Soundararajan vs Subramani and Another

David Annoussamy, J.—This is revision petition by P.W. 1, who received stab injuries on 1.5.1981 at 8.30 a.m. at the hands of the accused. Investigation was taken up and the investigating officer filed a report under S.173, Crl.P.C. to the effect that the offences under Ss.326 and 353, I.P.C., appeared to have been committed by the accused. The Sub-Divisional Magistrate, Ponneri, who took cognizance of the offence, upon examining P.W. 1 and finding that in his evidence he alleged that stabs were inflicted on him with the uttering of the words " thought the offence would be one under S.307, I.P.C., and committed the matter to the Sessions Court of Chingleput. The matter was then made over to the Assistant Sessions Judge, Tiruvallur, who framed charges against the accused under Ss.355 and 307, I.P.C. After perusing the evidence adduced by the prosecution consisting of the testimony of two ocular witnesses including the victim, the medical witnesses and the investigating agency, and going through the exhibits numbering four, the Assistant Sessions Judge of Tiruvallur, acquitted the accused under S.248(1), Crl.P.C. by judgment, dt. 24.9.1983. Against the order of acquittal the victim, P.W. 1, has filed the criminal revision petition.

The jurisdiction of this Court while dealing with revision petition against an order of acquittal is very limited. The Supreme Court has delineated the limits of jurisdiction of this Court in several decisions the most important of which are K. Chinnaswamy Reddy Vs. State of Andhra Pradesh, , Mahendra Pratap Singh v. Sargusingh 1958 M.L.J. Cri. 399 (S.C.) and Akalu Ahir v. Ram deo Ram 1974 M.L.J. Cri. 168 (S.C.). The general principle is that for setting aside an order of acquittal in revision there should have been a gross miscarriage of justice. I shall find out whether, as urged by the Learned Counsel for the revision petitioner, this is one of those exceptional cases.

The Assistant Sessions Judge, Tiruvallur, has thrown out the entire cases of the prosecution for the reasons that the events should have been witnessed by other persons as well and the absence of examination of those persons would throw considerable doubt on the case of the prosecution. This obviously is a very wrong approach. The case of the prosecution can be thrown if the persons in whose exclusive knowledge the relevant fact resides have not been examined. But when a fact has been witnessed by several persons it is open to the prosecution to examine only some of them. It is for the Judge to decide whether the witness arrayed by the prosecution are competent and trustworthy and whether their testimony is adequate and finds corroboration with other spheres of the evidence adduced by the prosecution and to come to a conclusion. In throwing the entire case for the sole reason that other witnesses who could have witnessed the fact are not examined whilst the victim who has sustained two grievous injuries and who gave a complaint and another eye witness have been examined, without giving any reason for not believing their evidence or finding their evidence insufficient or inadequate the Judge committed a gross miscarriage of justice. The Judge has evaded his duty to give a finding on the evidence on record.

There are also other mistakes committed by the Assistant Sessions Judge, Tiruvallur. He has acquitted the accused under S.248(1), Crl.P.C. whereas in a sessions case, he has powers only under S.232 or S.235, Crl.P.C. Secondly, before framing the charge he should have discharged his duty under S.228. Crl.P.C. and framed charge after considering the record of the case and the documents submitted therewith and after hearing the submissions of the accused and the prosecution. He should have been more on the alert as the case was, as per the report of the investigating officer, one under S. 326, I.P.C., only. After the conclusion of the trial, the Judge found that there was no case made out at all for the offence under S.307, I.P.C. He could have come to that conclusion at the time of framing of the charge itself, since the investigating agency has not gathered any evidence to substantiate a charge under the latter section. He should have, therefore, framed a charge under S.326, I.P.C, and remitted the matter back to the Magistrate for the continuance of the trial. Thirdly, having failed to do so, the Assistant Sessions Judge, Tiruvallur, should have exercised his powers under S.222, Crl.P.C. in order to find out whether the accused, who prima facie was not guilty under S.307, I.P.C. was not guilty of an offence under S.326, I.P.C. since the medical evidence disclosed grievous hurts on the body of P.W. 1. The Judge has failed also in his duty in that respect.

Anyhow, since this is a revision petition against an order of acquittal, I find it will not be proper to remit the case for fresh trial, in respect of the offence under S.307, I.P.C., to find out whether there is an offence under S.326, I.P.C, made out. But, as far as the offence under S.355, I.P.C, is concerned, there is no finding whatsoever by the Magistrate. He has not at all adverted his mind to this charge and it is just and proper that the matter is sent back to the appropriate Court for a finding being given on the evidence regarding that charge.

In the result, the revision petition is partly allowed, the acquittal of the accused for an offence under S.307, I.P.C. is confirmed and the acquittal of the accused for an offence under S.355, I.P.C, as set aside. The matter is remitted back to the file of the Sub-Divisional Magistrate of Ponneri, for disposal of the case in accordance with law in respect of charge No. 1, as framed by the Assistant Sessions Judge of Tiruvallur on 24.6.1983.