Arumugm Solathirayar vs Ponnalgu Pandarar and others

Ramaswami, J.—This is a revision which bean preferred against the acquittal by the judicial Sub Magistrate. Keeranur. In C.C. No.638 of

1956. The case for the prosecution was that on 20th May 1956 at about 7.30 a.m., near Mothudayanpati the accused armed with stick (sic)

themselves into an unlawful assembly with the common object of assaulting and causing hurt to Arumugham Solagar, P.W. 1, and his men and in

pursuance of that common object, the accused committed the offence of rioting and in the course of the rioting injuries were caused to P. Ws. 1 to

3 and 5 and 6.

This is a police prosecution; and in support of the prosecution case as many as 13 witnesses were examined. Out of these 13 witnesses, P.Ws.

1 to 3, 5, 6, 8, 9 and 13 are eye witnesses. P.Ws. 1 to 3, 5 and 6 were the injured persons. P.W. 9 is a servant of P.W. 7 and P.W. 13 turned

hostile.

The case for the accused was as follows: Accused 1 to 14. and 16 stated that they did not beat P.Ws. 1 to 3 and 5 and 6. Accused 15 stated

that he did not instigate the other accused to beat P. Ws. 1 to 3, 5 and 6.

On behalf of the accused, three witnesses were examined and their evidence has been summarised by the Sub-Magistrate in paragraph 15 of his

judgment as follows:

D.W.1''s paternal uncle''s son Nanjan alias Ramaswami Thetenandar died on Saturday 6th Vaigasi in his house at Kitayur. P.W. 1''s house is

opposite Nanjan''s house. On Saturday night D.W. 1 slept on the pial of Nanjan''e house, On Sunday morning 2 1/2 naligata before day break P.

Ws. 1 to 3, 5 and 6 and some others came to Nanjan''a house to commit theft of Nan Jan''s properties P.W. 1 took a stick from the thati and beat

P. Ws. 1 to 3, 5 and 6. D.W. 2 who had come to his sister''s house at Kilayar came to Nan jan''s house on hearing noise. On Sunday morning D.

WS. 1 and 3 and P. Ws. 1 to 3, 5 and 6 going in a cart to Udayalipatti from one Slvasami''s house.

The learned Sub Magistrate acquitted the accused and hence this revision.

There can be no doubt that the acquittal by the learned Sub Magistrate cannot at all be supported. In fact, his conclusion appears to be

thoroughly perverse and devoid of any reasoning. It does not flow from the evidence. The occurrence has been spoken to by the eye witnesses, P.

Ws. 1 to 3, 5, 6, 8, 9 and 13. Out of them, P. Ws. 1 to 3, 5 and 6 are the injured persons and for which medical certificates are forthcoming.

P.W. 4, Dr. Srinivasan, has been examined. In fact, the learned Magistrate himself states that there can be no doubt that P. Ws. 1 to 3, 5 and 6

received injuries. The prosecution has also put forward adequate motive for the commission of the offence. Information of the offence has been

given of this rioting and the police have investigated the case and put up the charge-sheet. Only one of the witnesses examined out of the category

of eye witnesses has not supported the prosecution case; the others have spoken to the main facts set out in the charge sheet. The names of P.Ws.

9 and 13 are mentioned in the F.I.R. as eye witnesses. It is only the name of P.W. 8 that has not been mentioned in it. The allegation that he is a

servant of P.W. 7 has also been denied. Turning to the accused, the names of all the 15 accused are mentioned in the F.I.R. only the name of

accused 16 is not mentioned. In other words, we have got a volume of evidence in support of the prosecution story.

I have already reproduced the evidence of the three defence witnesses as summarised by the Sub Magistrate. One moment''s reflection will

show that whatever might be the grounds for acquitting the accused, it cannot certainly be on the strength of the defence evidence that the case has

got to be thrown out. In fact, the learned Sub Magistrate himself has not pretended to do so on account of the defence evidence. He has not even

considered the defence evidence and the value to be attached to that evidence. The reasons given by the Sub Magistrate consists of a series of

cliches which inexperienced Sub-Magistrates are prone to repeat being mentioned at the Bar ad museum in magisterial Courts. The two reasons

given by the Sub Magistrate are that he cannot believe the eye witnesses because out of them P.Ws. 1 to 3, 5 and 6 are the injured persons and

interested. P.W. 9 is a servant of P.W. 7; and the evidence of the others are exaggerated because for every act spoken to by them, there is not a

corresponding injury in the medical certificate and that, therefore, the prosecution version is an exaggerated one and consequently, it was not safe

to rely on that evidence and convict the accused. He purported to give what he called the benefit of doubt to the accused. I am sure that a

Magistrate with a greater amount of experience would not have fallen into all these pitfalls. The fact that in the F.I.R. the name of one accused is

not mentioned or the names of some witnesses are not mentioned is no ground for disbelieving the prosecution story and acquitting the accused

whose names are mentioned in the. F.I.R. and disbelieving the witnesses whose names are mentioned in the F.I.R. The F.I.R. is not an

Encyclopaedia. It is not the beginning and ending of every case. It is only a complaint to set the affairs of law and order in motion. It is only at the

investigation stage that all the details can be gathered and filled up. So to reject the story on the ground of first information report is to show an

inadequate appreciation of criminal investigation and the weight to be attached to evidence in criminal cases.

Then it is a habit with the Madras ryots as has been pointed out in more then one judgment of this Court not to merely say there was a row and

all these persons took part in the offence but to work out in elaborate analysis of left-sides and right-sides and fists and feet. It does not mean one

must find corresponding injury to every fact spoken to by them. It is not a case of every bullet finding its billet. This is an expression of speech with

those ryots who are illiterate and who in the stress of emotion observe things from different angles and speak to various acts. On the other hand,

the broad probabilities have got to be considered whether these accused persons had a motive to commit the offence. Whether they participated in

the commission of the offence whether the particular act attributed to them is spoken to by more than one witness and finally we, must consider the

defence put, forward by the accused and its validity by testing the prosecution version.

I am afraid that the learned Magistrate has completely misdirected himself and had made a wrong approach to this case when be got himself

obsessed with examining the medical certificate to find out whether every corresponding act spoken to by each, witness finds a corresponding

injury in the medical certificate. He has lost sight of the wood in the midst of trees and immaterial discrepancies have been elevated to the rank of

falsehoods- On the other hand, in all these rioting cases where people observe under stress and emotion an occurrence, for a short space, from

different angles with different temperaments, capacity to observe, intelligence and memory powers, such discrepancies are bound to occur. They

show only the untutored veracity of the witnesses. On the other hand, if there are not discrepancies in such cases we must always suspect

confederacy and concoction before hand.

It is unnecessary to multiply these details to show that there were no grounds at all for this Magistrate to come to the conclusion that it was a

case of giving the benefit of the doubt to the accused. Benefit of doubt is not a formula for shirking the task of Magistrates to grapple with the facts

and give definite conclusions of their own. In fact S. 3 of the Indian Evidence Act lays down:

A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable

that a prudent man ought under the circumstances of the particular case to act upon the supposition that it exists.

In other words, so long as there is a volume of acceptable evidence and which is sought to be rebutted, it is the duty of the Magistrate to apply

his mind to those facts, analyse this evidence to find out whether the prosecution has affirmatively and satisfactorily proved its case, making use of

the defence evidence for the (sic) pore of testing whether the (sic ) tion case can be (sic) then only if there is a reasonable doubt that the offence

has not been brought home, beyond moral certainty, in accordance with the merciful jurisprudence which we administer we are bound to give the

benefit of the doubt to the accused In other words, to use Lord Kenyon''s homely phrase:

If the scales of evidence hang anything like even to throw into them some grains of mercy; or as it is more commonly put to give the prisoner the

benefit of any reasonable doubt. Not be it noted of every doubt (for everything relative to human affairs and dependent on human evidence is open

to some possible or imaginary doubts).

It is the condition of the mind which exists when the Judges and Magistrates cannot say that they feel an abiding conviction, a moral certainty of the

truth of the charge.

In these circumstances the acquittal by the lower Court cannot at all be supported. The order of acquittal is set aside and the learned District

Magistrate is directed to further enquire into the matter either by himself or by a Magistrate appointed by him in this behalf, other than the

Magistrate who has so unsatisfactorily disposed of this case.