Elumalai vs Hari Krishnan and Others

R. Mala, J.—This criminal revision arises out of the judgment of acquittal, dated 27.11.2008 in S.C. No. 45 of 2007, on the file of the

Assistant Sessions-cum-Chief Judicial Magistrate''s Court, Sessions Division, Villupuram, whereby the Respondents 1 to 4 were acquitted of the

offence under Sections 341 I.P.C., the Respondents 2 to 4 were acquitted of the offences under Sections 324, 307 read with 34 I.P.C., the first

Respondent was acquitted of the offence u/s 307 I.P.C.

The case of the prosecution is as follows:

(i) On 18.06.2006, at 7.30 p.m., P.W.1 and her husband P.W.2 were proceeding from their house at Maragadhapuram Colony to board bus at

the bus stop to go to Villupuram. When they were ten feet away from their house, the Respondents 1 to 4 wrongfully restrained them and assaulted

P.W.2-Elumalai with koduval. The first Respondent assaulted P.W.2 on his head with knife and the second Respondent assaulted him on his left

hand and the fourth Respondent assaulted him on his left shoulder. The third Respondent assaulted him on his left knee with iron rod. Immediately,

P.W.1 made an alarm, at that time, P.W.3-Kaliaperumal rushed to the place of occurrence, but the accused ran away from the scene of

occurrence. Then, P.W.1, P.W.3 and P.W.4-Devaraj were taken injured P.W.2 to the hospital, where P.W.7-Dr. Arutselvan has treated him at

8.45 p.m. and pointed out the injuries sustained by him and issued Accident Register under Ex.P3, in which, it was mentioned that P.W.2 was

assaulted by five persons.

(ii) P.W.1-wife went to police station and gave Ex.P1-complaint, which was received by P.W.8-Kumar, the Sub-Inspector of Police, on

19.06.2006, at 7.30 p.m. and a case was registered in Crime No. 604/2006 for the offences under Sections 341, 324 and 307 I.P.C. and

prepared Ex.P4-F.I.R.

(iii) P.W.8-Sub-Inspector of Police took up the matter for investigation. He went to the place of occurrence and prepared Ex.P2 observation

mahazar in the presence of witnesses P.W.5-Murugan and P.W.6-Janaki Raman and he also drew Ex.P5 rough sketch and enquired the witnesses

and recorded their statements. On 22.06.2006, at 1.00 p.m., P.W.8 arrested the Respondents 2 and 4 and remanded them to judicial custody.

Since P.W.2 needed further treatment, P.W.7 Dr. Arutselvan referred to Government Hospital, Chennai for further treatment, where P.W.9-Dr.

Balasubramanian, who treated him and gave discharge summary under Ex.P6. Then, P.W.10-Charles, Inspector of Police, who took up the matter

for further investigation and after that investigation, charge sheet was filed against the accused 1 to 4.

The learned Magistrate, after following the procedure, committed the matter to the Assistant Sessions Court. The learned Assistant Sessions

Judge framed charges, since the Respondents 1 to 4/accused 1 to 4 pleaded not guilty, examined the witnesses P.W.1 to P.W.10 and perused the

documentary evidence under Exs.P1 to P6, acquitted the Respondents 1 to 4/accused 1 to 4 from all the charges framed against them, against

which, the present revision has been preferred by the injured P.W.2.

Challenging the acquittal order, the learned Counsel for thePetitioner/P.W.2 submitted that the trial Court has not appreciated the oral

anddocumentary evidence, acquitted the accused 1 to 4 on the basis that the place of occurrence was not proved, blood stained cloth of P.W.2

was not seized, the weapons used by the accused 1 to 4 are not recovered and there is a material contradiction between the evidence of P.Ws. 1

to 3. No independent witness was examined other than P.W.1 to P.W.3, who are related and interested witnesses. The learned Counsel further

submitted that the evidence of P.W.2, who is the victim, is clearly proved that how the incident was taken place and how the accused 1 to 4 are

assaulted him. So the accused 1 to 4 are guilty for the offences under Sections 341, 324 and 307 I.P.C. A single related eye-witness is reliable

that too P.W.1 is injured eye-witness, hence his evidence is to be looked into. To substantiate her arguments, she relied upon the decisions of the

Apex Court. She further submitted that since there is an enmity between P.W.2 and the accused 1 to 4, the evidence of P.W.2cannot be

discarded. The minor discrepancy in the evidence of P. Ws.1 to 3 eye-witnesses will not absolve the guilty of the Respondents 1 to 4/accused 1 to

So the trial Court has not considered this aspect in proper perspective, acquitted the Respondents 1 to 4/accused 1 to 4. Hence she prayed for

setting aside the acquittal order and allowing the revision and order for re-trial.

The learned Counsel for the Respondents 1 to 4/accused 1 to 4 submitted that there is a material contradiction between the medical evidence

and ocular evidence. There is an enmity between P.W.2, P.W.3 and Respondents 1 to 4/accused 1to 4. He further submitted that the powers of

revisional Court is very limited. If the finding is perverse, illegal, then only the revisional Court has re-appreciated the evidence. Since the trial Court

considered this aspect in proper perspective and came to the correct conclusion, he prayed for dismissal of this revision.

Considered the rival submissions made on both sides and materials on record.

Since the revision Petitioner/P.W.2 has preferred this revision against the acquittal order passed by the trial Court, this Court has to consider the

powers of revisional Court. It is not an appellate Court to re-appreciate the oral and documentary evidence, since the Respondents 1 to 4/accused

1 to 4 were acquitted. At this juncture, it is appropriate on the part of the revisional Court to decide that whether there is any perversity in the

findings of the trial Court, whether there is any non-appreciation of the finding and whether the finding is affected illegality or irregularity.

Admittedly, the trial Court considered the oral and documentary evidence of P.W.1 to P.W.10 and Exs.P1 to P6.P. Ws.1 and 2 are husband

and wife; P.W.3 is maternal uncle of P.W.2; P.W.4-Devaraj, who is a person from the same village, where P.W.2 has been residing; P.W.5 and

P.W.6 are attestors of observation mahazar; P.W.7 and P.W.9 are the Doctors, who treated P.W.2; P.W.8-Sub-Inspector of Police, who

prepared an F.I.R.; P.W.10- Charles, Inspector of Police, who investigated this case and filed the charge sheet. P.W.1 to P.W.3 are eye

witnesses.

As per the complaint under Ex.P1, there is an enmity between P.W.1 to P.W.3 and the accused family. The trial Court has given convincing

reason for discarding the evidence of P.W.1 to P.W.3. It is true, as per the dictum of the appellate Court, a single related eye-witness is sufficient

to convict the accused.

Now it is appropriate to consider the following decisions relied upon by the learned Counsel for the Petitioner.

(a) Marwadi Kishor Parmanand and Another Vs. State of Gujarat, in paragraph-31, it reads as follows:

The evidence of a witness deposing about a fact has to be appreciated in a realistic manner having due regard to all the surrounding facts and

circumstances prevailing at or about the time of occurrence of an incident. Some contradictions and omissions even in the evidence of a witness

who was actually present and had seen the occurrence are bound to occur even in the natural course. It is a sound rule to be observed that where

the facts stated by an eyewitness substantially conform to and are consistent on material points from the facts stated earlier to the police either in

FIR or case diary statements and are also consistent in all material details as well as on vital points there would be no justification or any valid

reason for the court to view his evidence with suspicion or cast any doubt on such evidence. In the present case as discussed above we find that

the solitary witness Ranchhodbhai, PW 1 is a wholly reliable witness and his evidence in itself, without any further corroboration is enough to

sustain the conviction of the two Appellants for the crime they are charged with, but we find that the evidence of the sole eyewitness Ranchhodbhai

finds corroboration on material aspects from the evidence of Jayantilal PW 6, Makkar PW 8, Dr Nathani PW 10, Dr Avasia PW 11, Dr Joshi

PW 12 and the Head Constable Moolchand PW 18. Thus the corroboration is also not lacking in the present case and there was hardly any

ground or any possibility of taking the view which is unfortunately taken by the learned trial Judge. In our considered opinion the trial court clearly

fell in serious error in rejecting the truthful version made by the sole eyewitness PW 1 whose evidence does not suffer from any infirmities, much

less the unwarranted criticism made by the trial court. The High Court was therefore, in exercise of its powers under Sections 378 and 386,

Criminal Procedure Code, fully justified to reverse the erroneous findings recorded by the trial court. We find ourselves wholly in agreement with

the view taken by the High Court and the conclusions recorded by it. Consequently the appeal deserves to be dismissed.

(b) State of U.P. Vs. Jodha Singh and Others, . in paragraph 14, it reads as follows:

The presence of PW 1 at the scene can never be disputed because of various factors. He was one of the victims of the attack and he had

sustained injuries. The accused also admits his presence there. He is the first informant in the case. Such being the position, his evidence cannot be

brushed aside lightly by saying he is an interested witness. As regards PW 2, he has given satisfactory explanation for his presence at the scene.

His shirt, which became bloodstained, when he caught hold of PW 1 in order to prevent him from falling down after he sustained the injuries, has

been seized by the police. His name has been mentioned in the FIR given soon after the occurrence. Hence his evidence cannot be thrown

overboard by saying he was a chance witness. As regards PW 3, the accused themselves admit his presence at the scene. In fact their version is

that he joined Jai Ram Singh and his sons in attacking A-2 and A-3. In such circumstances it passes our comprehension as to how the High Court

can doubt his presence at the scene. His name has also been mentioned in the FIR. As to PWs 2 and 3 having figured as witnesses along with PW

1 in a case registered under Sections 107 and 117 Code of Criminal Procedure on the report given by a third party, that is no reason why they

should align themselves against the accused and give false evidence against them.

(c) Balwant Singh Vs. State of Haryana, in paragraph-13, it reads as follows:

We have heard Mr. Kohli on behalf of the Appellants and Mr. Goswami on behalf of the State, and are of the view that there is no merit in the

appeal. The prosecution case about the seven accused Appellants having assaulted Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh is

supported by the evidence of Mehtab Singh (P.W. 11), Attar Singh (P.W.12), Kabul Singh (P.W.14) and Mari (P.W.15). We agree with the

learned judges of the High Court that there appears to be no cogent ground to disbelieve the evidence of those witnesses. The mere fact that they

are related to each other would not be a sufficient ground for discrediting their testimony. Mehtab Singh, Attar Singh and Kabul Singh had injuries

on their persons and there can be hardly any manner of doubt regarding their presence at the scene of occurrence. It is also most difficult to believe

that the injured witnesses would spare their real assailants and falsely involve innocent persons as those responsible for causing injuries to them.

The trial court rejected the evidence of the eye-witnesses on the ground of their being related to each other. This circumstance, as pointed out by

the High Court, did not warrant the rejection of their testimony. The trial court also referred to the discrepancy, in the prosecution evidence on the

point as to whether there were some persons ploughing nearby field. This discrepancy, as observed by the High Court, was not of a material

character and did not militate against the credibility of the prosecution witnesses.

(d) 2008 SC 1381 Kunju alias Balachandran v. State of Tamil Nadu in paragraph-9, it reads as follows:

9 ...This Court held that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no

legal impediment in convicting a person on the sole testimony of a single witness....

(e) Kartik Malhar Vs. State of Bihar, in paragraph-6, it reads as follows:

On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar Vs.

The State of Madras, and, therefore, conviction can be recorded on the basis of the statement of single eye witness provided his credibility is not

shaken by any adverse circumstance appearing on the record against him and the Court, at the same time, is convinced that he is a truthful witness.

The Court will not then insist on corroboration by any other eye-witness particularly as the incident might have occurred at a time or place when

there was no possibility of any other eye-witness being present. Indeed, the Courts insist on the quality, and, not on the quantity of evidence.

According to the submissions made by the learned Counsel for the revision Petitioner, a minor discrepancy in the evidence of the eye-

witnesses P.W.1 to P.W.3 would not affect the guilt of the accused 1 to 4. Further she submitted that since there is an enmity between P.W.2 and

the accused 1 to 4, the evidence of P.W.2 cannot be discarded and hence it is reliable and acceptable. To substantiate her arguments, she relied

upon the following decisions:

(a) State of U.P. Vs. M.K. Anthony, in paragraph-10, it reads as follows:

10 ...Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context

here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the

matter would not ordinarily permit rejection of the evidence as a whole....

(b) Gurminej Singh and others Vs. State of Punjab, in paragraph-10, it reads as follows:

The next submission of counsel for the Appellants is that the evidence regarding motive is weak and, therefore, it is not possible to believe that

the Appellants would kill the deceased on account of a minor quarrel regarding the passage of sullage water which had taken place a few months

back. In this connection he invited our attention to the decisions of this Court in Anne Nageswara Rao Vs. Public Prosecutor, Andhra Pradesh,

and The State of Uttar Pradesh Vs. Hari Prasad and Others, . This submission cuts both ways. If the evidence regarding motive is not sufficiently

strong as argued by the counsel for the Appellants, it is difficult to believe that PWs 2 and 3 would go out of their way to falsely involve the

Appellants. But it must be realised that there were election disputes and the deceased had successfully contested the election against Dalbeer Singh

who was the candidate of Gian Singh, Bur Singh and others. This old enmity coupled with the incident regarding the passage of sullage water in

regard to which proceedings u/s 107/151 of the Code were pending is the motive alleged by the prosecution and we do not think it is so weak that

it would not prompt the Appellants to kill their rival. The decisions on which counsel places reliance can, therefore, have no application in the

special facts and circumstances of the present case.

(c) State of U.P. Vs. Kishan Chand and Others, in paragraph-9, it reads as follows:

The submission of the counsel for the accused that the testimony of PWs cannot be acted upon as they are interested witnesses is to be noted

only to be rejected. By now, it is well-settled principle of law that animosity is a double edged sword. It cuts both sides. It could be a ground for

false implication and it could also be a ground for assault. Just because the witnesses are related to the deceased would be no ground to discard

their testimony, if otherwise their testimony inspires confidence. In the given facts of the present case, they are but natural witnesses. We have no

reason to disbelieve their testimony. Similarly, being relatives, it would be their endeavour to see that the real culprits are punished and normally

they would not implicate wrong persons in the crime, so as to allow the real culprits to escape unpunished.

(d) Sarwan Singh Vs. State of Punjab, in paragraph-8, it reads as follows:

Undisputedly, Piara Singh and Mukhtiar Singh were taken towards the fields of Shabeg Singh. Piara Singh was murdered in the fields and

firearm injuries were caused to Mukhtiar Singh whereas contention of the accused is that due to previous enmity, he was named falsely - the

evidence available on record however negates such a plea: human behaviour also runs counter to such a plea since it is absurd to suggest that an

injured person would take recourse to implicate someone against whom there was enmity leaving aside the real assassin. In any event, on the state

of evidence, the factum of Sarwan Singh together with Bagicha Singh calling out to the deceased and Mukhtiar Singh and compelling them to

accompany them to the fields of Shabeg Singh does not seem to stand contradicted at any point of time. The evidence to that effect stands out to

be creditworthy and thus acceptable. In the wake of the aforesaid the contention as regards false implication fails.

(e) 1997 SCC 231 Daleep singh v. State of U.P. in which, it reads as follows:

Enmity is a double edged weapon as it may provide a motive for the crime as also for false implication-Altercation taking place in a bus between

the accused persons and the deceased-Appellant firing at the deceased resulting in his death-Evidence of inimical eyewitnesses amply

corroborated from other evidence including medical evidence-Evidence of the witness supported from the FIR he lodged within one hour of the

incident giving entire substratum of the prosecution case including the presence of other witness in the bus along with him-Held, in the

circumstances of the case, the witnesses were reliable and their evidence conclusively proved the case against the Appellant.

But here, there is no quarrel over the proposition laid down in the above decisions relied upon by the learned Counsel for the revision Petitioner.

But those citations are not relevant for this revision petition. Because as already stated that it is not an appellate Court, it is only a revisional Court.

The powers of revisional Court is very limited.

On perusal of the oral evidence as well as the documentary evidence along with the judgment passed by the trial Court, the trial Court has

analysed each and every evidence of P.W.1 to P.W.4 and documentary evidence, acquitted the accused 1 to 4. Since the trial Court has given the

reason that the place of occurrence has not been proved and the prosecution has not been given any explanation not to recover the blood stained

cloth of P.W.2 and to seize the weapons used by the accused 1 to 4, there is a contradiction between the evidence of P.W.1 to P.W.3, who are

the close relatives. Hence the trial Court has given a cogent and convincing reason for acquitting the accused 1 to 4. So I do not find any perversity

in the findings of the trial Court, the findings of the trial Court does not warrant any interference. Therefore, the judgment of acquittal is liable to be

confirmed and hence it is hereby confirmed.

In fine, The Criminal Revision is dismissed.

The judgment of acquittal passed by the Assistant Sessions cum-Chief Judicial Magistrate''s Court, Sessions Division, Villupuram, is hereby

confirmed.