Sigamani, Kannabiram and Chinnapayan vs The State

G. Rajasuria, J.—Challenging and impugning the order dated 24.8.2005 passed by the Chief Judicial Magistrate, Chengalpattu, in S.C. No.

26 of 2003 modifying the order dated 4.12.2006 passed by the Principle Sessions Judge, Chengalpattu, in C.A. No. 136 of 2005, this revision

case is focussed.

A summation and summarisation of the relevant facts, which are absolutely necessary and germane for the disposal of this revision would run

thus:

(a) The police laid the police report in terms of Section 173(2) of Cr.P.C. as against 23 persons for the offence under Sections 147, 148, 452,

323, 324 and 326, 324 r/w. 149, 325, 325 r/w. 149 IPC and Section 3(1) of Tamil Nadu Properties (Prevention of Damage and Loss) Act 1992

(as amended in 1994). Since they pleaded not guilty, the Magistrate framed the necessary charges and conducted the trial.

(b) During trial, on the prosecution side P.W.1 to P.W.9 were examined and Exs.P1 to P.11 were examined. On the accused side, no oral or

documentary evidence was adduced.

(c) Ultimately, the trial Court recorded the following convictions and imposed the following sentences.

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Case No. Offence Punishment imposed

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S.C. No. 26 of 2003 u/s 148, 452, Rigorous imprisonment for one year

324 r/w. 149 IPC and to pay a fine of Rs. 200/- each

in default to undergo rigorous

imprisonment for each three months

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326 r/w.149 IPC Rigorous imprisonment for three

years each and to pay a fine of Rs.

500/- each in default to undergo

R.I. for three months each.

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Section 3(1) Tamil Nadu Rigorous imprisonment for three

Properties (Prevention years each and to pay a fine of Rs.

of Damage and Loss) 500/- each in default to undergo

Act 1992 (as amended R.I. for three months each.

in 1994).

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As against which, appeal C.A. No. 136 of 2005 was filed before the Principal Sessions Judge, Chengalpattu, in Crl.A.No.136 of 2005. The

learned Sessions Judge acquitted several accused persons and found only accused 6, 7 and 8 guilty of the following offences and imposed

sentences as under:

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Case No. Offence Punishment imposed

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C.A. No. 136 of 2005 324 IPC (2 counts) - Fine of Rs. 2000/- each for each

accused 7 and 8 count and in default, to undergo 6

months R.I.

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324 r/w. 34 IPC Fine of Rs. 2000/- in default of

(2 counts) - 6th which, 6 months R.I

accused

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452 IPC- 6, 7 and 8 R.I. For one year and fine of Rs.

200/- each, in default, to undergo 3

months S.I.

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(d) Those accused 6,7 and 8 filed this revision on various grounds, the gist and kernal of them would run thus:

There is no finding as to which accused used which weapon in causing the injury. There is no evidence to show that they made preparation to

commit house trespass. The history recorded by the Doctor does not go hand in hand with the narration of the injured witnesses, before the Court.

The Medical evidence is not supported the version of the injured witnesses. There is nothing to prove that as per Ex.P4, P.5 and P.6 the grievous

injuries allegedly sustained by the witnesses were proved. The contradictions among the prosecution witnesses were not considered.

Accordingly, the revision petitioners prayed for setting aside the conviction recorded and sentences imposed as against them by the lower Court

as well as by the appellate Court.

Despite opportunities given, the petitioners have not chosen to appear.

Heard the learned Government Advocate.

The point for consideration is as to whether both the Courts below were perverse in recording conviction without appreciating the evidence on

record, warranting interference by this Court in the revision and whether the sentence imposed by the first appellate Court is in order.

A bare perusal of the judgements of both the Courts below and also the records would reveal and evince that the case of the prosecution as per

records would be to the effect that as many as 23 accused along with one deceased accused Srinivasan formed themselves into an unlawful

assembly armed with deadly weapons on 30.1.2002 at about 7.30 p.m. with the common object of causing hurt to various persons, namely,

Annammal and Sampathkumar and also trespassed into the house of those witnesses and caused mischief to their belongings and in pursuance of

their common object, they perpetrated the crime and also caused grievous injuries to them.

Even though the learned Magistrate Court recorded the convictions and imposed the sentences as against all the accused, nonetheless the

appellate Court took a balanced view and acquitted all the accused, except the revision petitioners herein and imposed sentences as referred to

supra.

At this juncture, my mind is reminiscent and redolent of the following decisions of the Honourable Supreme Court:

(i) 2002 Scc (Crl) 1448 - Bindeshwari Prasad Singh alias B.P. Singh and Ors. v. State of Bihar (now Jharkhand) and Anr., an excerpt from it

would run thus:

The instant case is not one where any such illegality was committed by the trial court. In the absence of any legal infirmity either in the

procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. It has

repeatedly been held that the High Court should not reappreciate the evidence to reach a finding different from the trial court. In the absence of

manifest illegality resulting in grave miscarriage of justice, exercise of revisional jurisdiction in such cases is not warranted.

We are, therefore, satisfied that the High Court was not justified in interfering with the order of acquittal in exercise of its revisional jurisdiction

at the instance of the informant. It may be that the High Court on appreciation of the evidence on record may reach a conclusion different from that

of the trial court. But that by itself is no justification for exercise of revisional jurisdiction u/s 401 of the Code of Criminal Procedure against a

judgment of acquittal. We cannot say that the judgment of the trial court in the instant case was perverse. No defect of procedure has been pointed

out. There was also no improper acceptance or rejection of evidence nor was there any defect of procedure or illegality in the conduct of the trial

vitiating the trial itself.

(ii) 2005 Scc (Cri) 276 � Sathyajit Banerjee and Ors. v. State of W.B. and Ors., an excerpt from it would run thus:

The cases cited by the learned Counsel show the settled legal position that the revisional jurisdiction, at the instance of the complainant, has to

be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law resulting in

flagrant miscarriage of justice.

A bare poring over and perusal of the above judgements would exemplify and demonstrate that revisional Court should be reluctant to interfere

with the findings recorded by the lower Court, unless there is perversity or non-application of law in appreciating the evidence.

Here, in this case, the Magistrate appreciated the evidence, which was re-appreciated by the appellate Court, which being the last Court of

fact and arrived at the conclusion. Unless there is perversity or non-application of mind on the part of the Courts below in scanning and scrutinising

the evidence, as per law, the question of the High Court exercising its power would not arise simply because the High Court might be even inclined

to take a different view.

The appellate Court, taking into consideration correctly the injured witnesses; depositions, namely, P.W.2-Sampathkumar and P.W.3-

Annaammal and also the fact that they correctly spoke about the fact that Chinnappayyan-A8 attacked P.W.2 with club and when Annammal

came there, so as to protect P.W.2 from the assailants, they also attacked her. P.W.3 Annammal also spoke about the fact that 7th accused

Kannabiran and 8th accused-Chinnappayyan and others attacked her with weapons.

In view of the fact that a mob of six persons indulged in the attack, there were certain inaccuracies in precisely and concisely detailing and

delineating, narrating and portraying the incident. It is a common or garden principle that when a mob attacks a house, after committing house

trespass, naturally, the witnesses will not be unison in narrating the incident and in such a case, the approach of the Court should not be to pick

holes in the depositions of witnesses and throw away the entire evidence and if it is done so, it will amount to throwing the baby along with bath

water and in the meantime, the interest of the accused should be protected. If at all there is any material contradiction in narrating the participation

of the witnesses, the benefit should be given to the accused. Even though the the Assistant Sessions Judge, Chengalpattu, convicted all the

accused, nonetheless the Sessions Judge keeping the aforesaid sound principles of criminal law, acquitted all the accused, except the revision

petitioners herein A6, A7 and A8, as the injured witnesses and other eyewitness clearly spoke about the participation of the revision petitioners

and also the weapons used by them.

The depositions of P.W.2-Sampathkumar and P.W.3 Annammal were also buttressed and fortified by the medical evidence. The Doctors

P.W.7 to P.W.9 also deposed in support of the prosecution case and about the injuries sustained by the persons concerned. Hence, I could see

no non-application of mind on the part of the appellate Court in recording the convictions, wherefore no interference with the recording of

convictions as against the revision petitioner is warranted.

Regarding the sentence portion is concerned, the Sessions Judge imposed a sentence of one year for the offence u/s 452 IPC, which in my

opinion, appears to be some what disproportionate to the offence perpetrated by the revision petitioners and taking into account their respective

ages and also the fact that they do not have any bad antecedents, I am of the opinion that the sentence of one year substantive sentence can be

reduced to three months and over and over that no leniency could be shown in view of Section 354 Cr.P.C. I am of the view that in the facts and

circumstances of the case set out supra, the Probation of Offenders Act also cannot be invoked in favour of the revision petitioners.

Accordingly, the revision is partly allowed. The rest of the appellate Court''s judgement is confirmed in all aspects. The trial Court, on receipt

of a copy of the order is expected to issue warrant to secure the presence of the revision petitioners to undergo the sentence, if not already

undergone.