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2012 DIGILAW 4950 (MAD)

S. Nallathambi v. Kaliyaperumal

2012-12-13

B.RAJENDRAN

body2012
ORDER 1. This revision petition is filed seeking to set aside the order of acquittal of the learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Cuddalore in C.A. No. 51 of 1997, dated 28.10.2002 revising the order of conviction passed by the learned Assistant Sessions Judge Vridhachalam in S.C. No. 107 of 1995, dated 20.10.1997. 2. The learned Assistant Sessions Judge Vridhachalam by an order dated 20.10.1997 passed in S.C. No. 107 of 1995, convicted the accused/ respondents 1 to 3 for the offence punishable under Section 498(A) of I.P.C. and sentenced each of them to undergo three years rigorous imprisonment and to pay a fine of Rs. 5,000/- each, in default, each of them undergo six months rigorous imprisonment. The learned Additional Sessions Judge-cum-Chief Judicial Magistrate, Cuddalore by an order dated 28.10.2002 passed in C.A. No. 51 of 1997 acquitted the accused from the conviction and sentence by allowing the appeal and setting aside the order passed by the trial Court. 3. According to the revision petitioner, though the trial Court convicted the accused, the Appellate Court acquitted the accused solely on the ground of delay in the registering of F.I.R. The learned counsel for the petitioner vehemently argued in detail stating that the petitioner has taken all the steps to bring to the notice of the Court, the reasons for the delay, especially, their apprehension of the post mortem being done to the deceased. This vital factor was not considered by the Court below. Further, they have let in evidence to show that there are possibilities of harassment due to dowry demand. But, these factors are not considered by the Court below. Hence, the learned counsel for the revision petitioner would contend that the acquittal of the accused by the Appellate Court is not in accordance with law. 4. Though notice was served and the names of the respondents 1 to 3 were printed in the cause list, none appeared for the respondents 1 to 3. 5. The learned Government Advocate (Criminal Side) appearing for the fourth respondent would mainly contend that the delay in registering the First Information Report has not been properly explained by the complainant and therefore, the Court below has interfered with the order of the trial Court and granted the benefit of doubt to the accused and acquitted the accused. 6. Heard both sides. 7. 6. Heard both sides. 7. The only ground raised in the revision was that the Court below has not taken into consideration the explanation offered for the delay in lodging the complaint. The only explanation given is that the father and the other relations were afraid about the post mortem being conducted in respect of the body of the deceased. This vital factor has not been considered by the Court below. 8. When we read the entire judgment of the First Appellate Court, the Court has given clear and cogent reasons for acquitting the accused. Infact, in this particular case, the lower Court has specifically referred to the admission of P.W.1 in the cross examination, where he has stated that, prior to the complaint given to the police, he had earlier lodged a complaint to the Revenue Divisional Officer and that complaint has not been produced into Court. Secondly, he would also admit in the cross-examination that Revenue Divisional Officer has sent a letter directing him to approach the District Superintendent of Police and that letter alleged to have been sent by the Revenue Divisional Officer is also not produced into the Court. Therefore, if at all he has lodged a complaint to the Revenue Divisional Officer, before the First Information Report, admittedly, that letter has not been produced into Court and therefore, in that case, it cannot be accepted that the complaint was given to police belatedly only on the basis of the apprehension of post-mortem. The complaint should have been lodged at the earliest, especially, in a serious crime when they allege death of a person. Unfortunately, it is not done so. 9. Further, the Court below has also cited the relevant portion of the decision of the Hon’ble Apex in (1) Selvi and Another (2) Koodakkal Karain and Others v. State of Tamil Nadu and Another (1981) CriLJ 736 (SC) which reads as follows: “(A) Criminal P.C.(2 of 1974). Section 154-First information report-Allegation by accused that original F.I.R. was suppressed by police officer and was substituted by another-Failure by police officer to produce FIR book in Court notwithstanding direction of Court-general diary at police station also not produced-Inference can be drawn, that original FIR was suppressed-prosecution case becomes suspicious (Evidence Act 1872).” and has also cited the relevant portion of the decision of this Court Thyagarajan v. State rep. by the inspector of police, Thanjavur Rural 1995 (2) MWN (Crl) 37 at page 38 which reads as follows: “Appreciation of Evidence - Failure on the part of the police to take immediate steps to obtain a statement/Complaint on receipt of intimation by the doctor about the injury Death intimation not produced before the Court-General diary entry about the Telephonic message of the incident not produced before Court. No direct proof that appellant alone attacked the deceased. Weak and flimsy motive for the murder attributed by the prosecution inordinate delay in registering the case creates a suspicion about the possibility of another complaint-No attempt made to get dying declaration from victim, Conflicting evidence between ocular and medical witnesses about the consciousness and confession given by victim. No blood in the recovered knife. The involvement of the father of the deceased in the crime not ruled out. appellant entitled to benefit of doubt.” for the proposition that the prosecution should produce necessary complaint and if the complaint is delayed and un-explained, naturally the benefit of doubt has to be given to the accused. 10. Unfortunately, in this case, delay has not been properly explained. The occurrence took place on 22.7.1994, without any objection, the funeral took place on the same day, but the complaint has been lodged only on 2.8.1994. There is inordinate delay and this delay has not been properly explained by the Court below. 11. In the decision of the Hon’ble Supreme Court in Ram Swaroop and Others v. State of Rajasthan AIR 2004 SC 2943 : (2004) 13 SCC 134 : (2005) SCC (Crl.) 61 ) it was held that it is well settled that if two views are reasonably possible on the basis of the evidence on record, the view which favours the accused must be preferred. Similarly, it is well settled that if the view taken by the trial Court, while acquitting the accused is a possible, reasonable view on the basis of evidence on record, the High Court need not interfere with such an order of acquittal merely because it is possible to take a contrary view. 12. Similarly, it is well settled that if the view taken by the trial Court, while acquitting the accused is a possible, reasonable view on the basis of evidence on record, the High Court need not interfere with such an order of acquittal merely because it is possible to take a contrary view. 12. It is evident from the aforesaid judgment of the Hon’ble Supreme Court that this Court cannot appreciate the evidence and interfere with the order of acquittal passed by the trial Court as the view taken by the trial Court is also a reasonable view on the basis of evidence on record and the evidence recorded by the trial Court are not manifestly erroneous, contrary to the evidence or record or perverse. In this case, the revision petitioner is unable to establish by any valid evidence that the order passed by the Court below is perverse or contrary to evidence available on record. 13. Applying the aforesaid decision to the facts and circumstances of this case, in the present case, there are no evidence available on record to connect the accused to the offence complained of and the prosecution has miserably failed to establish the guilt against the accused beyond reasonable doubt. Therefore, I am of the view that the order of acquittal passed by the Court below is reasonable, plausible and it need not be slightly brushed aside. 14. Therefore, I do not find any reason to interfere with the order passed by the Court below and hence this revision petition is dismissed. Petition dismissed.