Mrs. Mary vs Durai @ Durairaj and Others

S. Ashok Kumar, J.—This Criminal Revision Case has been filed against the order of acquittal in S.C. No. 333 of 2001 passed by the

learned Assistant Sessions Judge, Madurantagam.

The brief facts which lead to the filing of this Revision Case are as follows:

(a) P.W.1, Albert Nirmal Kumar is an Advocate practicing in the High Court of Madras. P.W.2 is his mother. P.W.3 is his brother. P.W.4 is his

maternal uncle. P.W.5 is his cousin. P.W.6 is the cousin of P.W.2. P.W.7 is the maternal aunt of P.W.2.

(b) During May 1999, there was a theft of Television Set in A.4''s house, for which there was a Panchayat. In the Panchayat P.W.4 and P.W.5

were directed to pay a fine of Rs. 10,000/= for alleged theft of the TV set. P.Ws.4 and 5 refused to pay the fine and gave a complaint to the

Police. But the Police did not take any action. Therefore, P.Ws.4 and 5 met P.W.1, an Advocate and on their instruction P.w.1, issued a

Lawyer''s notice, dated 21.3.2000, which are Exs.P.1 and P.2 to A.1, A.3, A.4 and others, totalling 7 persons. On 13.4.2000, P.W.1 came to his

native place at Thachanur. At about 7.30 p.m., P.Ws.1, 2 and 3 were watching a film in the T.V. At 9.00 p.m., the door of the house was rudely

knocked. P.W.2, mother of P.W.1 switched on the light and opened the door. When P.W.s 2 and 1 went in front of the door, all the five accused

started beating P.W.1 A.1 is said to have attacked P.w.1 on the left part of of his head and neck with a casurina stick. A.2 beat on the left

shoulder and hip. A.3 threatened by saying that only if you are alive, you will file a case against us. So saying, he gave a blow on his stomach with a

casurina stick. A.4 fisted P.W.a''s face repeatedly. A.5 threatened to kill him by saying that only if your are alive, you will go to Court and file a

case, I will burn the entire family and so saying he beat on the face of P.W.1. Then, A.4 and A.5 dragged him to the road and pushed him down

and A.4 kicked on the chest of P.W.1. Thereafter, P.W.1 was taken inside of the house by his mother and his brother.

(c) The injured P.W.1 was taken by his brother to the Cheyyur Police Station where P.W.1 requested the Head Constable to take down his

complaint and send him to Hospital. But the Head Constable told him that the Inspector has gone for Bandobast Duty and asked them to wait till

his arrival. After waiting for half an hour, and after requesting for two or three times to the Head Constable to take his complaint and on his refusal,

P.W.1 was taken to the Madurantagam Government Hospital. At 11.45 p.m., in the night he was treated at Madurantagam Government Hospital.

Since there was a head injury, he was referred to Chengalpattu Government Hospital for further treatment. P.w.1 was taken to Stanley Medical

College Hospital, Chennai and was admitted by 7.00 a.m., on the next day. At about 11.00 a.m., P.W.1 asked his elder brother to write the

complaint in which P.w.1 signed. He sent his brother to Cheyyur Police Station to give the complaint and to inform the Police that he was admitted

in the Stanley Medical College Hospital. On 15.4.2000 at about 4.00 p.m., P.W.11, Pachaiappan, Head Constable, came to the Hospital and

recorded the statement from P.W.1. Before that he gave the statement already written by him to P.W.11, who refused to receive the same.

P.W.11 did not record the statement as per the dictation of P.W.1. On 16.4.2000 P.W.1 sent his brother to bring the FIR to find out whether his

signature was forged and therefore he filed Crl.O.P. No. 7305/2000 before this Court to transfer the case to CB.CID and this Court also passed

an order directing the investigation to be done by the CB.CID Police.

(d) P.W.12, Inspector of Police, CB.CID, took up investigation as per the direction of this Court. On 17.8.2000 he went to the place of

occurrence and prepared Ex.P.10 sketch. He examined P.Ws 1 to 7 and recorded their statements. On 21.8.2000, he examined the Medical

Officer Dr.Sekar and recorded his statement. On 23.8.2000, he examined the Doctors P.Ws 9 and 10 who gave treatment to P.W.1 at Stanley

Medical College Hospital, Chennai and recorded their statements and received the wound certificates Exs.P.4 and P.5. After completing the

investigation on 24.8.2000 he filed a final report against the accused for alleged offences under Sections 147, 148, 307 r/w. 149 IPC

(e) Before the Assistant Sessions Judge, Madurantagam, on behalf of the prosecution P.Ws 1 to 12 were examined and Exs.P.1 to P.10 were

marked. On behalf of the accused, no witness was examined and no document was marked.

(f) When the accused were questioned u/s 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the

prosecution witnesses, the first accused denied the same as false and that all the prosecution witnesses are relatives. Unfortunately, the answeres

given by A.2 to A.5 have not been recorded by the learned Assistant Sessions Judge. On the other hand, their signatures alone have been obtained

at the end of every question. It is unfortunate that the learned Assistant Judge has taken the questioning of the accused u/s 313 of the Code of

Criminal Procedure so lightheartedly without even recording the answers given by the accused. Hence this revision by the accused/revision

petitioners.

(g) On consideration of the oral and documentary evidence, the learned Assistant Sessions Judge came to the conclusion (i) all the prosecution

witnesses are relatives; (ii) P.W.1 has denied his signature in Ex.P.6 statement and has alleged that his signature has been forged by the Head

Constable; (iii) P.W.1 has not taken any action against the Head Constable who forged his signature and held that the offences against the accused

have not been proved and therefore acquitted all the accused. Aggrieved over the said acquittal, P.W.2, mother of P.W.1 has filed this revision

case.

Mr. K.M.Ramesh, learned Counsel appearing for the revision petitioner would contend that appreciation of evidence by the learned Sessions

Judge was so poor which has resulted in gross miscarriage of justice, that the findings of the learned Assistant Sessions Judge for acquitting the

accused are perverse and also that the reasons given for acquitting the accused are not sustainable under law.

Per contra, Mr. T.Sudanthriam, learned Counsel appearing for the respondents would contend that a private party cannot file a revision when

State is the complainant and also that in a revision of this nature, the High Court should not reappreciate the evidence and come to a different

conclusion to interfere with the order of acquittal passed by the trial court.

Mr. T. Sudanthiram, learned Counsel pressed into service the judgment of the Hon''ble Supreme Court in Bindeshwari Prasad Singh @ B.P.

Singh and Others Vs. State of Bihar (Now Jharkhand) and Another, , wherein it has been held as follows:

We have carefully considered the material on record and we are satisfied that the High Court was not justified in reappreciating the evidence

on record and coming to a different conclusion in a revision preferred by the information u/s 401 of the Code of Criminal Procedure. Sub-section

(3) of Section 401 in terms provides that nothing in Section 401 shall be deemed to authorise a High Court to convert a finding of acquittal into one

of conviction. The aforesaid sub section, which places a limitation on the powers of the revisional court, prohibiting it from convert a finding of

acquittal into one of conviction, is itself indicative of the nature and extent of the revisional power conferred by Section 401 of the Code of

Criminal Procedure. if the High Court could not convert a finding of acquittal into one of the conviction directly, it could not do so indirectly by the

method of ordering a retrial. It is well settled by a catena of decisions of this Court that the High Court will ordinarily not interfere in revision with

an order of acquittal except in exceptional cases where the interest of public justice requires interference for the correction of a manifest illegality or

the prevention of gross miscarriage of justice. The High Court will not be justified in interfering with an order of acquittal merely because the trial

court has taken a wrong view of the law or has erred in appreciation of evidence. It is neither possible nor advisable to make an exhaustive list of

circumstances in which exercise of revisional jurisdiction may be justified, but decision of this Court have laid down the parameters of exercise of

revisional jurisdiction by the High Court u/s 401 of the Code of Criminal Procedure in an appeal against acquittal by a private party. (See D.

Stephens Vs. Nosibolla, ; K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, ; Akalu Ahir and Others Vs. Ramdeo Ram, ; Pakalapati

Narayana Gajapathi Raju and Others Vs. Bonapalli Peda Appadu and Another, and Mahendra Pratap Singh Vs. Sarju Singh and Another, .

In Peoples Union for Civil Liberties (Delhi) v. Central Bureau of Investigation reported in Peoples Union for Civil Liberties (Delhi) Vs. Central

Bureau of Investigation, , the Delhi High Court held that,

Irrespective of the reference to aforesaid commentaries cited by Mr. Bhatia I find that in addition to the above discussion a reference to

various ruling including Thakur Ram Vs. The State of Bihar, ; Simranjit Singh Mann Vs. Union of India and another, ; Janata Dal Vs. H.S.

Chowdhary and Others, and para 90 of Sheonandan Paswan Vs. State of Bihar and Others, would lead to the conclusion that the state is the

master of prosecutions and that it would be extremely unsafe to accord locus standi to a third party to file a Criminal Revision Petition against

judicial orders. It will be unwise and unsafe to entertain Criminal Revision Petition by third parties. The petitioner is neither the complainant nor

aggrieved party. As such, I hold that the petitioner has no locus standi to file the present Criminal Revision Petition.

In Krishan Kant Vs. Dilip Kumar and Others, , Allahabad High Court held as under:

There can be no denial that in cases initiated on Police reports it is the State, who is the aggrieved party and ordinarily a complainant has no

locus standi to come to Court. But an order like the one under consideration in this Revision is clearly perverse and causes miscarriage of justice,

hence requires interference by the High court. In the case of Bhagwan Singh v. State of U.P. 1983 All Cri C347 and Gajadharsingh v. Mahesh

Chandra 1981 All Cri C 66 : AIR 1981 NOC 206 it has been held that if there is manifest error on point of law causing miscarriage of justice this

Court would not hesitate in exercising its revisional powers even at the instance of a private party. It is not usual for the High Court to entertain

revisional application filed by the complainant direct but after it has been admitted it must be disposed on merits.

In S.P. Dubey Vs. Narsingh Bahadur, the Allahabad High Court held thus:

The Revision application asking for the order of acquittal passed by the Magistrate on 16.9.1959 to be quashed has been filed by the Ticket

Examiner S.P. Dubey, who claims to have caught the accused opposite party committing the offence. A preliminary objection has been raised that

S.P. Dubey has no locus standi to file any such application, since he was not a party to the case u/s 112 of the Railways Act, but only a witness;

but as far as I can see there is nothing in the provisions of the Cri.P.C. that would debar him. Reliance has been placed on Section 439(5)

Cri.P.C., but that only prevents a Revision being filed at the instance of a party who could have appealed; and since S.P. Dubey could not file a

valid appeal, not being the complainant, Section 439(5) obviously cannot operate against him.

It is true that Revision applications are not usually accepted from persons who are not directly affected by the illegality or irregularity that is sought

to be cured, but at the same time there can be no doubt that the High court has jurisdiction to entertain such applications from third parties if it

choose s and there is no legal bar to their being entertained. In the present case the unfairness of the procedure adopted by the Learned Magistrate

is so patent and glaring that interference by way of Revision is clearly called for; and in such circumstances the High Court is obviously entitled to

take cognisance of the mater, whether brought to its notice by the actual parties to the case or by anyone else.

Mr. K.M.Ramesh, learned Counsel appearing for the revision petitioner would contend that the revision petitioner, P.W.2 is mother of P.W.1

who is an injured witness. P.W.1 is the injured person and his mother P.W.2 is an eye witness to the occurrence and she is also an aggrieved

person and a directly affected person. P.W.2 cannot be termed as a third party because she is the mother of the injured and therefore naturally she

is also an aggrieved person. The revision can be filed by an aggrieved person and not a third party. Therefore, I hold that the revision filed by

P.W.2, mother of P.W.1 is maintainable.

The next contention of the learned Counsel for the respondents is that the High Court cannot reappreciate the evidence unless there is a gross

injustice or miscarriage of justice or the findings are perverse. The learned Assistant Sessions Judge has acquitted the accused only on three

grounds i.e., (i) P.Ws are relatives; (ii) P.W.1 has disowned Ex.P.6 statement on the ground that his signature has been forged; and (iii) P.W.1 has

not taken any action against P.W.11, Head Constable, who forged his signature.

As regards the first finding that the prosecution witnesses are related to each other, it is true that the prosecution witnesses are relatives. P.W.2

is mother of P.W.,1 and P.W.3 is his brother and P.W.4,5 and 6 are also relatives. P.W.1 is injured witness and the presence of P.Ws 2 and 3,

his mother and brother at 9.00 pm., in the house cannot be doubted. There is a motive for the accused to attack P.W.1. Because, P.W.1 has

issued lawyer''s notice to the accused and others on behalf of P.Ws 4 and 5. It is because of the legal notice issued by P.W.1 the accused have

attacked P.W.1 when he visited his native place. Therefore, the reasoning of the learned Assistant Sessions Judge that P.W.s are relatives as one

of the grounds for acquittal of the accused is not sustainable. Evidence of the relatives need not be discarded, but has to be weighed with caution. I

do not find any reason to discard the evidence of P.Ws 2 and 3 who corroborated the evidence of P.W.1 injured witness.

The next reasoning given by the learned Assistant Sessions Judge for acquitting the accused is that P.W.1 has disowned his signature in Ex.P.6

statement. P.W.1 has deposed before the Court that signature found in Ex.P.6y is not his signature. But his signature has been forged by P.W.11

who was supporting the accused party. According to P.W.1, immediately after the occurrence when he went to Cheyyur Police Station, P.W.11

Pachaiappan, Head Constable was there and when he narrated about the incident and requested him to send him to Hospital, P.W.11 has asked

him to wait till the arrival of the Inspector of Police, who gone for Bandobast duty. In spite of requesting for two or three times and waiting for half

an hour, P.W.11 has refused to receive the complaint from P.W.1 and has also failed to send P.W.1 for treatment. Therefore, P.W.1 has

volunteered to go to Government Hospital, Madurantagam where he was treated by P.W.8, Doctor attached to Government Hospital,

Madurantagam,. He has examined P.W.1 on 13.4.2000 at 11.45 pm., and has found the following injuries as mentioned in Ex.P.3 Accident

Register:

(1) A lacerated injury of 1 cm x 1/4 cm on the vault of skull

(2) Multiple abrasions around injury No. 1

(3) A contusion of 5 cm x 3 cm on the neck

(4) Complaint of pain on the left shoulder and head injury.

Thereafter, P.W.1 has been admitted at Stanley Medical College Hospital, Chennai on 14.4.2000. Ex.P.4 is the Wound Certificate issued to

P.W.1. the Accident Register is Ex.P.5. Only on intimation from the Stanley Medical College Hospital, P.W.11 has gone to the Hospital and

recorded his statement on 16.4.2000 at 8.30 a.m., The signature of P.W.1 is marked as Ex.P.6. Based on the said statement, P.W.11 has

registered a case in Crime No:191/2000 against the accused for offences under Sections 147, 323 and 506(ii) IPC.

A comparison of the signatures of P.W.1 in the deposition and Ex.P.6 would show that the signature found in Ex.P.6 could not be the signature

of P.W.1. Therefore, there is truth in the evidence of P.W.1 that P.W.11 has forged the signature of P.W.1 because According to P.W.1, P.W.11

did not write the complaint as stated by him. The reason for P.W.11 supporting the accused is that the father of A.3 was the Constable of the

same Police Station. Therefore, it is probable that P.W.11 prepared the complaint according to his whims and fancies and forged the signature of

P.W.1. Therefore, there is justification on the part of P.W.1 to deny the signature in Ex.P.6 and such denial of P.W.1 cannot be a ground for

acquitting the accused.

The third reason by the learned Assistant Sessions Judge to acquit the accused is that P.W.1 has not taken any action against the Police who

forged his signature. Failure to take action against the Police by a person cannot be a ground to acquit the accused who caused injuries to P.W.1.

Therefore, all the three reasonings given by the learned Assistant Sessions Judge to acquit the accused are not sustainable in law and such

reasonings have caused gross injustice. It is pertinent to note that P.W.1 is an Advocate practicing in the High Court and because he issued a

notice on behalf of his clients, he was attacked when he visited his native place. The evidence of P.W.1 has been corroborated by other witnesses

even though they are relatives. The alleged discrepancies are only minor in nature and cannot throw the prosecution case.

The answers given by the accused 2 to 5 when they were questioned u/s 313 Cr.PC., have not been recorded by the learned Assistant

Sessions Judge. Questioning the accused u/s 313 Cr.P.C., is not an empty formality. The purpose of asking questions during examination u/s 313

Cr.P.C., is to afford the accused personally an opportunity of explaining any incriminating circumstance so appearing in evidence against him. the

accused may or may not avail the opportunity for offering his explanation. If such opportunity is not afforded, as held by the Hon''ble Supreme

Court in Lallu Manjhi and Another Vs. State of Jharkhand, , the incriminating pieces of evidence available in the prosecution evidence cannot be

relied on for the purpose of recording the conviction of the accused persons. The use of the word ""may"" in Clause (a) and the word ""shall"" in

Clause (b) of Section 313(1) makes it clear that the Court is empowered by Clause (a) to question the accused at any stage of the inquiry or trial,

while Clause (b) obligates the Court to question the accused before he enters into defence on any circumstances appearing against him in the

prosecution evidence. It is the duty of the Court to examine the accused properly and fairly to enable him to met the charges and explain the same.

However, weak or scanty the prosecution evidence is in regard to a certain incriminating matter, it is the duty of the Court to examine the accused

on such evidence as rightly held by the Hon''ble Supreme Court in State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra

Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, . It is not sufficient to ask the accused generally on the prosecution case. Each material

circumstance has to be put separately to the accused for his reply.

In view of the decisions cited supra, since the answers given by A.2 to A.5 for the questions framed u/s 313 Cr.P.C., have not been

incorporated or written in the statements and only signatures have been obtained from the accused below each questions, I am of the view that on

this score alone, the revision has to be allowed and remanded back for further proceedings.

In Satyajit Banerjee v. State of West Bengal reported in 2005 SCC 276, the Hon''ble Supreme Court has held as follows:

The law laid down in Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and Others, , in the aforesaid extraordinary circumstances,

cannot be applied to all cases against the established principles of criminal jurisprudence. Direction for retrial should not be made in all or every

case where acquittal of accused is for want of adequate or reliable evidence. In Best Baker Case, the first trial was found to be a face and is

described as ""mock trial"". Therefore, the direction for retrial was in fact, for a real trial. Such extraordinary situation alone can justify the directions

as made by this Court in Best Bakery case.

So far as the position of law is concerned we are very clear that even if a retrial is directed in exercise of revisional powers by the High Court,

the evidence already recorded at the initial trial cannot be erased or wiped out from the record of the case. The trial Judge has to decide the case

on the basis of the evidence already on record and the additional evidence which would be recorded on retrial.

With the above clarification, we decline to interfere in the order of remand. To put the matter beyond any shadow of doubt we further clarify

and reiterate that the trial Judge, after retrial, shall take a decision on the basis of the entire evidence on record and strictly in accordance with law,

without in any manner, being influenced or inhibited by anything said on the evidence in the judgment of the High Court or this Court.

In the above circumstances, the acquittal of the accused are set aside. The learned Assistant Sessions Judge, Maduranthagam, is directed to

record answers to the questions u/s 313 Cr.P.C., put to the accused, can record additional evidence if necessary, and consider what is the actual

offence committed by the accused and then give fresh judgement, on merits and in accordance with law.