G. Sambandam vs V.S. Pari and P. Sampath kumar

Honourable Ms. Justice R. Mala

The criminal appeal arises out of the judgment of acquittal dated 24.03.2005, made in C.C.No.98 of 1996, on the file of the Judicial

Magistrate''s Court No. I, Kancheepuram. The appellant as a complainant preferred a private complaint stating that on 10.12.1994, at about 5.55

p.m., the respondents/accused 1 & 2 had trespassed into P.W.1''s office namely, Kanchipuram Co-operative Housing Society, which was situated

in Door No. 12A, Sappani Pillaiyar koil street, Kanchipuram, where P.W.1/complainant was a Secretary. One Velliveediar was the Secretary of

the Chengai MGR District Co-operative Society (Employees Co-operative Thrift and Credit Society), where P.W.1/complainant was the

President, during the year 1984 to 1991. A1 is the elder brother and A2 is the husband of Velliveediar.

On the fateful day (i.e.) on 10.12.1994, at 5.55 p.m., A1 and A2 unlawfully trespassed into the office of Velliveediar and assaulted her. At the

time, P.W.3/Lakshmi, P.W.4/Ashok Kumar and one Venkatesan were present, who are working along with Velliveediar. P.W.2/Mallika, who is

the Superintendent under P.W.1''s Society, intimated the fact to P.W.1 that A1 and A2 assaulted Velliveediar and there was a hue and cry.

Immediately, P.W.1 came out of his room and questioned them what is going on. At the time, A1 told to P.W.1 to do his work and also abused

him using filthy language. Hence, P.W.1 returned to his room and gave a complaint to Siva Kanchi police station over phone. Head Constable

Egambaram, who received the call, directed P.W.1 to give complaint in person. Suddenly, the accused A1 and A2 entered into the room of

P.W.1 and took the wooden ruler, which was kept in his table and assaulted P.W.1 on his head, when P.W.1 prevented the same, he sustained

injury on his right elbow. A2 also attempted to assault him, at the time, Velliveediar, wife of A2 prevented him. P.W.2/Mallika, P.W.3/Lakshmi,

P.W.4/Ashok Kumar, one Krishnamurthy, Thilakavathy and Venkatesan witnessed the same. After coming out from the office, A1 and A2 were

standing outside and abused P.W.1 in filthy language. They left the place after 6.15 p.m. Thereafter, P.W.2 written the complaint on the dictation

of P.W.1 and P.W.1 gave the complaint before Sivakanchi Police station, where it was taken on file as C.S.R. No. 125/1994 and the receipt

given by them was marked as Ex.P1. Then he went to the Hospital, where P.W.5/Dr.Punitha kumari treated P.W.1 and gave wound certificate

Ex.P5. Since the police has not registered a case, he is invoking provision u/s 156(3) Cr.P.C. and the same has been received by

P.W.6/Vedarathinam, Sub-Inspector of Police and registered the case. The copy of the complaint was marked as Ex.P2, which was registered in

Crime No. 487/1995 on the file of the Sivakanchi police station. Since the police was not properly investigated the matter, P.W.1/appellant herein

had preferred W.P.No.17998/1995 for a Writ of Mandamus, directing the 1st respondent therein to withdraw the complaint preferred by the

P.W.1., who was the petitioner therein and the same was disposed of. Since the police had not taken any effective steps, appellant/P.W.1 was

constrained to file a private complaint against respondents/accused 1 and 2 under Sections 447, 452, 323, 353 and 506(ii) IPC r/w 190(1)(a) r/w

200 Cr.P.C.

The learned Magistrate had taken the cognizance of the offences against A1 under Sections 447, 323 and 506(i) IPC and against A2 under

Sections 447 and 506(i) IPC. After following the procedure, the trial Court framed necessary charges. Since the accused pleaded not guilty, the

trial Court examined P.W.1 to P.W.6 and marked Exs.P1 to P5. The trial Court placed the incriminating evidence against the accused and the

accused denied the same and marked Ex.D1 on their side. After considering the oral and documentary evidence, the trial Court acquitted A1 and

A2, against which, the present appeal has been preferred by P.W.1/complainant.

Mr. G.Krishnamurthy, learned counsel appearing for the appellant/P.W.1 submitted that the trial Court has not properly appreciated the

evidence let in by the complainant''s side witnesses. There is no reason for discarding the evidence of P.W.1 to P.W.5 and P.W.1''s evidence is

corroborated by P.W.2 to P.W.4. P.W.5/Dr.Punitha kumari, gave treatment to P.W.1 and the injury sustained by P.W.1 was proved by way of

marking Ex.P5/wound certificate. It is further submitted that since the learned Magistrate has not considered the evidence in proper perspective,

the judgment passed by him is perverse. To substantiate his arguments, he relied upon the judgments of Apex Court in respect of appreciation of

evidence. He further submitted that non-examination of independent witness is not fatal, for which, he also relied upon the judgments of Apex

Court. Hence, he prayed for setting aside the acquittal order passed by the trial Court.

Resisting the same, Mr. M.Babu Muthumeeran, learned counsel appearing for the respondents/accused submitted that original complaint was

not filed before the Court. In Ex.P2/complaint, initially A1 and A2 came to the office of Velliveediar and assaulted her was not mentioned. No

charge sheet has been filed before the Court, even though the case registered in Crime No. 487/1995. P.W.5/Dr.Punitha Kumari is not a

competent person to give treatment to P.W.1 and issued wound certificate, for which, he relied upon Police Hand Book, P.S.O.587 and

submitted that motive for the appellant/P.W.1 to file a private complaint against the accused, since Velliveediar has pledged 15 sovereigns gold

jewels and that has been taken away by the appellant. Further he submitted that Velliveediar''s mother Valliammal borrowed a loan of Rs.

1,50,000/- from P.W.1''s Society. Even though she paid the entire amount, but whereas it was noted that she paid only Rs. 1,05,000/-. Therefore,

a complaint was given against P.W.1 for which, he was also obtained bail and anticipatory bail. Due to the above said enmity, he preferred a false

complaint against the accused. He further submitted that non examination of the independent witness is not fatal and the trial Court considered the

aspect in proper perspective in para-23 and 25 of its Judgment. Hence, the judgment of the trial Court is well discussed judgment and it will not

suffer any perversity. To substantiate his argument, he relied upon the judgment reported in Arulvelu and Another Vs. State represented by the

Public Prosecutor and Another, and submitted that the Appellate Court cannot set aside the acquittal order, if two views are possible, the view

favouring the accused will be taken into consideration. Unless the judgment of trial Court is perverse, the Appellate Court is not entitled to interfere

with. Hence, he prayed for dismissal of the appeal.

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

Admittedly, the appellant/P.W.1 is the Secretary of Kanchipuram Co-operative Housing Society and P.W.2/Mallika is the Superintendent. One

Velliveediar is the Secretary of Chengai MGR District Co-operative Institutions Employees Co-operative Thrift and Credit Society, where

P.W.3/Lakshmi is the Writer and P.W.4/Ashok Kumar is working as an Office Assistant. A1 is the brother and A2 is the husband of Velliveediar.

Both P.W.1 and Velliveediar''s office were situated in the same campus at Door No. 12A, Sappani Pillaiyar koil street, Kanchipuram. That factum

is an admitted one.

The alleged occurrence was said to have taken place on 10.12.1994. But admittedly, as per Ex.P1, P.W.1 gave a complaint, which was taken

as C.S.R.No.125/1994 on the file of Sivakanchi police station, but there is no evidence to show that the case has been registered on that basis. It

is also pertinent to note that the appellant/P.W.1 herein has preferred a complaint by invoking Section 156(3) of Cr.P.C. and that has been

forwarded and the case was registered in Crime No. 490 of 1995 u/s 294(b) IPC and the same has been proved by examining

P.W.6/Vedarathinam, Sub-Inspector of police, Sivakanchi police station.

As per the evidence of P.W.6, his evidence has not been full-fledged one, which was abruptly stopped at the middle of chief examination for the

production of document and thereafter, that document was not marked and P.W.6 was not subjected to cross examination and hence, no reliance

can be placed on the evidence of P.W.6. But it is well settled principle of law, filing of private complaint by invoking Section 200 Cr.P.C. is not a

bar. Here, the appellant/P.W.1 has filed a private complaint by invoking Section 200 Cr.P.C., which was taken on file against A1 under Sections

447, 323 and 506(i) IPC and against A2 under Sections 447 and 506(i) IPC, which was present before the Court on 03.08.1995. The learned

Magistrate dismissed the private complaint on the following grounds:

(i) Non examination of independent witnesses and Velliveediar.

(ii)Due to enmity between the accused family and P.W.1, a false case has been foisted against A1 and A2.

The trial Court acquitted A1 & A2 and assigned a reason since P.W.2 to P.W.4 were appointed by P.W.1, they are termed as interested

witnesses. Hence, their evidence were discarded.

Learned counsel for the respondents/accused relied upon the judgment reported in Arulvelu and Another Vs. State represented by the Public

Prosecutor and Another, and submitted that reversal of acquittal order, unless judgment of trial Court is perverse, appellate Court would not be

justified in substituting its own view and reverse judgment of acquittal. If two views are possible, the trial Court''s judgment cannot be set aside

because appellate Court''s view is more probable. He further submitted that accused is presumed to be innocent until proven guilty. Accused has

the benefit of this presumption when he is before trial Court. Trial Court''s acquittal bolsters the presumption that he is innocent. He also relied

upon para-27 of the above decision and submitted that what is meant by perverse.

The expression ""perverse"" has been defined by various dictionaries in the following manner:

Oxford Advanced Learner''s Dictionary of Current English, Sixth Edition PERVERSE: Showing deliberate determination to behave in a way

that most people think is wrong, unacceptable or unreasonable.

Longman Dictionary of Contemporary English, International Edition.

PERVERSE: Deliberately departing from what is normal and reasonable.

The New Oxford Dictionary of English - 1998 Edition.

PERVERSE: Law (of a verdict) against the weight

of evidence or the direction of the judge on a point of law.

The New Lexicon Webster''s Dictionary of the English Language (Deluxe Encyclopedic Edition)

PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

Stroud''s Judicial Dictionary of Words & Phrases, Fourth Edition

PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the

evidence.

He further relied upon para-31, 33 and 35 of the above decision, which extracted hereunder:

31.The legal position seems to be well settled and consistent at least since 1934 when the Privy Council decided the case of Sheo Swarup and

Others vs. King Emperor in which the Court (per Lord Russell) observed as under:

.... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the

credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he

has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a

finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.

In Chandrappa and Others Vs. State of Karnataka, this Court reiterated the legal position as under:

(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the

evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ''substantial and compelling reasons'', ''good and sufficient grounds'', ''very strong circumstances'', ''distorted

conclusions'', ''glaring mistakes'', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such

phraseologies are more in the nature of ''flourishes of language'' to emphasise the reluctance of an appellate court to interfere with acquittal than to

curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the

presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his

innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal

recorded by the trial court.

35.This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCA 699 again examined judgments of

this Court and laid down that:

20..... An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger

towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases.

Considering the above decisions, the appellate Court has power to review and re-appreciate the entire evidence on record. The appellate Court

would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial

Court is found to be a perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position

crystallised by the appellate Court. The accused is presumed to be innocent until proven guilty. The accused possessed the presumption when he

was before the trial Court. The trial Court''s acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view

while dealing with the judgments of acquittal passed by the trial Court.

As per the dictum of the Apex Court reported in Arulvelu and Another Vs. State represented by the Public Prosecutor and Another,

''perverse'' defined as deliberately departing from what is normal and reasonable; Purposely deviating from accepted or expected behavior or

opinion; wicked or wayward; stubborn; cross or petulant.

Now this Court has to consider whether the evidence of P.W.1 to P.W.5 are reliable? As already stated that, the evidence of

P.W.6/Vedarathinam, Sub-Inspector of Police, is no way helping appellant/P.W.1, because in the midst of his chief-examination, when the case

was adjourned for filing of the document, he neither appeared and filed the document nor subjected for cross-examination.

On perusal of the evidence of P.W.5/Doctor, she is only a Siddha Doctor. Now it is appropriate to consider P.S.O.587, sub-clauses 5 and 6,

which read as follows:

(5) Government have directed that wound certificates given by Ayurvedic Licentiates in Indian Medicine should not be accepted as valid. Their

services should not, therefore, be requisitioned.

(6) The services of practitioners in the homeopathic system of medicine should not be requisitioned for medico-legal work or for the grant of

wound or drunkeness certificates.

Considering the above Police Standing Order along with Ex.P5/wound certificate, I am of the view, evidence of P.W.5 and Ex.P5 are not reliable.

So the evidence of P.W.5 and Ex.P5/would certificate is no way giving helping hands to P.W.1/appellant.

It is appropriate on the part of this Court to consider the decisions relied upon by the learned counsel for the appellant for appreciation of

evidence.

(i Nadodi Jayaraman and Others Vs. State of Tamil Nadu, , it is held as follows:

14..... This Court has time out of number pointed out that the Maxim falsus in uno falsus in omnibus cannot be mechanically applied and the mere

fact that the evidence of some of the prosecution witnesses was found unsafe for convicting the co-accused, is by itself no ground for rejecting the

whole body of their testimony. It only puts the Court on its guard to carefully scrutinise their evidence.

He submitted that evidence of some witnesses was found unsafe for conviction. Per se, not a ground for rejection of whole of their testimony.

Maxim, ""falsus in uno falsus in omnibus"" cannot be mechanically applied.

(ii) Krishna Mochi and Others Vs. State of Bihar, and Gangadhar Behera and Others Vs. State of Orissa, in which, it is held as follows:

Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of

number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be

separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to

prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The

maxim ""falsus in uno falsus in omnibus"" has no application in India and the witnesses cannot be branded as liar. All that the maxim amounts to, is

that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of

evidence which a Court may apply in a given set of circumstances, but it is not what may be called ''a mandatory rule of evidence''. The doctrine is

a dangerous one specially in India for if a whole body of the testimony were to be rejected, because witness was evidently speaking an untruth in

some aspect, it is to be feared that administration of criminal justice would come to a dead-shop.

(iii) Ganesh K. Gulve etc. Vs. State of Maharashtra, it reads as follows:

14.In order to appreciate the evidence, the Court is required to bear in mind the set up and environment in which the crime is committed. The level

of understanding of the witnesses. The over jealousness of some of near relations to ensure that everyone even remotely connected with the crime

be also convicted. Everyone''s different way of narration of same facts. These are only illustrative instances. Bearing in mind these broad principles,

the evidence is required to be appreciated to find out what part out of the evidence represents the true and correct state of affairs. It is for the

courts to separate the grain from the chaff.

(iv) Learned counsel for the appellant also relied upon the judgment reported in Ved Prakash Vs. State of Haryana,

Considering the dictum laid down in the above decisions, I am of the view, this Court has to scrutinise the evidence with great care and caution.

It is appropriate to consider the decisions relied upon by the learned counsel for the appellant for non-examination of independent witness.

(i) Krishna Mochi and Others Vs. State of Bihar, , it is held as follows:

73.....""where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large

number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who

give a consistent account of the incident. In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as

irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the

prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four

witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters

and not the number of witnesses who give such evidence. But sometimes it is useful to adopt a test like the one which the High Court has adopted

in dealing with the present case.

76.Thus, in a criminal trial a prosecutor is faced with so many odds. The Court while appreciating the evidence should not lose sight of these

realities of life and cannot afford to take an unrealistic approach by sitting in ivory tower. I find that in recent times the tendency to acquit an

accused easily is galloping fast. It is very easy to pass an order of acquittal on the basis of minor points raised in the case by a short judgment so as

to achieve the yardstick of disposal. Some discrepancy is bound to be there in each and every case which should not weigh with the Court so long

it does not materially affect the prosecution case. In case discrepancies pointed out are in the realm of pebbles, court should tread upon, it but if

the same are boulders, court should not make an attempt to jump over the same. These days when crime is looming large and humanity is suffering

and society is so much affected thereby, duties and responsibilities of the courts have become much more. Now the maxim ""let hundred guilty

persons be acquitted, but not a single innocent be convicted"" is, in practice, changing world over and courts have been compelled to accept that

society suffers by wrong convictions and it equally suffers by wrong acquittals"". I find this Court in recent times has conscientiously taken notice of

these facts from time to time.

(ii) Tapubha Bhagvanji and Others Vs. State of Gujarat, , it is held as follows:

The witnesses examined on behalf of the prosecution are witnesses who in normal course of events are expected to know about the incident.

Their depositions do not reveal any good reason for rejecting their evidence as untrustworthy or unreliable. Nothing has been brought on record

either in cross-examination of the witnesses concerned or in any other evidence to show any good reason as to why they should falsely implicate

the accused in the case. Thus rejection of their testimony on ground that they are interested witnesses being in relation of deceased, not proper.

(iii) State of U.P. Vs. Ganga Ram and Others, it is held as follows:

11.One of the grounds, on which the High Court, recorded acquittal of the accused was that the occurrence is stated to have taken place on a

pucca road on which bullock-carts, buses and other vehicles also go. The time is also of 5.15 p.m. but no outsider or pedestrian or resident of the

vicinity has been named in the FIR or in the statement of the witnesses but only P.W.2-Hemraj has been examined as an independent witness. This

ground, taken by the High Court, is far-fetched and contrary to the testimony of eye-witnesses. This can be hardly a ground to disbelieve the

otherwise creditworthy testimony, which inspired confidence. It is now well-settled principle of law that whom to cite as a witness and whom not is

within the domain of the prosecution. It is also well settled principle that the prosecution evidence has to be weighed and not to be counted. It is

just because any other pedestrian or resident of the vicinity has not been cited as witnesses will be no ground to throw away the otherwise reliable

testimony of the eye-witnesses which is natural and inspires confidence. There is no evidence on record to show that there were other pedestrian

or resident of the vicinity present at the relevant time, besides the prosecution witnesses. In our view, the aforesaid reason by the High Court is

based on conjectures and surmises and is perverse.

On perusal of the judgment passed by the trial Court, the learned trial Judge held that non examination of Velliveediar and other independent

witnesses is fatal to the complainant''s case, because Velliveediar, being the sister of A1 and wife of A2, did not prefer any complaint against A1

and A2, since it is a family dispute. So the non-examination of Velliveediar and other independent witnesses is not fatal to the case of the

complainant. Therefore, I am of the view, the findings rendered by the trial Court in this aspect is not legally sustainable.

The trial Court on considering the cross-examination of P.W.1, came to the conclusion that there was a criminal case against P.W.1 on the

basis of the complaint given by accused family and he foisted a false case against the accused. As per the evidence of P.W.1, on 18.12.1994,

police sources obtained a letter in respect of the complaint given by the mother of A1. That factum would clearly prove that there was an enmity

between both the family.

Furthermore, as per the evidence of P.W.2 to P.W.4, they were appointed by P.W.1, who was the Secretary of Kanchipuram Co-operative

Housing Society. So the reason assigned by the learned trial Judge for discarding the evidence of P.W.1 to P.W.4 not only they are interested

witnesses, considering the veracity of the evidence that they may not be the eye witnesses. As already stated that the evidence of P.W.5/Doctor is

not an admissible evidence. Even though P.W.1 stated that he went to the Government Hospital for taking treatment, neither he examined the

Government Doctor nor marked the Accident Register Copy issued by the concerned Doctor to show that the occurrence had taken place on

10.12.1994. Considering the oral and documentary evidence, I am of the considered view, the findings of the trial Court is not perverse.

As per the dictum of the Apex Court reported in Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, , if two

views are possible, the view favouring the accused must be taken note of it. Therefore, I am of the view, the judgment of acquittal passed by the

trial Court does not warrant any interference and hence, it is hereby confirmed. In fine,

(i) Criminal Appeal is dismissed.

(ii) The judgment of acquittal dated 24.03.2005, made in C.C.No.98 of 1996, on the file of the Judicial Magistrate''s Court No. I, Kancheepuram,

is hereby confirmed.