusamy

2011-02-08

A.ARUMUGHASWAMY

body2011
Judgment :- 1. This Criminal Revision is directed against the judgment of acquittal dated 14.9.2004 made in S.C.No.132 of 2003 on the file of the Principal Sessions Judge, Namakkal. 2. The charges framed against the accused 1 and 2 are that on 12.1.2002 at about 1.30 p.m. they picked up wordy quarrel with Chinnathambikallan in front of his house at Vadakkumedu Muttanchetty Village and in the course of such wordy quarrel they assaulted him with Velkambi and Crow Bar on the head and chest resulting in his instantaneous death thereby they committed offence under section 302 read with 34 IPC. In the course of the same transaction, they attacked, P.Ws.1 and 3 who attempted to intervene and inflicted simple and grievous injuries and thereby committed offences under Sections 307 read with 109 and 323 IPC. By the said judgment the trial court acquitted the accused for the offences stated above against which the present revision has been filed by the complainant. 3. The case of the prosecution is that P.Ws.1 and 2 are the sons of the deceased. P.W.3 is the daughter in law of the deceased . P.W.7 is the elder brother of the deceased. The father of the accused and the deceased are relatives and are adjacent land owners having common property in respect of which prior enmity was existing between the two families. On the day prior to the date of occurrence, P.W.1 was cleaning the disputed cattle ground and at that time A2 went and beat him with broomstick and threatened him with dire consequences. On the next day, i.e. on 12.1.2001 the deceased was standing in front of his house and at that time, the accused 1 and 2 at about 1.30 p.m. picked up wordy quarrel with the deceased. P.W.3 the daughter in law of the deceased also reached the scene of occurrence. In the course of such wordy quarrel A1 armed with velkambi attacked the deceased on his head and and A2 armed with crow bar attacked the deceased on his chest. When P.Ws.1 and 3 intervened they were also attacked and inflicted injuries. According to the prosecution, P.Ws.2,5,6 and 10 also on hearing the noise reached the scene of occurrence and witnessed the occurrence along with few more persons. On receiving the blows the deceased fell down with heavy bleeding on his head and due to the said injuries, he died. When P.Ws.1 and 3 intervened they were also attacked and inflicted injuries. According to the prosecution, P.Ws.2,5,6 and 10 also on hearing the noise reached the scene of occurrence and witnessed the occurrence along with few more persons. On receiving the blows the deceased fell down with heavy bleeding on his head and due to the said injuries, he died. Thereafter, P.W.11 arranged for a car and took P.Ws.1 and 3 to Namakkal Government Hospital. P.W.8 is the Doctor who examined P.Ws.1 and 3 at 3.40 P.M. In the mean time P.W.17 the then Sub-Inspector of Police, Erumapatty Police Station from Namakkal Police Station at about 4 P.M. on receipt of information went to Namakkal Government Hospital and obtained Ex.P.1 complaint from P.W.1 and on that basis he registered the case in Cr.No.No.,25/2002 for the offence under Sections 324 and 302 IPC. He prepared Ex.P22 F.I.R and caused the same to be sent to concerned Judicial Magistrate and other higher officials through P.W.14, the Head Constable attached to Erumapatty Police Station. 4. On receipt of the FIR P.W.18 the Inspector of Police attached to Namakkal Police Station in charge of Erumapatty Police Station commenced his investigation and went to the scene of occurrence at about 7 p.m. P.W.12 is the Village Administrative Officer of Muttanchetti Village P.W.13 is his menial. P.W.18 prepared Ex.P8 observation mahazaar and Ex.P23 rough sketch in the presence of the witnesses. He held inquest on the dead body of the deceased. He examined witnesses. Ex.P24 is the inquest report. He recovered M.Os.3 and 4 blood stained earth and sample earth from the scene under Ex.P9 . Thereafter, he sent the body with P.W.15, the police constable for post mortem. The Doctor P.W.16 attached to Namakkal Government Hospital conducted the post mortem on the dead body of the deceased on 13.1.2002 at 10.30 a.m. The Doctor was of the opinion that the deceased would appear to have died 18-24 hours prior to autopsy. Ex.P21 is the post-mortem certificate. P.W.18 continued further investigation and arrested the accused 1 and 2. After completion of investigation, charge sheet was filed against both the accused under Sections 302 read with 34 and against A1 under Section 307 IPC read with 109 and against A2 under Section 307 and 323 IPC. 5. Ex.P21 is the post-mortem certificate. P.W.18 continued further investigation and arrested the accused 1 and 2. After completion of investigation, charge sheet was filed against both the accused under Sections 302 read with 34 and against A1 under Section 307 IPC read with 109 and against A2 under Section 307 and 323 IPC. 5. During the course of trial, P.Ws.1 to 18 were examined; Exs.P-1 to P-31 were filed and M.Os.1 to 6 were marked. 6. When the accused was questioned under Section 313 Cr.P.C. in respect of the incriminating materials appearing against them through the evidence adduced by the prosecution, the accused denied their complicity. After due enquiry, the trial court having analysed the evidence adduced by the prosecution, disbelieved the case of prosecution and acquitted all the accused. The said acquittal is the subject matter of challenge before this Court in this revision filed by the complainant. 7. The learned counsel appearing for the revision petitioner as well as the learned Government Advocate appearing for the prosecution contended that (1) the evidence of P.W.1 was not properly considered. (2) the trial court has given undue weightage for the discrepancy found in the inquest, more particularly the time of inquest and on that basis the acquittal of the accused is not correct which is against the settled proposition of law. Hence, he prayed that the revision should be allowed. 8. The learned counsel appearing for the respondents 1 and 2 contended that as per the evidence of P.W.1, the suppression of earlier complaint has been proved. However , he would further contend that the earlier complaint has been suppressed and its place, concocted complaint has been substituted. This has been brought on record by the accused through the evidence of P.W.1.It is on the ground that the prosecution has suppressed the original complaint and hence has not come forward with the true version of the accused. The trial court has acquitted the accused which can be in any manner assailed. Apart from that the trial court highly disbelieved the eye witness account and has also rightly noticed the discrepancies in the inquest. Thus, the trial court has acquitted the accused on sound reasons and valid grounds which does not require interference at the hands of the court. Further when the revision is against acquittal the scope of interference is very limited. Thus, the trial court has acquitted the accused on sound reasons and valid grounds which does not require interference at the hands of the court. Further when the revision is against acquittal the scope of interference is very limited. For all these reasons the leaned counsel contended that the revision has to be dismissed by confirming the order of the trial court. 9. I have considered the above submissions of the learned counsel appearing on either side . 10. According to the prosecution, P.W.1 and P.W.2 are eye witnesses to the account. P.W.1 is an injured eye witness whose presence cannot be doubtful. As rightly pointed out by the learned counsel for the petitioner, the trial court has overlooked the evidences of P.W.1 and P.W.2 without assigning any sound reasons. The trial court has acquitted the accused solely on the ground that P.W.1 has admitted that Ex.P1 complaint was not the one which contains his signature, even though he admitted twice in the cross examination that the signature belongs to him and only at the last instance he denied the signature. In this regard, it is needless to state that it is not the rule of evidence that prosecution case should be disbelieved on the ground that P.W.1 denied his signature at the third time, which alone can be accepted as correct and on that basis one can disbelieve the entire complaint. In this case the trial court has swayed by their admission made by P.W.1. The trial court ought to have considered the entire evidence and should compare any variation has been found out in the case of the prosecution. Further the trial court must satisfy that because of the denial of signature in the complaint there is any possibility of suppression of earlier complaint or on that basis there is any chance of introducing the new complaint in its place . Without having such a proper legal approach while appreciating the evidence of P.W.1 and P.W.2, the trial court has swiftly rejected the case of the prosecution. This is in my considered view is not legally sustainable. 11. I am conscious of the legal position that the scope of interference with the acquittal on a revision filed by the private party is very limited. This is in my considered view is not legally sustainable. 11. I am conscious of the legal position that the scope of interference with the acquittal on a revision filed by the private party is very limited. It is in law that when the trial court overlooked the evidence let in by the prosecution for no sound reasons in an exercise of the power of revision, this court can interfere with the acquittal in order to avoid miscarriage of justice. 12. In view of the above conclusion arrived at by me, I am not inclined to go into the other grounds and the submissions made by the learned counsel on either side as any opinion to be expressed on these grounds may tend to influence the mind of the trial court. Therefore, all these things are left open for the trial court to consider. 13. In the result, the Criminal Revision is allowed. The judgment of the trial court is set aside and the matter is remitted to the learned Principal Sessions Judge, Namakkal, who shall afford opportunity to the prosecution and the accused and dispose of the case in accordance with law without getting influenced by any of the observations made herein above. The appearance of the accused before the trial court is on 1.4.2011.