Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 1597 (MAD)

Palanivel v. Packirisamy

2018-04-28

M.V.MURALIDARAN

body2018
JUDGMENT : 1. In the FIR, the respondents 1 to 3 were shown as A2 to A4 and pursuant to the splitting up of the case against A1, the respondents 1 to 3 were ranked as A1 to A3 in S.C.No.192 of 2005. 2. The revision petitioner/PW2 has filed this petition aggrieved over the acquittal of the first respondent herein / A1 in respect of the offences under Sections 302 and 341 r/w 34 IPC and second and third respondents herein / A2 & A3 in respect of the offences under Section 341 r/w 34 IPC. Though the first accused was acquitted of the charges completely, the second and third accused were convicted for the offence under Section 324 IPC and sentenced to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.1,000/- in default to undergo imprisonment for three months by the Trial Court. 3. The case of the prosecution is that due to family dispute and previous motive between the accused and the deceased family, on 19.10.2003 at about 05.00 a.m., when the deceased Pitchai @ Pitchian along with his family members were going to fishing, the accused persons wrongfully restrained the deceased and his family members in front of Muneeswaran Kovil. Further, the allegation of the prosecution is that the deceased was assaulted on his back head by the 1st accused by using wooden stick and the son of the deceased, namely, Chinnayan was stabbed by the 2nd accused by using knife, while he attempted to rescue the deceased. Further, another son of the deceased, namely, Palanivel was assaulted by the 3rd accused by using sickle, which resulted in registration of the case in Crime No.257 of 2003. 4. Originally, the First Information Report in Crime No.257 of 2003 was registered against four persons and the same was charge sheeted under Sections 341, 323, 324, 307, 302, r/w 34 of IPC after the investigation against four persons. Thereafter, the said case was split up against the 1st accused, namely, Balamurugan in P.R.C.No.40 of 2005 and the said case was not committed for trial. However, as for as the other accused are concerned, the case was taken on file by the concerned Principal District and Sessions Judge, Thanjavur and was made over to the Additional Sessions Court (Fast Tract Court No.2), Pattukottai against other accused in S.C.No.192 of 2005. 5. However, as for as the other accused are concerned, the case was taken on file by the concerned Principal District and Sessions Judge, Thanjavur and was made over to the Additional Sessions Court (Fast Tract Court No.2), Pattukottai against other accused in S.C.No.192 of 2005. 5. Before the learned Trial Court to prove the case, the prosecution examined Pws. 1 to 12, marked Exs.P1 to P18 and also produced Material Objects 1 to 7. Further, on behalf of the accused no one was examined as witness and no document and material object was marked and produced respectively. At the conclusion of the trial, while acquitting A1 from the charges, A2 & A3 were found guilty only under Section 324 IPC, thereby, they were acquitted of the charges under Sections 341 r/w 34 IPC. 6. Feeling aggrieved over the said judgment of the Trial Court, the revision petitioner / PW2 has preferred this instant revision to set aside the judgment of acquittal. 7. The learned Counsel appearing for the revision petitioner would submit that P.Ws.1 to 4, who are the eyewitnesses to the occurrence, had categorically stated that the accused persons waylaid and obstructed the deceased with an intention to kill him. The Trial Court, having believed the version of the eyewitnesses, had erred in acquitting the accused persons for offences under Sections 341 r/w 34 IPC. The dispute between the deceased family and the accused family was proved through eyewitnesses beyond reasonable doubt and therefore, the accused persons attacked the deceased and his family members with the common intention. Thus, a case under Section 302 IPC is clearly made out and the Trial Court, without applying its mind, had acquitted the first accused from the said offence. 8. The learned counsel for the respondents 1 to 3 / A1 to A3 would contend that though A2 and A3 were acquitted of the charge under Sections 341 r/w 34 IPC, they were convicted for the offence under Section 324 IPC, against which, they have filed a separate Crl.A.No.428 of 2006 before this Court. The Trial Court, having found no incriminating materials against A1 to A3, was pleased to acquit them from the offences, except under Section 324 IPC against A2 and A3. The Trial Court had raised a lot of doubts with regard to the manner of occurrence, type of weapons used, injury sustained, etc. The Trial Court, having found no incriminating materials against A1 to A3, was pleased to acquit them from the offences, except under Section 324 IPC against A2 and A3. The Trial Court had raised a lot of doubts with regard to the manner of occurrence, type of weapons used, injury sustained, etc. and pursuant to the failure of the prosecution to prove the case beyond reasonable doubt, the Trial Court had rightly acquitted the accused persons. Moreover, the FIR was sent to the Magistrate belatedly, which created doubt in the mind of the Court to the extent that the allegations levelled against the accused persons were not true, but the fabricated one. 9. Per contra, the learned Government Advocate (Criminal side) would contend that the eyewitnesses, namely, Pws.1 to 3 clearly deposed about the place of occurrence, time and the injuries sustained by all the witnesses without any contradiction. Further, he also pointed out that though the prosecution has clearly established the guilt of the accused, the Trial Court, without perusing the oral and documentary evidence in proper perspective, acquitted the accused persons, which needs revision by this Court. 10. Heard the learned counsel for the revision petitioner, learned counsel for the accused and the learned Government Advocate (Crl.Side.). This Court also perused the material documents available on record. 11. The Trial Court has mainly taken into consideration the deposition of P.W.8, who had stated that the body of the deceased Pitchai @ Pitchian was brought to the hospital with eyes open and on dissesction, it was found that due to the shock over the attack on his head, the death of Pitchai @ Pitchian could have occurred. After analyzing his report, the Trial Court came to the conclusion that though there were injuries on the body, those injuries would not have caused his death as per the report of the Doctor and moreover, the injury found on the forehead of the body was a permanent one. The prosecution witnesses 1 to 4 deposed that the accused Packirisamy attacked the deceased on the backside of the head, but the report of the Doctor states that there was no injury on the backside of the head of the deceased. Therefore, it is highly improbable to believe that the deceased was responsible for the sudden death of the deceased. 12. Therefore, it is highly improbable to believe that the deceased was responsible for the sudden death of the deceased. 12. Be that as it may, it is the paramount duty of the prosecution to prove that the injuries sustained by the deceased and other persons were caused by the accused, but in this case, the prosecution has not taken any effort to establish as to whether the deceased and other injured persons sustained cut injury or stab injury. Therefore, with all these contradictions, it is highly unsafe to reverse the judgment of the Trial Court. 13. The Investigating Officer had not followed the procedures with regard to recovery of weapons as per the provisions of Section 27 of the Indian Evidence Act. As per the admissible portion of the witness P.W.7, Police arrested four persons and obtained confession statement of Packirisamy at about 4:00 hours on 20.10.2003 and based on his confession statement, wooden log, knife and scythe were recovered and Police obtained signature from Packirisamy in the recovery mahazar. However, the prosecution has failed to explain the particulars regarding the place from where the weapons were taken out by the accused and the place in which those weapons were hidden. As per the provisions of Section 27 of the Indian Evidence Act, Police have to seize the weapons in the presence of witnesses and obtain signature from them. Failure on the part of the prosecution to do so is the fatal to the prosecution case. 14. Though there was no contradicton with regard to the place of occurrence, namely, near Muneeswaran Temple, in a criminal case, the eyewitnesses and other witnesses should jointly and exactly speak about the time, weapons used, name of the accused persons, which accused played a vital role in the attack etc. But in this case, such link is missing and the witnesses speak on their own during chief examination and in the cross examination, their version would remain different. Moreover, before the Trial Court, it was argued that it was the deceased and P.Ws.1 to 3, who had gone to the place of accused with deadly weapons with an intention to kill them, but, however there is no reference with regard to this vital aspect in the FIR, which according to the learned counsel for the accused, was a fabricated FIR, fully based on falsehood, assumption and presumption. 15. 15. An analysis of the overall theory elucidated by the prosecution would only create suspicion and choas, which is not at all sufficient to award capital punishment under Sections 302 and 341 r/w 34 IPC. 16. In fine, this Court finds nothing extraordinary to reverse the judgment of the Trial Court in toto and therefore, this revision petition fails and is liable to be dismissed. 17. Accordingly, this Criminal Revision Petition is dismissed.