Ganasekaran vs Mariappan, Govindaraj and State

J.A.K. Sampathkumar, J.—This Criminal Revision Case is filed against the Judgment dated 13.8.2003 in S.C. No. 127 of 2002 on the file of the Principal Sessions Court, Virudhunagar District at Srivilliputhur in and by which the learned District Judge found that the accused were found not guilty u/s 302 read with 34 IPC and acquitted them u/s 235(1) Cr.P.C. The present Revision Case is filed by Thiru. Ganasekaran, P.W.1, brother of the deceased Kumaran @ Kumaravel under following grounds:

The evidence of P.W.1 is natural and his availability at the time of occurrence is not doubtful. His evidence is trustworthy and reliable.

Immediately after the occurrence, the deceased told to P.W.2 about the assailant, who attacked him. The statement is falling u/s 32(1) of the Evidence Act and this piece of evidence is enough to convict the accused. The said statement is corroborated by the evidence of P.Ws.1,3,4 and 9.

Though P.Ws 3 and 4 treated as hostile, any portion of evidence supportive to the prosecution case should have been taken note of as corroborative to the prosecution case as that piece of evidence admissible u/s 32(1) of the Evidence Act.

There is no vital contradiction between the evidence of P.Ws 1 and 2. P.W.2 in fact deposed that the deceased was alive till saying who caused injuries to him.

P.W.2 categorically deposed that he told to the Medical Officer, namely, P.W.8, who have attacked the deceased and what is the reason for the injuries to the deceased. The mere negligence on the part of P.W.8 not referring the same either in the medical report or in his evidence will not vitiate the trial for the offence u/s 302 IPC.

Even if there is any conflict evidence between the ocular evidence and the medical report, the court should have considered the evidence of ocular witness only.

P.W.1, being the village man was sleeping at the temple at the time of occurrence without any shirt, cannot be doubted his presence at the time of occurrence.

There is no delay in registering the F.I.R. and sending the same to the Magistrate.

The evidence of P.W.1 is reliable one. He is the author of Ex.P.1. In Ex.P.1, it has been clearly stated the names of the assailants and their overt act.

The medical evidence in fact supportive to the prosecution case.

The confession statement of A.1 leading to recovery of the weapons M.Os 1 and 2 were used for the commission of the offence. The Chemical report reveals that the blood spread in M.O.1 is the blood of the deceased. This chemical report corroborate the prosecution case.

P.Ws 1, 2,5 and 6 are the occurrence witnesses. They were supporting the prosecution case. There is no major contradiction in between them.

The evidence of the auto driver is supportive to the prosecution case. He is a independent witness. He has stated that he took the deceased to the hospital along with P.Ws 1 and 2.

The motive aspect for the occurrence has been proved. There is no denial of P.W.13 that P.W.1 attended the ceremony and that being so, the Court should not have taken the view that P.W.1 did not attend the ceremony of P.W.13.

The trial Court failed to note the material evidence available on record leading to the miscarriage of justice and therefore, the judgment of the trial Court is liable to be set aside.

Heard Mr. G. Marimuthu, learned Counsel for the Revision Petitioner, Mr. Micaal Bharathi, learned Counsel for the respondents 1 and 2 and Mr. G. Rajendran, learned Counsel for the third respondent.

The learned Counsel for the revision petitioner/P.W.1 reiterated the contentions raised in the grounds and submitted that the judgment of the trial Court in acquitting the accused is erroneous and therefore, the same is liable to be set aside.

The learned Counsel for the accused confronted the contentions of the learned Counsel for the petitioner/P.W.1 and contended that the trial Court had taken note of the material contradiction between the evidence of prosecution witness coupled with the medical report and rightly came to the conclusion that the prosecution failed to prove the guilty act of the accused beyond any reasonable doubt and accordingly, acquitted the accused and as such, the finding of the trial Court cannot be stated to be erroneous and the same can be sustained.

The learned Counsel for the accused/respondents further contended that in a revisional jurisdiction, appreciation of evidence cannot be done and the Court has to find out whether there is any error in law involved in acquitting the accused while considering the grounds of revision petition.

The learned Counsel for the accused/respondents further contended that the revision Court has no power to reverse the acquittal finding and convict the accused. The revision Court can only remand the case to the trial Court for de nova trial provided on the finding of the trial Court is per se, perfunctory and perverse.

The rival contentions have been considered in detail. The main point for consideration is as to whether the finding of the trial Court in acquitting the accused is per se, perfunctory and perverse before looking in to the merit of the case. Points:

Before considering the facts on hand, let me deal with the position of law in this aspect. In the decision reported in 2004 SCC (Cri) 2009 (Rambriksh Singh v. Ambika Yadav) it is held that revision court can set aside an order of acquittal and remit the case for retrial where the material evidence overlooked by the trial Court. The apex Court further held that exposing the overlooking of material evidence leading to manifest illegality resulting in gross miscarriage of justice cannot be stated to be re appreciating the evidence on record.

It has been held in the decision reported in 1999 The Madras Law Journal Reports (Criminal) 84 (Vasantha v. Sivanthi and Anr.) that if the Court finds out misreading of evidence, overlooking important materials or perversity which had led to the grave miscarriage of justice, the interference is quite imperative. However, while dealing with the revisional jurisdiction, limitation is that the acquittal cannot be convicted into conviction but on reversal of acquittal, further enquiry or trial can alone be directed.

In the decision reported in 2004 SCC 2003 (State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand) It has been held that Section 401 CrPC is a provision enabling the High Court to exercise all powers of an appellate Court, if necessary, in aid of power of superintendence or supervision as a part of power of revision conferred on the High Court or the Sessions Court. It is for the purpose, as set out in Section 397, that if necessary, the High Court or the Sessions Court can exercise all appellate powers. Section 401 CrPC conferring powers of an appellate Court or the revisional court is with the above limited purpose. The provisions contained in Section 395 to 401 CrPC, read together, do not indicate that the revisional power of the High Court can be exercised as a second appellate Power. The High Court is required to exercise self-restraint in a revision u/s 397. In a case where the High Court exceeds its revisional jurisdiction by embarking upon an in-depth re-examination of the oral and medical evidence and coming to a conclusion, contrary to the consistent one reached by the two courts below is not permitted u/s 397 Cr.P.C.

In the decision reported in 2005 SCC 276 (Satyajit Banerjee v. State of West Bengal) it is held that the Court of revisional jurisdiction has to be exercised its power in very exceptional cases, where there is a defect of procedure or manifest of law resulting in flagrant miscarriage of justice. The High Court is not competent to direct the trial Court to "take a fresh decision from stage one" and on the basis of the "suggested formula".

Further in the decision reported in 1999 SCC (Cri) 1311 (Gurshinder Singh v. Joga Singh) wherein it is held that revision by private party against acquittal -requiring a detailed scrutiny and evaluation of evidence particularly because no appeal against acquittal filed by the State. It implies that in the case of revision by private party against acquittal while no appeal against acquittal filed by the state, it is the duty of the High Court to dispose of the revision after considering the merits of the case.

Now, let me deal with the facts on hand. P.W.2 is the father of the deceased Kumaravel. P.W.1 Gnanasekaran and P.W.6 Thirupathy are brothers of the deceased. P.W.2 was living in North Street, Mangapuram, Srivilliputhur. P.W.1 was living in the same street separately. P.W.5 Rajeswarai is the wife of P.W.2. In the year 2001, in the month of Aavani, on the second day, there was a tonsuring ceremony for Selvaraj S/o. Srinivasa Nadar. P.W.1 attended the function. P.W.13 also came there along with his family to attend the function.

During the time, both the accused came in a drunken mood picked up quarrel and attacked P.W.13. On the next day, P.W.13 informed the deceased about the incident. P.W.13, requested the deceased to take action against the accused in the coming week. The deceased also obliged to the request of P.W.13. This incident is the motive for the occurrence.

As usual, on 17.12.2001, in the month of Margazhi at about 10.00 p.m., P.W.1, went to Kaliyamman koil and was sleeping on the pial. P.W.1, saw the second accused talking with one Aiyanar. P.W.1 also saw the deceased Mariappan sleeping on the eastern side of the pial. Thereafter, P.W.1 slept on the pial. On the early hours at 01.20 hours on hearing the noise, P.W.1 woke up and saw the accused were armed with Aruval and knife chasing the deceased Kumaravel. Therefore, P.W.1 followed them. In that process, the deceased, Kumaravel stumbled near the wall of the Chellammal''s house. Immediately, the second accused Govindaraj attacked the deceased Kumaravel on his back with his aruval. While doing so, the first accused also stabbed on the chest and belly of the deceased, Kumaravel. By that time, P.W.1 reached the spot and saw his brother, deceased, Kumaravel screeming. On hearing the sound, P.Ws 3 and 4 came out of their house and saw the deceased lying with blood stained injuries. By that time, on hearing the news P.Ws 5 and 6 also came to the scene of occurrence. P.W.2 also came to the scene of occurrence by that time. In fact P.W.1 narrated the incident to P.W.2. Immediately, they took the deceased, Kumaravel to the hospital in the Auto Rickshaw driven by P.W.15. The deceased, Kumaravel also narrated the incident implicating the accused.

On 18.12.2001 at about 2.30 a.m, the deceased Kumaravel examined by P.W.8, Mahadevi attached to Srivilliputhur Government Hospital. She found that the said Kumaravel, died due to injuries sustained by him. The fact of death was informed by P.W.8 to the Srivilliputhur town police station. Ex. P.5 is the wound certificate. Ex.P.6 is the intimation to the police station.

In pursuance of the hospital memo, P.W.19, Subbaiyah, Head Constable attached to town police station, Srivilliputhur, on 18.10.2001 at about 02.45 hours informed this fact to P.W.20, Inspector of Police attached to the said police station. Thereafter, at 3.00 hours, P.W.19 went to the hospital and examined P.W.1 and obtained a complaint Ex.P.1. P.W.2 was also present and signed in the said compliant. Then, P.W.19, returned to the police station at 4.15 hours and registered the same in Crime No. 1228 of 2001 u/s 302 IPC as per Ex.P.15. The copy of the same was also forwarded to the Judicial Magistrate, Srivilliputhur.

In fact, P.W.17, Radhakrishnan, Head Constable attached to town police station, Srivilliputhur, obtained a copy of the FIR Ex.P19 and delivered the same to the Judicial Magistrate No. 2, Srivilliputhur on the same day at about 7.00 hours. In the mean time, at about 05.20 hours, P.W.20 took up further investigation in this matter and made arrangements to take photographs in the scene of occurrence by P.W.18. Photos taken by P.W.18 along with negatives were marked as Material Objects.

In fact, P.W.20, in the presence of P.W.14, Krishnan, Village Administrative Officer along with one Guru, Office Assistant prepared Observation Mahazar, Ex.P.13. He has also prepared sketch in the scene of occurrence as per Ex.P.16. He has also took sample of sand and blood stained sand from the scene of occurrence for chemical examination. They were marked as Material Objects. He has also took sample of piece of cement concrete and concrete piece for the purpose of chemical test. In addition to that, he has also recovered blood stained bed sheet and diary from the scene of occurrence as per seizure mahazar, Ex.P.12. Thereafter, he conducted inquest on the body of the deceased in the presence of Panchayatdar. Ex.P.17 is the inquest report.

Thereafter, the investigating officer gave requisition to the postmortem doctor to conduct autopsy on the body of the deceased. In pursuance of the requisition given by the investigating officer, P.W.7, conducted autopsy on the body of the deceased and gave opinion to the effect that the deceased would have died due to the injuries sustained by him. Ex.P3 is the postmortem certificate. P.W.16, Head constable, recovered the blood stained cloth of the deceased and handed over the same to the investigating officer for further investigation. The blood stained cloth were also marked in this case.

Thereafter, the investigating officer, namely, P.W.20, on 19.12.2001 at Nariparai, Tiruvannamalai District apprehended the accused in the presence of P.W.14 and one Guru and obtained statement from them. In pursuance of the confession statement of the first accused, the material objects used for the commission of offence were recovered. Ex.P.13 is the admissible portion of the confession statement of the first accused. The blood stained cloth of the deceased and the blood stained material objects seized in pursuance of the confession statement were subjected for chemical examination. After obtaining the necessary medical certificate, serological report and chemical report, P.W.20 completed the investigation and laid the charge sheet.

The prosecution examined 20 witnesses, marked 17 exhibits and 14 material objects to prove the case. Whereas, the accused/respondents examined one witness and marked four exhibits to disprove the charge against the accused.

23.The learned District Judge after analysing the evidence in depth found that the prosecution have not made out a case against the accused beyond reasonable doubt for the offence u/s 302 read with 34 IPC and accordingly, acquitted them u/s 235 (1) Cr.P.C. The present criminal case has been filed by P.W.1/brother of the deceased. No appeal filed by the Government against the finding of the trial Court in acquitting the case.

The learned Counsel for the revision petitioner/ takes me through the evidence along with the principles referred to above and submitted that the judgment of the trial Court is perverse and therefore, the same is liable to be set aside and the case has to be remanded back to the trial Court for fresh disposal.

The learned Counsel for the respondents/accused takes me to the relevant portion of the finding of the trial Court with regard to each point raised by the revision petitioner/P.W.1 and contended that the finding of the trial Court cannot be stated to be perverse and perfunctory and therefore, the finding of the trial Court has to be sustained.

I have made in-depth study of the finding of the trial Court with regard to each point. The trial Court had analysed the evidence of P.W.1 in para 24 and 25 in its judgment and rejected the same in its own way by assigning specific reason. Similarly, the trial Court analysed the evidence of P.W.2 in detail in its judgment by assigning the specific reason in rejecting the same. Moreover, the trial Court, further dealt, the evidence of P.W.1 and P.W.2 together in the light of the evidence of P.W.3, in para 26 in its judgment and rejected their evidence by assigning reason in the context dealt therein.

In addition to that, the trial Court dealt, the evidence of P.W.2 in the light of the evidence of P.W.5, P.W.6, P.W.8 and P.W.15 and rejected the same, in para 27 and 28 of its judgment by assigning reason in the context dealt therein.

Further, the trial Court dealt, in detail of the prosecution case in the context of evidence of P.W.14, P.W.19 and P.W.20, in para 30 of its judgment and rejected a part of prosecution case in its own way by assigning specific reason in the context referred to therein.

Once again, the trial Court, analysed, the evidence of P.Ws.1 and 2, in para 31 and 32 of its judgment, after taking note of the principles laid down by the apex Court and rejected a portion of the prosecution case as related by P.W 1 and P.W.2 by assigning specific reason in its own way in the context referred to therein.

Similarly, the trial Court dealt, with the evidence of the prosecution case with regard to the seizure of weapon of offence in the context of the principle laid down by the apex Court and suspected the prosecution case in this regard by assigning specific reason. This point has been dealt in para 33 of the judgment.

However, the trial Court, taken note of the submission of the accused and dealt with the same, in para 34 and 35 of its judgment and rendered a finding to the effect that there is every possibility of implicating the accused in the context referred to therein. The trial Court has also rendered a specific finding that conviction of the accused cannot sustain on the basis of the chemical report alone relying on the principles rendered by the apex Court.

In fact, the trial Court has pointed out the latches in the prosecution case and rendered a finding that the latches exposed by the defence affect the very root of the prosecution case and ultimately, came to the conclusion that it is not safe to convict the accused on the basis of the infirmities exposed by the accused and accordingly, acquitted the accused.

The narration of events reflects that the points raised by the revision petitioner have been answered by the trial Court in its own way and rendered a specific finding in this regard. Whether the approach of the trial Court in arriving at specific finding is in proper way or not is not a matter for consideration in the revisional jurisdiction. The crux of the point for consideration in the revisional jurisdiction is to find out whether the finding of the trial Court is due to perverse or perfunctory or non-appreciation of material facts supporting to the prosecution case or misreading of evidence rendering prejudicial judgment as per dictums of the Apex Court.

I do not find either any perversity or perfunctory in the finding of the trial Court. In fact, the trial Court has dealt with each point raised by the revisional petitioner/P.W.1 and answered the same in its own way. In fact, the trial Court has taken note of each point of the prosecution case coupled with the latches pointed out by the accused and rendered a specific finding. State has not filed any appeal against the finding of the trial Court in acquitting the case.

In the revisional jurisdiction, this Court cannot reappraise the fact to set aside or confirm the finding of the trial Court. However, while reappraising the evidence on record, if the court comes to the conclusion that the finding of the trial Court is erroneous even then the acquittal finding cannot be altered in to one of conviction finding. In such case, this Court has to set aside the finding of the trial Court in acquitting the accused and remand the same to the trial Court for fresh disposal according to law. In such contigency, the trial Court will have a prejudicial view against the accused court while reconsidering the fact and rendering a specific finding.

From the narration of events, I am satisfied that it is not a fit case to reconsider the materials available on record, as pointed out by the learned Counsel for the revision petitioner/P.W.1 to reverse the finding of the lower Court and accordingly, the submission of the learned Counsel for the revision petitioner/P.W.1 is rejected.

In the result, this Criminal Revision case fails and the same is dismissed. Parties have to bear their respective cost.