Johnson Ashirwatham vs P. Rajan @ Charley Raja Singh and Others

S. Palanivelu, J.—This Criminal Revision has been filed to call for the records from the lower Court, hear the counsel for the petitioner, set

aside the order of acquittal passed by the learned Additional District and Sessions Judge, Fast Track Court No.II, Tirunelveli, in S.C.No.233 of

2008, dated 13.06.2008.

The case of the prosecution may be summarised as follows:

2(i). P.W.1 is the cousin brother of the deceased. P.W.1 lodged a complaint Ex.P1 before the Kalakkadu Police Station stating that on

22.10.2007, at about 07.05 a.m. he was coming along with the deceased Gnanasekar, the witnesses Mani, Ganthi alias Chellappa, Jayam and

Ravi by Dhanam mini bus from Manchuvilai, that they alighted in Kalakkadu near Anna statue at about 07.20 a.m., that when the deceased

Gnanasekar was getting down from the bus, the first and second accused shouted that he has to be killed and afterwards, the other accused

assaulted the said Gnanasekar by means of iron rod on his head, that on seeing it, the fourth accused also told to assault the deceased and on

seeing, Paul Manickam also made assault on the head of the deceased, that the fifth accused also assaulted on the head of the deceased by means

of stick, that the second accused stated that the assault was not enough and he proceeded to beat the deceased on his back side head by means of

iron rod, that brain matter came out and the deceased was profusely bleeding, that when the witnesses raised alarm, all the accused fled away from

the scene, that they took the injured to hospital in Tirunelveli by ambulance and one Mani went to the village to inform the occurrence and that on

examination, the Doctor proclaimed that the deceased died. On receipt of the complaint, P.W.12-Sub Inspector of Police registered a case in

Crime No.309 of 2007 under Sections 147, 148, 109 and 302 of IPC and lodged the First Information Report Ex.P25. At that time, he also

received Ex.P24 memo which is death intimation informing the death of Gnanasekar. He sent the First Information Report to the Court and copies

of the same to the other superior officers.

2(ii). P.W.14, the Inspector of Police, received the First Information Report and took up the case for investigation. He proceeded to the scene of

crime and prepared observation mahazar Ex.P2 and drew rough sketch Ex.P27. He lifted M.Os.6 and 7 -blood stained earth and sample earth in

the scene of occurrence under cover of mahazar Ex.P3 in the presence of the witnesses. Then, he went to Tirunelveli Government Medical College

Hospital mortuary and held inquest over the dead body and prepared Ex.P28 inquest report. He examined the witnesses and recorded statements.

He gave Ex.P22 requisition for conducting autopsy. P.W.11-the Doctor attached to Tirunelveli Government Medical College Hospital held post-

mortem over the dead body and issued Ex.P23 post-mortem certificate opining that the deceased died of the consequences of head injury and the

injuries on the brain. He found the following external injuries on the body of the deceased:

Contusion right side of abdomen in its upper part 6 x 2 cm.; Transverse incised wound with irregular margins back of scalp, 6 cm. x 2 cm x bone

deep; Another transverse incised wound with irregular margins 12 x 2 cm x brain depth center of scalp just to the right side. It has broken the

underlying vault of skull (comminuted fracture of vault of skull) and the brain matter is seen coming out through the wound gap. There is fracture of

vault of skull a) mid-parietal region 7cm. long, b) right side parieto-temporal bone 7 cm long, c) irregular fracture involving right side of occipital

bone, d) irregular fracture of center of occipital region. Marked subdural and subarachnoid hemorrhage noted over both cerebral hemispheres.

Fracture of anterior, middle and posterior cranial fossa of the base of skull on the right side.

2(iii). The Investigation Officer also received M.Os.8 to 11 the clothings produced by the police constable which were taken from the dead body

under Form-95. On 23.10.2007, at about 06.30 a.m. on a tip off, he proceeded to Singikulam bus stop and arrested the accused 2 to 5 in the

presence of P.Ws.8 and 9. He recorded the confession statements from the accused. In pursuance of which, the second accused produced a TVS

Moped bearing Registration No.TN-72-B-4011. Ex.P4 is the admissible portion of his confession statement. On the basis of the admissible

portion, Ex.P5 in the confession statement given by the third accused, he produced an iron rod which was seized under cover of mahazar. The

fourth accused also gave confession statement in which Ex.P6 is the admissible portion. He also produced a bloodstained babul stick from a thorn

shrub. Ex.P7 is the admissible portion of the confession statement given by the fifth accused who also produced the babul stick which was

recovered under cover of mahazar. Further, at 11.30 a.m., the second accused produced an iron rod with a length of 2 feet which is M.O.2 and

the same was recovered under mahazar Ex.P30. The third accused also produced M.O.1 which was seized under mahazar Ex.P31. More over,

the fourth accused produced a babul stick M.O.3 and the same was also recovered under Ex.P32 athatchi. The fifth accused produced a babul

stick M.O.4 from the same thorn shrub which was recovered by means of Ex.P33 athatchi.

2(iv). The second accused produced TVS Champ which is M.O.12. The Investigation Officer examined the witnesses for recording confession

statement, preparing athathci and recorded their statements. At the time of inquest, M.O.5 the shirt worn by P.W.1 under Form-95 was recovered

which is Ex.P35. He examined police officials. He gave requisition on 07.11.2007 to send the material objects M.Os.4 to 11 for biological

examination under Ex.P36 and in turn the Court sent the material objects to the Forensic Sciences Laboratory by a letter Ex.P37. Exs.P38 and

P39 are the reports obtained from the Forensic Sciences Laboratory. The Investigation Officer obtained the post-mortem certificate and examined

the Doctor. On completion of investigation, he laid charge sheet against the accused.

2(v). The accused were tried for the offences with which they were charged and they were questioned u/s 313 Cr.P.C. as regards the incriminating

materials available against them in the prosecution evidence. They denied the complicity to the offences. They have examined one witness D.W.1

and marked one document Ex.D1 on their side.

The learned Additional District and Sessions Judge, Fast Track Court No.II, Tirunelveli, acquitted the accused of all the charges levelled against

them. Hence, the de-facto complainant is before this Court.

The point for consideration is:

Whether the prosecution has brought home the guilt of the respondents 1 to 5/accused beyond all reasonable doubt?

Point:

Mr. M. Suri, the learned counsel appearing for the petitioner would argue that even though the Trial Court has assigned various reasons for

acquitting the respondents 1 to 5 from the case, when the prosecution evidence are subjected to a careful scrutiny, a truth will come out that the

occurrence has actually taken place, that minor discrepancies or contradictions available in the evidence of prosecution witnesses would not loom

large, that the occurrence was candidly deposed by P.W.1 which evidence receives corroboration from the evidence of P.Ws.2 and 4 and the

Court below has not appreciated them in a proper perspective and that the prosecution has established its case beyond reasonable doubt.

Contending on the other side of the coin, Mr. R. Anand, the learned counsel appearing for the first and second respondents would contend that

the discrepancies and contradictions seen in the prosecution evidence are remarkable and the inconsistencies found therein could not be brushed

aside in a casual manner, that the prosecution has miserably failed to establish the probabilities in the case and many overwhelming improbabilities

are seen in the case, that the evidence of Doctor with regard to the weapons which could cause the injuries found in the post-mortem certificate

and that evidence as regards the plying of Dhanam mini bus along the route in which the occurrence place, namely, near Anna statute is situate are

surrounded by strong suspicion and that the other circumstances would also indicate that the occurrence did not take place as projected by the

prosecution.

It is his further contention that the respondents 1 and 2 are innocents and due to motive emanated in the Diocese elections, the owner of the

Dhanam bus transport company arranged the witnesses to speak against the respondents and that the respondents have shown preponderance of

probabilities in their favour before the Court.

Mr. G. Parimalam, the learned counsel appearing for the respondents 3 and 4 and Mr. P.T. Selvan, learned counsel for the fifth respondent

would also contend in line with the arguments advanced by Mr. R. Anand, the learned counsel appearing for the respondents 1 and 2.

The first and foremost aspect to be seen in this case is that, the absence of bus route for Dhanam mini bus to ply along Manchuvilai-Kalakkadu

route via Anna statue in Kalakkadu. The above said evidence is fortified with the examination of D.W.1 who is serving as a Revenue Assistant in

the Regional Transport Office at Tirunelveli. He produced Ex.D1 in which it is stated that the bus has to start at Manchuvilai at 06.00 a.m. and

reach Kalakkadu at 06.30 a.m. and on return, it will ply between Kalakkadu and Manchuvilai for which, it has to start by 07.00 a.m. and reach

Manchuvilai at 07.30 a.m. It is his further evidence that between Manchuvilai-Kalakkadu route there are bus stops in Kulathu bus stand, Periya

Kovil, Rice Mill, Uchinimahali Amman Kovil, Kudil Street and Keela pathai. It is also seen in Ex.D1. It is the definite evidence that except the

above said route, the mini bus is not authorised to ply along any route. It is stated that along the route the occurrence place is not coming.

The above said evidence is further supported by the evidence of P.W.10 conductor of the bus, in the cross-examination he says that the route

as contained in Ex.D1 should be taken by the vehicle and at any cost, the bus should not go along Anna Salai where the Anna statue is situate. The

occurrence is alleged to have taken place near Anna statue. P.W.7 is the driver of the said bus. His evidence is also in line with the evidence of

P.W.10. He says that the bus on return journey has to start from Kalakkadu by 07.00 a.m. and reach Manchuvilai at 07.30 a.m. and hence, the

bus would not be coming along Anna salai at 07.30 a.m. The above said oral evidence from P.W.10 and D.W.1 with reference to Ex.D1 would

clinchingly show that there was no necessity for Dhanam mini bus to ply along Anna salai where the occurrence place is situate and particularly at

07.30 a.m. the occurrence had taken place.

With reference to the injuries found on the body of the deceased it is the evidence of the Doctor that the cut injuries found on the head of the

deceased could be caused by a sharp edged weapon and the possibility is more. He further adds that they could also be caused by iron rod and

the stick but the possibility is less. When it is stated that the deceased was assaulted by sticks and iron rods, the cut injuries which appear to be

major injuries on the right side of the head, from which the brain matter was seen, could not have been caused by iron rod or stick. This

circumstance leads the Court to lay suspicion over the version as to usage of the weapons for assault of the deceased.

The Trial Court has recorded a finding that even though the occurrence took place at 07.30 a.m. which was witnessed by the prosecution

witnesses and the other persons in the place of occurrence which is a busy locality, the crime was reported before the police only at 12.00 noon

and that the conduct of P.Ws.2 to 4 appears to be artificial by means of which an inference can be drawn to the effect that they might not be

available in the scene of crime. In the view of this Court, the above said observation is proper.

As far as the removal of the injured to the hospital is concerned, it is in the evidence of P.W.6 the ambulance driver that at about 08.30 a.m.

when he was waiting in the ambulance two police men and two other persons brought an injured person and asked him to take the injured to the

High Ground hospital. In this context, it is seen that the occurrence was well known by the police even before 08.30 a.m. but the First Information

Report came to be lodged only at 12.30 p.m. The delay in this respect remains unexplained.

Another circumstance indicated is that the occurrence is alleged to have taken place in the Tar road but the bloodstained earth and the sample

earth have been recovered from the gravel portion. The Trial Court has also accepted the contention that the evidence available in the scene of

occurrence could not be retained intact till 12.30 p.m. and it is not probable.

P.Ws.8 and 9 are the key witnesses to say about the arrest of the accused, confession statement recorded from them and the recovery of

material objects from them. Even though in the chief examination, both of them have stated in favour of the prosecution to some extent, they were

treated as hostile witnesses at a later point of time and failed to support the case of the prosecution. P.W.8 would say in his cross examination by

the accused that the Police Inspector Periyasamy gave four papers to him for his signature at about 2.30 p.m., that all the records were in the

police station and one signature was obtained from him and that when he was standing in Singikulam bus stop he did not know whether the

Inspector came or not. P.W.9 also in the chief examination itself says that when he was in the house on the next day of the occurrence, the police

obtained his signatures alone in the confession statement and athatchi. In view of the above said evidence from them, the arrest of the accused,

recording of confession statements from them and recovery of material objects have not been established.

The next disturbing feature in this case is that all the case properties recovered on various occasions were not sent for Forensic Science

laboratory. Ex.P39, the blood group found in the stick does not tally with the blood group of the deceased. The Trial Court has recorded a finding

that the failure on the part of the prosecution to have the scientific examination of the material objects is a set back to the prosecution, which is

acceptable.

In the light of the above discussion, this Court is able to point out that the Trial Court has properly appreciated and analysed the evidence and

other materials on record and there is no manifest error or miscarriage of justice in the judgment challenged before this Court. If the Trial Court has

failed in its duty to appreciate the material evidence available in the prosecution case and recorded the acquittal of the accused, then this Court can

interfere with the judgment. But, in the considered view of this Court, there is no perversity in the judgment of the Court below. Even though re-

appraisal or re-appreciation of evidence is not warranted by the Appellate Court, still this Court has touched the merits of the case to ascertain

whether the Trial Court has approached the issue in a proper manner.

Mr. R. Anand, the learned counsel for the first and second respondents would place reliance on two decisions of the Hon''ble Supreme Court.

In the decision reported in Vimal Singh Vs. Khuman Singh and Another, , the Hon''ble Supreme Court has held as follows:

The High Court in its revisional power does not ordinarily interfere with judgments of acquittal passed by the trial court unless there has been a

manifest error of law or procedure. The interference with the order of acquittal passed by the trial court is limited only to exceptional cases when it

is found that the order under revision suffers from glaring illegality or has caused miscarriage of justice or when it is found that the trial court has no

jurisdiction to try the case or where the trial court has illegally shut out the evidence which otherwise ought to have been considered or where the

material evidence which clinches the issue has been overlooked. In view of Section 401(3) Cr.P.C., the High Court would not be justified in

substituting an order of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in

exercise of its revisional power can set aside an order of acquittal if it comes within the ambit of the said exceptional cases but it cannot convert an

order of acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial. In the present

case, the High Court committed manifest illegality in convicting the appellant u/s 304 Part-I and sentencing him to seven years'' rigorous

imprisonment after setting aside the order of acquittal.

In another decision of the Hon''ble Apex Court reported in Thankappan Nadar and Others Vs. Gopala Krishnan and Another, , it is held that

the High Court could not reappreciate the entire evidence and take a view to the contrary for setting aside the acquittal order and that the Court''s

jurisdiction u/s 397 read with Section 401 Cr.P.C. is limited. The following are the operative portions of the judgment with the extraction of other

decisions of the Supreme Court on this point:

In our view, the emphasised portion of the aforesaid judgment is applicable in the present case. It is unfortunate that such a serious offence

inspired by rivalry in the matter of election should go unpunished. However, that would not be a valid ground for ignoring or for not strictly

following the law as enunciated by this Court, which does not empower the Court exercising the revisional jurisdiction to reappreciate the

evidence.

In Vimal Singh v. Khuman Singh 2 this Court after considering various decisions, observed as under: (SCC pp. 226-27, para 9)

Coming to the ambit of power of the High Court u/s 401 of the Code, the High Court in its revisional power does not ordinarily interfere with

judgments of acquittal passed by the trial court unless there has been manifest error of law or procedure. The interference with the order of

acquittal passed by the trial court is limited only to exceptional cases when it is found that the order under revision suffers from glaring illegality or

has caused miscarriage of justice or when it is found that the trial court has no jurisdiction to try the case or where the trial court has illegally shut

out the evidence which otherwise ought to have been considered or where the material evidence which clinches the issue has been overlooked.

These are the instances where the High Court would be justified in interfering with the order of acquittal. Sub-section (3) of Section 401 mandates

that the High Court shall not convert a finding of acquittal into one of conviction. Thus, the High Court would not be justified in substituting an order

of acquittal into one of conviction even if it is convinced that the accused deserves conviction. No doubt, the High Court in exercise of its revisional

power can set aside an order of acquittal if it comes within the ambit of exceptional cases enumerated above, but it cannot convert an order of

acquittal into an order of conviction. The only course left to the High Court in such exceptional cases is to order retrial.

Following the ratio laid down by the Hon''ble Supreme Court when the crux of the present case is considered, this Court is of the view that

there is no valid ground to disturb the conclusion arrived at by the trial Court. As adverted to supra, there is no perversity in the findings of the Trial

Court. The State has not preferred any revision against the acquittal. The appreciation of the evidence by the Trial Court is more appropriate and

no miscarriage of justice has been done. In such view of the matter, the order of acquittal has to be confirmed by this Court and the revision has to

suffer dismissal.

In the result, the Criminal Revision case is dismissed.